OZA TRIKAMBHAI MOHANLAL Vs. PRAJAPATI MANGALDAS SHIVRAM

JUDGEMENT

(1.) The petitioner is aggrieved by the order passed by the Civil Judge (J.D.), Unjha in Regular Civil Suit No. 236 of 1990 dated 2-2-1995. By the impugned order the learned trial Judge has refused to exhibit document at Exh. 85/ 6 which purports to be a writing or agreement executed between deceased Mangaldas Shivram and Mohanlal Joitaram Oza on 3-1-1969. Said agreement is executed on a stamped paper of Rs. 1.75 ps. During the evidence of witness Mohanlal Joitaram Oza being witness No. 2 for the plaintiff, in the examination-in-chief the said document dated 3-1-1969 was shown to the witness Mohanlal Joitaram Oza. Said witness deposed that he has signed below the agreement as well as another signature is that of deceased Mangaldas Shivram. He also stated that the said agreement was with respect to prohibition against putting up construction of lavatory on Otla. He also deposed that the said writing was acceptable to him as well as to deceased Mangaldas Shrivram. He also stated that the two witnesses who have signed such writing or agreement, namely, Jivanlal Ambalal and Dahyaram Amtaram were then not alive and that the writer of the document Lilachand Shankarlal also expired. He also stated that the said stamp paper was purchased by deceased Managaldas Shivram. He also deposed that everyone, namely, deceased Mangaldas Shivram, two witnesses and the writer of the document and he himself had signed the said document.

(2.) At that stage when the Court was about to exhibit the said document since the said document was proved, learned Advocate for the defendant objected to the document being exhibited and admitted in evidence firstly on the ground that the document related to the immovable property and it was restricting the right with respect to immoveable property and therefore, it was not on sufficient stamp paper and secondly it was not admissible in evidence because it was not a registered document as required under Sec. 17 of the Indian Registration Act. The Advocate of the plaintiff on the other hand stated that by agreement in question at Mark Exh. 85/6 rights of the parties with respect to immoveable properties were not in any way restricted and it was not therefore, liable to be registered nor was it insufficiently stamped. The trial Court after hearing the learned Advocates for the parties took the view that the said document was restricting the right with respect to immoveable property and therefore, the same was required to be compulsorily registered under Sec. 17 of the Indian Registration Act, and that it was not possible at that stage to decide as to whether the document was sufficiently stamped or not and therefore, he refused to exhibit and admit the document at Mark 85/6 in evidence. Such an order is passed by the learned trial Judge while recording evidence of witness Mohanlal Joitaram Oza, and it is against such order that the plaintiff has preferred the present C.R.A.

(3.) While admitting the C.R.A. the learned single Judge of this Court issued Rule as well as notice as to interim relief both returnable on 27-3-1995. Thereafter, the matter was not heard by the learned single Judge.