MAN KHA Vs. MOHANLAL

JUDGEMENT

(1.) Being aggrieved by the order dated 5-1-2011 passed by Civil Judge, Class-I, Kannod in Civil Suit No. 11-A/08 whereby upon objection raised by the respondents the document Ex.D/2 was held inadmissible in evidence, present petition has been filed. Short facts of the case are that the respondents filed a suit for possession and mesne profit of an agricultural land alleging that the respondents are owner of the suit property and the suit property was given to the petitioner for one year. The suit was contested by the petitioner on the ground that the father of the petitioner was owner of the suit property who sold the suit property to the respondents in lieu of loan, but actual possession was not given to the respondents. It was further alleged that vide agreement dated 28-7-2004 predecessor in title of respondents deceased Lalaram Yadav entered into an agreement to sell the suit property to the petitioner for a consideration of Rs. 1,10,000/- and the petitioners remained throughout in possession of the suit property. It was prayed that the suit be dismissed. After framing of issues at the stage of evidence two documents i.e. agreement and affidavit which were alleged to have been signed by deceased Lalaram tendered in evidence and were marked as Ex.D/1 and Ex.D/2 vide order dated 9-2-2009 as documents were admitted in secondary evidence. Thereafter objection was raised by the respondents about the admissibility of the document. By the impugned order learned Court below held that since the document Ex.D/2 which is an agreement is not properly stamped, therefore, the same is inadmissible in evidence, therefore, petitioner cannot be permitted to mark the signature of the deceased Lalaram Yadav on the document Ex.D/2, against which present petition has been filed.

(2.) Learned counsel for the petitioner argued at length and submits that the impugned order passed by the learned Court below is illegal, incorrect and deserves to be set aside. It is submitted that once document was admitted in evidence and was also exhibited, therefore, learned Court below was having no jurisdiction to pass subsequent order holding that the document is inadmissible in evidence. For this contention reliance is placed on section 36 of Indian Stamp Act. Further reliance is placed on a decision in the matter of Champat Giri vs. Ramdayal, 2009 3 MPLJ 395 wherein this Court held that as per section 36 of Indian Stamp Act, 1899 once a document is admitted in evidence, it is not permissible to the Court whether it is a Court of Appeal or trial Court to reject it on the ground that it is not duly stamped. Where agreement to sale has been marked as an exhibit in a case and used by the parties in examination and cross-examination of the witnesses, then section 36 of the Stamp Act comes into operation and it cannot be excluded. When an unstamped document has been marked as an exhibit and admitted in evidence under the signature of the Court, it cannot be said that the document has been inadvertently admitted. At the time of admission of agreement to sale no objection was raised by the appellant in the trial Court regarding admissibility of the document, its admissibility cannot be questioned at any subsequent stage of proceeding or before the appellate Court. Section 36 of the Indian Stamp Act is quite rigorous in its application and when a document has been admitted in evidence, it can even form the foundation for the decision in the suit and no Court either original, revisional or appellate can call into question of admissibility of the document on the ground of it being unstamped or nor duly stamped. On the strength of this, learned counsel submits that the petition filed by the petitioner be allowed and the impugned order whereby learned Court below has held that the document Ex.D/2 is inadmissible in evidence be set aside.

(3.) Learned counsel for respondents submit that no illegality has been committed by the learned Court below in holding that the document is inadmissible in evidence. It is submitted that even if the document has exhibited, then too, at the later stage of the suit it can be objected. It is submitted that since the document was not original one and was the copy, which was not duly stamped, therefore, learned Court below was right in holding that the document is inadmissible in evidence. Learned counsel placed reliance on the definition of conveyance as mentioned in Clause 10 of section 2 of Indian Stamp Act, which reads as under :-