ASHOK KUMAR GUPTA Vs. VIJAY KUMAR GUPTA

JUDGEMENT

(1.) The present petition under Article 227 of the Constitution of India has been filed by petitioner/defendant No. 1, being crestfallen by order dated 19/1/2017 passed by the trial Court in Civil Suit No. 23-A/2012; whereby, the application/objection preferred by the petitioner has been rejected.

(2.) According to learned counsel for the petitioner, respondent No. 1/plaintiff instituted a suit against the petitioner/defendant No. 1 along with other respondents No. 2 and 3/defendants No. 2 and 3 as they have purchased the property from defendant No. 1, for declaration and permanent injunction with the allegation that plaintiff and defendant No. 1 are real brothers and the disputed land is their joint family property purchased from joint income in the name of defendant No. 1 vide registered sale deed dated 18/3/1985, as such the disputed property is joint Hindu Family property. It is alleged that in the month of January, 1994, there was an oral partition which was reduced in writing on 10/4/1994 duly signed by members of family on the basis of which the parties after having raised construction are in possession. It is alleged that defendant No. 1 having ill intentions has started claiming himself exclusive owner of the disputed plot and has sold part of the disputed plot to the defendant No. 2 and 3 vide registered sale deeds dated 30/11/2011 and 2/12/2011.

(3.) Petitioner/defendant No. 1 appeared and filed written statement and denied the plaint allegations. According to learned counsel for the petitioner, petitioner/defendant No. 1 is the exclusive owner and possessor of the property in question. Issues were framed and case was fixed for evidence. At the time of marking exhibits on the document of partition, counsel for defendant No. 1 raised objection about the admissibility of document of partition for want of stamp duty and registration and contended that the same cannot be exhibited being not admissible in evidence. Trial Court impounded the document and sent it to the Collector of Stamps for recovery of duty and penalty vide order dated 1/8/2016, which passed an order dated 5/11/2016; whereby, respondent No. 1 has been directed to pay stamps of Rs. 17,282/- and penalty of Rs. 50,000/- and sent the matter back to the trial Court.