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Judgment
A suit for specific performance of an agreement came to be
filed by the plaintiff (ancestor of Respondents No. 1 to 3), on the
premise of the facts that the plaintiff and defendant No.1 had
mutually partitioned their ancestral house, vide a family
settlement dated 31.12.2000; whereafter, the plaintiff and
defendant No.1 entered into a mutual settlement dated
10.04.2001, vide which, the defendant No.1 had agreed to sell the
shop to the plaintiff for a sum of Rs.12,00,000/-, in which, the
defendant No.2 (the present petitioner) had been carrying on
business in the name of ''Mahila Suhag Bhandar''. Pursuant to the
said mutual settlement dated 10.04.2001, the defendant No.1 was
paid a sum of Rs.2,00,000/- on 08.08.2001, in acknowledgment
thereof, a receipt of even date in favour of the plaintiff came to be
issued.
All the three documents were made the basis of the suit and
were marked as Exhibit-1, Exhibit-2 and Exhibit-3 respectively.
By way of the written statement, the defendant No.1 raised an
objection in relation to the admissibility of the two documents,
namely, the family settlements dated 31.12.2000 and 10.04.2001
for which, a specific issue in the form of issue No. 8 was framed
by the Trial Court, which reads thus:-
"VERNACULAR MATTER OMITTED"
During the course of proceedings, the defendant No.1 moved
an application under Order XIV Rule 2 of the Code of Civil
Procedure, requiring the Trial Court to decide the above issue as a
Preliminary Issue. The said issue No. 8 came to be decided by the
Trial Court as a Preliminary Issue, vide its order dated 23.10.2008
whereby the Court below had held that the mutual settlement
dated 10.04.2001 is neither duly stamped nor registered; for
which, it is not admissible in evidence. It will not be out of place
to reproduce the findings recorded by the Trial Court, which reads
thus:-
"VERNACULAR MATTER OMITTED"
Against the above referred order dated 23.10.2008 deciding
the issue No.8, the plaintiff preferred a writ petition, being S.B.
Civil Writ Petition No. 9895/2008 (Hukam Singh Mehta Vs. LRs
of Late Nathu Singh & Ors.), which came to be allowed by this
Court, vide its order dated 16.05.2013. While deciding the above
writ petition, this Court relied upon proviso to Section 49 of the
Indian Registration Act and held that for the suit in question,
which is a suit for specific performance, the documents dated
31.12.2000 and 10.04.2001 are admissible in evidence. It will not
be out of place to reproduce the reasoning and findings recorded
by this Court, while allowing the aforesaid writ petition, vide its
judgment and order dated 16.05.2013:-
"In view of the provisions of section 49 of the
Indian Registration Act and particularly in view of the
second part of section 49, this Court feels difficulty in
holding that unregistered documents affecting the
immovable property is admissible in evidence in a suit
for specific performance. It is also observed that the
respondent No.1 himself has relied upon the
memorandum of partition/partition-deed while selling
the shop falling in his share as per the said partition-
deed. In the case in hand, the petitioner has filed the
suit for specific performance of contract and
therefore, the documents dated 31.12.2000 and
10.04.2001 produced by the petitioner along with his
affidavit ipso facto, cannot be held to be inadmissible
in evidence only for the reason that the same are not
registered as required by section 17 of the Indian
Registration Act or by any provision of Transfer of
Properties Act, 1882. Nature of the document is to be
taken into consideration and the provisions of section
49 of the Indian Registration Act are also to be taken
into consideration while dealing with such documents
in a suit for specific performance of contract. The fact
that the respondent No.1 himself has relied upon the
said documents is important fact and the learned trial
court has not appreciated the said fact in right
perspective.
In view of the discussions, this petition filed by
the petitioner deserves to be allowed and is hereby
allowed. The impugned order dated 23.10.2008
passed by the Additional District Judge (Fast Track)
No.2, Udaipur is set aside and the learned trial court
is directed to take into consideration the documents
dated 30.12.2000 and 10.04.2001 produced by the
petitioner along with his affidavit as admissible in
evidence in accordance with law."
When the proceedings before the Trial Court commenced
after the judgment aforesaid, the petitioner-defendant No.2
moved another application on 20.04.2015 contending, inter alia,
that the three documents, namely, family settlement (Exhibit-1),
mutual settlement/agreement (Exhibit-2), and Receipt (Exhibit-3)
are not admissible in evidence, as the same are not properly
stamped.
The aforesaid application dated 20.04.2015 filed by the
defendant No.2-petitioner was seriously opposed by the plaintiff
and a detailed reply in response thereto was filed on 30.05.2015.
The learned Trial Court, after due discussion, has rejected
the above referred application dated 20.04.2015 filed by the
defendant No.2, vide its order dated 19.08.2016. While rejecting
the said application, the Court below has found the petitioner''s
application frivolous and barred by the principles of res judicata in
light of the judgment dated 16.05.2013 passed by this Court.
While rejecting the petitioner''s application, the learned Trial Court
has observed that the objection in relation to the family
settlement dated 31.12.2000 and mutual settlement dated
10.04.2001 has already been decided by the Trial Court and both
the documents have been held to be admissible in evidence by the
High Court, vide its order dated 16.05.2013 and hence the same
cannot be re-agitated.
The petitioner, the purchaser of the contentious shop, has
laid challenge to the aforesaid order dated 19.08.2016 by way of
filing the present writ petition. The basic ground questioning the
admissibility of the documents is the payment of proper stamp
duty. The contention of the petitioner has been that this Court
had allowed the aforesaid writ petition filed by the plaintiff, vide its
order dated 16.05.2013 only on the count of registration and has
held that the documents in question do not require registration,
whereas there was no adjudication on their leviability of the stamp
duty on these documents.
Mr. Sandeep Sarupariya, learned counsel appearing for the
petitioner-defendant No.2, submitted that all the documents
namely, family settlement dated 31.12.2000, memorandum of
settlement or mutual settlement dated 10.04.2001 and the
agreement dated 09.08.2001 amount to transfer of immovable
property for which, stamp duty under the provisions of Rajasthan
Stamp Act, 1998 is payable. Mr. Sarupariya, inviting attention of
this Court towards the pleadings of the plaintiff particularly, para-
15 and prayer ''o'', submitted that according to the plaintiff''s own
assertion, the document dated 10.04.2001 and 09.08.2001 were
agreement to sell for which, appropriate stamp duty was payable as per the provisions of the Stamp Act . Learned counsel for the
petitioner invited Court''s attention towards Clause (21) of the
Schedule appended with the Stamp Act to contend that the
document in question, being agreement to sell, is required to be
duly stamped without which, the same cannot be admitted in
evidence.
Learned counsel submitted that though a first look at the
judgment dated 16.05.2013 rendered by this Court in the earlier
round of litigation gives an impression that this Court has held
both the documents namely, family settlement dated 31.12.2000
and 10.04.2001 admissible in evidence, but a close look thereat
reveals that the High Court had neither considered applicability of
the stamp duty nor had it given any finding in this regard.
In the alternative, and without prejudice to other
submissions, he argued that even if the judgment dated
16.05.2013 is considered to be a road-block in petitioner''s way,
the document Exhibit-3, namely, the admissibility of document
dated 09.08.2001, which has been claimed as an agreement to
sell by the plaintiff himself, had neither been considered by this
Court nor by the Trial Court, during the earlier round of litigation.
He added that the earlier litigation emanated from application
under Order XIV Rule 2 of the Code of Civil Procedure deciding
issue No.8, which was confined to the documents dated
31.12.2000 and 10.04.2001 only. Mr. Sarupariya summarised that
the document Exhibit-3, the agreement to sell dated 09.08.2001,
is required to be duly stamped and the learned Court below has
committed an error of law in rejecting petitioner''s application, vide its order dated 19.08.2016, feeling bound by the judgment of this
Court dated 16.05.2013.
Mr. Muktesh Maheshwari, learned counsel appearing for the
respondents-plaintiffs vehemently contended that the arguments
advanced by Mr. Sarupariya are beyond the petitioner''s own case
before the Trial Court. Mr. Maheshwari invited attention of this
Court towards the contents of the said application dated
20.04.2015 and urged that the stand of the petitioner-defendant
No.2 before the Trial Court has been inappropriate rather
scandalous. He submitted that the entire application dated
20.04.2015 is misconceived and is an attempt to mislead the Trial
Court and even this Court. He pointed out that the plaintiff has
sought to lay challenge to the finding and observations made by
the High Court in the earlier round of litigation. Learned counsel
argued that the petitioner has tried to open the debate of the very
same issues which have been held by this Court against him, vide
its order dated 16.05.2013.
Mr. Maheshwari submitted that the arguments advanced by
Mr. Sarupariya are way beyond the pleadings of the petitioner and
contrary to her stand before the Trial Court. Learned counsel for
the respondent argued that as far as documents, Exhibit-1 & 2,
being the family settlement dated 31.12.2000 and the mutual
agreement dated 10.04.2001 are concerned, the same have been
held to be admissible by this Court, while deciding the issue No. 8
in favour of the plaintiff; and that Exhibit-3, i.e., the document
dated 09.08.2001 is not an independent agreement to sell but is a
mere receipt. He explained that it is true that at two or three
places, the plaintiff has branded the receipt dated 09.08.2001 to
be an agreement to sell, but the same is apparently a
typographical error or misconception. He contended that in para-
15 and prayer ''o'', in place of document dated 09.08.2001, the
correct reference ought to have been of the document dated
''10.04.2001'' which is evident from a careful and contextual
reading of the plaint.
Learned counsel for the respondents urged that the
document Exhibit-3 is simply a receipt and it does not create any
separate rights, independent of the basic agreement dated
10.04.2001. At last, he submitted that issue No. 8 as framed by
the Trial Court dealt with the admissibility of the documents and
while deciding the said issue No.8, vide its earlier order dated
23.10.2008, the Trial Court had held the documents to be
inadmissible in evidence, on both the counts; namely, for want of
proper stamp duty and registration, which order has been over
turned by this Court, vide its judgment dated 16.05.2013.
According to him, this Court was conscious of the fact that the
document had been held to be inadmissible on both the counts, as
is evident from perusal of opening paragraph of the judgment
dated 16.05.2013, vide which this Court had narrated the facts as
under:-
"By this petition, the petitioner has challenged
the order dated 23.10.2008 passed by the Additional
District Judge (Fast Track) No.2, Udaipur (for short ''the
learned court below'' hereinafter) in Civil Original Suit
NO.376/2003, whereby the learned court below has
decided the Issue No.8 in favour of the respondent and
against the petitioner has held that the memorandum
of partition deed dated 10.4.2001 is not properly
stamped and registered and, therefore, not admissible
in evidence."
While reading the opening paragraphs of the judgment dated
16.05.2013, learned counsel for the respondents, argued that
though there is no separate adjudication about the applicability
and leviability of the stamp duty, yet these documents will be
admissible in evidence, on the principles of constructive res
judicata. "The petitioner cannot resurrect the challenge to their
admissibility on the ground of payment of stamp duty, in the facts
of the present case", he concluded.
Heard learned counsels for the parties and perused the
material available on record.
In considered opinion of this Court, the issue No. 8 has
attained finality pursuant to the judgment dated 16.05.2013
passed by this Court, inasmuch as, the Trial Court had decided
issue No. 8 as a ''Preliminary Issue'', pursuant to an application
filed under Order XIV Rule 2 of the Code of Civil Procedure. The
Trial Court, vide its order dated 23.10.2008 had held that the two
documents, namely, family settlement dated 31.12.2000 and
memorandum of settlement dated 10.04.2001 are inadmissible in
evidence, as the same are neither registered nor properly
stamped. In the writ petition where-against filed by the plaintiff,
this Court had overturned the said order dated 23.10.2008 and had held that the documents in question dated 31.12.2000 and
10.04.2001 are admissible in evidence.
Technically speaking the contention of the petitioner may be
right that this Court has perhaps not considered the aspect of
payment of stamp duty, as there is no apparent discussion in
relation to the requirement and payment of stamp duty, but the
remedy then lies somewhere else. Instead of re-agitating the said
issue before the Trial Court by submitting another application
dated 20.04.2015, the petitioner-defendant No.2 ought to have
found her remedies somewhere else. The Trial Court cannot sit
over the judgment dated 16.05.2013 passed by this Court, as
attempted to by the petitioner. A reading of the application dated
20.04.2015 filed by the petitioner reveals that it is an amalgam of
confusion and obfuscation besides being a concoction of incorrect
facts and outrageous allegations. The defendant No.2-applicant
has tried to re-agitate even the issue of registration, which had
attained finality, vide order dated 16.05.2013, passed by this
Court in the Writ Petition No. 9895/2008, in which the petitioner
had chosen to remain unrepresented.
This Court is reminded of a scholarly and celebrated
Judgment of this Court rendered in case of Maghraj Calla Vs.
Kajodi Mal, reported in AIR 1994 Raj 11, in which case, culling out
the principles of ''res judicata'', this Court has held as infra:-
"20. The another well settled fact of applicability of
general principle of res-judicata, which is not
restrictive in the scope I of its operation by the
technical rules circumscribing the applicability of the
provisions of Section 11, C.P.C., is that subject matter
of grant of reliefs or the nature of proceedings, in two
proceedings need not be same, that is to say, even if
the subject matter and the relief sought are not the
same, yet if there is a final decision on an issue,
arising in the former proceedings, and the same issue
arises in the subsequent proceedings, may be as an
ancillary of main relief, which was not the subject-
matter of earlier proceedings; still, the findings on
issue in the former proceeding will operate as res
judicata, so far as the decision on that particular issue
is concerned in the subsequent proceedings. The
principle was succinctly expressed in Duchess of
Kingstone case (supra). As is apparent from the
passage quoted above, that judgment of a Court of
exclusive jurisdiction, directly on the point, is in the
like manner conclusive upon the same matter, between
the same parties, coming incidentally in another court
for a different purpose. Tjhe same vew appears to be
clear from Halsbury''s Law of England, as quoted
above, wherein it was stated that the doctrine applies
equally in all courts and it is immaterial in what court
the former proceeding takes place, provided only that
it was a court of competent jurisdiction, or what form
the proceedings took; provided further that it was
really for the same cause."
The exposition of this principle, in Corpus Juris Secundum,
Vo. 50 (Judgments), p.603 has been drawn as follows:
"The doctrine of estoppel by judgment does not rest
on any superior authority of the court rendering the
judgment, and a judgment of one court is a bar to
action between the same parties for the same cause in
the same court or in another court, whether the later
has concurrent or other jurisdiction (emphasis
supplied......"
Neither in the application, nor during the course of
arguments before the Trial Court, there was any assertion on
behalf of the petitioner, to segregate the document Exhibit-3 dated
09.08.2001 from other two documents. In other words, this Court
does not find argument advanced on behalf of the petitioner to the
effect that the document Exhibit-3 is an independent agreement to
sell, as claimed by the plaintiff, so as to require payment of stamp
duty. The dispute regarding the third document Exhibit-3 seems to
have been raised for the first time before this Court. Suffice it to
observe that this Court in its supervisory jurisdiction under Article
227 of the Constitution of India would confine its decision and
pronounce upon the correctness of an order based on the
contentions raised and arguments advanced before the Court
below noticed in the order under challenge. It would not venture
into adjudicating and deciding an issue raised by the counsel at
this stage, without it being raised before the Court below.
The ingenuity of the petitioner''s counsel before this Court in
pointing out petitioner''s pleadings in para-15 and prayer '' o'' of the
plaint to contend that the document dated 09.08.2001 is a
separate agreement to sell; and that there had been no
adjudication about its admissibility either by the Trial Court or by
the High Court in the earlier round of litigation, thus does not
warrant consideration.
However, since these arguments were advanced, and
pressed by the petitioner, this Court is constrained to record a
finding that such assertion or contention of the petitioner too is
fallacious, if not false.
A careful reading of the entire plaint leaves no room for
ambiguity that while referring to the date of the document
claiming it to be an agreement to sell, the plaintiff has mentioned
the date as ''09.08.2001'' which, as a matter of fact should have
been ''10.04.2001''. This Court has expressed its opinion after
comprehensive and complete reading of the plaint particularly
para-5 thereof, in which, the plaintiff has narrated the relevant
facts. A perusal of para-5 of the plaint reveals that the plaintiff
has used the word which in common parlance means ''receipt''
or ''entry''. As against this, qua the document dated 10.04.2001, in
para-3 and para-5, the plaintiff has used the expression "VERNACULAR MATTER OMITTED" or ''mutual agreement''. After a simple look at the
document dated 09.08.2001, this Court is sure and certain about
its nature and hold that the same is undisputedly a receipt. It will
not be out of place to reproduce the contents of the document
Exhibit-3, which reads thus:-
"VERNACULAR MATTER OMITTED"
In considered opinion of this Court, it may be true that the
plaintiff has treated the writing/note/entry dated 09.08.2001 as a
separate document and has marked the same as a separate
exhibit (Exhibit-3), but notwithstanding the same, it is nothing
more than a receipt, rightly expressed as "VERNACULAR MATTER OMITTED" in para-5 of
the Plaint. In this view of the matter, by virtue of this document,
the property in dispute has not changed hands. In other words,
the document/receipt dated 09.08.2001 does not involve transfer
or alienation of any immovable property, for which, it can be
brought within the confines of ''conveyance'' or ''instrument''
requiring registration of payment of stamp duty.
In view of the discussion aforesaid, this Court has no
hesitation in holding that the writeup/noting dated 09.08.2001 is
simply a receipt and the same is part and parcel of the mutual
settlement dated 10.04.2001. It simply evinces receipt of payment of Rs.2,00,000/- for which, neither registration is
required, nor stamp duty is attracted.
As far as the other two documents, namely, the family
settlement dated 31.12.2000 and memorandum of settlement or
mutual agreement dated 10.04.2001 are concerned, the same
have been held to be admissible in evidence by this Court, vide its
judgment dated 16.05.2013, vide which, issue No. 8 has been
conclusively decided in favour of the plaintiff. The petitioner''s
endeavor to unsettle the findings, which have attained finality, is
impermissible in law, being hit by the principles of res
judicata/constructive res judicata.
Extraction of the discussion : "No substance in the Petition";
Conclusion : "Dismissal of the Petition".