Telangana High Court
A.Srinivasa Rao vs Md. Asifuddin on 18 April, 2024
THE HONOURABLE SRI JUSTICE K.SURENDER
Civil Revision Petition Nos.289 and 304 of 2024
COMMON ORDER:
1. Civil Revision Petition No.304 of 2024 is filed against docket order dated 01.09.2022 in O.S.No.142 of 2019. The said docket order was passed when the defendants in the suit raised objection for marking an agreement of sale dated 10.06.2014 as it is barred under Article 47-A of the Indian Stamp Act. Thereafter, very same objection was raised by filing I.A.No.1499 of 2023 under Section 151 of C.P.C by the petitioners/defendants praying the Court to send Ex.B6 agreement of sale dated 10.06.2014 for payment of stamp duty and penalty to the concerned authorities. The said petition was dismissed by order dated 08.11.2023. Both on facts and since the very same objection was answered vide order dated01.09.2022, petition was dismissed. Against the dismissal of I.A.No.1499 of 2023, Civil Revision Petition No.289 of 2024 is filed. Since both the Civil Revision Petitions are filed aggrieved by the order of rejecting the objections raised for marking the document Ex.B6, which is an agreement of sale dated 10.06.2014, they are being disposed off by way of this Common Order. 2
2. On the basis of specific recital in the agreement "that the vendors have handed over the permissible vacant, physical and peaceful possession of the schedule property to the vendee subject to realization of the above said advance amount", the Court below found that there was no delivery of possession of the subject matter of the property on the date of agreement of sale, as such, Explanation-I to Article 47-A of Schedule IA of Stamp Act will not apply to the agreement of sale dated 10.06.2014.
3. Learned Senior Counsel appearing on behalf of the petitioners, who are defendants in the main suit would submit that the Court below has committed an error in coming to a conclusion that when there was no delivery of property when it is specifically averred in the agreement that the vendors have handed over permissible vacant, physical and peaceful possession of the subject property. When such is the case, the question of Court drawing conclusion that there was no delivery of property and the provision under Article 47-A of Indian Stamp Act will not apply, is erroneous. Learned counsel relied on the judgment of the Hon'ble Supreme 3 Court in the case of Omprakash v. Laxminarayan and others 1, wherein it is held as follows:
"18. To put the record straight, the correctness of the impugned judgment, Laxminarayan v. Omprakash [Laxminarayan v. Omprakas h, (2008) 2 MPLJ 416] came up for consideration before a Division Bench of the High Court itself in Writ Petition No. 6464 of 2008 (Mansingh v. Rameshwar) and the same has been overruled by the judgment dated 22-1-2010 [Mansingh v. Rameshwar, (2010) 2 MPLJ 140 : (2010) 90 AIC 597] . The High Court observed as follows:
(MPLJ p. 142, paras 8-9) "8. A document would be admissible on basis of the recitals made in the document and not on basis of the pleadings raised by the parties. In the matter of Laxminarayan [Laxminarayan v. Omprakash, (2008) 2 MPLJ 416] , the learned Single Judge with due respect to his authority we do not think that he did look into the legal position but it appears that he was simply swayed away by the argument that as the defendant was denying the delivery of possession, the endorsement/recital in the document lost all its effect and efficacy.
9. It would be trite to say that if in a document certain recitals are made then the court would decide the admissibility of the document on the strength of such recitals and not otherwise. In a given case, if there is an absolute unregistered sale deed and the parties say that the same is not required to be registered then we do not think that the court would be entitled to admit the document because simply the parties say so. The jurisdiction of the court flows from Sections 33, 35 and 38 of the Stamp Act and the court has to decide the question of admissibility. With all humility at our command we over rule the judgment in Laxminarayan [Laxminarayan v. Omprakash, (2008) 2 MPLJ 416] We respectfully agree with the conclusion of the High Court in this regard."
4. On the other hand, learned counsel appearing for the respondents herein supported the finding of the trial Court and 1 (2014) 1 Supreme Court Cases 618 4 also relied on the judgment of this Court in the case of Cheryala Srinivas v Moola Sujatha and others 2, wherein this Court held that unless the possession of the property is delivered without any dispute or challenge from the party to the agreement, one cannot be mulcted with liability to pay stamp duty.
5. Having gone through the record, the recital in the agreement is conditional. The handing over of the permissible physical vacant and peaceful possession of the schedule property to the vendee was subject to realization of the advancement amount. When the possession itself is subject to the advance amount being received and it is disputed that the advance amount was not received, it cannot be said that the possession of the property has been delivered effectively. The document in question is an agreement of sale and as observed by this Court in Cheryala Srinivas's case (supra), the agreement of sale cannot be subjected to same test as impounding on par with the other document when the document has to culminate in sale deed which would complete the transaction.
2 2010(1)(ALD 246 5
6. In the facts of the present case, I do not find anything incorrect in the orders passed by the learned District Judge in both the impugned orders.
7. Accordingly, both the Civil Revision Petitions are dismissed. There shall be no order as to costs. Consequently, miscellaneous applications, if any, shall stand closed.
_________________ K.SURENDER, J Date: 18.04.2024 kvs