Telangana High Court
Moinuddin vs Smt. L. Sujatha on 3 June, 2024
Author: P.Sree Sudha
Bench: P.Sree Sudha
THE HONOURABLE SMT. JUSTICE P.SREE SUDHA
CIVIL REVISION PETITION Nos.3472 and 3479 of 2023
COMMON ORDER:
These Civil Revision Petitions are filed against the Common Order dated 11.09.2023 in I.A.Nos.215 & 216 of 2020 in O.S.No.191 of 2020, passed by the learned Principal Senior Civil Judge, L.B.Nagar, Ranga Reddy District.
2. Initially, respondents No.1 to 6/plaintiffs have filed a suit in O.S.No.191 of 2020, against the petitioner herein and other respondents/defendants for specific performance of agreement of sale dated 24.03.1983.During the pendency of the said suit, respondents No.1 to 6 herein have filed I.A.Nos.215 & 216 of 2020, seeking temporary injunction restraining the other respondents and petitioner from alienating and from interfering with their peaceful possession and enjoyment the suit schedule property till the disposal of the suit. The trial Court considering the arguments of both sides by a Common Order dated 11.09.2023, held that the agreement of sale dated 28.09.1992 was not a sale deed and it has to be impounded by paying the deficit stamp duty and penalty. Aggrieved by the said Order, 2 petitioner/defendant No.28 preferred the present Civil Revision Petitions.
3. The petitioner herein mainly contended that Section 47-A of Stamp Act applies to the case where possession has been delivered to the purchaser on the Agreement of Sale. In this case, the suit schedule property was delivered to respondent No.1/plaintiff No.1 and a third party under the agreement dated 24.03.1983. They in turn delivered the possession of the suit schedule property to respondents No.2 to 6/plaintiffs No.2 to 6. The said delivery was subsequent to the Agreement of Sale dated 24.03.1983 and prior to the agreement dated 28.09.1992. The nature of the said possession of respondents No.2 to 6 prior to the said agreement dated 28.09.1992 was transferred as one of 'possession as purchasers'. The jural relationship of buyers and sellers between the defendants and plaintiffs No.2 to 6 has to be formed only under the said agreement dated 28.09.1992 and not prior to that. He relied upon the Judgment of the Division Bench of this Court in the case of B.Ratnamala Vs. G.Rudramma, in which it was held that the said deed has to be treated as sale deed under article 47-A of the Stamp Act. He further contended that the trial Court erred in holding that since the amendment to Stamp Act came into force in the year 3 1995 and the agreement of sale in question is of the year 1992, the said amendment cannot be made applicable to the said agreement and it cannot be treated as sale deed and thus requested the Court to set aside the Order of the trial Court.
4. Perusal of the Agreement of Sale dated 24.03.1983 shows that the total sale consideration was Rs.80,000/-, out of which only Rs.40,000/- was paid by the second party. However, the first party has delivered the vacant possession of the said land to the second party in part performance of the agreement of sale. Regarding the same schedule property, parties again entered into another agreement of sale dated 28.09.1992 and the sale amount was enhanced to Rs.10,00,000/- and in the same day the second party has paid an amount of Rs.1,95,000/- as advance and later paid Rs.3,00,000/- and Rs.5,00,000/- respectively and no objection was also entered between the parties on 21.09.1993. Against the Orders of the trial Court, review application was also filed in I.A.No.607 of 2023 and the same was also dismissed on 06.11.2023.
5. The learned Counsel for the petitioner herein relied upon the decision of this Court in the case of Burra Anitha 4 Vs.Elagari Mallavva and others, 1 in which it was held as follows:
"When the objection to the document in question was not only on the ground of want of registration, but also on the ground of want of sufficient stamp, the party producing the document was not started either to have offered or to have made any attempt to pay required stamp duty and penalty on the document to enable consideration of the admissibility of the document for any collateral purpose and in view of the absolute prohibition under Section 35 of the Stamp Act, looking into the document, even for the purposes of an interlocutory application, will be overlooking a basic legal infirmity or illegality. The trial Court went wrong in appreciating the ratio of the precedents cited before it as permitting the marking of an unstamped and unregistered document in an interlocutory enquiry and opning that the objections will be considered while disposing of the interlocutory application. Section 60 of Civil Rules of Practice provides for marking of the documents in interlocutory proceedings in the same manner as in a suit and under the circumstances, the impugned order is liable to be set aside and the trial Court is to be directed to determine the objections of the revision petitioner/plaintiff against the admissibility of the document on the ground of insufficiency of stamp and want of registration."
He further relied upon the decision of the Hon'ble High Court of Karnataka, in the case of Sandra Lesley Anna Bartels Vs. P.Gunavathy, in which it was held that it is brought to the notice of this Court that a document is insufficiently stamped, the Court exercising its power under Section 33 of the Act has to pass an 1 (2010) 5 ALD 438 5 order at the first instance for impounding the document. Though there is a discretion vested in the Court to exercise powers under Sections 33 and 34 of the Act, no court can hold that it would wait till the document is tendered in evidence.
6. The learned Counsel for respondents relied upon the decision of the Hon'ble High Court of Andhra Pradesh, in the case of Padma Rao and two others Vs.Vijay Kumar and another, in which it was held that "In fairly large number of transactions, parties were not inclined to get the sale deeds executed, may be due to enormous expenses involved. They were enjoying the effective possession of the property, just on the strength of agreements of sale. The vendors also did not have any grievance, once they received the entire consideration. The net result is that the state was deprived of the stamp duty, payable on the transaction, which is akin to a sale. Therefore, the very basis for equating an agreement of sale to a sale deed, for the purpose of stamp duty, is the effective, interrupted and legal possession of the purchaser.
7. In the facts on hand, initially the agreement of sale was entered between the parties way back in the year 1983. There are number of parties to the agreement of sale and it is for a 6 meager sale consideration of Rs.80,000/-, out of which Rs.40,000/- was paid and possession was delivered and all the parties again entered into agreement of sale on 28.09.1992 and enhanced the sale consideration to Rs.10,00,000/- and also paid the same. The second agreement was formed between a firm and some of the members in the first agreement and other members. However, the suit schedule property is one and the same and the possession continued from 1983 to 1992 onwards. Therefore, the observation of the trial Court that it is not a sale is not on proper appreciation of law. The possession to the party was handed over at the time of first agreement of sale i.e., in the year 1983 and continued till 1992 and in the year 1992, the enhanced sale consideration was paid to the other party. It clearly appears that to avoid stamp duty, they executed another agreement of sale instead of sale deed. Therefore, the stamp duty has to be imposed considering it as a sale deed.
8. In the result, the present Civil Revision Petitions are allowed, setting aside the Common Order of the trial Court dated 11.09.2023 in I.A.Nos.215 and 216 of 2020 in O.S.No.191 of 2020. There shall be no order as to costs.
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Miscellaneous petitions pending, if any, shall stand closed.
_________________________ JUSTICE P.SREE SUDHA DATE: 03.06.2024 tri