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. 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
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
(2014) 1 Supreme Court Cases 618
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.
2010(1)(ALD 246
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
