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,
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
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
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
(2010) 5 ALD 438
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
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.
Miscellaneous petitions pending, if any, shall stand
closed.
_________________________
JUSTICE P.SREE SUDHA
DATE: 03.06.2024
tri
