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2008 DIGILAW 234 (AP)

Dhumthi Ekambareswarappa v. T. Shambulingappa

2008-03-31

P.S.NARAYANA

body2008
ORDER 1. This Court ordered notice before admission on 13-12-2007. The matter is coming up for admission today. 2. Heard Sri J. Prabhakar, learned counsel representing petitioner-plaintiff and Sri Nagesh learned counsel representing Respondent No.2. It is stated that notice had been served on Respondent No.1 and none represents on behalf of Respondent No.1. 3. Sri J. Prabhakar, learned counsel representing the revision petitioner would maintain that the trial Court erred in construing the agreement of sale as sale deed in terms of Article 47-A, Schedule 1-A of the Indian Stamp Act. The learned counsel would also maintain that the trial Court should have seen that the suit is for specific performance, wherein specific prayer relating to recovery of possession also had been prayed for. Further the learned counsel would maintain that when document itself does not speak of any delivery of possession either at the time of execution or any time thereafter, it cannot be held that such document is liable for stamp duty as regular sale deed. Counsel would also maintain that the trial Court erred in directing the payment of Stamp Duty and Penalty by taking into account a statement said to have been made by the party in yet another proceeding and the counsel would maintain that the recitals of the document and the pleadings in question alone to be looked into for the purpose of deciding this question. 4. Per contra Sri R.V. Nagabhushan Rao learned counsel representing the contesting second respondent would maintain that in the light of reasons, which had been recorded by the learned Principal Junior Civil Judge, Adoni, the Civil Revision Petition is liable to be dismissed. Learned counsel would also maintain that when the self same party admitted relating to the delivery of possession in yet another proceeding the same cannot be totally ignored and in the light of the same findings had been recorded by the learned Principal Junior Civil Judge, Adoni, and hence this is not a fit case to interfere under Article 227 of the Constitution of India. 5. Heard the counsel and perused the material available on record and also the findings recorded by the learned Principal Junior Civil Judge, Adoni in O.S.No. 52 of 2005. 6. 5. Heard the counsel and perused the material available on record and also the findings recorded by the learned Principal Junior Civil Judge, Adoni in O.S.No. 52 of 2005. 6. When the matter was coming up for marking the documents for cross- examination of PW-1 by defendant NO.1, the counsel for defendant No.2 objected for marking Ex.A-1 on the ground that the same is insufficiently stamped. Hence, the learned Principal Junior Civil Judge, Adoni permitted the parties to advance arguments and ultimately came to the conclusion that Ex.A-1 is liable for stamp duty and penalty as a sale deed as it comes within explanation of Article 47-A of Schedule I-A of the Indian Stamp Act. 7. The document Ex.A-1 is an agreement of sale dated 3-6-1999 and the same was already marked in E.A.No. 129 of 2005 in E.P.No. 35 of 2005 in O.S.No. 6 of 1999 on the file of Senior Civil Judge, Adoni and it was already endorsed on the said document that the stamp worth of Rs.100/- was sufficient. But, however, an objection had been taken that PW-1 already admitted that he has been in possession of the schedule mentioned land on the date of agreement itself, as he was put in possession of the land and hence the said document would fall under Article 47-A of Schedule I-A of the Indian Stamp Act. 8. The learned Principal Junior Civil Judge, Adoni framed the point for consideration at para 3 and recorded the reasons at paras 4,5 and 6 and ultimately came to the conclusion that Ex.A-1 is liable for payment of stamp duty and penalty as a sale deed as it would fall within the ambit of Article 47 of Schedule I-A of the Indian Stamp Act. As can be seen from the objection raised, the evidence of PW-1 in yet another proceeding and some admission said to have been made by PW-1 had been called in aid of the contention to substantiate the stand that the document in question would fall within the ambit of Article 47-A of Schedule I-A of the Indian Stamp Act. 9. It is needless to say that such admissions if any made in yet another proceeding may be taken aid of while testing the trustworthiness of the witness. 9. It is needless to say that such admissions if any made in yet another proceeding may be taken aid of while testing the trustworthiness of the witness. But, however, while deciding whether a particular document is liable for the Stamp Duty and Penalty, the recitals of the document in question and the pleadings of the party concerned may have to be considered and in view of the fact that the recitals of the document do not reflect any delivery of the possession and also in view of the fact in the pleading relief of recovery of possession also had been prayed for, the impugned order holding that Ex.A-1 is liable for Stamp Duty and Penalty as sale deed in view of the explanation to Article 47-A of Schedule I-A of the Indian Stamp Act cannot be sustained. 10. Accordingly, the impugned order is hereby set aside and the Civil Revision Petition is hereby allowed. No order as to costs. 11. This Court is not inclined to express any opinion relating to other questions. The parties are at liberty to agitate such questions if any before the Court below at the appropriate stage.