Judgment :- 1. Heard Shri De, learned counsel for the petitioner – plaintiff, Shri Alaspurkar, learned counsel for respondent No. 1 –defendant No.1 and Shri Patil, learned counsel for respondent No.2 – defendant No. 2. 2. Shri De, learned counsel states that the petitioner filed suit for specific performance on the basis of a written agreement and in it made a specific prayer for recovery of possession. He states that only at one place in the plaint, it is mentioned that possession of the suit field was delivered to the petitioner. However, according to him, reading of entire plaint shows that such possession was never delivered. To show that such possession was never delivered, he invites attention to written statement filed by contesting defendant i.e. defendant No. 1 and he also states that defendant No. 2, though really not a necessary party, has also accepted that the petitioner – plaintiff is not in possession. In this situation, he contends that objection raised by defendant No. 2 to the exhibition of said document i.e. agreement for sale (Exh. 51) is misconceived. His contention is, in view of the provisions of Section 35 of The Bombay Stamp Act, 1958, (hereinafter referred to as Stamp Act), as the document was exhibited and admitted in evidence, later on an order impounding it could not have been passed. The document was exhibited on 06.04.2009 and on 29.04.2009, defendant No. 2 filed application under Sections 33 and 34 of the Stamp Act and sought an order impounding that document dated 07.06.2002. In above facts, his contention is, when parties before the Court were ad idem about the possession of suit property being with defendant No.1, the trial Court could not have recorded any finding on said application of defendant No. 2 till it adjudicated that aspect of possession. He fairly accepts that agreement dated 07.06.2002 contains a stipulation about delivery of possession but in above facts as that stipulation is factually incorrect, it does not constitute an agreement and hence because of that stipulation, the document could not have been impounded. 3. Shri Alaspurkar and Shri Patil, learned counsel for respective respondents support the impugned order. They have invited attention to relevant findings recorded by trial Court in impugned order dated 14.07.2009 and state that the agreement has been rightly interpreted. 3. Shri Alaspurkar and Shri Patil, learned counsel for respective respondents support the impugned order. They have invited attention to relevant findings recorded by trial Court in impugned order dated 14.07.2009 and state that the agreement has been rightly interpreted. Reliance is being placed upon the judgment of this Court in the case of Sheshrao Bhikaji Kale vs. Damodhar Kukaji Pandhare, reported at 2004 (2) ALL MR 880 and Santosh vs. Pukharaj, reported at 2010 (4) Mh. L.J. 22, to substantiate their contentions. 4. The perusal of plaint as filed reveals that the plaintiff there has stated that on 07.06.2002 after the land was measured through a private Surveyor, actual possession of suit field was delivered by defendant No. 1 to him, however, in prayer clause there is a prayer to pass a decree for delivery of vacant possession of suit field to plaintiff. Defendant No. 1 who has entered into that agreement on 07.06.2002, filed his written statement on 10.10.2007 and in it stated that the possession was never delivered. However, he also made a prayer in para 2 therein that the agreement dated 07.06.2002 was liable to be impounded and could not have been admitted in evidence. There is a specific reference to explanation of Article 25 of the Stamp Act for this purpose. Defendant No. 2 claimed to have entered into an agreement for purchase of suit property only with defendant No. 1 earlier and his suit for specific performance was partly decreed. He was declined specific performance and refund of sale consideration was ordered. Defendant No. 2 claims to have challenged that judgment and decree in Regular Civil Appeal. The said defendant No. 2 filed his written statement on 04.09.2007 and in para 14 stated that as per his knowledge, possession was with defendant No. 1 only. It is in this background that the petitioner – plaintiff has tendered his evidence. 5. He filed his evidence on affidavit on 10.02.2009 and in that affidavit, in para 8, reiterated his prayer for delivery of possession. His oral evidence was recorded on 06.04.2009 and when he identified signature of defendants No. 1 & 2, witness on agreement dated 06.07.2005, counsel for defendant No. 2 raised objection and prayed for impounding the document. The trial Court then has given Exh. No. 51 to this document subject to said objection. His oral evidence was recorded on 06.04.2009 and when he identified signature of defendants No. 1 & 2, witness on agreement dated 06.07.2005, counsel for defendant No. 2 raised objection and prayed for impounding the document. The trial Court then has given Exh. No. 51 to this document subject to said objection. Thus, though document was exhibited, it was not admitted in evidence and the trial Court only postponed adjudication of that objection to a future date. The provisions of Section 35 of Stamp Act stipulates that where a document is admitted in evidence, its admission cannot be called in question at any stage in same suit or proceedings on the ground that the instrument has not been duly stamped. However, the same is expressly made subject to Section 58. It is clear that in present matter, it is not necessary to consider the provisions of Section 58. The trial Court was, therefore, justified in considering the objection raised by defendant No. 2 and bar of Section 35 is not applicable. On 29.04.2009, defendant No. 2 filed application at Exh. 62 and made a prayer for impounding of Exh. 51. That application has been considered and impugned order has been passed upon it. 6. The bare perusal of Exh. 51 shows a recital that possession of suit filed as per measurement was given by defendant No. 1 to plaintiff and the plaintiff has accepted it. The question is of said stipulation and whether that stipulation in agreement can be understood in the light of the pleadings of parties before the Court. Section 34 of Stamp Act specifically states that such an instrument chargeable with duty cannot be admitted in evidence for any purpose by any person having by law or consent of parties authority to receive evidence and it cannot be acted upon by such person. Its later part provides that this embargo applies till such document is duly stamped. It is, therefore, apparent that the embargo placed is upon the Court which is recording the evidence and in relation to instrument. Here, the instrument is dated 07.06.2002 (Exh. 51). The arguments of learned counsel for the petitioner reproduced above clearly shows that there is no effort to demonstrate that it is not chargeable to stamp duty as explanation No. 1 to Article 25 of Stamp Act is not applicable. Here, the instrument is dated 07.06.2002 (Exh. 51). The arguments of learned counsel for the petitioner reproduced above clearly shows that there is no effort to demonstrate that it is not chargeable to stamp duty as explanation No. 1 to Article 25 of Stamp Act is not applicable. The effort is to show that said instrument cannot be taken at its face value and needs to be understood in the light of real facts or then pleadings of parties. Section 34 does not permit such an exercise. The instrument as drawn and as filed, needs to be looked into by the person before whom it is produced as evidence. It is, therefore, clear that the effort of the petitioner is to press into service the facts which show that said stipulation in the instrument is incorrect. Even to appreciate that effort, the instrument needs to be looked into and therefore received in evidence. Section 34 of Stamp Act steps in here and prohibits its use for even such appreciation. Explanation – I to Article 25 gives importance to what Exh. 51 discloses on its bare reading. It even cover cases where the possession is agreed to be transferred at a future date. Thus, refusal or failure to hand over such possession before agreed date is not an excuse thereunder. Existence of stipulation of handing over the possession in Exh. 51 is not in dispute here. Hence circumstances in which the possession was not or could not be handed over are not relevant for the purposes of Section 34. 7. The impugned order dated 14.07.2009, therefore, does not call for any interference. Writ Petition is dismissed. However, in the facts and circumstances of the case, there shall be no order as to costs.