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2014 DIGILAW 1564 (AP)

S. Laxmibai v. Cheerla Gopal

2014-12-26

A.RAJASEKHAR REDDY

body2014
Order A. Rajasekhar Reddy, J. 1. This CRP is filed against the order dated 08.07.2014 in O.S. No. 3 of 2013. 2. The case of the petitioner/defendant is that the respondent Nos. 1 to 5/plaintiffs filed O.S. No. 3 of 2013 for specific performance of agreement of sale dated 12.03.2009. The respondent Nos. 1 to 5 stated that in the pleading of the plaint coupled with the notice caused before institution of the suit, there is a recital of delivery of possession of the schedule mentioned property in pursuance of agreement to sale. As such, the said document should be treated as sale as explained under 47-A of Stamp Act. Since the said document is not stamped as sale deed, the same cannot be received as evidence. 3. The case of the respondents/plaintiffs is that the document dated 12.03.2009 does not contain any clause regarding delivery of possession, as such, the same is not liable to be charged as sale. 4. The Court below has considered the objection of the petitioner/defendant and found that since the said document does not contain any recital regarding delivery of possession and that the respondents/plaintiffs also denied delivery of possession, it has overruled the objection raised by the petitioner/defendant. Hence the present Civil Revision Petition is filed. 5. Heard both sides. 6. Learned counsel for the petitioner/defendant submits that even though the suit agreement dated 12.03.2009 does not contain a clause regarding delivery of possession, the plaint and the notice issued by the respondents/plaintiffs, there is a mention regarding delivery of possession. As such, the agreement of sale coupled with possession has to be treated as sale and accordingly to be charged as sale. 7. In support of his contentions he relied on judgment reported in Vanapalli Jayalaxmi @ Venkatajayalaxmi v. V.A. Kondala Rao and other, 2014 (1) ALT 356 and M. Harinarayan @. Hari Babu v. Chief Controlling Revenue Authority and Commissioner Inspector General of Registration and Stamps Act A.P. and others, 2008 (2) ALD 515 . 8. Learned counsel for the respondents/plaintiffs submit that in the agreement of sale dated 12.03.2009, there is no clause regarding delivery of possession and the said agreement of sale provides that possession has to be delivered after the survey is done. As such, it is not liable to be charged as sale as per 47-A of the Stamp Act. 9. 8. Learned counsel for the respondents/plaintiffs submit that in the agreement of sale dated 12.03.2009, there is no clause regarding delivery of possession and the said agreement of sale provides that possession has to be delivered after the survey is done. As such, it is not liable to be charged as sale as per 47-A of the Stamp Act. 9. In the present case, admittedly there is no clause regarding delivery of possession or at least about the delivery of possession in future in the agreement of sale dated 12.03.2009. No doubt, the plaint and the notice issued by the respondents/plaintiffs before institution of the suit, there is a mention regarding handing over of possession in pursuance to the agreement dated 12.03.2009, but no where it is stated that possession is delivered immediately on the same date. Delivery of possession in pursuance to agreement dated 12.03.2009 and delivery of possession immediately after the agreement is executed are two different things. 10. In Vanapalli Jayalaxmi @ Venkatajayalaxmi v. V.A. Kondala Rao and other, 2014 (1) ALT 356 (supra) it is held as follows: "There is no recital in the agreement dated 22.09.2009 (sic.29-2-2006) filed by respondents about the delivery of possession. However, there is an endorsement dated 27.05.1996 on the reverse of the said agreement to the effect that balance sale consideration was paid on the said date and possession of the property was delivered to the respondents on the said dated allegedly by the petitioner. I am unable to agree with the view taken by him. The learned Judge does not appear to have noticed that under Article 47A, an agreement to sell "followed by or evidencing" delivery of possession of the property agreed to be sold is chargeable as a sale under said Article. Thus, not only situations where the document in question itself mentions about delivery of possession (evidence delivery of possession) but also situations where delivery of possession is not mentioned in the document (but where such delivery of possession has a direct nexus to the agreement), are also covered. In B. Ratnamala (supra), the Division Bench laid down that the expression "followed by delivery of possession" should have a direct nexus to the agreement and should in juxtaposition to the word 'agreement' and it cannot be independent or outside the agreement. In B. Ratnamala (supra), the Division Bench laid down that the expression "followed by delivery of possession" should have a direct nexus to the agreement and should in juxtaposition to the word 'agreement' and it cannot be independent or outside the agreement. Therefore, the delivery and possession should follow the agreement, i.e., through the agreement and in other words, the delivery of possession should be intimately and inextricably connected with the agreement. The Bench categorically held that the expression "followed by delivery of possession "would take in its sweep the recital in the agreement itself that delivery of possession is being handed over. There is no dispute that the payments made by respondents to petitioner under the agreement of sale are pursuant to the agreement of sale and after receiving the full sale consideration only, possession was delivered to respondents by petitioner. Therefore, on the facts of the present case, the delivery of possession is intimately and inextricably connected with the agreement. Therefore in view of the decision in Veeena Hasmukh Jain (supra) and the Division Bench judgment of this Court in B. Ratnamala (supra), I respectfully dissent from the view expressed in Sri Lakshmi Housing Enterprise (supra)" 11. In M. Harinarayan @. Hari Babu v. Chief Controlling Revenue Authority and Commissioner Inspector General of Registration and Stamps Act A.P. and others, 2008 (2) ALD 515 , it is held as follows: "The words "followed by evidencing delivery of possession of the property agreed to be sold" used in explanation 1 to Article 47-A of schedule I-A of the Act has necessarily to be interpreted only with reference to recitals in the agreement of sale and any evidence by way of endorsement on the very deed of agreement. Undisputedly, in the present case, there is no endorsement on the agreement of sale with regard to delivery of possession, but however, while referring the agreement for adjudication with regard to applicability of stamp duty, it appears the Court below has also sent a receipt dated 18th of September, 2002 relied upon by the petitioner, to the District Registrar and the same is taken note of by the respondents in support of their plea that there is a delivery of possession pursuant to the agreement of sale dated 28th of March, 2001, so as to apply explanation 1 to Article 47-A of Schedule I-A of the Act. The words "followed by or evidencing delivery of possession of the property agreed to be sold" have to be considered with reference to the very recitals of the agreement of sale independent of any other document. The question of validity of delivery of possession on 18th of September 2002 under a receipt will not have any bearing on examining the chargeability of stamp duty on the agreement of sale dated 28th of March 2001. It is also open for the Court whether to accept such a possession independent of the agreement or not, but, however, as far as the chargeability of stamp duty under the Act is concerned, the question whether possession was followed pursuant to an agreement of sale or any evidence with regard to delivery of possession of property agreed to be sold, shall be considered only with reference to recitals of the agreement and evidentiary endorsement on the agreement itself. In the present case on hand, there is no such endorsement and evidence so as to apply explanation 1 to Article 47-A of Schedule 1-A of the Act for the purpose of chargeability of stamp duty on the agreement of sale dated 28th of March, 2001." 12. In the above stated judgments relied on by the counsel for the petitioner, there was an endorsement on the reverse of the said agreement to the effect that the balance sale consideration was paid on the said date and possession of the property was delivered to the respondents on the said date. But in the present case, there is no such endorsement. 13. Further in the judgment relied on by Division Bench i.e., B. Ratnamala v. G. Rudramma, 1999(6) ALT 59 (D.B.), it is held that the expression followed by delivery of possession should have a direct nexus to the agreement and should be read in juxtaposition to the word agreement and it cannot be independent or outside agreement. It clearly held that delivery of possession should follow the agreement i.e., through the agreement. The Division Bench categorically held that the delivery of possession should be intimately and inextricably connected with the agreement. Therefore, the judgments relied on by the learned counsel for the petitioner, are not applicable in the present case. More so, respondents/plaintiffs has denied the delivery of possession and even as per the agreement dated 12.03.2009, delivery of possession will be only after the survey is done. Therefore, the judgments relied on by the learned counsel for the petitioner, are not applicable in the present case. More so, respondents/plaintiffs has denied the delivery of possession and even as per the agreement dated 12.03.2009, delivery of possession will be only after the survey is done. As such, the Court below has rightly considered the issue and hence I do not find any infirmity in the order passed by the Court below. 14. Accordingly, CRP is dismissed. There shall be no order as to costs. As a sequel thereto, miscellaneous petitions, if any, pending shall stand closed.