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2022 DIGILAW 1488 (AP)

Vayyeti Srinivasa Rao v. Gaineedi Jagajyothi

2022-12-20

BANDARU SYAMSUNDER

body2022
JUDGMENT BANDARU SYAMSUNDER,J. - This civil revision petition is filed by the petitioner/plaintiff under Article 227 of the Constitution of India, against the Orders passed by the learned V Additional District Judge, East Godavari at Rajamahendravaram, dtd. 21/12/2016, wherein and whereby the learned trial Judge held that Ex.A1 agreement of sale is liable for stamp duty and penalty, failing which marking of document as Ex.A1 will be eschewed. 2. The petitioner filed the suit against the respondent, seeking specific performance of agreement of sale, dtd. 14/10/2009 directing the defendant to execute a regular registered sale deed in respect of plaint schedule house property with an alternative relief of refund of advance amount of Rs.6,50,000.00 with interest with a relief of injunction restraining the respondent from alienating the plaint schedule property, pending disposal of the suit. 3. When the suit was coming up for trial, the petitioner filed his chief-examination affidavit in the suit as PW.1, on 27/11/2015. Then on 21/3/2016, the petitioner as PW.1 was sworn in. In further chiefexamination, Ex.A1 unregistered agreement of sale, dtd. 14/10/2009 marked subject to proof and relevancy of document. Ex.A2 office copy of legal notice, dtd. 8/4/2013, Ex.A3 postal acknowledgment and Ex.A4 reply notice, dtd. 4/5/2013 marked in his evidence which is noted in chief-examination. It appears that on 21/3/2016, the colleague of counsel for the respondent and counsel for the petitioner/plaintiff were present and after marking the said documents, the learned counsel for the respondent appeared before the Court, objected for marking of Ex.A1 agreement of sale on the ground that it is 'conveyance deed', though it is termed as 'agreement of sale' and it has to be treated as 'conveyance deed' and so stamp duty and penalty is to be paid and until and unless stamp duty and penalty is paid, the document cannot be marked and received in evidence. Then, the matter was adjourned to further date for hearing to hear with regard to admissibility of Ex.A1 and PW.1 was not cross-examined. After hearing both sides, the learned trial Judge by discussing the entire precedent law on subject with regard to Ex.A1 held that Ex.A1 agreement of sale is liable for stamp duty and penalty and directed the petitioner to pay stamp duty and penalty by 20/1/2017, failing which marking of document as Ex.A1 will be eschewed. 4. After hearing both sides, the learned trial Judge by discussing the entire precedent law on subject with regard to Ex.A1 held that Ex.A1 agreement of sale is liable for stamp duty and penalty and directed the petitioner to pay stamp duty and penalty by 20/1/2017, failing which marking of document as Ex.A1 will be eschewed. 4. Aggrieved by the Orders passed by the learned trial Judge, the petitioner/plaintiff filed the present civil revision petition stating that the Orders passed by the learned trial Judge are erroneous, contrary to law and weight of evidence. He submits that when unstamped document marked as an exhibit during examination of witness or cross-examination of witness, the same cannot be reviewed or revised as per the ratio laid down by the Hon'ble Apex Court in Javer Chand and others vs. Pukhraj Surana. AIR 1961 SC 1655 . 5. It is the contention of the revision petitioner that he came into possession of the suit schedule property as a tenant, but not as an agreement of sale holder and in as much as Ex.A1 agreement of sale stands outside the scope of Explanation to Article 47A of Stamp Act, Ex.A1 cannot be termed as regular conveyance, which does not require any stamp duty and penalty, which erroneously held by the learned trial Court. He prays to allow the civil revision petition. 6. I have heard Mr.P.Rajakumar, learned counsel for the revision petitioner as well as Smt Sirisha representing on behalf of Mr.K.Krishna, learned counsel for the respondent at length. 7. The learned counsel for the revision petitioner would submit that Ex.A1 marked without raising any objection and when the document is marked without raising any objection by the learned counsel for the defendant, which cannot be questioned in lieu of bar under Sec. 36 of Indian Stamp Act. He would further submit that the recital of Ex.A1 clearly shows that no possession was delivered under the document to attract the provisions of Article 47A of Schedule IA of Stamp Act to treat it as a conveyance which erroneously held by the learned trial Judge. He would further submit that the recital of Ex.A1 clearly shows that no possession was delivered under the document to attract the provisions of Article 47A of Schedule IA of Stamp Act to treat it as a conveyance which erroneously held by the learned trial Judge. It is the contention of the learned counsel for the revision petitioner that when there is no recital in the document with regard to delivery of possession and when document is already admitted in evidence as an exhibit A1, without raising any objection, the option left to the respondent is by filing a petition to eschew the document, which they have not done, due to that once the document is marked, as an exhibit, which cannot be demarked in lieu of bar under Sec. 36 of Indian Stamp Act. He relied on following precedent law: 1)Sirikonda Madhava Rao, petitioner. Vs N.Hemalatha and others, respondents. Special Leave to Appeal (C) Nos.14882-14883/2022, dtd. 14/11/2022, wherein the Hon'ble Apex Court held that "once a document has been admitted in evidence, such admission cannot be called in question at any stage of the suit or proceedings on the ground that the instrument has not been duly stamped. Objection as to admissibility of a document on the ground of sufficiency of stamp, has to be raised when the document has been tendered in evidence. Thereafter, it is not open to the parties, or even the Court to re-examine the Order or issue. To this extent, the impugned Judgment set aside and the appeal is allowed". (Emphasis supplied) It is also observed in the said Judgment that "we clarify that we have not commented or examined the question of effect of purported non-registration of the sale deed in terms of the Transfer of Property Act, 1882 and the Registration Act, 1908. These questions and issues are left open to be decided by the trial Court. All pleas and contentions raised by the parties in this regard can be raised before the trial Court, which will examine the said aspect and other issues without being influenced by the present Order and the impugned Judgment." 2)Cheryala Srinivas vs. Moola Sujatha and others. These questions and issues are left open to be decided by the trial Court. All pleas and contentions raised by the parties in this regard can be raised before the trial Court, which will examine the said aspect and other issues without being influenced by the present Order and the impugned Judgment." 2)Cheryala Srinivas vs. Moola Sujatha and others. (2010) 1 ALT 448 , wherein this Court held that "though there is a recital in agreement of sale with regard to delivery of possession, which is not practically delivered and when boundaries of the land are not fixed, in those circumstances, it is difficult to conclude that the petitioner therein has delivered the possession of the subject matter of document and held that while will not covered by Explanation-I to Entry 47-A, of Schedule I-A of the same Act". 3)Omprakash. Appellant vs. Laxminarayan and others. Respondents. (2014) 1 Supreme Court Cases, 618, wherein the Hon'ble Apex Court held that "while considering imposing of stamp duty and penalty, the contents of the document is alone criteria not nomenclature of document or pleadings of other side. 4)Makineni Srinivas Rao and others. Vs.Manthena Prabhakar Reddy. (2014) 5 ALT 241 , wherein this Court held that "in the absence of express recital in the agreement on delivery of possession, in order to levy stamp duty chargeable to conveyance in respect of an agreement of sale, it must be shown that possession 'followed' as a logical consequence of the agreement". Paras 9 and 10 of the Judgment, reads as under: "9.Thus, in the absence of express recital in the agreement on delivery of possession, in order to levy stamp duty chargeable to conveyance in respect of an agreement of sale, it must be shown that possession 'followed' as a logical consequence of the agreement. As explained by the Apex Court in Veen a Hansmukh Jain v. State of Maharashtra (3) 1999 (1) SCR 302 , by introducing Explanation I, the legislature intended that the stamp duty as applicable to conveyance shall be collected in advance where delivery of possession was involved at the agreement stage itself and execution of conveyance deed remains a mere formality. 10.Where the agreement does not contain the recital relating to possession, what needs to be seen is whether delivery of possession was in contemplation of the parties at the time of execution of the agreement itself. 10.Where the agreement does not contain the recital relating to possession, what needs to be seen is whether delivery of possession was in contemplation of the parties at the time of execution of the agreement itself. This can be ascertained with reference to the point of time of such delivery. If delivery is simultaneous to or concurrent or contemporaneous with the execution of agreement of sale, it can be safely concluded that the parties have intended delivery of possession though such a recital is absent in the agreement. If on the contrary there is a reasonable time lag between execution of agreement and delivery of possession, it cannot be construed that such delivery 'followed' the agreement. At best it amounts to delivery of possession 'in pursuance of' and not 'following' the agreement of sale". 5) 2014 SCC OnLine Hyderabad 1173, wherein it is held that "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". (S.Laxmibai vs.Cheerla Gopal) 6)B.V.Ramana Reddy vs.Ceylon and India General Mission Church Hindupur. 2015 (2) ALD 183 , wherein this Court explained with regard to marking of an document and also explained the objections thereon in view of recent amendment to the Code of Civil Procedure introducing Order XVIII, Rule 4 of CPC and held that "when document though it is insufficiently stamped, without hearing objections raised by the other side and in the absence of party, which means not admitting the document". 7)Javer Chand and others. Appellants vs. Pukhraj Surana. (1962) 2 SCR 333 = AIR 1961 SC 1655 , wherein it is held that "once document is marked, its admissibility cannot be questioned except as provided in Sec. 61 of Stamp Act, as per Sec. 36 of Stamp Act. 8)Shyamal Kumar Roy vs. Sushil Kumar Agarwal. (2006) 11 Supreme Court Cases 331, wherein it is held that "if an instrument, though under stamped sought to be admitted in evidence is admitted without the other side objecting to it, the right to reopen the issue is lost". 9)Penkey Suryakantham.Petitioner vs. Shaik Sillar. Respondent. 8)Shyamal Kumar Roy vs. Sushil Kumar Agarwal. (2006) 11 Supreme Court Cases 331, wherein it is held that "if an instrument, though under stamped sought to be admitted in evidence is admitted without the other side objecting to it, the right to reopen the issue is lost". 9)Penkey Suryakantham.Petitioner vs. Shaik Sillar. Respondent. 2003 (4) ALD 61 , wherein it is held that "agreement of sale is liable for stamp duty and penalty as conveyance when recital shows that the agreement of sale accompanied by delivery of possession, but by the time the plaintiff was in possession as a tenant paying rents and when there is no averment in the agreement that possession was delivered to the plaintiff, in those circumstances the agreement of sale cannot be treated as a regular conveyance falling under explanation to Article 47-A". (In the said decision, the learned Judge has not discussed the decision of this Court in B.Ratnamala vs.G.Rudramma 1999 (2) APLJ, 307 (DB), which relied on by the learned counsel for the respondent) 10)C.Prithvi Raj Reddy and another vs.M/s.GPR Housing Private Limited, rep. by its M.D. and others. 2011 (6) ALT 671 , wherein it is held that "when affidavit is filed in lieu of chief-examination in a suit for specific performance of an agreement of sale, along with agreement of sale, once document is admitted in evidence, the same cannot be called in question, when no objection is raised with regard to insufficiency of stamp". (Emphasis supplied) He prays to allow the civil revision petition. 8. The learned counsel for the respondent would submit that Ex.A1 agreement of sale is also contains recital of delivery of possession and recognized the possession of the petitioner, which also attracts conveyance, as per the ratio laid down by this Court Division Bench in B.Ratnamala case. She would further submit that marking of a document is without hearing the objection with regard to admissibility of document is not amounts to admission of document. For which, she relied on the ratio laid down by this Court in B.V.Ramana Reddy and others case referred supra, relied on by the learned counsel for the petitioner also. She would further submit that marking of a document is without hearing the objection with regard to admissibility of document is not amounts to admission of document. For which, she relied on the ratio laid down by this Court in B.V.Ramana Reddy and others case referred supra, relied on by the learned counsel for the petitioner also. Wherein at para 14, it is held that: "After amendment of the Code of Civil Procedure brought into effect in 2002, a new procedure hitherto unknown, has been introduced by amending Order XVIII, Rule 4 CPC permitting filing of affidavits in lieu of chief- examination. Therefore, affidavits in lieu of chief-examination are being filed through witnesses referring to certain documents in the said affidavit in support of the case of respective parties. Therefore, neither the Court nor the opposite party has an opportunity to scrutinize the admissibility or proof of such documents. Since the objections as to admissibility of documents on the ground of insufficiency of stamp duty or registration or otherwise would have a bearing on the merits of the case, it is not open to the trial Court to mark the documents which are mentioned in the affidavit in lieu of chief-examination straight away without giving opportunity to the other party to dispute their admissibility". 9. It is the contention of the learned counsel for the respondent that when document is admitted without considering objections raised by its admissibility, which cannot be decided by the Court, which rightly done by the trial Court and held that it is liable for stamp duty and penalty as per Explanation-I of Article 47A, Schedule IA of Stamp Act. She argued that in the absence of counsel, representing the defendant, Ex.A1 was marked, which not amounts to admission of document to attract the provisions of 36 of Indian Stamp Act. She relied on decision in Sure Ranga Murali Krishna Reddy vs. Sure Yerri Vara Prasada Reddy and others. 2018 (5) ALD 396 , wherein it is held at paras 8, 9 and 10, which reads as under: "8. She relied on decision in Sure Ranga Murali Krishna Reddy vs. Sure Yerri Vara Prasada Reddy and others. 2018 (5) ALD 396 , wherein it is held at paras 8, 9 and 10, which reads as under: "8. Now it is apt to refer to the relevant provisions of the Indian Stamp Act: Sec. 35 of the Indian Stamp Act reads as under: 35.Instruments not duly stamped inadmissible in evidence, etc.- No instrument chargeable with duty shall be admitted in evidence for any purpose by any person having by law or consent of parties authority to receive evidence, or shall be acted upon, registered or authenticated by any such person or by any public officer, unless such instrument is duly stamped: Provided that: (a) any such instrument shall be admitted in evidence on payment of the duty with which the same is chargeable or, in the case of an instrument insufficiently stamped, of the amount required to make up such duty, together with a penalty of fifteen rupees or, when ten times the amount of the proper duty or deficient portion thereof exceeds fifteen rupees of a sum equal to ten time such duty or portion; (b) Where any person from whom a stamped receipt could have been demanded, has given an unstamped receipt and such receipt, if stamped, would be admissible in evidence against him then such receipt shall be admitted in evidence against him, on payment of a penalty of three rupees by the person tendering it; (c) Where a contract or agreement of any kind is effected by correspondence consisting of two or more letters and any one of the letters bears the proper stamp, the contract or agreement shall be deemed to be duly stamped; (d) Nothing herein contained shall prevent the admission of any instrument in evidence in any proceeding in a Criminal Court, other than a proceeding under Chapter XII or Chapter XXXVI of the Code of Criminal Procedure, 1898; (Now Chapters IX and X D of Cr.P.C.1973]; (e) Nothing herein contained shall prevent the admission of any instrument in any Court when such instrument has been executed by or on behalf of the government or where it bears the certificate of the Collector as provided by Sec. 32 or any other provision of this Act. As per Sec. 36 of the Indian Stamp Act, where an instrument has been admitted in evidence, such admission shall not, except as provided in Sec. 61, be called in question at any stage of the same suit or proceeding on the ground that the instrument has not been duly stamped. Sec. 61 of the said Act reads as under: 61. Revision of certain decisions of Courts regarding the sufficiency of stamps (1) When any Court in the exercise of its civil or revenue jurisdiction or any Criminal Court in any proceeding, under Chapter XII or Chapter XXXVI of the Code of Criminal Procedure, 1898, makes any order admitting any instrument in evidence as duly stamped or as not requiring a stamp, or upon payment of duty and a penalty under Sec. 35, the Court to which appeals lie from, or references are made by, such first- mentioned Court may, of its own motion, or on the application of the Collector, take such order into consideration. (2) If such Court, after such consideration, is of opinion that such instrument should not have been admitted in evidence without the payment of duty and penalty under Sec. 35 or without the payment of a higher duty and penalty than those paid, it may record a declaration to that effect, and determine the amount of duty with which such instrument is chargeable and may require any person in whose possession or power such instrument then is, to produce the same, and may impound the same when produced. (3) When any declaration has been recorded under subsec.(2), the Court recording the same shall send a copy thereof to the Collector, and where the instrument to which it relates has been impounded or is otherwise in the possession of such Court, shall also send him such instrument. (3) When any declaration has been recorded under subsec.(2), the Court recording the same shall send a copy thereof to the Collector, and where the instrument to which it relates has been impounded or is otherwise in the possession of such Court, shall also send him such instrument. (4) The Collector may thereupon, notwithstanding anything contained in the order admitting such instrument in evidence, or in any certificate granted under Sec. 42, or in Sec. 43, prosecute any person for any offence against the Stamp Law which the Collector considers him to have committed in respect of such instrument: Provided that: (a) no such prosecution shall be instituted where the amount (including duty and penalty) which, according to the determination of such Court, was payable in respect of the instrument under Sec. 35, is paid to the Collector, unless he thinks that the offence was committed with an intention of evading payment of the property duty; (b) except for the purposes of such prosecution, no declaration made under this Sec. shall affect the validity of any order admitting any instrument in evidence, or of any certificate granted under Sec. 42. A reading of the provisions of law makes it manifest that no instrument chargeable with duty shall be admitted in evidence for any purpose by any person having the authority to receive evidence or shall be acted upon. Therefore, before admitting in evidence, the CC of unregistered partition deed, the trial Court is obligated under law to examine whether its original is properly/duly stamped. Thus, when an original document is tendered in evidence for being marked, whether an objection is raised or not, it is the duty of the Court to examine as to whether such document is chargeable with duty and find out whether it is properly stamped, if it is chargeable with duty. The CC of unregistered partition deed shows that the original of it was engrossed on stamp papers worth Rs.190.00. The trial Court before marking the document as exhibit B1 has not passed an order or has not recorded a finding with regard to the admissibility of the document after considering the aspect as to whether the original of it is duly stamped or not. 9. In this factual background, it is necessary to first refer to the ratio in the decision in Ram Rattan (dead) by L.Rs. 9. In this factual background, it is necessary to first refer to the ratio in the decision in Ram Rattan (dead) by L.Rs. v. Bajrang Lal and others , wherein the Supreme Court held as under: ...The court, and of necessity it would be trial Court before which the objection is taken about admissibility of document on the ground that it is not duly stamped, has to judicially determine the matter as soon as the document is tendered in evidence and before it is marked as an exhibit in the case ... 10. In Bipin Shantilal Panchal vs. State Of Gujarat And Another wherein the Supreme Court, on the aspect of the objections generally raised before the trial Courts, had laid down the following new procedure: Whenever an objection is raised during evidence taking stage regarding the admissibility of any material or item of oral evidence the trial court can make a note of such objection and mark the objected document tentatively as an exhibit in the case (or record the objected part of the oral evidence) subject to such objections to be decided at the last stage in the final judgment. If the court finds at the final stage that the objection so raised is sustainable the judge or magistrate can keep such evidence excluded from consideration. In our view there is no illegality in adopting such a course. (However, we make it clear that if the objection relates to deficiency of stamp duty of a document the court has to decide the objection before proceeding further. For all other objections the procedure suggested above can be followed.) The above procedure, if followed, will have two advantages. First is that the time in the trial court, during evidence taking stage, would not be wasted on account of raising such objections and the court can continue to examine the witnesses. The witnesses need not wait for long hours, if not days. Second is that the superior court, when the same objection is re- canvassed and reconsidered in appeal or revision against the final judgment of the trial court, can determine the correctness of the view taken by the trial court regarding that objection, without bothering to remit the case to the trial court again for fresh disposal. Second is that the superior court, when the same objection is re- canvassed and reconsidered in appeal or revision against the final judgment of the trial court, can determine the correctness of the view taken by the trial court regarding that objection, without bothering to remit the case to the trial court again for fresh disposal. We may also point out that this measure would not cause any prejudice to the parties to the litigation and would not add to their misery or expenses. We, therefore, make the above as a procedure to be followed by the trial courts whenever an objection is raised regarding the admissibility of any material or any item of oral evidence. This decision rendered by a Bench of three Honble Judges of the Supreme Court also makes it clear that if the objection relates to deficiency of stamp duty of a document the Court has to decide the objection before proceeding further. The trial Court failed to do so in the instant case. Further, the marking of the CC of unregistered partition deed as exhibit B1 by noting in the deposition of DW1 that it is a registered document also indicates that the trial Court did not apply its mind before the document is admitted in evidence". In Athapuram Raghuramaiah and another, petitioners vs.Dyava Ramaiah (Andhra Pradesh), 2012 (6) ALT 271 , wherein this Court while considering the similar question held at paras 10 to 13, which reads as under: "10. There cannot be any controversy with regard to the principle laid down by the Apex Court in SHYAMAL KUMAR ROY's case (1 supra) and this Court in AKKIREDDI NAGAYAMMA (2 supra) to the effect that Sec. 36 of the Act would operate after a document is admitted in evidence. But, the question that falls for consideration in this case is whether Exs.B-1 to B-3 were admitted in evidence so as to attract the provisions of Sec. 36 of the Act. 11. The endorsements made on the documents show as follows: "Ex.B-1 by D.W.1 Dt.23/10/2009 in O.S.No.43 of 2008 Sd/-23/10/2009 J.C.J." The said endorsements bear the signatures of the learned Judge. Whenever documents are admitted in evidence, the procedure prescribed under Order 13 Rule 4 C.P.C. has to be followed. 11. The endorsements made on the documents show as follows: "Ex.B-1 by D.W.1 Dt.23/10/2009 in O.S.No.43 of 2008 Sd/-23/10/2009 J.C.J." The said endorsements bear the signatures of the learned Judge. Whenever documents are admitted in evidence, the procedure prescribed under Order 13 Rule 4 C.P.C. has to be followed. The said provision postulates that on every document admitted in evidence, particulars, viz., the number and title of the suit, name of the person producing the document, the date on which it was produced, and a statement of its having been so admitted shall be mentioned and the endorsement shall be signed or initialled by the Judge. Therefore, one of the essential requirements under the said provision is that the document should contain a specific statement that it has been admitted in evidence and the endorsement shall be signed or initialed by the Judge. 12. A bare perusal of the endorsement of the learned Judge, in the instant case, does not show any statement to the effect that the documents have been admitted in evidence. 13. Similar question was considered by this Court in GANTA VEERAMALLU AND OTHERS v. TALLAPPALLU KOMARAIAH and VEMI REDDY KOTA REDDY v. VEMI REDDY PRABHAKAR REDDY, wherein it was held that the words "admitted in evidence" as appearing in Sec. 36 of the Indian Stamp Act mean "admitted after judicial consideration of the circumstances relating to its admissibility". There shall be judicial determination of the question whether it can be admitted in evidence or not for want of stamp on the day when the document was shown to the witnesses and marked. Merely because a document was marked or shown to the witness would not mean that the objection raised by the opposite party was rejected by a judicial determination". She prays to dismiss the civil revision petition. 10. Now, the issue that emerges for consideration by this Court is: "Whether the Orders under challenge are sustainable, tenable and whether the same warrants any interference of this Court under Article 227 of Constitution of India?" 11. POINT: This Court in K.Ramamoorthi Vs. C. Surendranatha Reddy, 2012 (6) ALD 163 observed that the question with regard to admissibility of document quiet often vexes the Bar and Bench alive and after elaborate analysis of precedent law, the learned Single Judge explained the phrase collateral purpose in a suit filed for permanent injunction and also gave illustrations. POINT: This Court in K.Ramamoorthi Vs. C. Surendranatha Reddy, 2012 (6) ALD 163 observed that the question with regard to admissibility of document quiet often vexes the Bar and Bench alive and after elaborate analysis of precedent law, the learned Single Judge explained the phrase collateral purpose in a suit filed for permanent injunction and also gave illustrations. The learned Single Judge of this Court in Sure Ranga Murali Krishna Reddy case referred supra elaborately discussed precedent law with regard to admissibility of agreement of sale having recitals of delivery of possession and when marked as Ex.A1, when objection is raised, it has to be decided by Judicial determination, which discussed supra. 12. This Court in (DB) B.Ratnamala case referred supra held at para 9, which reads as under: "9. While considering the provisions of the Indian Stamp Act, it has to be borne in mind that the said Act being a fiscal statute, plain language of the Sec. as per its natural meaning is the true guide. No inferences, analogies or any presumptions can have any place. As the incidence of duty is on the execution of the deed, regard must, therefore, be had only to the terms of the document. Thus the main question that falls for consideration is the interpretation of the expressions "followed by or evidencing delivery of possession". These expressions cannot be read in isolation and one has to find the true meaning by reading the entire Explanation and more so in conjunction with the earlier expression i.e., "agreement". Even if these two expressions are looked independently, it means an agreement to sell followed by delivery of possession and an agreement to sell evidencing delivery of possession. In the first case, i.e., "followed by delivery", possession cannot be disjuncted from the basic source i.e., agreement to sell. Therefore, 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 the agreement. Therefore, the delivery of possession should follow the agreement i.e., through the agreement. It takes in its sweep the recital in the agreement itself that delivery of possession is being handed over. It will also cover cases of delivery of possession contemporaneous with the execution of agreement, even if there is no specific recital in the agreement. Therefore, the delivery of possession should follow the agreement i.e., through the agreement. It takes in its sweep the recital in the agreement itself that delivery of possession is being handed over. It will also cover cases of delivery of possession contemporaneous with the execution of agreement, even if there is no specific recital in the agreement. In other words, the delivery of possession should be intimately and inextricably connected with the agreement. And in the second type, i.e., agreements evidencing delivery of possession, if the document contains evidence of delivery of possession by a recital in that behalf, that is sufficient. Such delivery of possession can be prior to the date of agreement and need not be under the agreement. If the Agreement records the fact that the possession was delivered earlier and such recital serves as evidence of delivery of possession, though prior to the Agreement, it falls under the second limb. Therefore, on a proper interpretation of the said expressions, it would follow that an agreement containing specific recital of delivery of possession or indicating delivery of possession even in the past is liable for stamp duty as a 'sale' under the said Explanation". (Emphasis supplied) 13. The Division Bench of this Court held that followed by delivery of possession and also covers the delivery of possession contemporaneous with the execution of agreement, even if there is no specific recital in the agreement. It is clearly explained that the delivery of possession should be intimately and inextricably connected to the agreement. It is also held that in second case, such delivery of possession can be prior to the date of agreement and need not be under the agreement and if the agreement records the fact that the possession was delivered earlier and such recital serves as evidence of delivery of possession, though prior to the agreement, it falls under the second limb. 14. Now, it would be beneficial to quote Ss. 35, 36 of the Indian Stamp Act and Article 47-A Explanation I, Schedule 1A of the Stamp Act, which reads as under: "35. 14. Now, it would be beneficial to quote Ss. 35, 36 of the Indian Stamp Act and Article 47-A Explanation I, Schedule 1A of the Stamp Act, which reads as under: "35. Instruments not duly stamped inadmissible in evidence, etc.- No instrument chargeable with duty shall be admitted in evidence for any purpose by any person having by law or consent of parties authority to receive evidence, or shall be acted upon, registered or authenticated by any such person or by any public officer, unless such instrument is duly stamped: Provided that-- (a) any such instrument shall be admitted in evidence on payment of the duty with which the same is chargeable or, in the case of an instrument insufficiently stamped, of the amount required to make up such duty, together with a penalty of fifteen rupees or, when ten times the amount of the proper duty or deficient portion thereof exceeds fifteen rupees of a sum equal to ten times such duty or portion; (b) where any person from whom a stamped receipt could have been demanded, has given an unstamped receipt and such receipt, if stamped would be admissible in evidence against him, then such receipt shall be admitted in evidence against him on payment of a penalty of three rupees by the person tendering it; (c) where a contract or agreement of any kind is effected by correspondence consisting of two or more letters and any one of the letters bears the proper stamp, the contract or agreement shall be deemed to be duly stamped; (d) nothing herein contained shall prevent the admission of any instrument in evidence in any proceeding in a Criminal Court, other than a proceeding under Chapter XII or Chapter XXXVI of the Code of Criminal Procedure, 1898; (e) nothing herein contained shall prevent the admission of any instrument in any Court when such instrument has been executed by or on behalf of the Government, or where it bears the certificate of the Collector as provided by Sec. 32 or any other provision of this Act". "36.Admission of instruments where not to be questioned:- Where an instrument has been admitted in evidence, such admission shall not, except as provided in Sec. 61, be called in question at any stage of the same suit or proceeding on the ground that the instrument has not been duly stamped". "36.Admission of instruments where not to be questioned:- Where an instrument has been admitted in evidence, such admission shall not, except as provided in Sec. 61, be called in question at any stage of the same suit or proceeding on the ground that the instrument has not been duly stamped". "Article 47-A Explanation I, Schedule 1A:- An agreement to sell followed by or evidencing delivery of possession of the property agreed to be sold shall be chargeable as a 'Sale' under this Article". 15. This Court explained the difference between marking of document and admission of document in the evidence in B.V.Ramana Reddy and others case referred supra and also clearly explained that marking of a document is not amounts to admitting the document in evidence in Athapuram Raghuramaiah case referred supra. 16. Now, it would be beneficial to extract the translated copy of agreement of sale, which filed by the revision petitioner, which reads as under: Stamp Vendor: Veerababu, POLAVARAM. Sl.No.759 and 760-2 non-Judicial stamps, each value Rs.50.00 stamp Dt. 27/1/2009 Sold stamps to and in the name of Gyneedi Jagajyothi W/o Jayarap, Visakhapatnam AGREEMENT OF SALE On 14/10/2009 In favour of: SRINIVASA RAO S/O VAYYETI BHIMARAJU, resident of Subbayyammapeta, Dowleswaram, Rajahmundry Rural Mandal, East Godavari District (Hereinafter called the Purchaser) By Gyneedi Jagajyothi W/o Gyneedi Jayarao, resident of D.No. 16-4-5, 2nd Street, Official Colony, Maharanipeta, Visakhapatnam, (Hereinafter called the Seller) executed this sale Agreement. In the year 1999 the purchaser came to the Seller with an intention to purchase the below Schedule property along with sale Agreement. In view of unavoidable circumstances and some reasons as had cases run between us, I, the Seller did not come forward to sell the Schedule property. In addition I, the seller pleaded that I did not execute any sale Agreement in the Sd/- G. Jagajyothi (Seller) said suits. In view of changes of time and circumstances and since I am unable to supervise the said property in future and further decided and confirmed to develop my property situate at Visakhapatnam and in view of purchaser's request previously made to sell and since the Schedule property is in your possession since around 50 years and enjoying the same I, the seller hereby thought it fit to sell the Schedule property to you, I, Seller and agreed to sell the same for Rs. 9,00,000/- and received an amount of Rs.6,50,000.00 (Rupees Six lakhs fifty thousand only) on this day from the purchaser towards advance and I further agreed to receive the remaining balance sale consideration from you and the Seller has agreed to receive the same before and in the presence of the Sub-Registrar at the time of registration and after duly engraving the Sale Deed on the stamps purchased to effect due registration at Purchaser's expense and I, the Seller hereby further agreed to do so on my (self) assurance and guarantee and do execute the Sale Deed on proper stamps whenever the Purchaser called upon to execute the Sale Deed. Further, I the seller hereby agreed and assured to execute regular Sale Deed without stipulation of time or referring to time. Sd/ G. Jagajyothi (Seller) Seller executed this sale Agreement making the Purchaser believe that there are no transactions of whatsoever including sales and court disputes etc., against the Schedule property and executed this sale Agreement out of my own volition and free will. The Seller further agreed to pay the advance amount of Rs.6,50,000.00 received by her together with interest @ Rs.2.00 per 100 per month, if the Seller fails to register the Sale Deed whenever asked or called for by the Purchaser to execute the Sale Deed, the Seller assures and agreed to make herself liable for the legal steps that are going to be initiated or to be taken by the Purchaser, against the seller and in case of violation of any of the above terms and thereby and hereby executed this Sale Agreement with free consent and will. Schedule: Property situate in East Godavari District, Kadiyam SubRegistry, Rajahmahendravaram Rural Mandal, Dowleswaram Gram Panchayat, Dowleswaram, Subbayyammapet, Main Road, D.No.4- 473 Thatched hut, its appurtenant site of 955-11 Sq. yds., and bounded by: East: House of Chakka Satyanarayana. West: Main Road. North: Passage in between this Property and the Property of Bobba Subrahmanya Chowdary. South: Property of Balla Varambabu and others. I, the Seller executed this Sale Agreement with free consent and will. Sd/- G. Jagajyothi (Seller) Witnesses: 1.Sd/-AJJARAPU Eswara Rao. 2.Sd/- P.Ananda Rao. Scribe: Sd/- Bommidi Gopalakrishnudu, Document Writer, Kadiyapu Savaram (at present: Radham Street, Dowleswaram) 17. West: Main Road. North: Passage in between this Property and the Property of Bobba Subrahmanya Chowdary. South: Property of Balla Varambabu and others. I, the Seller executed this Sale Agreement with free consent and will. Sd/- G. Jagajyothi (Seller) Witnesses: 1.Sd/-AJJARAPU Eswara Rao. 2.Sd/- P.Ananda Rao. Scribe: Sd/- Bommidi Gopalakrishnudu, Document Writer, Kadiyapu Savaram (at present: Radham Street, Dowleswaram) 17. On perusal of above recitals of Ex.A1, wherein it is stated that the family members of the petitioner have been enjoying the plaint schedule property since 50 years and then the respondent said to be thought of selling the same to her and agreed to sell for Rs.9,00,000.00. The contention of the revision petitioner is that previously respondent filed Rent Control case stating that the revision petitioner is tenant and due to previous possession of the petitioner and his family members as a tenant under Ex.A1 no delivery of possession is took place. However, on perusal of ratio laid down by the Division Bench of this Court in B.Ratnamala case referred supra, which clearly shows that in Ex.A1 also covers delivery of possession contemporaneous which is agreement of sale recognizing the previous possession and even delivery of possession prior to the date of agreement which is need not be under the agreement also attracts Explanation I, Article 47-A second limb. Therefore, finding of trial Court with regard to nature of document to be treated as conveyance as per Explanation I, Article 47-A of Schedule IA of Stamp Act cannot be find fault. 18. Another contention of the learned counsel for the revision petitioner is that though Ex.A1 is said to be insufficiently stamped, once it is marked as an exhibit and admitted in evidence, which cannot be questioned subsequently in lieu of bar under Sec. 36 of Indian Stamp Act. It is no doubt true that the Hon'ble Apex Court in the ratio laid down in the decisions relied on by the learned counsel for the revision petitioner held that once document is admitted in evidence with regard to insufficiently stamped, which cannot be questioned afterwards in lieu of bar under Sec. 36 of Indian Stamp Act. It is no doubt true that the Hon'ble Apex Court in the ratio laid down in the decisions relied on by the learned counsel for the revision petitioner held that once document is admitted in evidence with regard to insufficiently stamped, which cannot be questioned afterwards in lieu of bar under Sec. 36 of Indian Stamp Act. It is also held in Bipin Shantilal Panchal vs. State of Gujarat case relied on by the Single Judge of this Court in Sure Ranga Murali Krishna Reddy 2018 (5) ALD 396 case referred supra, the admissibility of document with regard to stamp duty and penalty or objection relates to deficiency of stamp duty, the Court has to decide the objection before proceeding further. 19. As per Sec. 35 of the Indian Stamp Act, the duty cast upon the Public Office to see that if any document produced before them without having sufficient stamp and if any deficiency of stamp duty and penalty, which has to be collected. The Single Judge of this Court in B.V.Ramana Reddy case relied on by both sides, explained new procedure introduced in Code of Civil Procedure by way of amendment in 2002 receiving affidavits in lieu of chief-examination, wherein when chief-examination is filed along with documents which are marked not amounts to admits of document in evidence. In the present case also, on perusal of certified copy of deposition of PW.1 filed by the learned counsel for the revision petitioner, which clearly shows the affidavit of PW.1 in lieu of chief-examination as per new procedure contemplated under Order XVIII, Rule 4 CPC along with documents filed, which are marked as Exs.A1 to A4, including Ex.A1 agreement of sale, dtd. 14/10/2009 with an endorsement, which is marked subject to proof and relevancy of document. On perusal of chief-examination deposition of PW.1, which not discloses that an opportunity is given to the respondent, questioning admissibility of Ex.A1 at the time of marking the same, due to that the learned trial Judge rightly held that when counsel representing the respondent before the trial Court was not present at the time of marking, who came afterwards and objected for marking, which is after marking document, this Court learned Single Judge in similar situation, explained the difference between marking and admitting of document in Athapuram Raghuramaiah and another case referred supra, relied on by the learned counsel for the respondent. The facts in the said case, are similar to the facts of the present case. 20. On perusal of copy of deposition of PW.1, which clearly shows that Ex.A1 case name and date of admission alone are mentioned and there is no mention about objection if any or no endorsement is there that document is marked, subject to objection. Which clearly shows that learned trial Judge mechanically marked Ex.A1 without giving an opportunity to the learned counsel for the respondent to raise any objection before marking the same as an exhibit. Therefore, which is not amounts to admission of the document to invoke bar under Ss. 36 and 37 of the Indian Stamp Act. The Hon'ble Apex Court also observed in Sirikonda Madhava Rao case relied on by the learned counsel for the revision petitioner referred supra that when document is admitted, cannot be called in question at any stage. In the present case, marking of Ex.A1 is not amounts to admission to follow the ratio laid down by the Hon'ble Apex Court in the decision relied on by the learned counsel for the revision petitioner. It is also held in Yellapu Uma Maheswari vs. Buddha Jagadheeswara Rao, 2015 (16) SCC 787 that deciding stamp duty and penalty of unstamped or insufficiently stamped document, the relevant consideration is contents of document, not nomenclature from pleadings of the parties. 21. In view of discussion in the preceding paras, this Court is of an opinion that the Orders passed by the learned trial Judge that Ex.A1 agreement of sale is liable for stamp duty and penalty are sustainable, needs no interference of this Court, invoking supervisory jurisdiction under Article 227 of Constitution of India. It is need less to observe that if the party intends to pay stamp duty and penalty on Ex.A1 as conveyance, the Court itself can impound the document, otherwise if petitioner chooses it has to be sent to the Collector or the person authorized by him for getting the document impounded before the same is admitted/received in evidence can be sent to the concerned. 22. In the result, the Civil Revision Petition is dismissed. In the circumstances of the case, no order as to costs. Consequently, miscellaneous petitions if any, shall stand closed. Interim stay if any, granted shall stand vacated.