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2022 DIGILAW 769 (AP)

P. Venkayamma v. Bhimavarapu Bhimeswara Prasad

2022-08-18

V.R.K.KRUPA SAGAR

body2022
ORDER : 1. The plaintiff before the learned trial Court has come up with this civil revision petition under Article 227 of the Constitution of India impugning the order dated 12.12.2017 passed by learned I Additional Senior Civil Judge, Guntur in I.A.No.662 of 2014 in O.S.No.379 of 2013. The respondents herein are the defendants before the learned trial Court. 2. O.S.No.379 of 2013 was filed seeking the relief of cancellation of a sale deed dated 02.02.2013 executed by the 1st defendant in favour of the 2nd defendant and it further seeks for a relief of permanent injunction restraining the defendants from interfering with peaceful possession and enjoyment of the plaintiff over the plaint schedule immovable property. The suit was filed by a woman and the suit has been prosecuted through the mechanism of appointing a special power of attorney holder, who is her son-in-law. The averments in the plaint disclose that it is that son-in-law, who conveyed certain properties, which include suit schedule property to the plaintiff. The father of the son-in-law seems to have obtained a possessory agreement for sale dated 23.02.1963 and got 60 square yards of site which seems to be a part of the suit schedule property. On the death of the agreement holder, his son allegedly succeeded the property and then what was said to have been succeeded was conveyed by a registered deed in favour of the plaintiff. It is that part of the property that fell in dispute since the opposite parties allegedly transacted with this property under certain registered conveyances. It is in the context of such facts and circumstances, the litigation before the trial Court cropped up. Both sides put in their pleadings and it seems that the trial Court commenced the trial and started recording evidence. It was at that stage, the plaintiff in the suit filed I.A.No.662 of 2014 under Section 151 C.P.C. stating that during the course of evidence when the possessory agreement for sale dated 23.02.1963 was sought to be exhibited as one of the documents on behalf of the plaintiff, the learned trial Court objected to admit it on the ground that the document was not properly stamped. Therefore, the petitioner/plaintiff/revision petitioner by the said application made a prayer to the trial Court to evaluate the deficit stamp to be paid on the said document and that she is prepared to pay the deficit stamp duty after it is being evaluated. 3. On that application, a counter was invited and the defendants/respondents/respondents filed a counter stating that it is a fabricated document and with unclean hands and with untenable contentions, with a view to delay the proceedings, the plaintiff was pursuing the litigation including the application. It is further stated that the said possessory agreement for sale is a compulsorily registerable document and it cannot be received in evidence and cannot be impounded and cannot be sent for collection of stamp duty and sought for dismissal of the petition. 4. Learned trial Court considered the submissions on both sides and at para No.6 of the impugned order, it recorded the point for determination which is: “Whether document i.e., possessory agreement of sale dt. 23.02.1963 be sent for impounding as prayed for?” 5. In answer to the question raised above, the learned trial Court recorded that the chief purpose of filing of this document is to establish the rights of the plaintiff and it is not for any collateral purpose and that document requires registration and it is unregistered document and therefore, collection of deficit stamp duty does not make any difference. It is with that reason and with an observation that the petition is filed only to drag on the matter, the learned trial Court found no merits with the petition and answered the point against the petitioner and dismissed the petition. 6. Aggrieved by that order, the present civil revision petition is filed by the plaintiff in the trial Court. It is stated that the impugned order is wrong and against law and the learned trial Court did not pass any order on evaluation of deficit stamp duty, but decided the matter about the admissibility of the document, which is incorrect. There is no bar for receiving the deficit stamp duty on the possessory agreement for sale. The learned trial Court ought to have considered the prayer and allowed it, but erroneously it dismissed the petition and therefore, for reversed of it, the revision petitioner makes a prayer. 7. There is no bar for receiving the deficit stamp duty on the possessory agreement for sale. The learned trial Court ought to have considered the prayer and allowed it, but erroneously it dismissed the petition and therefore, for reversed of it, the revision petitioner makes a prayer. 7. Learned counsel for the respondents submitted that the order impugned need not be disturbed and the fact remains that the document proposed to be adduced in evidence is a compulsorily registerable document and since it was not registered, learned trial Court rightly dismissed the petition of the revision petitioner. It is further submitted that after collection of stamp duty, once again the petitioner would seek admission of this document and that would cause irreparable loss to the respondents. For these reasons, learned counsel seeks for dismissal of this revision and in support of the submissions made, learned counsel for the respondents cited legal authorities. 8. Learned counsels on both sides submitted their arguments and both sides relied on the same legal authorities that are cited by learned for the respondents. 9. In the above referred circumstances, the point that arises for consideration of this Court is: “Whether the impugned order suffers from illegality or material irregularity requiring correction?” 10. Point: The document in question is a possessory agreement for sale dated 23.02.1963. The said document is not made available to this Court for consideration. Be that as it may. It is undisputed that it was not a document that was registered. The submission of learned counsels on both sides and the material on record including the impugned order does not indicate whether this particular document is totally unstamped or it is partly stamped and thereby under stamped. It is under these circumstances, this Court cannot record any finding about the amount of stamp that is required and as to whether registration of this document is required or not? With this caveat, this Court shall proceed further. 11. Even according to the revision petitioner, the said document has to be evaluated for paying required stamp duty. It is under these circumstances, this Court cannot record any finding about the amount of stamp that is required and as to whether registration of this document is required or not? With this caveat, this Court shall proceed further. 11. Even according to the revision petitioner, the said document has to be evaluated for paying required stamp duty. As per the sworn affidavit of this revision petitioner filed before learned trial Court, when this document was tendered in evidence, the Court raised an objection about the stamp duty on the document and declined to mark the document and that necessitated moving the application for evaluation of the document for the purpose of stamp duty so that the revision petitioner could pay the deficit stamp duty as provided under law. 12. Before the learned trial Court, the only prayer made by revision petitioner was for the purpose of evaluation of stamp duty so that the same could be paid by the revision petitioner. What was required on part of the learned trial Court was to decide that particular submission. A reading of the impugned order does not indicate any finding on that aspect of the matter. Learned trial Court did not evaluate the requirement of payment of stamp duty and did not impound the document for that purpose. When a document is not duly stamped, but it is tendered for evidence, the first duty of the Court is to act in accordance with Section 33 of the Indian Stamp Act, 1899, which mandates that the Court shall impound the document. ‘Impound’ means to keep in custody of the law (vide Suresh Nanda Vs. CBI, (2008) 3 SCC 674 ). Failure to adjudicate on a fact that was presented before it for adjudication is failure to exercise jurisdiction and therefore, the impugned order suffers from that illegality requiring interference. The trial Court shall verify these documents and evaluate the need for payment of any stamp duty and penalty and then proceed in accordance with law after consultation with the petitioner as to whether the petitioner is inclined to pay the stamp duty and penalty at the Court or would have it done at the office of the learned Registrar. 13. The entire impugned order shows that while the prayer made before the learned trial Court was about stamp duty, the learned trial Court made an order concerning very admissibility of the document. 13. The entire impugned order shows that while the prayer made before the learned trial Court was about stamp duty, the learned trial Court made an order concerning very admissibility of the document. All the reasons furnished by the learned trial judge in the impugned order were irrelevant for consideration for deciding the petition that was placed before him. Even if it is true that it is a compulsorily registerable document etc., that is a matter that the learned trial Court is to consider as and when the document is once again tendered for evidence after payment of stamp duty and penalty, if any. 14. The apprehension of the learned counsel for the respondents is that after payment of stamp duty when this document is going to be tendered before the learned trial Court, the revision petitioner may press for its admission in evidence. This apprehension is a mere apprehension without any merit. A party to a litigation is entitled to pursue the legal course that is provided by law. Mere payment of stamp duty and penalty does not by itself obviate the need for registration of a document if the subject matter document requires registration. This has been the law and reference in this regard could be made to Golla Dharmanna Vs. Sakari Poshetty @ Wadoor Poshetty, 2013 SCC online AP 653 especially at para No.12. 15. Learned counsel for the respondents cited a decision in Yellapu Uma Maheswari and another Vs. Buddha Jagadheeswararao, (2015) 16 SCC 787 . That was a case where the document that came up for consideration was a deed of relinquishment of rights it was found to be not stamped and registered. It was in that context, the Hon’ble Apex Court was pleased to say that on payment of deficit stamp duty together with penalty a document could be admitted in evidence for collateral purpose. In that case, the proposed document was found to be compulsorily registerable document and therefore, that could not be admitted in evidence for the purpose of proving the terms and conditions of the document. Learned counsel for the respondents also cited a decision of this Court in Anga Bhuloka Rao Vs. In that case, the proposed document was found to be compulsorily registerable document and therefore, that could not be admitted in evidence for the purpose of proving the terms and conditions of the document. Learned counsel for the respondents also cited a decision of this Court in Anga Bhuloka Rao Vs. Smt. Noorjahan Begum, 2011 SCC Online AP 1129/ (2011) 2 ALT 373 and that was a case of an agreement for sale and it was found to be a document that requires stamp duty and registration and when the trial Court objected for its marking and directed for payment of stamp duty and penalty, the revision had come up before this Court. This Court found that the particular document in that case was properly analysed by the trial Court and order concerning stamp duty and penalty was right and the point is contest about its inadmissibility for want of registration was also upheld. 16. On both the propositions of law that are cited by learned counsel for the respondents, there is absolutely no controversy. The endeavour of this Court in the present matter is only to state that all that law contained in this legal authorities shall be complied with by the learned trial Court and this Court only states that going by the purport of the prayer made before the learned trial Court in the application moved by this revision petitioner what was required was not done by the trial Court and it is only that part of the order that is set aside here. The questions concerning registration and admissibility of the document shall now be considered by the trial Court. 17. For the reasons stated above, I find merit in this revision and the point is answered in favour of the revision petitioner. 18. In the result, the Civil Revision Petition is allowed. As a consequence of it, order dated 12.12.2017 of learned I Additional Senior Civil Judge, Guntur in I.A.No.662 of 2014 in O.S.No.379 of 2013 stands set aside. The said I.A.No.662 of 2014 stands allowed. The learned trial Court shall proceed further with the subject matter of the document, which is agreement for sale dated 23.02.1963 for the purpose of collection of stamp duty and penalty, if any, either by itself or through the office of the learned Registrar. The said I.A.No.662 of 2014 stands allowed. The learned trial Court shall proceed further with the subject matter of the document, which is agreement for sale dated 23.02.1963 for the purpose of collection of stamp duty and penalty, if any, either by itself or through the office of the learned Registrar. The question of want of registration and admissibility of this document are left open to the trial Court to be decided at an appropriate stage. There shall be no order as to costs. As a sequel, miscellaneous applications pending, if any, shall stand closed.