Andhra HC (Pre-Telangana)
S. Vijayalakshmi vs Boyapali Santhamma And Anr. on 9 August, 2002
Equivalent citations: 2002(5)ALT406
ORDER G. Bikshapathy, J.
1. This revision is filed against the order passed by the learned Additional District Judge, Madanapalle in O.S. No. 6 of 1999 dated 3-12-2001.
2. The suit was filed by the plaintiff directing the defendant to receive the balance of sale consideration of Rs. 1,49,000/- in turn the defendant as per the terms of the suit agreement dated 6-11-1997 has to execute the Sale deed. Another relief is also framed directing the defendant to deliver the possession of the plaint schedule property to the plaintiff or to the persons specified by the plaintiff.
3. During the course of trial, the plaintiff tried to introduce the agreement of sale dated 6-11-1997 and mark the same as the suit document. But the same was objected by the defendants on the ground that it is not properly stamped. The lower court after hearing the learned counsel for the parties held that since the possession was delivered in pursuance of the agreement, it requires necessary stamp duty. The said order is assailed in this revision.
4. The learned counsel appearing for the petitioner however submits that as far as the execution of the document is concerned it is not in dispute but the question is whether the possession was given to the plaintiff or not. As can be seen from the recitals, the plaintiff was permitted to make the plots and lay the road on the land in question. But the power to execute the sale deed in favour of the present purchasers is still vested with the defendants. In those circumstances, it has to be said that the possession was also given in pursuance of the agreement.
5. The learned counsel appearing for the respondents however relied on the judgment of the learned Single Judge of this court in V.L. Narasimha Rao v. K.T. Pentaiah, to the effect that when the possession of the land was given for making plots and for laying roads it must be understood that the possession was also given to him and the Stamp Duty has to be paid on it.
6. I have heard the learned counsel for the parties.
7. Explanation I of Article 47-A Schedule 1-A, which reads as follows:
"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 ..........."
8. The question that arises for consideration is whether the possession was handed over under the agreement of sale. The lower court has only presumed that the plaintiff was permitted to lay the roads and divide the land into plots and it presumed possession was also given. But it is to be noted that the possession is given only for performing the survey functions and ultimately title is with the plaintiff. In such a situation, the possession has to be delinked if it is meant for specific purpose. In the judgment referred to by the learned counsel for the respondent (supra 1) it is clearly stated that the vendee was given absolute rights to sell the plots to whomsoever he wants and vendor agreed to execute sale deeds in favour of those persons. Such a power is not vested with the plaintiff herein. Mere placing of the land in the hands of the plaintiff for the purpose of dividing it into plots and to lay roads would not constitute handing over the absolute possession of land in question.
9. The learned counsel appearing for the respondent however relies on the decision of the Division Bench reported in B. Ratnamala v. G. Rudramma, (D.B.). It is to be seen that the facts of the present case stands on a different footing inasmuch as the power to execute sale deed still vested with the owner and that the land was given possession only for a specific purpose and not to ultimately enjoy the same. Therefore, this judgment relied on by the learned counsel appearing for the respondent has no relevance to the facts of this case.
10. Therefore, I am of the opinion that no stamp duty is necessary. Accordingly, I set aside the order directing the lower court to receive the document without insisting the stamp duty. However, it is left open to the defendant to raise any other objections, which are open to him under law in respect of the said document.