Andhra HC (Pre-Telangana)
Makineni Srinivas Rao And Others vs Manthena Prabhakar Reddy on 29 January, 2014
Author: C.V.Nagarjuna Reddy
Bench: C.V.Nagarjuna Reddy
THE HONOURABLE SRI JUSTICE C.V.NAGARJUNA REDDY
CIVIL MISCELLANEOUS SECOND APPEAL No.458 of 2013
29-01-2014
Makineni Srinivas Rao and others...Appellants
Manthena Prabhakar Reddy..Respondent
Counsel for the appellants: Mr. Damodar Rao
Counsel for the respondent: Mr. K. Raghuveer Reddy
<GIST:
>HEAD NOTE:
? CITATIONS:
1.AIR 2012 SC 1727
2.1999(6) ALD 160 = 1999(6) ALT 159
3.(1999) 1 SCR 302
THE HONBLE SRI JUSTICE C.V.NAGARJUNA REDDY
CIVIL MISCELLANEOUS APPEAL No.458 OF 2013
Dated: 29-01-2014
The Court made the following:
JUDGMENT:
This civil miscellaneous appeal arises out of order dated 22.04.2013 in I.A.No.43 of 2013 in O.S.No.24 of 2012 on the file of the learned Senior Civil Judge, Nirmal.
I have heard Sri Damodar Rao, learned counsel for the appellants, and Sri K.Raghuveer Reddy, learned counsel for the respondent.
The respondent filed O.S.No.24 of 2012 for specific performance of agreement of sale. He has also filed I.A.No.43 of 2013 under Order XXXIX Rule 1 r/w Section 151 C.P.C. for interim injunction against the appellants not to interfere with his possession and enjoyment of the suit property. It is the pleaded case of the respondent that the land admeasuring Acs.5.17 guntas in Survey No.272/201 (old) corresponding to Survey No.173 (new) situated at Adarshnagar Village near Kamalkota, was agreed to be sold for a sale consideration of Rs.7,50,600/- @ Rs.1,44,000/- per acre by appellant No.1 in his favour, pursuant to which appellant No.1 has received a sum of Rs.2,00,000/- as part sale consideration and agreed to register the sale deed on or before 14.07.2011, after receiving the balance sale consideration. That the respondent requested appellant No.1 to receive the balance sale consideration and execute the sale deed, but he has postponed execution on one pretext or the other. It is further pleaded that appellant No.1 measured the suit land, that both appellant No.1 and the respondent went to Sub Registrar, Khanapur, for registration, that the Sub Registrar wanted NOC from the Revenue Divisional Officer and that they have made an application on 06.08.2011 before the Revenue Divisional Officer for grant of NOC. The respondent further pleaded that appellant No.1 has delivered possession of the suit land as the process of getting NOC may take time and the factum of sale and delivery of possession was recorded in the record of rights. That due to Telangana agitation, there was delay in issuing NOC, which was eventually issued on 15.02.2012, wherein it was stated that 0.08 guntas out of the total extent of Acs.5.17 guntas was under acquisition and that the Government has no objection for alienation of the balance extent of Acs.5.08 guntas. That when the said fact was informed to appellant No.1, he has avoided to give any response and that a legal notice was issued on 19.04.2012. That the respondent was surprised to know that on 21.04.2012, appellant No.1 has sold the suit land to appellant Nos.2 and 3 under a registered sale deed. That when the documents were pending before the District Registrar, Adilabad, the respondent filed the suit and secured the order of interim injunction in I.A.No.150 of 2012 not to finalise the registration of the sale deed. That despite the said order, appellant Nos.2 and 3 have secured registration of the sale deed and, therefore, the respondent has filed I.A.No.43 of 2013 for the above-mentioned relief i.e., interim injunction restraining the appellants from interfering with his possession.
The appellants were represented by a common counsel. Separate written statements were filed by appellant No.1 and appellant Nos.2 and
3. It was pleaded by the appellants that the alleged agreement of sale shall be treated as a sale deed under Article 47-A of the Indian Stamp Act, 1899 (for short the Act), as possession was stated to have been delivered and, therefore, the same is not admissible in evidence unless it is properly stamped. Appellant No.1 has denied execution of agreement of sale and also receiving of advance sale consideration of Rs.2,00,000/-.
On behalf of the respondent-plaintiff, Exs.P1 to P11 were marked. On behalf of the appellants-defendants, Exs.R1 to R5 were marked. On appreciation of the pleadings and the documentary evidence, the lower Court has allowed the I.A. by granting temporary injunction restraining the appellants from utilizing the registered sale deed bearing document No.722/2012 of the Sub-Registrars office, Khanapur, and also from interfering with the possession and enjoyment of the respondent over the suit schedule property. Feeling aggrieved by this order, the appellants-defendants filed this appeal.
At the hearing, learned counsel for the appellants strenuously contended that the plea of possession set up by the respondent is unsupported by the recitals in Ex.P1-agreement of sale. He has further submitted that even if such a plea is accepted, the lower Court ought not to have relied upon Ex.P1 unless the same was impounded and additional stamp duty in terms of Article 47-A of the Act is paid. Learned counsel relied upon the judgment of the Supreme Court in Maria Margarida Sequeria Fernandes v. Erasmo Jack de Sequeria in support of his submission that it is the bounden duty and obligation of the Court to critically examine the pleadings and documents and that unless the documents produced before the Court unequivocally establish the possession of the plaintiff, no injunction can be granted.
Let me first deal with the plea of the appellants that the lower Court ought not to have considered Ex.P1 as the same was not sufficiently stamped in the light of the respondents plea that possession was delivered in pursuance of the said document. A perusal of the order under appeal reveals that the lower Court has considered this aspect and rejected the same on the reasoning that the suit agreement of sale does not contain a recital of delivery of possession and that the purported possession was delivered subsequent to the agreement of sale. It needs to be observed that it is not the case of the respondent that the agreement of sale contains a recital regarding delivery of possession. Delivery of possession, on the contrary, was pleaded by the respondent- plaintiff as registration was not done by the registering authority in the absence of NOC and that obtaining of NOC was getting delayed. Thus, on the pleading of the respondent, possession was stated to have been delivered due to the events transpired much after execution of agreement of sale.
Explanation I of Article 47-A of Schedule I-A of the Act envisages that an agreement to sell followed by or evidencing delivery of possession of the property agreed to be sold shall be chargeable as a Sale. In the opinion of this Court, the words followed by or evidencing delivery of possession of the property shall be construed to mean that delivery of possession shall be concurrent with or immediately after the execution of agreement of sale and the said provision does not attract a case where delivery of possession takes place long time after the execution of the agreement of sale. The words followed by or evidencing delivery of possession in Explanation I fell for consideration of a Division Bench of this Court in B. Ratnamala v. G. Rudramma . While reading the two phrases viz., followed by and evidencing separately, the Bench held that in the former case, even in the absence of a recital in the agreement, the delivery must be contemporaneous with the execution of agreement and that possession should be intimately and inextricably connected with the agreement. In the latter case, it held that in order to attract this explanation, the agreement must contain a recital of delivery of possession either prior to or after the agreement.
On a careful reading of Explanation I and the Division Bench judgment in B. Ratnamala (2 supra), I am of the opinion that in cases where the agreement does not contain the recital of delivery of possession, it must be examined whether possession followed the agreement. What precisely is the meaning of the word followed? The Oxford dictionary, Thesaurus and Word power guide (Indian edition 2007) explained the meaning of the word follow as move or travel behind go along come after in time or order be a logical consequence of (follow through) continue (an action or task) to its conclusion.
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 Veena Hansmukh Jain v. State of Maharashtra , 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.
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.
In my opinion, the legislature has consciously used the restrictive expression followed by preceding the words An agreement to sell in Explanation I. It has not used the expansive words such as in pursuance of for it evidently wanted levying and collection of stamp duty chargeable for conveyances only in cases where parties to agreement of sale intended delivery of possession at the agreement stage itself without waiting for execution of regular conveyance deed. It is trite that provisions of a fiscal statute need to be strictly construed.
In the present case on hand, while the appellants denied delivery of possession, the respondent pleaded that as registration of conveyance deed was getting delayed, possession was delivered to him. Thus, this is not a case where delivery of possession was in contemplation of parties at the time of execution of agreement of sale. In other words, alleged delivery was not concurrent or contemporaneous with the agreement. The alleged delivery was due to turn of events taken place after execution of agreement of sale and at best it can be said that the delivery is in pursuance of and not following the agreement of sale. I, therefore, hold that Explanation I is not attracted to the suit agreement.
With regard to the plea of the appellants that the evidence on record does not establish physical possession of the respondent, as observed by the lower Court, though Ex.R2-pahani shows the name of the appellants, the said pahani was issued on 22.04.2012 i.e. one week after issue of NOC, whereas Ex.P2 was issued in the name of the respondent on 12.04.2012 and the said pahani evidently referred to the nature of the possession of the respondent as purchaser in column No.14/15. Similar entries were found in Ex.P3-pahani for the subsequent years 2011-2012. These documents are enough to prima facie establish the possession of the respondent. Therefore, the ratio laid down in Maria Margarida (1 supra) supports the case of the respondent instead of the appellants.
For the above-mentioned reasons, I do not find any error of law or fact in the order of the lower Court, granting injunction in favour of the respondent.
The civil miscellaneous appeal is accordingly dismissed. As a sequel, interim order dated 12.06.2013 shall stand vacated and C.M.A.M.P.Nos.1015 and 1982 of 2013 shall stand disposed of as infructuous.
_____________________ C.V. NAGARJUNA REDDY, J 29th January, 2014