THE HON'BLE SRI JUSTICE K.C. BHANU CIVIL MISCELLANEOUS APPEAL NO.950 OF 2010 JUDGMENT: This Civil Miscellaneous Appeal is preferred aggrieved by the order dated 29.07.2010 in I.A.No.1389 of 2009 in O.S.No.243 of 2009 on the file of the Senior Civil Judge, Nizamabad, whereunder and whereby the application filed by the appellant herein (plaintiff) under Order XXXIX Rules 1 and 2 CPC to grant temporary injunction restraining the respondents herein (defendants) from alienating, creating any charge, raising any structures or making any change or alteration in the suit schedule property during pendency of the suit was dismissed. 2. Ex.P1 is the agreement of sale, basing on which, the suit was filed. One of the grounds taken by the respondents is that Ex.P1 cannot be received as evidence as it requires stamp duty and penalty. 3. On this aspect, learned counsel appearing for the appellant-plaintiff placed reliance on a decision reported in CHERYALA SRINIVAS V MOOLA SUJATHA AND OTHERS [1], wherein it was held thus: “Reverting to the facts of the case, the petitioner himself is not the absolute owner of the property, covered by the agreements. It is stated that he holds an agreement of sale for that property, from one Mr. Kuthuru Narsaiah. The agreements have recitals to the effect that the petitioner would obtain proper conveyance from Narsaiah, and get the boundaries fixed for the land in accordance with the Khasara Pahani, Chouptla, etc. He has also undertaken to provide access to the property, from the land owned by Sri Vadde Mallaiah. In this background, it is difficult to conclude that the petitioner has delivered the possession of the subject-matter of the agreements. It is only a piece of land, with specific boundaries in respect of which, the vendor has absolute rights, that he can effectively deliver possession to others. When the vendor himself is not certain about the boundaries, and does not hold title, the plea as to delivery of possession cannot be accepted, in the limited context of determination of the extent of stamp duty. 4. He further relied on a decision reported in B.BHASKAR REDDY V BOMMIREDDY PATTABHI RAMI REDDY AND OTHERS [2], wherein it was held thus: “In a situation like this, the aid of purposive interpretation needs to be taken into consideration. The purpose to insist upon payment of proper stamp duty is to earn revenues to the State. If a person, being in physical possession and enjoyment of the property under the agreement of sale, wherein there is a recital as to delivery of possession or evidencing delivery of possession, avoids to pay proper stamp duty, such document is inadmissible under Section 35 of the Indian Stamp Act, 1899. In nutshell, wherever the agreement holder is not in possession of the property under agreement of sale, even though there is a recital in the agreement as to delivery of possession, he need not pay proper stamp duty as required. It shall be treated as a simple agreement of sale falling outside the scope of Explanation I to Article 47-A of Schedule I of the Indian Stamp Act. Various situations may arise for consideration on this aspect. The purpose of the Act is to see that a person, who is in physical possession and enjoyment shall not avoid to pay proper stamp duty as required under Explanation I to Article 47- A of the Stamp Act. Otherwise, the document shall not be admissible in evidence as required under Section 35 of the Stamp Act 5. He further relied on a decision reported in PENKEY SURYAKANTHAM V SHAIK SILAR [3], wherein it was held thus: “It is the case of neither the petitioner/plaintiff nor the respondent/defendant that the possession of the suit schedule property was delivered to the petitioner/plaintiff under the agreement of sale. Therefore, even the terms of the agreement of sale did not indicate that possession has been delivered to the petitioner/plaintiff either on the date of agreement of sale or on any subsequent date in pursuance of the agreement of sale. Therefore, the suit agreement stands outside the scope of explanation to Article 47-A of Stamp Act. The court below failed to note the pleadings of both partiers and misread the agreement of sale and endorsement thereon and thereby came to erroneous conclusion, that the suit agreement of sale comes within the purview of explanation to Article 47-A of Stamp Act. I may also add that the petitioner/plaintiff prayed for the relief of possession in the suit. If he was put in possession of the property either on the date of agreement of sale or on any subsequent date in pursuance of the agreement of sale, there was no need for him to seek the relief of possession. The very fact that he sought for relief of possession indicates that he was not put in possession of the property either as on the date of agreement of sale or on any subsequent day in pursuance of the agreement of sale.” At this stage, the decisions relied upon by the learned counsel for the appellant need not be looked into for the reason that we are at the threshold of receiving of agreement of sale. It is not in dispute before this Court that original of Ex.P1 is an instrument within the meaning of Section 2 (14) of the Indian Stamp Act, 1899 (for short ‘the Act’). Once it is an instrument within the meaning of Section 2 (14) of the Act, it requires stamp duty and penalty under Section 35 of the Act. Unless stamp duty and penalty is paid, the document cannot be used for any purpose by any person even for collateral purpose. 6. On this aspect, learned counsel appearing for the respondents-defendants relied on a decision reported in AVINASH KUMAR CHAUHAN V VIJAY KRISHNA MISHRA [4], wherein it was held thus: “SECTION 35 of the Act, however, rules out applicability of such provision as it is categorically provided therein that a document of this nature shall not be admitted for any purpose whatsoever. If all purposes for which the document is sought to be brought in evidence are excluded, we fail to see any reason as to how the document would be admissible for collateral purposes” In view of the authoritative pronouncement by the Supreme Court, the document cannot be looked into for any purpose even for collateral purpose unless stamp duty and penalty is paid. Therefore, the impugned order is liable to be set aside. 7. Accordingly, the Civil Miscellaneous Appeal is allowed setting aside the impugned order. The matter is remanded to the trial Court giving liberty to the appellant-plaintiff to pay stamp duty and penalty as determined by the Revenue Officials. After receipt of documents by the Revenue Officials, proper stamp duty and penalty has to be ascertained within three months from the date of receipt of documents. The issue whether possession was delivered or not in pursuance of Ex.P1-agreement of sale is left open. No costs. _______________ K.C. BHANU, J DATED: 28-09-2011 Hsd [1] 2010 (1) ALD 246 [2] AIR 2011 AP 1 [3] 2003 (2) L.S.162 [4] (2009) 2 SCC 532