THE HON’BLE MR JUSTICE L. NARASIMHA REDDY +C.R.P.Nos. 3135 & 3137 of 2009 COMMON ORDER: % 07-10-2009 Between: Cheryala Srinivas …Petitioner And Moola Sujatha and others …Respondents ! Counsel for Petitioner : Sri L. Prabhakar Reddy ^ Counsel for Respondents : Sri S. Srinivas Reddy < Gist: > Head Note: ? CITATIONS: THE HON’BLE MR JUSTICE L. NARASIMHA REDDY C.R.P. Nos.3135 & 3137 of 2009 COMMON ORDER: The parties are common to both the revisions. Hence, they are disposed of through common order. The 1st respondent filed O.S.Nos.34 and 35 of 2007 in the Court of Senior Civil Judge, Siddipet, against the petitioner and respondents 2 and 3 for the relief of specific performance of agreements of sale dated 15-12-2006, in respect of two separate items of property, situated at Narmetta Village, Nangunoor Mandal, Medak District. The trial of the suit commenced, and in the evidence of the 1st respondent, respective agreements of sale were sought to be marked. The petitioner raised an objection, as to the admissibility of the documents. It was pleaded that the agreements required to be registered under entry 47-A of Schedule I-A of the Indian Stamp Act, 1899 (for short ‘the Act’) on account of the fact that there is a recital as to delivery of possession, and that the stamp duty for the documents is inadequate. The 1st respondent pleaded that though there is a recital, as to delivery of possession in the documents, several acts, which constitute effective delivery of possession, as indicated in the agreements, were to be undertaken by the petitioner. It was also alleged that the petitioner denied delivery of possession in the written-statement. The trial Court overruled the objection raised by the petitioner, through its docket orders dated 29- 06-2009. Hence, these two revisions. Sri L. Prabhakar Reddy, learned counsel for the petitioner submits that the agreement of sale was drafted only on a stamp paper of Rs.100/-, and there is a recital to the effect that the possession of the property is delivered. He contends that on a document of this nature, stamp duty is to be paid, as though it is a sale deed, and that there is a huge deficit of stamp duty. He submits that even if there is any dispute as to the actual delivery of possession, the guiding factor for the limited purpose of registration and stamp duty would be, the recital in the agreement. Sri S. Srinivas Reddy, learned counsel for the 1st respondent, on the other hand, submits that the statement, as to delivery of possession in the agreement of sale cannot be read in isolation, and it is preceded by several conditions, such as obtaining of sale deed by the petitioner, from the original owner, measurement of the land, fixation of boundaries, provision of access etc. He submits that, it is only on completion of these formalities, that the possession can be said to have been delivered. He further submits that when the petitioner has stated in categorical terms in his written-statement that the 1st respondent is not in possession, it is not open to him to contend otherwise. The 1st respondent filed two suits for the relief of specific performance of agreements of sale. Admittedly, the documents are not registered and were written on stamp papers of Rs.100/- each. Schedule I-A of the Act is substituted through A.P. Act 20 of 1974 and 22 of 1990. Explanation-I, to entry 47-A, reads as under: “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 : Provided that, where subsequently a sale deed is executed in pursuance of an agreement of sale as aforesaid or in pursuance of an agreement referred to in Clause (b) of Article 6, the stamp duty, if any, already paid or recovered on the agreement of sale be adjusted towards the total duty leviable on the sale deed”. The agreements of sale, which evidenced the delivery of possession of the property, are equated to sale deeds, for the limited purpose of stamp duty. To avoid double payment of stamp duty, the provision mandates that the stamp duty paid on the agreements would be taken into account, at the time of registration of the resultant sale deeds. The possession mentioned in explanation-I, must be effective, actual, and the one, recognized in law. Unless the party under the agreement has the benefit of possession of the property, without any dispute, or challenge, from a party to the agreement, he cannot be mulcted with the liability to pay the stamp duty, as though it is a sale deed. There is background, on account of which, explanation came to be added. Instances were noticed, wherein the parties were enjoying the properties, almost as owners, just on the basis of agreements of sale. In fairly large number of transactions, parties were not inclined to get the sale deeds executed, may be due to enormous expenses involved. They were enjoying the effective possession of the property, just on the strength of agreements of sale. The vendors also did not have any grievance, once they received the entire consideration. The net result is that the State was deprived of the stamp duty, payable on the transaction, which is akin to a sale. Therefore, the very basis for equating an agreement of sale to a sale deed, for the purpose of stamp duty, is the effective, uninterrupted and legal possession of the purchaser. If that is lacking, or seriously doubted, the equation gets a bit disturbed. In the instant case, it is no doubt true that the last sentence of the agreements mentions that the possession of the land is handed over to the 1st respondent. If that sentence or phrase is independent and absolute, the objection raised by the petitioner is certainly valid and deserves to be accepted. However, the phrase, that connotes delivery of possession, is preceded by several conditions. Before further discussion is undertaken, with reference to the facts of the case, it is better to have some idea about the very concept of possession. Many jurists have devoted substantial part of their attention, to address this. As a matter of fact, possession assumes greater significance, than ownership, since it is only a person in possession of movable or immovable property, that can enjoy the actual benefit, than a mere owner of it. It is by no means an easier task to state, as to when a person can said to be in actual and effective possession of something. After referring to two important ingredients, viz. , corpus possessionis and animus possidendi, P.J. Fitzgerald, in ‘Salmond on Jurisprudence’, says; “The test then for determining whether a man is in possession of anything is whether he is in general control of it. Unless he is actually holding or using it—in which event he clearly has possession—we have to ask whether the facts are such that we can expect him to be able to enjoy the use of it without interference on the part of others. There will always, of course, be border-line cases. Suppose I become paralysed: am I still in possession of the coat by my side? Such questions need not detain us, for the ordinary concept of possession is not designed to cope with such marginal cases, while the existence of legal rules relating to legal possession will answer such questions and obviate the need for any decision in terms of possession in fact”. (See ‘Salmond on Jurisprudence’ twelfth edition page 273, by P.T. Fitzgerald) The difference between legal and actual possession was explained as under: “Of all the divergencies between legal and actual possession this is the most notable, viz., that outside the law possession is used in an absolute sense whereas within the law it is employed in a relative sense. Outside the law we do not speak of a person having possession as against someone else; we say that he either has or has not got possession. In law we talk rather of possession as something which one person has against another”. (See ‘Salmond on Jurisprudence’ twelfth edition page 281 by P.T. Fitzgerald) Dias, in his treatise on ‘Jurisprudence’, has discussed the concept of possession, with reference to the theories, propounded by eminent jurists, viz., Salmond, Holmes, Pollock, and ultimately summed up, that there cannot be any straightaway and simple answer to the question, as to whether possession is a matter of law, or of fact. Ultimately he suggested that; “…Possession has three aspects: firstly, the relation between a person and a thing is a fact. Secondly, the advantages attached by law to that relation is a matter of law. Thirdly, these advantages are also attributed to a person when certain other facts exist. What they are in any given type of case is a matter of law”. (See ‘Dias Jurisprudence’ fifth edition page 290) Therefore, the practical way of looking at the matter is, as to whether a person, in whom the possession is said to have vested, has the effective control of the subject-matter, and is in a position to enjoy the benefit of it. Unless the person is in a position to enjoy it, he cannot be said to be in possession thereof. 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. Even otherwise, the impact of various recitals or the aspects mentioned above could have been ignored, had the petitioner acknowledged the possession of the 1st respondent over the land. In his written-statement filed in O.S.No.35 of 2007, the petitioner stated as under: “Para-3: The first defendant alienated the suit lands through registered sale deed dated 21-03-2007 to Parupalli Somaiah for valid consideration and inducted him into possession of the same to discharge the debts incurred by this defendant.” In addition to that, it is mentioned that the boundaries of the land covered by both the agreements were got measured on 25-12-2006. No steps are said to have been taken thereafter. Therefore, the documents cannot be treated as those, covered by explanation-I, to entry 47-A, of Schedule I-A. Another way of looking at the matter is, from the point of view of the object, underlying the Act. It aims at imposition of stamp duty on various transactions. If a transaction is complete, but the prescribed stamp duty is not paid, an occasion arises for impounding it. The agreement of sale is not an absolute transaction. It has to culminate in a sale deed. Viewed in this context, an agreement of sale cannot be subjected to the same tests, as to impounding, on par with other documents. The trial Court has taken correct view of the matter. This Court is not inclined to interfere with the same. The revisions are accordingly dismissed. There shall be no order as to costs. _______________________ L. NARASIMHA REDDY, J. Dt.07-10-2009. Note: L.R copy to be marked. (B/O) KO*