THE HON’BLE SRI JUSTICE G.V.SEETHAPATHY CIVIL REVISION PETITION No. 4410 OF 2009 DATE: 14-07-2009 Between: B.Chandra Reddy .. Petitioner And T.Pratap Reddy and others .. Respondents THE HON’BLE SRI JUSTICE G.V.SEETHAPATHY CIVIL REVISION PETITION No. 4410 OF 2009 ORDER: This Civil Revision Petition is directed against the order dated 22.07.2009 in O.S.No.4 of 2003 on the file of the IV Additional District Judge, Ranga Reddy, wherein the objection raised by learned counsel for the respondents/defendants was sustained holding that the suit agreement of sale requires stamp duty and penalty, as if it was a sale deed under Article 47-A of the Stamp Act. Heard the learned counsel for the petitioner/plaintiff and the learned counsel for the respondents/defendants. Perused the records. The petitioner herein filed a suit for specific performance on the suit agreement of sale in respect of the plaint schedule property of Ac.5-00 guntas in Sy.Nos.572, 573 and 574 of Ghatkesar village of Ranga Reddy District or in the alternative for refund of the sum of Rs.4.90 lakhs with interest. The respondents/defendants filed a written statement contesting the suit. After necessary issues were settled, the trial of the suit has commenced. The plaintiff filed affidavit in lieu of the chief examination and when marking the documents the defendants objected for marking of the suit agreement on the ground that the document enables the plaintiff to enter upon the suit property and, therefore, it is liable for stamp duty and penalty, as if it were a sale deed under Article 47-A of the Stamp Act. Explanation-I of Article 47-A of Schedule I-A states that “an agreement of sale followed by or evidencing delivery of possession of the property agreed to be sold, shall be chargeable as a sale under this Article”. In a decision reported in the case of S.VIJAYALAKSHMI v. BOYAPALI SANTHAMMA AND ANOTHER[1], this Court held as follows: “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. 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” In the above case, it was found from the recitals of the suit agreement that the plaintiff was permitted to make plots and lay the road on the land and the power to execute the sale deed was still vested with the defendants. It is, therefore, held that possession was given only for specific purpose and not to ultimately enjoy the same. In the present case, the suit agreement of sale dated 25.04.1996 stipulates that the total sale consideration is Rs.19,50,000/- @ Rs.3,90,000/- per acre and the purchaser paid Rs.5,00,000/- as advance and the period of agreement is 9 months effective from 14.04.1996 and the balance sale consideration of Rs.14,50,000/- was payable within those 9 months in three equal installments. It was further stipulated that the purchaser shall be entitled to enter upon the schedule land for the purpose of survey, demarcation, plotting, fixing of stones, laying of roads and displaying the boards, etc. and purchasers shall have right to use the said property as he desires. It was further agreed that the vendors shall execute and register a proper sale deed in favour of the purchasers or their nominees in full or part wise or as desired by the purchaser. It is, therefore, clear from the above recitals in the suit agreement that the purchasers were permitted to enter upon the land for certain specific purposes. The recitals in the suit document would not disclose that any absolute rights of possession or enjoyment were conferred on the purchasers under the document. Only advance of Rs.5,00,000/- was paid and balance sale price of Rs.14,50,000/- was payable for a period of 9 months in three installments. The registration of the document was also deferred to a future date. The vendors were also required to cooperate with the purchasers in getting the layout approval from the Gram Panchayat by signing the necessary applications. The consequences of default in payment of the balance and the consequences of failure of the vendors to execute the registered sale deed are also stipulated. It is not a case where the document contains all the recitals of a sale deed but only the act of registration is deferred to a future date. The suit agreement is a document where certain mutual obligations were to be performed by both the vendor and vendee in the course of the period of 9 months. It cannot, therefore, be construed as a document having all the trappings of a sale deed. Even the recital regarding the delivery of possession only permits the purchasers to enter upon the land for performing certain acts, but does not confer any absolute rights of possession and enjoyment as in a sale deed. The trial Court held that the possession under the suit agreement is absolute possession based on the fact that the plaintiff has not prayed for relief of recovery of possession and, therefore, provisions of Article 47-A of the Act are applicable. The question as to whether or not the document requires payment of stamp duty and penalty under the Explanation to Article 47- A of the Act is to be considered with reference to the recitals in the document but not the relief prayed for or omitted by the plaintiff in the plaint. Irrespective of the question as to whether or not, the plaintiff prayed for recovery of possession, the recitals of the suit agreement have to be construed independently to ascertain whether the same falls within the purview of Article 47-A or not. The trial Court relied upon a decision in the case of SRI TIRUMALA HOUSING (P) LTD., HYDERABAD v. GPR HOUSING (P) LTD., HYDERABAD[2], wherein this Court held that the agreement of sale coupled with delivery of possession was chargeable as conveyance. In the above case, on facts, it was found that in pursuance of the agreement of sale, the defendant permitted the plaintiff to enter into the suit schedule property to develop the same by obtaining sanction plan and that the layout was approved and land was also sold to many third parties to an extent of about 116 acres. It was further held that the possession was, in fact, delivered under the agreement and hence, the same was chargeable as conveyance under Article 47-A of Schedule 1-A of the Act. In the present case, no such sale was effected of any plot by the plaintiff indicating that absolute possession has been delivered in favour of the plaintiff under the suit agreement, which he could convey to the prospective purchasers of the plots. The question as to whether or not a particular document is to be treated as mere agreement of sale or as a conveyance depends upon the recitals contained therein and the same varies from case to case, going by the recitals of the suit agreement of sale. In the present case, it cannot be said that any absolute rights of possession and enjoyment were conferred on the purchaser so as to bring the document within the ambit of Article 47-A of Schedule 1-A of the Stamp Act. The document does not recite that possession is delivered to the plaintiff but merely enables the purchaser to enter upon the land for certain specified purposes only. In the circumstances, the impugned order sustaining the objection raised by the defendants and directing payment of stamp duty and penalty, as if it was a sale deed under Article 47-A of the Stamp Act is held unsustainable and the same is, accordingly, set aside. In the result, the Civil Revision Petition is allowed. ___________________ G.V.SEETHAPATHY, J -07-2009 MR THE HON’BLE SRI JUSTICE G.V.SEETHAPATHY CIVIL REVISION PETITION No. 4410 OF 2009 DATE: 14-07-2009 MR [1] 2002 (5) ALT 406 [2] 2006 (5) ALD 359