1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH : NAGPUR WRIT PETITION NO.686 OF 2011 (Shri Panjab Gulabrao Kanhire and another vs. Shri Ashish B. Tarale) __________________________________________________________________ Office Notes, Office Memoranda of Coram, appearances, Court's orders Court's or Judge's orders or directions and Registrar's orders. Shri A.K. Waghmare, Advocate for the petitioners. Shri V.M. Kitey, Advocate for the respondent. -------- CORAM : R.M. SAVANT, J. DATED : JULY 4 , 2011 This petition takes exception to the order dated 15/12/2010 passed by the learned 3 rd Joint Civil Judge, Junior Division, Wardha whereby the application (Exh. 20) filed by the defendants, i.e. petitioners herein that the document in question, i.e. Ishar Chithi should not be read in evidence unless the plaintiff pays the necessary stamp duty and gets the document registered was rejected. The trial Court has rejected the said application (Exh. 20) on the ground that since possession of the suit property was not handed over 2 pursuant to the said document and since possession of the suit property was to be handed over at the time of execution of the Sale Deed, the said document could not be termed as a conveyance. Insofar as Bombay Stamp Act is concerned, Article 25 and more specially, the Explanation thereto covers the field. The said Article had come up for interpretation before a Division Bench of this Court in the matter of Balawantgir Ganpatgir Giri through his L.Rs. Nanibai wd/ Balwant Giri and others vs. Manasi Construction and Developers and others (2006 (5) Mh.L.J. 306) where in a similar fact situation, the Division Bench held that agreement dated 3/3/2000 is purely an agreement for sale wherein there is no recital for delivery of possession in terms of the agreement. The Division Bench held that delivery of the possession, which transposes an agreement into a conveyance in terms of the said Explanation is only in case of agreement to deliver the possession in terms of the agreement and not in terms of the Sale Deed, which is agreed to be executed consequent to such agreement. 3 The learned Counsel for the petitioners sought to rely upon the judgment of the Apex Court in Veena Hasmukh Jain and another vs. State of Maharashtra and others (1992 (2) Bom. C.R. 124). In the said case, it was not stipulated as to when the conveyance would be executed and the possession in the said case was handed over on execution of the agreement of sale. It is in the said context that the Apex Court held that the document in question would be a conveyance. The next judgment relied upon by the learned Counsel for the petitioners is the Division Bench judgment of this Court in the matter of Naginbhai P. Desai vs. Taraben A. Sheth (AIR 2003 Bombay 192). In the said case also, the agreement of sale contemplated delivery of possession and it is in the said context that the Division Bench held that the said document was a conveyance. In the instant case, as mentioned hereinabove, the possession was to be handed over at the time of execution of the sale deed. Hence, the judgment of the Division Bench of this Court in Balawantgir Ganpatgir Giri's case (supra) would be 4 applicable. On the application of the said judgment, the impugned order of the trial Court, dated 15/12/2010 cannot be faulted with. No case for interference is made out. The writ petition is accordingly dismissed. JUDGE khj