THE HON'BLE MR JUSTICE B.SESHASAYANA REDDY Civil Revision Petition No.962 of 2011 Date:08th November, 2011 Between: Gunnaganooru Mallikarjuna Reddy S/o.Venkata Subba Reddy ..... Petitioner AND Singamreddy Venkata Ramana Reddy S/o.Singamreddy Narayana Reddy. .....Respondent *** THE HON’BLE SRI JUSTICE B.SESHASAYANA REDDY Civil Revision Petition No.962 of 2011 ORDER: The Civil Revision Petition is directed against the order, dated 23.09.2010, passed in O.S.No.183 of 2009 on the file of the Senior Civil Judge, Proddatur, Kadapa District, whereby and whereunder the learned Senior Civil Judge directed the petitioner/plaintiff to pay stamp duty and penalty on the agreement of sale, dated 22.09.2003, treating it as a sale under Explanation-I to Article 47-A of Schedule-I-A of the Indian Stamp Act as applicable to the State of Andhra Pradesh. 2. The petitioner is the plaintiff in O.S.No.183 of 2009 on the file of the Senior Civil Judge, Proddatur, Kadapa District. He filed the suit for specific performance basing on the agreement of sale, dated 22.09.2003. As the agreement of sale consists the recital with regard to the delivery of possession, the learned Senior Civil Judge directed the petitioner/plaintiff to pay the stamp duty and penalty on the agreement of sale treating it as sale under Explanation-I to Entry 47-A of Schedule 1-A of the Indian Stamp Act as applicable to the State of Andhra Pradesh. Hence, this revision. 3. Notice before admission came to be ordered on 18.03.2011. The respondent entered appearance through a counsel. 4. Heard learned counsel appearing for the petitioner and learned counsel appearing for the respondent. 5. Learned counsel appearing for the petitioner submits that the issue involved in this revision is no more res integra in view of the decisions of this Court in Cheryala Srinivas v. Moola Sujatha[1] and B.Bhaskar Reddy v. Bommireddy Pattabhia Rami Reddy (died) & Ors.[2] 6. Learned counsel appearing for the respondent/defendant submits that the agreement of sale contains the recital with regard to delivery of possession, in which case, it is to be treated as a sale under Explanation-I to Entry 47-A of Schedule-1A of the Indian Stamp Act as applicable to the State of Andhra Pradesh. A further submission has been made that the trial Court is justified in directing the petitioner/plaintiff to pay the stamp duty and penalty on the agreement of sale, dated 22.09.2003. 7. I have gone through the material brought on record including the copy of the plaint in O.S.No.183 of 2009. The petitioner/plaintiff specifically pleaded in para.4 of the plaint that he has not been put in possession of the property. For better appreciation, I may refer para.4 of the plaint, which reads as hereunder: “4.It is submitted that the defendant is the absolute owner of the suit schedule property. The defendant offered to sell the schedule property to the plaintiff and in turn, the plaintiff consented to purchase the same. The sale consideration for the suit schedule property was fixed for Rs.1,20,000-00, as per the defendant’s consent for the schedule property. The plaintiff has paid the entire sale consideration to the defendant on 22.09.2003 and the defendant has received the same. The defendant has acknowledged the receipt of the said advance amount by way of executing an agreement of sale in favour of plaintiff dated 22.09.2003. Apart from that, the defendant agreed to execute regular registered sale deed in favour of the plaintiff at the risk and cost of plaintiff when ever the plaintiff called him. The defendant has recited in the above agreement of sale that he delivered vacant possession of the suit schedule property on the day of execution of agreement of sale. In fact, the defendant never gave possession of the suit schedule property and orally stated that he will deliver possession of the suit schedule property only after registration. The delivery of possession effected in the agreement only by way of recitals and physically the delivery of property not effected and till today, the possession of suit schedule property is with the defendant. The plaintiff reserves his right to take separate legal action for delivery of possession of the suit schedule property in his favour.” 8. A learned single Judge of this Court has an occasion to consider Explanation-I to Entry 47-A of Schedule-1-A of the Indian Stamp Act as applicable to the State of Andhra Pradesh in Cheryala Srinivas’s case (1 supra) and observed as hereunder: “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.” 9. Another learned single Judge of this Court has held in B.Bhaskar Reddy’s case (2 supra) that the agreement holder not in possession of property under the agreement of sale in spite of recital in the document as to delivery of possession need not pay stamp duty as required in Explanation-I to Article 47-A as it has to be treated as a simple agreement of sale falling outside the scope of the said provision. Para.17 of the cited judgment needs to be noted and it is thus: “Coming to the case on hand, it is an admitted fact that though an agreement of sale was executed reciting as to delivery of possession, possession was not delivered and there was exchange of notices for delivery of possession under the agreement. Whereas, the defendants denied the very execution of the agreement and also stated that the question of delivery of possession does not arise since there was no agreement executed between the parties. In the plaint it was pleaded that though there is a recital in the agreement, possession was not delivered in spite of issuance of legal notice. In the written statement, defendants stated that they are in possession of the property. Under those circumstances I am of the considered opinion that an agreement to sell followed by or evidencing delivery of possession of the property agreed to be sold shall be chargeable as sale and not otherwise and, in the case on hand, agreement of sale is not followed by or evidencing delivery of possession of the property agreed to be sold. The pleadings, nature of the documents and the recitals and the surrounding circumstances must be taken into consideration for the purpose of Explanation I to Article 47-A of Schedule I-A of the Indian Stamp Act, in the interest of justice. Therefore, agreement of sale in question does not fall within the scope of Explanation I to Article 47-A of Schedule 1-A of the Indian Stamp Act; thus, impounding of such document does not arise.” 10. The plaint averments are crystal clear that the defendant has not delivered possession of the property to the plaintiff. Such is the situation, the above referred two decisions are squarely applicable to the facts of the case on hand. In that view of the matter, the order impugned in the revision cannot be sustained and accordingly, the same is liable to be set aside and the agreement of sale is to be treated not as a sale and it is an agreement of sale simplicitor. 11. Accordingly, the Civil Revision Petition is allowed setting aside the order, dated 23.09.2010, passed in O.S.No.183 of 2009 on the file of the Senior Civil Judge, Proddatur, Kadapa District. No costs. ______________________ B.SESHASAYANA REDDY, J. Date:08th November, 2011. cs THE HON'BLE MR JUSTICE B.SESHASAYANA REDDY Civil Revision Petition No.962 of 2011 Date:08th November, 2011 [1] 2010 (1) ALT 448 [2] 2010 (6) ALT 596