IN THE HIGH COURT OF JUDICATURE OF ANDHRA PRADESH:: HYDERABAD WEDNESDAY, THE TWENTY EIGTH DAY OF DECEMBER TWO THOUSAND AND ELEVEN PRESENT:: HON’BLE SRI JUSTICE G.V.SEETHAPATHY C.R.P.No.1166 OF 2011 Between: Syed Shameer Basha …Petitioner A n d K.Venkataramana and another ..Respondents HON’BLE SRI JUSTICE G.V.SEETHAPATHY C.R.P.No.1166 OF 2011 ORDER: This civil revision petition is directed against the order dated 03.03.2011 in O.S.No.13 of 2010, on the file of the Principal Senior Civil Judge, Tirupathi, wherein it was held that the plaintiff is liable to pay the stamp duty and penalty under the suit agreement of sale dated 25.07.2006 under Article 47-A of Schedule 1-A of the Stamp Act as a conveyance. 2. Heard the learned counsel for the petitioner/plaintiff. None appears for the respondents, though served with notices. Perused the record. 3. The petitioner herein, the plaintiff, filed the suit for specific performance of suit agreement of sale dated 25.07.2006. It is stated that the defendants remained ex parte in the suit. When the matter was coming up for recording the evidence of the plaintiff, the suit agreement of sale was sought to be exhibited. The Court took an objection and by the impugned order directed the plaintiff to pay stamp duty and penalty on par with conveyance under Article 47-A of Schedule I-A of the Stamp Act on the ground that possession of the property was delivered under the suit agreement of sale. Aggrieved by the same, the plaintiff preferred the present revision. 4. The learned counsel for the petitioner/plaintiff would contend that there is no effective or absolute delivery of possession under the suit agreement of sale and the delivery of possession was only for a limited purpose of demarcation and laying out of the plots. 5. The question as to whether or not the document though an agreement of sale is liable for stamp duty and penalty on par with conveyance under Article 47-A, is a matter to be considered with reference to the terms of the document. A perusal of the suit agreement of sale would no doubt disclose that possession was delivered to the plaintiff. However, there are certain recitals in the said document which go to show that possession was delivered so that the purchaser can level the land, demarcate the plots and market the same. In C.R.P.No.4410 of 2009, this Court by order dated 14.07.2009, a copy of which is produced by the learned counsel for the petitioner, under similar circumstances held as follows: “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 above decision, reference was made to a decision of this Court in S.VIJAYALAKSHMI v. BOYAPALI SANTHAMMA & ANOTHER[1], wherein it was 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”. 6. In C.R.P.No.2340 of 2011 this Court by order dated 10.08.2011, a copy of which is produced by the learned counsel for the petitioner, under similar circumstances, held as follows: “A reading of the above recitals clearly shows that the possession was delivered to the plaintiffs only for the limited purpose of preparation of layout and dividing the land into residential plots, etc. Thus it is not a case where the possession was handed over to the plaintiffs with absolute rights, but the plaintiffs were put in possession only for certain specified purposes. Therefore, as rightly held by the Court below there was no effective delivery of possession so as to attract the Explanation-I to Entry 47-A.” The decision in SRI TIRUMALA HOUSING (P) LTD., HYDERABAD V. GPR HOUSING (P) LIMITED (2006(5) ALD 359), which is relied upon by the trial Court in the impugned order is referred to in the above decision in C.R.P.No.4410 of 2009 and C.R.P.No.2340 of 2011 and distinguished. In a recent decision in DUDEKULA ALLAUDDIN V. G.SIVARAMAKRISHNA AND OTHERS[2], this Court following S.Vijaya Lakshmi’s case (1 supra) held that agreement of sale containing a recital that vendor gave permission to the vendee for development activities cannot be considered to be an agreement coupled with delivery of possession and liable to stamp duty as such. In the present case also, though the document recites about the delivery of possession, in view of the other recitals contained in the document enabling the purchaser to develop the land by levelling the same and laying out the plots, it cannot be said that there was any absolute delivery of possession in favour of the purchaser. There are certain mutual obligations to be performed by both parties before the transaction could become complete and before the plots laid out can be sold in favour of third parties. As the purchaser has not acquired any rights of absolute possession under the suit agreement of sale, the same cannot be treated on par with conveyance under Article 47-A of the Stamp Act for the purpose of payment of stamp duty and penalty, as it cannot be said that there has been effective delivery of possession under the document. 7. In the circumstances, the impugned order, directing the petitioner to pay the stamp duty and penalty on par with conveyance under Article 47-A of the Stamp Act, is held unsustainable and the same is accordingly set aside. 8. In the result, the civil revision petition is allowed. There shall be no order as to costs. ___________________ G.V.SEETHAPATHY, J 28th December, 2011 Lrkm. [1] 2002(5) ALT 406 [2] 2011(5) ALD 702