THE HON’BLE SRI JUSTICE A. GOPAL REDDY SECOND APPEAL No. 428 OF 2011 Date: 01-07-2011 Between Bandreddi Subrahmanyam and another …..Appellants And Batchu Venkata Lakshmi …..Respondent THE HON’BLE SRI JUSTICE A. GOPAL REDDY SECOND APPEAL No. 428 OF 2011 ORDER: This is a defendants second appeal aggrieved by the judgment and decree dated 09-03-2011 passed by the learned I Additional District Judge, Krishna, Machilipatnam dismissing A.S No. 31 of 2007 and confirming the judgment and decree dated 04-09-2006 of the learned Senior Civil Judge, Avanigadda decreeing the suit O.S No. 91 of 2002 filed for specific performance of agreement of sale. The respondent – plaintiff filed the above suit for specific performance of agreement of sale dated 15-07-2000 executed by the defendants agreeing to sell the plaint schedule property for a sum of Rs.2,00,000/- under a non-possessory agreement of sale. On the date of the agreement, the plaintiff paid an amount of Rs.1,25,000/- and it was agreed that the balance consideration is to be paid on or before 15-01-2001, in default, the same has to be paid with interest at the rate of 12% per annum from the due date and the defendants agreed to execute the registered sale deed on payment of the balance amount. According to the plaintiff, she paid a further sum of Rs.50,000/- to the defendants and obtained an endorsement on the reverse side of the agreement of sale and another sum of Rs.15,000/- was also paid for which an endorsement was obtained and in all, she has paid Rs.1,90,000/- and the balance is only Rs.10,000/-. It is stated that on 05-12-2000, as she paid most of the consideration, the defendants delivered possession of the plaint schedule property to her and agreed to register the same in due course. After taking possession of the plaint schedule property from the defendants, the plaintiff effected necessary repairs to the house, divided into two portions and leased out the same to the tenants. Since then she is in possession and enjoyment of the schedule property and though she is willing to pay the balance of sale consideration, the defendants are postponing the same for one reason or the other. According to the plaintiff, she came to know that the defendants are contemplating to enter into contract of sale. Hence, the suit. The suit was contested by the defendants denying the agreement of sale and receipt of the amount as contended by the plaintiff. They stated that the plaintiff maintained private chits at Avanigadda and the 2nd defendant is also a member among the 20 members of the chit which was for 20 months. She has taken four chits. The plaintiff started chit worth Rs.1,00,000/- on 05-12-1999 and the 2nd defendant joined the said chit. The plaintiff also started two other chits worth Rs.50,000/- each on 05-06-2000 and the 2nd defendant joined the said chit. It is stated that the plaintiff also started another chit worth Rs.30,000/- on 05-07-2000 and the 2nd defendant joined the said chit also. A few months later, the 2nd defendant participated in the above said chit auctions and taken the same in various months and the plaintiff paid the above said chit amounts to the 2nd defendant. In this connection, the plaintiff obtained signed blank pronote and signed blank non-judicial stamps from the defendants as a security to the chit amounts. The 2nd defendant paid the chit amounts to the plaintiff. Taking advantage of the empty blank non-judicial stamp papers, the above agreement of sale was brought into existence which is not valid and binding on the defendants. It is the case of the defendants that they are in exclusive possession and enjoyment of the plaint schedule land by paying tax to the Gram Panchayat. Several corrections, re-writings and removal of the writings are there on the reverse of the agreement of sale and, therefore, the same is not admissible in evidence. According to the defendants, before filing the suit, no notice was issued to them by the plaintiff. The 1st defendant leased out the schedule property to one Bellapukonda Gondu, Tungala Srinivasulu, Paruchuri Srinivasa Rao and four other students. On the strength of the pleadings, the following issues were settled by the trial Court: 1) Whether the suit agreement is not true and valid and fabricated as contended by the defendant? 2) Whether the plaintiff is not entitled for the suit claim when the suit agreement came into existence as pleaded by the defendant? 3) To what relief? To prove her case, the plaintiff apart from examining herself as PW 1 examined PWs 2 and 3 and got marked Exs.A-1 to A-4. On behalf of the defendants, DWs 1 to 3 were examined including the 1st defendant as DW 1 and got marked Exs.B-1 to B-13. After hearing both sides and on considering the material available on record, the trial Court held that there is no recital about delivery of possession under the agreement of sale, but whereas PW 1 clearly stated that possession was delivered by the defendants orally on payment of the balance amount and as the document is non- possessory agreement and since there was no recital in Ex.A-1 document about delivery of possession, registration is not required and the same can be admitted in evidence. It was further held that since DW 1 in the cross examination admitted that they have executed Ex.A- 1 non-possessory agreement of sale alone in favour of the plaintiff and received part payment under Ex.A-2 and denied Ex.A-3 part payment endorsement, the plaintiff established the same and is entitled to the decree of specific performance. Thus holding, the trial Court decreed the suit. On appeal being filed, the lower appellate Court also discussed the evidence with regard to admissibility of the evidence as contended by the defendants that they are in possession of the property and leased out to the tenants and held that when admittedly they are in possession of the suit schedule house, the question of affecting delivery under Ex.A-1 does not arise and accordingly dismissed the appeal. The learned counsel for the appellant strenuously contended that the transaction is an out sale as defined under Section 64 of the Transfer of Property Act, 1882 agreeing to register the sale deed in favour of the plaintiff. If that is the case, when the document is required to be registered in view of the amendment carried out to the Indian Stamp Act, 1899, it requires registration as held by this Court in M. Anasuyamma v. Ch. Lakshmamma[1]. According to him, as the document was executed after 16-08-1986 which is after amendment of the Indian Stamp Act, 1899, unless the said document is registered, it is not admissible in evidence and the issue of admissibility of the document cannot be gone into by the High Court as held by the Supreme Court in R.V.E Venkatachala Gounder Vs. Arulmigu Visweswaraswami & V.P Temple and another[2]. He further contended that construction of document itself is a substantial question of law as held by the Supreme Court in Neelu Narayani vs. Lakshmanan[3]. Thus the Courts below are not justified in decreeing the suit. This Court does not find any merit in any of the contentions advanced by the learned counsel for the appellant. In the case on hand, agreement without delivery of possession was executed on Rs.100/- stamp paper and for an agreement of sale, the required stamp duty under the Indian Stamp Act, 1899 is Rs.100/- and, therefore, the same is admissible in evidence. The plaintiff herself stated that on the date of the agreement of sale, she paid Rs.1,25,000/- and on payment of the balance amount on 05-12-2000 under an oral agreement, the possession was delivered which fact has been denied by the defendants. Further, the 1st defendant took a plea that in connection with the chit transaction, he signed the blank papers and admitted that the signature on the first paper of Ex.A-1 belongs to him and the second signature belongs to his wife also who signed as a surety. He also admitted that no legal notice was issued prior to the suit nor a complaint was given before the police and that as per Exs.A-2 and A-3 part payment endorsements made is true as per Ex.A-1. He also stated that he has no documentary evidence to show that the plaintiff obtained signatures on blank pronotes and blank stamp papers as a security to the chit amounts and he also has no documentary proof to show that he let out the house on rent. The trial Court rightly held that as the nomenclature of the document is prescribed as non-possessory, the same cannot be termed as a sale deed which does not fall under the definition of sale, as contended by the learned counsel for the appellant. In view of the same, the concurrent findings of fact arrived at by the Courts below do not give rise to any substantial question of law. The second appeal is accordingly dismissed. A. GOPAL REDDY, J 01-07-2010 ks [1] 1991 (1) ALT 430 [2] AIR 2003 SC 4548 [3] (1999) 9 SCC 237