THE HON’BLE SRI JUSTICE B.SESHASAYANA REDDY Civil Revision Petition No.1754 of 2010 (Dated :25-04-2011) Between: Mansoor Ali Khan S/o Ayub Ali Khan …Petitioner/plaintiff A n d Kata Lingappa and others …Respondents THE HON’BLE SRI JUSTICE B.SESHASAYANA REDDY Civil Revision Petition No.1754 of 2010 ORDER: This revision is directed against the order dated 24.10.2009 passed in O.S.No.72 of 2000 on the file of II Additional Senior Civil Judge, Fast Track Court, at Mahabubnagar, whereby and whereunder, the learned Additional Senior Civil Judge sustained the objections raised by the defendants with regard to marking of an agreement of sale dated 30.3.1995. 2. Background facts, in a nutshell, leading to filing of this revision under Article 227 of the Constitution of India by the petitioner/plaintiff, are:- Defendant No.2-Omer Sharif, defendant No.3-Ali Sharif and defendant No.4-Smt.Hafiza Bee owned Ac.2-10 gts in Sy.No.223 situated at Farooq nagar. They executed an agreement of sale dated 30.3.1995 in favour of the plaintiff in respect of said Ac.2-10 gts., more fully described in the plaint schedule for Rs.4,50,000/- through the General Power of Attorney Holder, namely, Kata Lingappa-1st defendant. They delivered possession to the plaintiff even prior to the execution of the agreement. Defendant No.1 being the GPA holder of defendants 2 to 4 promised to execute a registered sale deed or rectification deed as and when required by the plaintiff. Defendants 2 and 3 are brothers and defendant No.4 is their sister. As per the understanding between the plaintiff and defendant No.1, the plaintiff can sell the plots to others and defendant No.1 has to execute the sale deed in favour of the purchasers as and when the plaintiff demands. In pursuance of the said understanding, the plaintiff sold plots to some third parties and put them in actual possession. Some of the purchasers constructed houses. A mosque by name ”Madina Masjid” also came to be built by the purchasers in the suit schedule land. The rest of the unsold area in the suit schedule land is in possession and enjoyment of the plaintiff. The plaintiff called upon the 1st defendant to execute registered sale deed or rectification deed. But the 1st defendant has been avoiding and postponing the same on one pretext or the other. The plaintiff purchased the stamps required for rectification deed and kept ready with him. But the defendant No.1 avoided execution of the document. The plaintiff issued a legal notice on 17.9.2000 to the 1st defendant calling upon him to execute registered sale deed or rectification deed. Though the 1st defendant received the notice, he neither complied the demand nor issued reply. Hence, the suit for specific performance has been filed by the plaintiff. The reliefs sought for in the plaint are as follows:- “ 1. That the defendants are directed to execute the registered sale deed in favour of the plaintiff for his purchased land(plots) 2. Perpetual injunction be passed against the defendant Nos.1 to 4 and their men and agents for permanently restraining them from interfering in the peaceful possession and enjoyment of the plaintiff over his purchased area (plots0 and from alienating the land Sy.No.223, extent of Ac.2-10 gts (plots) purchased by the plaintiff. 3. The costs of the suit be awarded to the plaintiff 4.To any other relief or reliefs to which the plaintiff is entitled for be awarded” 3. The defendants filed written statement resisting the claim of the plaintiff. Defendants 2 to 4 admitted of their being the original owners of the suit schedule land and also of their executing General Power of Attorney in favour of the 1st defendant. The said G.P.A came to be cancelled on 26.8.2000. The 1st defendant executed registered sale deed in respect of Ac.0-30 gts on the instructions of defendants 2 to 4 on 1.8.2000. The agreement of sale pressed into service by the plaintiff is denied by defendants 1 to 4. Defendants 2 to 4 are not parties to the suit agreement and they are not bound by the terms of the said agreement. 4. Pending trial of the suit, defendant No.3 died and defendants 5 to 11 came on record as his legal representatives as per orders dated 12.9.2008 passed in I.A.No.43 of 2008. After settlement of the issues, the plaintiff sought to mark certain documents including the agreement of sale on his behalf. The defendants raised objections for marking the documents. 5. The learned Additional Senior Civil Judge, on considering the material brought on record and on hearing the counsel appearing for the parties, allowed the plaintiff to mark the documents except the agreement of sale, by order dated 24.10.2009. Hence, this revision by the plaintiff. 6. Notice before admission came to be ordered on 30.4.2010. Respondent No.1 entered appearance through a counsel. Notice to respondents 3 to 11 stated to be not necessary. 7. Heard learned counsel appearing for the petitioner and learned counsel appearing for the 1st respondent. 8. Learned counsel appearing for the petitioner submits that though the agreement of sale is not registered, the same is admissible under proviso to Section 49 of the Indian Registration Act and therefore, there cannot be any impediment in receiving the agreement of sale, subject to payment of deficit stamp and penalty, if any. 9. Learned counsel appearing for the 1st respondent supported order impugned in the revision on the ground that the document sought to be marked is a sale deed and as the same is neither properly stamped nor registered, it cannot be received in evidence. Under Section 17 of the Indian Registration Act, documents which require compulsory registration have been detailed. However, explanation has been added to Section 17, which reads as hereunder:- “Explanation.- A document purporting or operating to effect a contract for the sale of immovable property shall not be deemed to require or ever to have required registration by reason only of the fact that such document contains recital of the payment of any earnest money or of the whole or any part of the purchase money.” 10. Section 49 of the Registration Act deals with effect of non- registration of documents required to be registered. For better appreciation, I may refer Section 49 of the Indian Registration Act, which reads as hereunder:- “49. Effect of non-registration of documents required to be registered.-No document required by Section 17 or by any provision of the Transfer of Property Act, 1882, to be registered shall--- (a) affect any immovable property comprised therein, or (b) confer any power to adopt, or © be received as evidence of any transaction affecting such property or conferring such power, unless it has been registered: Provided that a registered document affecting immovable property and required by this Act or Transfer of Property Act, 1882, to be registered may be received as evidence of a contract in a suit for specific performance under Chapter II of the Specific Relief Act, 1877, or as evidence of part performance of a contract for the purpose of Section 53-A of the Transfer of Property Act, 1822, or as evidence of any collateral transaction not required to be effectual by registered instrument.” 11. A question as to whether an un-registered partition deed insufficiently stamped can be used for collateral purpose under proviso to Section 49 of the Registration Act fell for consideration in Palampalli Rama Subba Reddy v. Palampalli Subba Reddy @ Gollonipalli Subbanna[1]. A learned Single Judge of this Court after referring to Section 35 of the Stamp Act and proviso to Section 49 of the Registration Act, has observed as hereunder:- “( 5. ) No doubt, the learned Counsel had drawn the attention of this Court to Section 49 of the Indian Registration Act and also relied upon the decision of the Division Bench in A. Kishore @ Kantha Rao (supra). In the said decision the Division Bench held "Even an unregistered sale deed can be taken into consideration in terms of proviso to Section 49 for the purpose of establishing possession and nature of possession. The terms of the lease would be primary purpose and the possession and nature of possession would be the collateral purpose". That is not the question, which is involved in the present matter. The question is when a document that is liable for stamp duty and penalty if received in evidence even for collateral purpose, whether it requires the payment of stamp duty and penalty or not. A learned Judge of this Court in Bolleddula Lakshmi Devi v. Bolleddula Papanna, 2003 (3) ALD 50 = 2003 (3) ALT 513, while dealing with similar question in relation to Section 35 of the Indian Stamp Act 1899 and Section 49 of the Indian Registration Act 1908 held that where an unregistered partition deed was insufficiently stamped and inadmissible it is to be used for collateral purpose under proviso to Section 49 of Registration Act only on payment of the stamp duty and penalty”. 12. In Rayadurgam Pedda Reddeppa (died) v. Rayadurgam Narasimha Reddy (died)[2], a learned Single Judge of this Court held that the document though registrable but not registered can be relied on by a party for collateral purpose of proving his possession and the document is admissible in evidence to that limited extent. 13. The document sought to be received in evidence is styled as an agreement of sale. The executants of the agreement of sale undertook to execute the registered sale deed as and when the plaintiff demanded. Since the petitioner-plaintiff intends to rely on the agreement of sale to prove his possession over the property, the document can be received in evidence, subject to payment of stamp duty and penalty. The order passed by the trial Court in refusing to receive the document even for collateral purpose is contrary to the proposition of law laid down by the above-referred two decisions. 14. Accordingly, the Civil Revision Petition is allowed setting aside the order dated 24.10.2009 passed in O.S.No.72 of 2000 on the file of II Additional Senior Civil Judge, Fast Track Court, at Mahabubnagar. Consequently, the petitioner is permitted to mark the agreement of sale dated 30.3.1995, subject to payment of stamp duty and penalty. No order as to costs. _____________________ B.SESHASAYANA REDDY, J Dt.25-04-2011 RAR THE HON’BLE SRI JUSTICE B.SESHASAYANA REDDY Civil Revision Petition No.1754 of 2010 (Dated :25-04-2011) [1] 2005(6) ALT 601 [2] 2006(6)ALT 292