H P BASAVARAJAPPA Vs. K VIJAYALAKSHMI

JUDGEMENT

(1.) IN this petition, the order dated 6. 8. 2003 of the Civil Judge (Senior Division) and JMFC, nanjangud Annexure-"d" passed in O. S. No. 104/2000 is called in question.

(2.) THE petitioner-plaintiff who instituted O. S. No. 104/2000 for the relief of specific performance of the agreement of sale dated 28. 9. 1998 sought to introduce, in evidence, the said agreement engrossed on stamp paper of value of Rs. 100/ -. The defendants in the suit objected to the marking of the said document for being insufficiently stamped. The Trial Court, having regard to the convenants in the agreement disclosing delivery of possession of the immovable property to the petitioner, held that Article 5 (e) (i) of the Kamataka Stamp Act applies and the document liable for payment of duty and penalty on account of being insufficiently stamped.

(3.) SMT. Geetha Devi, learned Counsel for the petitioner contends that the Trial Court fell in error in recording a finding that the convenants in the agreement of sale dated 28. 9. 1998 discloses delivery of possession of the immovable property to the plaintiff. learned Counsel further contends that it was not the case of either of the parties that possession of the immovable property was delivered under the agreement of sale nor did the plaintiff plead part performance of the agreement Under Section 53-A of the Transfer of Property Act, 1882. According to the learned Counsel, having regard to the plaint averments and that of the written statement of the defendants, being one of denial of the agreement of sale, the Trial Court was not justified in recording the finding that the terms of the agreement disclose delivery of possession of the immovable property and the agreement having not been sufficiently stamped, is subject to payment of duty and penalty.