DANAPPAGOUDA FAKKIRAGOUNDA PATIL Vs. KAMALAWWA

JUDGEMENT

(1.) THE petitioner is the plaintiff in O. S. No. 70/01 before the Civil judge (Jr. Dn.), and JMFC. , Byadgi. He filed the suit to enforce the agreement dated 11. 5. 91 and the supplemental agreement dated 18. 7. 96. Under the agreement dated 11. 5. 91, the defendant agreed to sell the suit schedule property for a sura of Rs. 36,000/ -. The entire sale consideration of Rs. 36,000/- was paid by the plaintiff under the agreement and the plaintiff was in possession of the property prior to the agreement dated 11. 5. 91. Though the entire sale consideration was paid, sale deed could not be executed since the lands were not re-granted to the defendant. In the year 1996. the second agreement, was executed by the attendant acknowledging the earlier agreement and sale consideration was enhanced from Rs. 36,000/- to Rs. 41,000/- and out of the enhanced consideration of Rs. 5,000/- Rs. 2,000/- was paid under the second agreement, remaining Rs. 3,000/-was agreed to be paid at the time of registration of the sale deed after the defendant obtaining permission from the Tahsildar to alienate the suit property. When the plaintiff was about to mark these documents, the defendant requested the Court to impound the documents contending that the second agreement is insufficiently stamped and the plaintiff has to pay the duty and penalty. The trial court upholding the objection of the defendant has directed the plaintiff to pay the deficit stamp duty of Rs. 44,880/- and as not permitted to mark the document in the course of the evidence. This order is challenged in this writ petition.

(2.) HEARD Mr. F. V. Patil, Learned Counsel for the petitioner and Sri Nadiga Shivanandappa, Learned HCGP for the second respondent. Though the first respondent is served, she is unrepresented.

(3.) ACCORDING to Mr F. V. Patil the trial Court has committed an error in directing the petitioner to pay the duty and penalty, eventhough the second agreement is supplemental agreement and that possession was not delivered to the plaintiff under the said agreement. According to him, the petitioner was in possession of the property even prior to the first agreement dated 11. 5. 91 and he continued to be in possession of the same. Under the second agreement, the sale consideration has been enhanced from rs. 36,000/- to Rs. 41,000/- only. If the sale consideratin is enhanced from Rs. 36,000/- to Rs. 41,000/-, it cannot be presumed that the suit properties were delivered to the plaintiff under the part performance of the agreement for sale on the date of execution of the second agreement. When possession is not delivered to him under the second agreement, the question of paying the duty and penalty would not arise for consideration. Therefore, he requests this Court to quash the impugned order.