PAWAN KUMAR Vs. DESH RAJ

JUDGEMENT

(1.) The present petitions arise out of the impugned order dated 31st August, 2016 by which the Trial Court has directed impounding of the documents i.e. the GPA, the Agreement to Sell and the accompanying documents and has also directed payment of the stamp duty. The question that arises is as to the nature of transaction as per the GPA and the agreement to sell. The pleaded case is that the Plaintiff/Petitioner (hereinafter "Plaintiff") has acquired ownership of the suit property on the basis of these documents. These documents are admittedly executed on 24th September, 2009 prior to the decision of the Supreme Court in Suraj Lamp and Industries Private Limited v. State of Haryana and Anr., 2012 1 SCC 656.

(2.) The submission that is made by Mr. Jain, ld. counsel for the Plaintiff is that the question as to whether the possession was symbolic or physical and whether the documents required registration or not, is a question of fact which is to be adjudicated by the Trial Court at the final stage. Specific reliance is placed on Clause 1, 2 and 11 of the Agreement to Sell. He further submits that as per the decision of the Supreme Court in Om Prakash v. Laxmi Narayan, 2014 1 SCC 618, the question as to whether possession has in fact been given or not is a question of fact which cannot be decided prior to the stage of evidence being led before the Trial Court.

(3.) On the other hand, ld. counsel for the Respondent/Defendant (hereinafter "Defendant") submits that a perusal of the Agreement to Sell shows that the entire sale consideration stands paid. Secondly, though the word symbolic is used in clause 1, all the rents are to be realised by the Plaintiff. Further, in the plaint itself, the Plaintiff pleads that he is the owner of the property.