MOHAMMAD AYYUB KHAN Vs. LAXMAN GAWLI

JUDGEMENT

(1.) Being aggrieved by the order dated 31-7-12 passed by IVth Civil Judge Class II, Shajapur in Civil Suit No. 59-A/12, whereby application filed by the petitioner, wherein it was prayed that the documents dated 30-5-93 be impounded and sent to the Collector of Stamps was rejected, present petition has been filed. Short facts of the case are that respondent No. 1 filed a suit for specific performance alleging that vide agreement dated 30-5-93, respondent No. 1 entered into an agreement to sell the suit property for a consideration of Rs. 16,000/-, out of which Rs. 8,500/- were paid as earnest money. It was also alleged that since the sale deed was not executed, therefore, the decree of specific performance be passed. The suit was contested by the petitioner. At the stage of evidence an application was filed by the petitioner that the document of agreement to sale be sent to Collector of Stamp. The application was dismissed, hence this petition.

(2.) Learned Counsel for the petitioner argued at length and submits that impugned order passed by the learned Court below is illegal and deserves to be quashed. It is submitted that since the agreement was on the stamp paper of Rs. 10/- and there is a recital in the agreement relating to possession, therefore, the stamp duty was payable @ 7.5% of the total cost. It is submitted that learned Court below has rejected the contention of the petitioner only on the ground that the amendment in the Act has come in-force with effect from 12-8-02, therefore, it is nothing to do with the document of agreement to sale which was executed in the year 1993. It is submitted that amendment in the Stamps Act has nothing to do with the plea raised by the petitioner. It is submitted that since the agreement is virtually a sale-deed, therefore, it was required on the stamp paper of 7.5%. Learned Counsel placed reliance on a decision in the matter of Yogendra Verma Vs. Dharmendra, 2005 2 MPHT 39, wherein responsibility of evicting tenants from the property was of the purchaser and tenants were informed about this agreement and also right to recover rent and dealing with tenants was transferred and the purchaser was in full control of the property in question as he was in the constructive possession of the property, this Court held that agreement shall be deemed to be a conveyance liable for payment of stamp duty as per Article 23. Reliance is further placed on a decision in the matter of Smt. Vijaywanti Vs. Jiyanlal, 2000 1 MPJR 177, wherein part payment of sale price was made and possession was also obtained, this Court held that the document on its bare reading shows that possession of the property has been given to the purchaser, because of the explanation appended to article, the document would be deemed to be conveyance and stamp duty thereon would be leviable as is leviable on a conveyance. Lastly, reliance is placed on a decision in the matter of Shiv Kumar Saxena Vs. Manishchand Sinha, 2004 4 MPHT 475 , wherein in the agreement dated 9-4-91, it was recorded that 50,000 sq. ft. of open land to be sold was delivered to intending purchasers and in the plaint it was not described as agreement. Division Bench of this Court held that contents of the document make it clear that possession of property is transferred to the purchaser under the agreement. Hence, document will have to be stamped as a conveyance. It is submitted that petition be allowed and the impugned order be set aside.

(3.) Learned Counsel for the respondents supports the order and submits that as the agreement was not the sale deed itself, therefore, the petition be dismissed.