Meesala Krishna Rao Vs Allu Suryanarayana and Another

@JUDGMENTTAG-ORDER

G.V. Seethapathy, J.@mdashThis revision is directed against the order dated 28-10-2009 passed in I.A. No. 483 of 2009 in O.S. No. 81 of 2009 on the file of the Principal Junior Civil Judge, Bobbili, wherein, it was held that the suit document i.e., agreement of sale dated 20-11-1981 was not admissible in evidence.

2. Heard the learned Counsel for the petitioner and the learned Counsel for the respondents. Perused the record.

3. The petitioner/plaintiff filed suit for permanent injunction against the respondents/defendants, restraining them from interfering with his possession and enjoyment of the plaint schedule property, shown as ''ABCD'' in the plaint plan, which is vacant site with thatched house thereon, situated in Bobbili town. According to the plaintiff, his father Meesala Chinna, purchased the plaint schedule property under an agreement of sale dated 20-11-1981 from the original owners Bevara Gangamma and Chintaparthi Rangavenamma for a consideration of Rs. 1,000/- and obtained delivery of possession. The plaintiff pleads that ever since the purchase, his father had been in possession and enjoyment and subsequently, after his father''s death, in the partition between his brothers, suit property fell to the share of the plaintiff and he has been in possession and enjoyment of the property. He alleges that the defendants, who are having their house towards north of the suit property, have been trying to interfere with the plaintiff''s possession and enjoyment of the suit property by threatening to trespass thereon. Hence, he filed the suit.

4. The plaintiff filed I.A. No. 483 of 2009 for temporary injunction pending disposal of the suit. An ex parte ad interim injunction was granted in favour of the plaintiff. The respondents/defendants filed a counter, denying the plaintiff''s title to the suit property and contending that the 2nd defendant''s father Meesala Ramdas purchased the property under a registered sale deed dated 19-12-1937 from Chukkala Venkataswamy and after his demise, the suit property devolved on the 2nd defendant and ever since, the 2nd defendant and her husband-first defendant have been in possession and enjoyment of the same and that the plaintiff, who is residing at Visakhapatnam, was never in possession and enjoyment of the property.

5. During enquiry in I.A. No. 483 of 2009, plaintiff sought to produce the suit agreement of sale dated 20-11-1981 as evidence to prove his claim of possession and enjoyment. The defendants objected for marking of the said document on the ground that it was unregistered and also insufficiently stamped and cannot be looked into even for collateral purpose of showing nature of possession. The learned Principal Junior civil Judge, by impugned order, held that the suit agreement of sale dated 20-11-1981 is not admissible in evidence even for collateral purpose. Aggrieved by the same, plaintiff filed the present revision.

6. Learned Counsel for the petitioner would submit that a perusal of the impugned order would show that the trial Court completely mis-directed itself by overlooking the fact that the suit agreement was of the year 1981 and as per law then existing, stamp duty of Rs. 5/- alone was chargeable on the suit document and in fact, it was executed on a stamp paper worth Rs. 7/- and secondly, that the same being only an agreement of sale, contemplating the execution of regular registered sale deed on a future date, the same is not compulsorily registrable. Learned Counsel for the respondents tried to justify the impugned order.

7. A perusal of the suit document would show that it was an agreement of sale executed on 20-11-1981 wherein, it is recited that the suit property was purchased by plaintiff''s father Meesala Chinna from Gangamma and Rangavenamma for a consideration of Rs. 1,000/- and that the sale consideration was already received and the possession of vacant site together with thatched house was also delivered to the purchaser and regular registered sale deed would be executed as and when demanded by the purchaser. The genuineness or otherwise of the said document does not arise for consideration at this stage. The document shows that it was executed on a stamp paper worth Rs. 7/-. As per Article 21 of Schedule 1-A of the Stamp Act, agreement or memorandum of agreement was chargeable with stamp duty of Rs. 5/- when the value of the property does not exceed Rs. 5,000/-. The stamp duty was enhanced to Rs. 10/- by A.P. Amendment Act 22 of 1989 with effect from 01-04-1990. The suit document purported to have been executed on 20-11-1981. By that date, the stamp duty payable on the document was only Rs. 5/-. Since the suit document is executed on the stamp paper worth Rs. 7/-, it cannot be said that the suit document is insufficiently stamped. The question of applying the bar contained u/s 35 of the Stamp Act does not, therefore, arise.

8. The learned Junior Civil Judge referred to the decision in Nirmal Chandra Sinha Vs. Union of India (UOI) and Others, , wherein, the apex Court held that ''inadequate stamp duty on the unregistered deed of sale was not admissible in evidence, even for collateral purpose u/s 35 of the Stamp Act''. In the above case, the agreement dated 04-08-2003, which was sought to be relied upon as a sale deed. In view of the Explanation appended to Schedule I-A of the Stamp Act by M.P. Act No. 19 of 1989, where an agreement to sell Immovable property, which contemplates delivery of possession was deemed to be a conveyance, it was held that ''the unregistered deed of sale was required to be charged with stamp duty as applicable to a deed of conveyance and as the adequate stamp duty was admittedly not paid, the Court was empowered to pass an order in terms of Section 35 of the Act, directing impounding of said document''. In the above case, it was also held that ''the document cannot be received in evidence, even for collateral purpose unless it was duly stamped or duty and penalty are paid u/s 35 of the Stamp Act, as the bar contained in Section 35 is absolute, whatever be the nature of the purpose''. The proposition laid down in the above decision cannot be disputed. However, the above decision is not applicable to the facts of the present case, for the simple reason that the suit agreement of sale in the present case was executed on 20-11-1981 by which date, it was chargeable with a stamp of Rs. 5/- and in fact, the suit document was executed on stamp paper worth Rs. 7/-, the question of suit document being insufficiently stamp and, therefore, attracting the bar contained u/s 35, does not simply arise.

9. The requirement of registration of agreement of sale of value of more than one hundred rupees came into force by virtue of Amendment brought by Act 4/99 to the Registration Act. As on the date of the suit document in 1981, the agreement of sale was not a document requiring compulsory registration. The bar contained u/s 49 of the Registration Act also does not get attracted. The suit document is, therefore, admissible in evidence, as the same is not hit by Section 17 read with Section 49 of the Registration Act or Section 35 of the Stamp Act, as they existed as on the date of the suit document. It is, however, open to the respondents/defendants to raise all contentions permissible under law pertaining to the suit document including its truth, validity and relevancy at the appropriate stage during the course of trial.

10. In the circumstances, the impugned order of the trial Court holding that the suit document is not admissible in evidence is, therefore, held unsustainable and the same is accordingly set aside.

11. In the result, the civil revision petition is allowed. No order as to costs.