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2014 Supreme(AP) 1494
IN THE HIGH COURT OF JUDICATURE AT HYDERABAD FOR THE STATE OF TELANGANA AND THE STATE OF ANDHRA PRADESH
A. Rajasekhar Reddy, J.
S. Laxmibai - Appellant
Vs.
Cheerla Gopal - Respondent
Civil Revision Petition No. 3061 of 2014
Decided On: 26.12.2014
Advocate Appeared:
For the Appellant: Kongara Vijaya Lakshmi
For the Respondent: G. Madhusudhan Reddy
Headnote:
Civil Law – Contract and Specific Relief – Suit for specific performance of agreement of sale – Revision Petition – Petitioner/defendant is that respondent Nos. 1 to 5/plaintiffs filed O.S. for specific performance of agreement of sale – Respondent Nos. 1 to 5 stated that in pleading of the plaint coupled with the notice caused before institution of the suit, there is a recital of delivery of possession of the schedule mentioned property in pursuance of agreement to sale – As such, said document should be treated as sale as explained under 47-A of Stamp Act. Since the said document is not stamped as sale deed, same cannot be received as evidence – Case of respondents/plaintiffs is that document does not contain any clause regarding delivery of possession, as such same is not liable to be charged as sale – Court below has considered the objection of petitioner/defendant and found that since the said document does not contain any recital regarding delivery of possession and that the respondents/plaintiffs also denied delivery of possession, it has overruled objection raised by petitioner/defendant. Hence present Civil Revision Petition is filed – Held, There was an endorsement on reverse of the said agreement to the effect that balance sale consideration was paid on the said date and possession of the property was delivered to the respondents on the said date. But in the present case, there is no such endorsement – Further in the judgment relied on by Division Bench i.e., B. Ratnamala v. G. Rudramma, 1999(6) ALT 59 (D.B.), it is held that the expression followed by delivery of possession should have a direct nexus to the agreement and should be read in juxtaposition to the word agreement and it cannot be independent or outside agreement – It clearly held that delivery of possession should follow the agreement i.e., through the agreement. The Division Bench categorically held that delivery of possession should be intimately and inextricably connected with the agreement. Therefore, the judgments relied on by the learned counsel for petitioner, are not applicable in the present case – More so, respondents/plaintiffs has denied the delivery of possession and even as per the agreement delivery of possession will be only after survey is done. As such, Court below has rightly considered the issue and hence I do not find any infirmity in the order passed by the Court below – Civil Revision Petition dismissed.(Paras 12,13 and 14)
A. Rajasekhar Reddy, J.
1. This CRP is filed against the order dated 08.07.2014 in O.S. No. 3 of 2013.
2. The case of the petitioner/defendant is that the respondent Nos. 1 to 5/plaintiffs filed O.S. No. 3 of 2013 for specific performance of agreement of sale dated 12.03.2009. The respondent Nos. 1 to 5 stated that in the pleading of the plaint coupled with the notice caused before institution of the suit, there is a recital of delivery of possession of the schedule mentioned property in pursuance of agreement to sale. As such, the said document should be treated as sale as explained under 47-A of Stamp Act. Since the said document is not stamped as sale deed, the same cannot be received as evidence.
3. The case of the respondents/plaintiffs is that the document dated 12.03.2009 does not contain any clause regarding delivery of possession, as such, the same is not liable to be charged as sale.
4. The Court below has considered the objection of the petitioner/defendant and found that since the said document does not contain any recital regarding delivery of possession and that the respondents/plaintiffs also denied delivery of possession, it has overruled the objection raised by the petitioner/defendant. Hence the present Civil Revision Petition is filed.
5. Heard both sides.
6. Learned counsel for the petitioner/defendant submits that even though the suit agreement dated 12.03.2009 does not contain a clause regarding delivery of possession, the plaint and the notice issued by the respondents/plaintiffs, there is a mention regarding delivery of possession. As such, the agreement of sale coupled with possession has to be treated as sale and accordingly to be charged as sale.
7. In support of his contentions he relied on judgment reported in Vanapalli Jayalaxmi @ Venkatajayalaxmi v. V.A. Kondala Rao and other, 2014 (1) ALT 356 and M. Harinarayan @. Hari Babu v. Chief Controlling Revenue Authority and Commissioner Inspector General of Registration and Stamps Act A.P. and others, 2008 (2) ALD 515.
8. Learned counsel for the respondents/plaintiffs submit that in the agreement of sale dated 12.03.2009, there is no clause regarding delivery of possession and the said agreement of sale provides that possession has to be delivered after the survey is done. As such, it is not liable to be charged as sale as per 47-A of the Stamp Act.
9. In the present case, admittedly there is no clause regarding delivery of possession or at least about the delivery of possession in future in the agreement of sale dated 12.03.2009. No doubt, the plaint and the notice issued by the respondents/plaintiffs before institution of the suit, there is a mention regarding handing over of possession in pursuance to the agreement dated 12.03.2009, but no where it is stated that possession is delivered immediately on the same date. Delivery of possession in pursuance to agreement dated 12.03.2009 and delivery of possession immediately after the agreement is executed are two different things.
10. In Vanapalli Jayalaxmi @ Venkatajayalaxmi v. V.A. Kondala Rao and other, 2014 (1) ALT 356 (supra) it is held as follows:
"There is no recital in the agreement dated 22.09.2009 (sic.29-2-2006) filed by respondents about the delivery of possession. However, there is an endorsement dated 27.05.1996 on the reverse of the said agreement to the effect that balance sale consideration was paid on the said date and possession of the property was delivered to the respondents on the said dated allegedly by the petitioner.
I am unable to agree with the view taken by him. The learned Judge does not appear to have noticed that under Article 47A, an agreement to sell "followed by or evidencing" delivery of possession of the property agreed to be sold is chargeable as a sale under said Article. Thus, not only situations where the document in question itself mentions about delivery of possession (evidence delivery of possession) but also situations where delivery of possession is not mentioned in t
