1. Heard Mr.K.Suresh Reddy for revision petitioners and Mr.M.Sudhir Kumar for 1st respondent.

2. Defendant Nos.5 to 14 in O.S.No.210 of 2011 in the Court of III Additional District Judge, Ongole, are the revision petitioners.

3. The 1st respondent filed O.S.No.210 of 2011 for specific performance of agreement dated 09.06.2007 said to have been executed by defendants 1 to 4 (respondents 2 to 5 herein), permanent injunction restraining the defendants from alienating plaint schedule, creating third party interest etc. The revision is directed against the docket order dated 19.11.2012. The 1st respondent tendered the suit agreement in evidence as Ex.A-1 and the revision petitioner raised objections on admissibility of suit agreement in evidence.

4. The revision petitioners objected to marking the suit agreement by contending that the suit agreement is written on the stamp paper of Rs.100/-. The agreement refers to delivery of possession under the agreement by the executants in favour of 1st respondent. The recitals of suit agreement attract the bar under Section 17 of the Registration Act read with Section 35 of the Indian Stamp Act and therefore the suit agreement is inadmissible in evidence for any purpose. The trial Court held as follows:

“In the aforesaid decision i.e., B. Bhaskar Reddy v. Bommireddy Pattabhi Rami Reddy (died) by LRs and others, as per the case of plaintiff, possession of subject matter of suit agreement of sale was not delivered to plaintiff as per the recitals of that agreement and the case of defendant therein was that he never executed any such agreement of sale and he was in possession of subject matter of that agreement of sale. Considering those facts, the Hon’ble High Court of A.P., observed as “wherever the agreement holder is not in possession of the property under agreement of sale, even though there is a recital in the agreement as to delivery of possession, he need not pay proper stamp duty as required. It shall be treated as a simple agreement of sale falling outside the scope of Explanation I to Article 47-A of Schedule-I of the Indian Stamp Act. Various situations may arise for consideration on this aspect. The purpose of the Act is to see that a person, who is in physical possession and enjoyment shall not avoid to pay proper stamp duty as required under Explanation I to Article 47-A of the Stamp Act. Otherwise, the document shall not be admissible in evidence as required under Section 35 of the Stamp Act.”

In this particular case on hand, the rival contentions of the parties in this petition discloses that petitioner is not in possession of suit property despite the recitals of suit agreement of sale evidencing the delivery of possession of suit property to petitioner on the date of said document. Therefore, the observations of the Hon’ble High Court in the aforesaid referred decision are squarely applicable to the facts of case on hand.”

5. Learned counsel appearing for parties in the Civil Revision Petition made submissions on the legal infirmity under the Stamp Act. Therefore, the Civil Revision Petition is considered and decided by referring to the rival contentions made in this behalf.

6. Mr.Suresh Reddy contends that the order under revision is followed on the decision of this Court reported in B.Bhaskar Reddy Vs. Bommireddy Pattabhi Rami Reddy (2010 (6) ALD 307). According to him, the ratio laid down in P.Bhasker Reddy’s case (1 supra) is not applicable to the facts and circumstances of the case. Secondly, the necessity to pay stamp duty is dependant on the recitals incorporated in the document but not by reference to the averments either in the plaint or in the written statement. According to him, in the case on hand, the plaint is silent about the possession whether it is claimed as taken or still continued with the executants. Under those circumstances, the 1st respondent if