JUDGMENT :

Krishna S. Dixit, J.

1. The petitioners being the defendants in respondent's Eviction/Ejectment Suit in O.S.No.3445/2012 is invoking the writ jurisdiction of this Court for assailing the order dated 17.02.2017, whereby, the trial Court after refusing to admit the subject document dated 22.06.1988, has ordered its impounding on the ground that it is unduly stamped. The notice having been served, the respondent has entered appearance through it's counsel who resists the writ petition.

2. Learned counsel for the petitioners taking the Court through the contents of the document in question, a copy whereof is at Annexure-D argues that the transaction comprised therein is only an Agreement to secure lease and not the lease as such and therefore, the finding of the court below as to the nature of the document and consequential refusal to admit the same in evidence and further, its impounding is unsustainable.

3. Learned counsel appearing for the respondent per contra vehemently contends that, the trial court in its accumulated wisdom has construed the document in question as being the lease contradistinguished from an Agreement to Lease; such a construing of the said document is supported by the text and context thereof; many a times, the text of the transaction is so made as to avoid the stamp duty and registration, and this being one such case, the matter does not deserve scrutiny in the writ jurisdiction, there being no error apparent on the face of the record.

4. I have heard the learned counsel for the petitioners and the learned counsel for the respondent. I have perused the writ petition papers in general and the subject document, a copy whereof is at Annexure-D in particular; I have adverted to the Rulings cited at the Bar.

5. Section 105 of the Transfer of Property Act, 1882 defines "Lease", "Lessor", "Lessee", "Premium" and "Rent". Lease is a matter of contract between the Lessor and the Lessee, wherein the former delivers the possession and profits of the land to the later for consideration and for a particular period. This section defines a "Lease" as a partial transfer i.e., a transfer of a right of enjoyment of the property for a certain period. The essentials of lease as enlisted in Mulla's THE TRANSFER OF PROPERTY ACT, 11th EDITION at Page 105 are: the parties, the subject matter/immovable property, the demise/partial transfer, the term/period of lease and the consideration/rent. What differentiates a Lease from a mere Agreement to Lease is the demise or transfer of limited interest in the demised property; in an Agreement to Lease, there is no demise proesenti inasmuch as parties agree only to enter into a lease in future.

6. The Apex Court in the case of State of Maharashtra Vs. Atur India Pvt Ltd, after referring to several authors and authorities both of English law and Indian law, has held that where the agreement is only for procuring a lease without affecting an actual demise in the present, of the subject property, it does not partake the character of a "lease" since it is in the nature of an executory Agreement to Lease which requires neither writing nor registration.

7. The subject agreement at paragraph No.2 reads:

"2. The Lessors shall, on completion of the construction and renovations of the said premises, put the Lessees again in possession of the said premises and execute a lease of the said premises in favour of the Lessees on the following terms and conditions." Paragraph 3 reads:

"3. Until such time as a regular lease deed is executed the parties shall be bound by the terms and conditions set out in these presents." Going by the definition of lease given under Section 105 of the Transfer of Property Act, 1882, as interpreted by the Apex Court with the aid of English and Indian Authorities, it is difficult to construe the subject document as a lease since it is capable of a suit for specific performance. Nothing therein suggests as to the presence of all the ingredients enlisted by the Editors of Mu