JUDGMENT - KHARCHE S.T., J.:—Rule, made returnable forthwith by consent of the parties.

Relevant facts are as under :

2. The petitioner had filed Special Civil Suit bearing No. 12/2001 in the Court of Civil Judge, Senior Division, Washim seeking relief of specific performance of contract on the basis of Isarchitthi (an agreement of sale) dated 23-8-1999 or in the alternative for refund of consideration and damages in respect of agricultural land Survey No. 322 of Mouza Gaundhala. The land was agreed to be sold for consideration of Rs. 1,50,000/-. When the document of agreement of sale was produced before the Court, the learned Civil Judge, Senior Division passed the order below Exh. 32, an application filed by the respondent-defendant for giving direction to the plaintiff to get the said document impounded as per the provisions of law. The learned Civil Judge heard the parties, considered the contentions and directed that the agreement of sale be impounded in view of the provisions of Article 25 Schedule- I read with section 34 of the Bombay Stamp Act, 1958 (for short the Act) with stamp duty and penalty. This order is impugned in this petition.

3. Mr. Wankhede, the learned Counsel for the petitioner contended that the agreement of sale was executed on 23-8-1999 and though in the agreement it has been made clear that the possession has been delivered, it is a fact that possession is yet to be parted with. He contended that the respondent admitted in the written statement that possession has not been delivered by him at the time of execution of agreement, and therefore, according to Mr. Wankhede, the impugned order passed by the learned Civil Judge is not sustainable in law. He contended that the provisions of Article 25 Schedule-I read with section 34 of the Bombay Stamp Act are not applicable to the transaction in question, and therefore, the impugned order deserves to be set aside. In support of this submission, he relied on the decision of this Court in the case of (Balasaheb Sahebrao Jadhao v. Hanumant Bhaurao Deshmukh)1, 1995(3) Bom.C.R. 61, wherein it has been held that the agreement or the contract for sale is a document which falls outside Article 25 of the Bombay Stamp Act.

4. Mr. Lohiya, the learned Counsel for the respondent contended that the agreement of sale has been executed on 23-8-1999 and in view of the amendment in the Explanation (I) of Article 25 of Schedule- I introduced in 1993, the learned Civil Judge was perfectly justified in directing the plaintiff to get the agreement of sale impounded as per the provisions of section 34 of the Act. He contended that even if the possession is not delivered, when the possession agreed to be transferred , then the agreement in question would fall within the meaning of Explanation (I) of Article 25 of Schedule-I of the Act.

5. I have carefully considered the contentions canvassed by the learned Counsel for the parties. It is not in dispute that the agreement of sale was executed on 23-8-1999. It is also not in dispute that it has been mentioned in the agreement that possession has been delivered. Perusal of the written statement of the respondent would show that possession is yet to be taken by the vendee, i.e. the petitioner though it is agreed that the sale deed would be executed after obtaining the permission from the Competent Authority for the sale of the said agricultural land. At this stage, it is necessary to reproduce Explanation (I) of Article 25 Schedule-I which reads thus ;

"For the purposes of this Article, where in the case of agreement to sell an immovable property, the possession of any immoveable property is transferred or agreed to be transferred to the purchaser before the execution, or at the time of execution or after the execution of such agreement then such agreement to sell shall be deemed to be a conveyance and stamp duty thereon shall be leviable accordingly :

Provided that, the provisions of section 32-A shall apply mutatis mutandis to such agreem

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