ORDER :

1. The Civil Revision Petition has been filed by the defendant to set aside the order passed by the Trial Court dismissing the petition filed under Order 13 Rule 3 of the Code of Civil Procedure to reject the unregistered, unstamped sale agreement relied on by the plaintiff.

2. The brief facts of the case are as follows:

(i) The respondent/plaintiff had filed O.S.No.41 of 2011 seeking for specific performance directing the defendant to execute and register the sale deed in favour of the plaintiff in respect of the suit property as per the agreement of sale dated 15.07.2009 and in default, to register the sale deed on behalf of the defendant in favour of the plaintiff. The plaintiff had claimed that the defendant entered into an agreement of sale in respect of the suit property for a sale consideration of Rs.2,00,000/- on 15.07.2009 and on the same day, the plaintiff had paid a sum of Rs.1,95,000/- as advance to the defendant which was acknowledged by the defendant in the agreement and he had executed the agreement of sale in favour of the plaintiff and handed over possession of the suit property with all original parent documents in respect of the suit property to the plaintiff on the same day itself.

(ii) The defendant had filed written statement denying execution of any document in favour of the plaintiff and it was the further contention of the defendant that the alleged sale agreement is a forged document and concocted one and he had no knowledge about the said agreement and that the agreement dated 15.07.2009 is a forged one.

(iii) On the above pleadings, the Trial Court framed issues and when the case was at the trial, the plaintiff had attempted to mark the alleged sale agreement dated 15.07.2009 and at that stage, an objection was raised by the defendant by filing an Application under Order 13 Rule 3 of the Code of Civil Procedure to reject the marking of the document contending that it was an Unregistered and Unstamped document.

(iv) The Trial Court had dismissed the petition, against which the present revision has been filed.

3. Learned counsel appearing for the petitioner/defendant would submit that it is the case of the plaintiff that part performance under Section 53-A of the Transfer of Property Act had been done by the defendant and possession had been handed over and when such being the position, the Sale Agreement must have been necessarily registered and without the same being registered, it cannot be allowed to be marked as a document. He would further submit that there are contrary pleadings in the plaint and at para 4 of the plaint, it has been stated by the plaintiff that in pursuance of the part performance, the possession of the suit property and the original deed in respect of the suit property were handed over to him, whereas in prayer (b) the plaintiff had sought for a direction to the defendant to put the plaintiff in possession of the property and in default seeking court to deliver the property to the plaintiff on behalf of the defendant. He would further submit that when there is an averment of part performance done by the defendants, in view of the amendment to Section 17(1)(a) of the Registration Act, the document is inadmissible in evidence and it cannot be relied upon and marked whereas the trial Court, without properly looking into the provisions, had dismissed the same.

4. In Support of his contention, the learned counsel for the petitioner relied on the judgment of the Hon'ble Apex Court in the case of Avinash Kumar Chauhan vs. Vijay Krishna Mishra reported in 2009 2 SCC 532 and submit that though there is no provision under Section 49 of the Registration Act to receive the unregistered document in evidence for collateral purpose, the document so tendered should be duly stamped or should comply with the requirements of Section 35 of the Stamp Act and if not stamped, such a document cannot be received in evidence even for collateral purpose unless it is duly stamped or duty and penalty are