ORDER

Alka SARIN, J. - The present civil revision under Article 227 of the Constitution of India has been preferred challenging the order dated 16.04.2021 (Annexure P-3) passed by the Additional Civil Judge (Sr. Division), Garhshankar, District Hoshiarpur whereby agreement to sell dated 07.10.2014 has been impounded for want of stamp duty and the petitioner was directed to pay the amount of stamp duty on the agreement to sell plus ten times of the penalty of deficit amount of the stamp duty.

2. Brief facts in the present case are that the plaintiff-petitioner filed a suit for specific performance of agreement to sell dated 07.10.2014 qua land measuring 25 marlas. In the plaint, it was specifically stated in para 3 that possession of the suit property had been delivered to the plaintiff-petitioner on 07.10.2014 i.e. the date of the execution of the agreement to sell. The Trial Court vide impugned order dated 16.04.2021 ordered the impounding of the agreement to sell and directed the plaintiff-petitioner to pay the deficit amount of stamp duty on the agreement plus ten times of the penalty of the deficit amount of stamp duty.

3. Learned counsel for the plaintiff-petitioner would contend that no stamp duty needs to be paid on an agreement to sell in case possession has not been delivered. It is further the contention that it was a mere recital in the agreement to sell that possession has been delivered, however, the possession was never delivered to the plaintiff-petitioner.

4. I have heard learned counsel for the plaintiff-petitioner.

5. In the present case, admittedly, there is a recital in the agreement to sell to the effect that possession has been delivered to the plaintiff-petitioner by the defendant-respondent on the date the agreement to sell was executed. Further, to the same effect are the pleadings by the plaintiff-petitioner. A specific averment has been made in the plaint that the possession of the property stood delivered to the plaintiff-petitioner on 07.10.2014. In fact, a perusal of the plaint appended with the civil revision as Annexure P-l would reveal that no alternative prayer has been made that the plaintiff-petitioner be delivered possession in case he was not found to be in possession of the suit property. Hence, the argument of learned counsel for the plaintiff-petitioner that he was not in possession of the suit property cannot be accepted.

6. Section 35 of the Indian Stamp Act, 1899 reads as under :

"35. Instruments not duly stamped inadmissible in evidence, etc. - No instrument chargeable with duty shall be admitted in evidence for any purpose by any person having by law or consent of parties authority to receive evidence, or shall be acted upon, registered or authenticated by any such person or by any public officer, unless such instrument is duly stamped: Provided that -

(a) any such instrument shall, be admitted in evidence on payment of the duty with which the same is chargeable, or, in the case of an instrument insufficiently stamped, of the amount required to make up such duty, together with a penalty of five rupees, or, when ten times the amount of the proper duty or deficit portion thereof exceeds five rupees, of a sum equal to ten times such duty or portion;

(b) where any person from whom a stamped receipt could have been demanded, has given an unstamped receipt and such receipt, if stamped, would be admissible in evidence against him, then such receipt shall be admitted in evidence against him, then such receipt shall be admitted in evidence against him on payment of a penalty of one rupee by the person tendering it;

(c) where a contract or agreement of any kind is effected by correspondence consisting of two or more letters and any one of the letters bears the proper stamp, the contract or agreement shall be deemed to be duly stamped;

(d) nothing herein contained shall prevent the admission of any instrument in evidence in any proceeding under Chapter XII or Chapter XXXVI of the Code of Criminal Proce