ORDER :- This petition, under Article 227 of the Constitution of India, is directed against the order dated 23-3-2004 passed in Civil Suit No. 8-A/2004 by the Second Civil Judge, Class II, Chhindwara, whereby he has impounded the instrument of agreement for sale dated 9-6-1995 treating it as conveyance and directed the petitioner to pay stamp duty of Rs. 13,150/- together with ten times penalty i.e. Rs. 1,31,500/-; total amounting Rs. 1,44,155/-.

2. Petitioner is plaintiff in the suit for specific performance of contract. His case before the trial Court is that on 9-6-1995 he entered into an agreement with Bahabuddin for sale of the land bearing Khasra No. 487, measuring 1250 sq.ft. situated at Mouza Chhindwara. The petitioner paid sale consideration of Rs. 15,000/- and the sale deed was to be executed on any date when he desired. Document No. 1 dated 9-6-1995 annexed to this petition is the agreement for sale between the petitioner and Bahabuddin. It appears that later Bahabuddin avoided executing the sale deed as agreed upon. Petitioner, therefore, filed the present suit against him wherein he pleaded that the possession of suit land was delivered to him at the time of agreement. During the pendency of suit Bahabuddin died and hence his legal representatives, respondent Nos. 2 to 3H, have been impleaded as defendants. Petitioner, in his statement recorded in the trial Court, reiterated his claim that possession of the suit land was delivered to him on the execution of the agreement for sale.

3. The respondent Nos. 2 to 3H raised an objection that since the petitioner, in Paragraph 3 of the plaint, has stated that the possession of the suit land was delivered to him at the time of agreement and that he is in possession of the same, the instrument of agreement for sale is conveyance within the meaning of Article 23 of the Indian Stamp Act, 1899 as amended in Madhya Pradesh and as such it cannot be admitted in evidence unless it is impounded and proper stamp duty is paid.

4. At the time of evidence, the petitioner by filing an application dated 1-11-2003 requested the Court to forward the instrument of agreement for sale to the Collector for its examination by him and payment of stamp duty. The respondents objected this prayer of the petitioner. The trial Court called the report from the Collector regarding the valuation of the suit land and stamp payable on the instrument of agreement for sale. The Collector, in his report dated 17-11-2003, stated that in the year 1995-96 the market value of the suit land was Rs. 1.75 lac and the stamp duty payable on it was Rs. 13,175/-. The trial Court relying upon the said report has, by the impugned order, impounded the instrument of agreement for sale treating it as conveyance and directed the petitioner to pay a stamp duty together with ten times penalty as mentioned above.

5. The learned counsel for the petitioner has argued that as there is nothing in the instrument of agreement for sale regarding delivery of possession, the trial Court committed an illegality in treating it as conveyance. He also argued that while considering the question of stamp duty payable on the instrument, the instrument alone has to be seen because the duty is on the instrument and not on what the parties intend to do. He placed reliance upon the decision of this Court rendered in the case of Goel Industries and another v. Om Prakash Mittal, 1993 MPLJ 137. The learned counsel for the respondent Nos. 2 to 3H, on the other hand, defended the validity of the impugned order and relied upon the decision of the Supreme Court in Veena Hashmukh Jain and another v. State of Maharashtra and others, AIR 1999 SC 807.

6. Article 23 of Schedule 1-A to the Indian Stamp Act, 1899 (hereinafter referred to as "the Act") as amended in Madhya Pradesh reads as under :-

"23. Conveyance, not being a transfer charged or exempted under (No. 62) irrespective of the market value of the property which is the subject-matter of conveyance.

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