The possession must be transferred under the agreement to sell for it to be deemed a conveyance, and if a person is already in possession of the property in a different capacity, it cannot be held that the possession was handed over under the agreement.

R. S. GARG, J. :- The petitioner/plaintiff, who had filed a suit for specific performance based upon the agreement dated 113-1995, being aggrieved by the order dated 2-9-2002 requiring him to pay the duty/penalty on the agreement as required under Art. 23 of Schedule I-A of Indian Stamp Act (as amended in its application to M. P.), is before this Court with a submission that the learned Court below has not appreciated the true import and effect of the agreement and unjustifiably required the petitioner to pay the duty and penalty.

2. The agreement in dispute is available on the record at Annexure-A/I. In paragraph-5, the document refers that the property proposed to be sold was in possession of the plaintiff on basis of some agreement relating to Aadhbattai, the executants of the document had received the amount of Aadhbattai, it also records that the executants have already received the amount of future profit/Aadhbattai. It also says that under the said agreement of Aadhbattai, the plaintiff would be entitled to maintain possession up to 31-3-1996 and would also be entitled to take crops of Kharif and Rabi and after execution of the sale deed and after receiving the balance amount of Rs. 20,000/-, the possession would be handed over to the plaintiff. In paragraph-7 last line, it is agreed between the parties that the balance amount of Rs. 20,000/- would be paid by the plaintiff to the executants on or before 31-3-1996, the plaintiff would get the document executed and from the date of execution of the document/sale-deed, he would hold the possession as owner of the property .

3. When the document was sought to be produced in evidence, the respondent Nos. 1 and 2 raised an objection that the document being a conveyance as defined under Section 2(10) of the Indian Stamp Act and as it was required to be on an appropriate stamps in accordance with Art. 23 of Schedule I-A appended to the Indian Stamp Act (in its application to State of M. P.) without payment of duty and penalty, the document could not be admitted in evidence. The learned Court below conceded to the objection and directed the plaintiff to pay duty and penalty.

4. Shri Chaphekhar, learned Sr. Counsel for the petitioner/plaintiff submitted that a perusal of the document would clearly show that the possession of the land in dispute was not handed over to the plaintiff in anticipation of the agreement or under the agreement or in furtherance of terms of the agreement. It is submitted by him that the. possession was already with the plaintiff, however, in a different capacity and such possession cannot be deemed to be possession under the agreement. Referring to paragraphs-5 and 7 of the agreement. it is submitted by him that the recital made in the document would clearly show that the plaintiff was already in possession under some different agreement and not under the agreement on hands.

5. Shri Zelawat, learned counsel for the respondent Nos.1 and 2, however, submitted that from a perusal of paragraph-4 of the plaint, paragraphs 5 and 7 of the agreement in dispute, it would clearly appear that the possession already with the plaintiff, from the date of the execution of the agreement would be deemed to be possession under the agreement. It is submitted by him that the learned Court below was absolutely justified in requiring the plaintiff to pay duty and penalty on the said document.

6. We have heard the parties at length and have gone through the provisions of law.

7. Section 2(10) defines 'Conveyance'. It reads:

"Conveyance" includes a conveyance on sale and every instrument by which property, whether movable or immovable, is transferred inter vivos and which is not otherwise specifically provided for by Schedule I or Schedule I-A as the case may be."

8. Article 23 of Schedule I-A appended to the Indian Stamp Act relates to conveyance and provides that seven and half per cent of such market value is to be paid on conveyance. However, the explanation appended to