R. S. Garg, J. -- 1. The petitioner/plaintiff being aggrieved by order dated 27.8.2008 passed in Civil Suit No. 48-A/2007 by the learned Additional District Judge, Indore holding the document dated 26.6.2000 (hereinafter referred to 'the Agreement') to be falling under Article 23 of Scheduled-IA of the Indian Stamp Act, requiring the plaintiff to pay the duty and penalty has come to this Court.

2. The short facts necessary for disposal of the present petition are that the plaintiff filed a suit for specific performance of the agreement dated 26.6.2000 with a submission that the property in dispute was agreed to be sold for a sum of Rs. 2,75,000/-, out of the said amount of Rs. 1,60,000/- was received by the defendant No.1 and possession of the property was delivered to the plaintiff and the fact was mentioned in the said agreement. He prayed for the specific performance of the contract, however, it is to be noted that he did not claim any relief for possession.

3. The defendant No. 1 appeared in the suit and submitted that the suit was barred by limitation and that possession was never delivered to the plaintiff. When the suit agreement was sought to be produced in the evidence, the defendant raised an objection submitting inter alia that as the delivery of possession is recited in the suit agreement, the plaintiff should prove before the Court that the document was properly stamped and in case the document was not properly stamped then the duty which is in the short fall and the penalty ten times be recovered. It was contended before the Court below that the document was admitted by the other side, and therefore, the same was admissible in evidence. However, the learned Court below came to the conclusion that the document ought to have been on stamp worth Rs. 20,625/- and as it was written on stamps worth Rs. 50/- only, the short fall was Rs. 20,575/-. Calculating the penalty on the short fall the trial Court observed that the plaintiff would be required to pay a sum of Rs. 2,05,750/- as penalty, The plaintiff is now before us.

4. Placing reliance upon a judgment of the learned Single Judge of this Court in the matter of Laxminarayan and others v. Omprakash and others, reported in 2008 (II) MPWN 105 = 2008 (2) MPLJ 416, learned counsel for the petitioner/plaintiff submitted that assuming the document recites that possession was delivered but the fact is denied by the defendant and if it is asserted by the defendant that possession was not delivered then such recital in the document would lose its importance and the document would become admissible in evidence.

5. Learned counsel for the respondent on the other hand submitted that the said judgment would not apply to the facts of the present case.

6. Smt. Rashmi Pandit, learned Deputy Government Advocate for the State, however, submitted that admissibility of the document would depend upon the recitals made in the document and not on basis of the pleadings made by one party and denied by the other.

7. Article 23 of Scheduled-IA of the Indian Stamp Act refer to convenyance but with an added explanation it says that whenever there is an agreement to sell immovable property and there is a recital in the document that possession has been delivered to the proposed purchaser then the document would be deemed to be a convenyance and the stamp duty at the rate of 7.5% will have to be paid.

8. A document would be admissible on basis of the recitals made in the document and not on basis of the pleadings raised by the parties. In the matter of Laxminarayan (supra), the learned Single Judge with due respect to his authority we don't think that he did look into the legal position but it appears that he was simply swayed away by the argument that as the defendant was denying the delivery of possession, the endorsement/recital in the document lost all its effect and efficacy.

9. It would be trite to say that if in a document certain recitals are made then the Court would decide the admissibi