( 1. ) CHALLENGE in this petition under Article 227 of the Constitution is made to an order, Annexure P-6, dated 12-2-2004 passed by the Court of Twelfth Additional District Judge (Fast Track Court), Gwalior by which petitioner has been directed to pay the proper stamp duty on the document (Annexure P-2), an agreement for sale in accordance with provisions of Article 23 to Schedule I of the Indian Stamp Act, 1899. It is the case of the petitioner that the aforesaid direction given for affixing the stamp duty on the document is clearly unsustainable.

( 2. ) PETITIONER had instituted a suit for specific performance of a registered agreement for sale dated 9-8-2000 (Annexure P-2 ). Relief claimed by the petitioner in the suit is to direct the respondents to execute the sale deed in pursuance to the aforesaid agreement and to hand over possession of the property in question. It is the case of the petitioner that written statement was filed and in the written statement (Annexure P-3), defendants/respondents asserted their own possession, so also disputed the agreement to sale. After framing of issues, chief examination under Order XVIII Rule 4, CPC, was submitted and the agreement dated 9-8-2000 was exhibited as P-2. Defendants submitted an application on 24-1-2004 objecting to take on record the aforesaid agreement on the ground that it is inadmissible in evidence for want of payment of proper stamp duty. Copy of the aforesaid objection is filed as Annexure P-4. Petitioner opposed the same on the ground that as physical possession of the suit property was not delivered to the petitioner at the time of the agreement is admissible in evidence. It was also asserted that the amendment to the Indian Stamp Act, 1899 came into force with effect from 12-8-2002, therefore, it will not apply as the agreement was executed on 9-8-2000.

( 3. ) REJECTING the aforesaid plea, by the impugned order dated 12-2-2004 (Annexure P-6), the learned Court has directed that the stamp duty on the document (Exhibit P-2) is payable as per Article 23 of Schedule I as possession has been handed over to the vendee. The aforesaid order is assailed in this petition.

( 4. ) IT was asserted by Shri A. M. Naik, learned Senior Counsel that explanation to Article 23 of Schedule I-A of the Act clearly stipulates that in an agreement for sale of a immovable property, if possession is transferred to the purchaser before execution of the agreement, without executing the conveyance then only such an agreement shall be deemed to be a conveyance liable for payment of stamp duty in accordance with said Article. It was emphasised by Shri Naik that in the present case prayer made by the petitioner in the plaint, Annexure P-1 vide Paragraph 12-B is to hand over possession actual or symbolic and in Annexure P-3, respondents in Paragraph 2 have clearly indicated that they are in possession. It was, therefore, argued by learned Senior Counsel that in the aforesaid circumstances, direction to pay the stamp duty is unsustainable. It was also submitted by Shri Naik that the agreement was executed on 9-6-2000 and the amendment in the Act was introduced with effect from 12-8-2002 which does not have retrospective effect. In sum and substance, the argument of Shri Naik is that as no possession is transferred in pursuance to the agreement, as the petitioner is claiming relief of handing over possession in pursuance to the agreement, the stamp duty as per Article 23 to Schedule I can not be recovered.

( 5. ) REFUTING the aforesaid, Shri R. D. Jain, learned Senior Counsel submitted that the assertion made in the plaint or the reply submitted by the defendants in the written statement does not decide the question of possession. Question of possession in such cases has to be decided by a plain reading of the instrument in question and if reading of instrument shows that the possession has been handed over simultaneously in pursuance to the agreement for sale then the agreement for sale has