1. By this writ petition under Article 227 of the constitution of India, petitioner has challenged the legality, validity and propriety of the order dated 17.10.2012 passed by the trial Court dismissing the application filed by the petitioner under section 35 of the Stamp Act vide I.A. No.3.

2. Facts necessary for disposal of this petition are in narrow campass. Plaintiff /respondent has filed a suit for specific performance of agreement to sale dated 10.12.2008.

3. Defendant filed an application under section 35 of the Stamp Act questioning the admissibility of the aforesaid agreement to sale on the premise that the instrument does not bear the stamp duty as payable in conveyance deed as the possession of the property was delivered by the instrument does not bear the stamp duty as payable in conveyance deed as the possession of the property was delivered by the instrument and therefore stamp duty was payable as per the market value of the property ans in absence where of the document was not admissible in evidence. Learned counsel relied upon judgment of Coordinate Bench of this Court in Gajanand Awasthy v. Sharif Khan, [2008(II) MPWN 63], and submitted that document deserve to be impouned and sent to Collector for affixture of proper stamp duty.

4. Respondent/plaintiff denied the allegations as regards delivery of possession of the suit premises through agreement to sale and according to him the provisions of Article 5(e) (ii) at applicable and not that of Article 5(e) (ii) of Indian Stamp Act, 1899. Therefore, the stamp duty as payable on conveyance deed are not required to be affiexed as provided for under Article 5 (e) (i) of the Indian Stamp Act, 1899. Therefore, the trial Court was right having rejected the application.

5. Article 5 (e) (i) and (ii) reads as under :-

Art	Description of Instrument	Proper Stamp duty
5.(e)	If relating to sale of immovable (i)   When possession of the property is   delivered or is agreed to be delivered without executing the conveyance.         (ii)       When possession of the property is      given.      le property	The same duty as a conveyance (No.200 the market value of the property. Once percent of the total consideration of the property set fourth in the agreement or memorandum of agreement.

6. Trial Court has found that agreement to sale dated 10.12.2008 bears the stamp duty of Rs.1700/- which is 1% of total value of property shown in the sale deed to be Rs.1,70,000/- Further upon considering the instrument the trial Court has found that no clause there of contemplates delivery of possession, pending or upon or subsequent to execution of sale deed on future dates. Hence, stamp duty affixed is proper and accordingly, rejected the application.

7. Being aggrieved thereby, the present petition has been filed. The sole question arised in this case related to applicablity of Article 5 (e) (i) or 5 (e) (ii) of Schedule I appended to Indian Stamp Act, 1899 for the purposes of stamp duty the agreement to sale dated 10.12. 2008.

8. Before adderssing upon the said issue. it is considered apposit to refer to earlier provisions as contained in Article 23 of Indian Stamp Act, 1899 Which reads as under-

Description of Instrument	Proper Stamp-duty
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.	Seven and half percent of such market value.

      Explanation:- for the purpose of this article where in the case of agreement to sell immovable property, the possession, of any immovable property is transferred to the purchaser before execution or after execution of, such agrrement without executing the conveyance in respect thereof then such agreement to sell shall be deemed to be a co