1. Plaintiffs are the petitioners before this Court are aggrieved against an order dated October 22, 2007 passed by the learned trial Judge, whereby it has been held that the document in question (agreement) having recited that possession of the property in question had been delivered to the plaintiffs, the same was insufficiently stamped as per Article 23 of the Indian Stamp Act.

2. I have heard Shri B.I. Mehta, learned counsel for the petitioners and Shri Sunil Jain, learned counsel for the respondents and with their assistance, have also gone through the record of the case.

3. Although there is no dispute with regard to the fact that in the document in question, which is an agreement alleged to have been executed by the defendants in favour of the plaintiffs, and which is basis of the suit, it is recited that possession of the property in question had been delivered to the plaintiffs, but the fact cannot be ignored that a specific plea has been raised by the defendants in their written statement denying the execution of the said agreement and also specifically denying that the possession of the property had ever been delivered to the plaintiff/ petitioners. In these circumstances, once, the defendants themselves have claimed that possession of the property had not been delivered, then the recital in agreement loses all significance. In such a situation, the document cannot be held to be insufficiently stamped merely because it was not stamped in accordance with Article 23 of Stamp Act.

4. However, Shri Sunil Jain, learned counsel for the respondents, has argued that the requisite stamp duty on a document had to be determined, keeping in view the contents of the document only and the plea raised by the defendants was absolutely irrelevant.

5. Although the argument of the learned counsel appears to be attractive at the first instance; but cannot be accepted for the simple reason that the defendants cannot be permitted to blow hot and cold in the same breath. Once, the defendants had claimed that possession of the property in question had never been delivered to the plaintiff-petitioners then it does not lie in their mouth to claim that the agreement was required to be stamped in accordance with Article 23 of the Stamp Act by treating that possession of the property had been delivered. As a matter of fact the plaintiff has even claimed a relief of possession in the present suit, showing that possession was not with him.

6. Consequently, the present petition is allowed and the order dated October 22, 2007 passed by the trial Court is set aside. The trial Court is directed to treat the document as sufficiently stamped and thereafter proceed with the suit, in accordance with law.