CAV ORDER

This writ petition is filed assailing the order dated 06.12.2023 passed in O.S.No.229/2023 by the Senior Civil Judge and JMFC, Moodbidri, Dakshina Kannada District (hereinafter referred to as the 'Trial Court').

2. The brief facts leading to filing of this case are that the respondent No.1 filed a suit in O.S.No.229/2023 against the petitioner and others for the relief of specific performance of the agreement dated 23.06.2018 and other reliefs. The petitioner-defendant No.4 contested the proceedings by denying the assertion of the plaintiff. The Trial Court recorded the evidence of the plaintiff. At that stage, the petitioner-defendant No.4 objected to marking of the agreement of sale dated 23.06.2018 on the ground that the said instrument is insufficiently stamped and is not registered. The plaintiff filed a memo dated 11.08.2023 stating that the possession of the property was with the plaintiff prior to the agreement and she is only liable to pay the stamp duty as per Article 5(e)(ii) of the Karnataka Stamp Act, 1957 (hereinafter referred to as the Act). The petitioner-defendant No.4 objected to the memo filed by the plaintiff. The Trial Court, under the impugned order upheld the memo. Being aggrieved, this petition is filed.

3. Sri.P.N.Manmohan, learned counsel appearing for the petitioner submits that the agreement in question expressly mentions about the delivery of possession to the plaintiff-respondent No.1 and hence, the plaintiff is liable to pay the stamp duty under Article 5(e)(i) of the Act. It is further submitted that the alleged possession over the suit schedule property of the plaintiff is only to overcome the aspect of payment of stamp duty. It is also submitted that no matter by what mode, the plaintiff claims possession over the suit schedule property, the same comes to an end once the delivery of possession is recognized under the instrument dated 23.06.2018. It is contended that the plaintiff is liable to pay the stamp duty as if it is a conveyance under Article 20 of the Act along with the penalty and the Court is required to consider as if there was delivery of possession under the instrument. It is further contended that since the agreement in question is unregistered, Section 17 of the Registration Act, 1908, mandates the registration once the instrument indicates delivery of possession. On both the counts, the Trial Court has erred and has passed the impugned order. In support of his contentions, he placed reliance on the following decisions:

(a) SRI.J.PRAKASH Vs. SMT.M.T.KAMALAMMA AND ANOTHER, 2007 SCC Online KAR 490

(b) RAMESH MISHRIMAL JAIN Vs. AVINASH VISHWANATH PATNE AND ANOTHER, 2025 SCC Online SC 329

(c) C.K.RAVI PRASANNA Vs. T.K.GOWRAMMA, ILR 2007 KAR 2807

(d) K.AMARNATH Vs. SMT.PUTTAMMA, 1998 SCC Online KA 383

(e) J.RAMAPPA Vs. J.VENKATRAMANA SETTY, 2023 SCC Online KAR 1381

(f) SMT.KRISHNAKUMARI Vs. SRI.K.SURESH KUMAR, 6 ILR 2015 KAR 2335

(g) RAMEGOWDA @ CHIKKARAMEGOWDA, SINCE DECEASED BY LRS Vs. SRI.MALLEGOWDA @ KRISHNAPPA, W.P.No.11451/2020 dt. 30.08.2023

Hence, he seeks to allow the appeal.

4. Per contra, Sri.B.S.Sachin, learned counsel for the respondent No.1-plaintiff supports the impugned order of Trial Court and submits that the plaint averments clearly indicate that the possession of the suit schedule property was delivered to the plaintiff more than two years prior to the agreement of sale and the said aspect is also found in the agreement. It is submitted that the Article 5 of the Act clearly makes a distinction with regard to the payment of stamp duty in the cases of delivery and non- delivery of possession under the agreement of sale. It is further that the petitioner-defendant No.4 raised an objection with regard to the stamp duty and thereafter, the plaintiff filed a memo indicating that the stamp duty paid on the agreement in question was less and hence, the plaintiff paid the stamp duty and the penalty as per Article 5(e)(ii) of the Act and therefore, asking the plaintiff to pay