Order on Board

15.09.2022

1) The petitioner/defendant No.1 has filed this instant petition against the order dated 13.01.2022 passed in Civil Suit No. 08A/ 2021 by Fourth Additional District Judge, Raipur (C.G.), whereby application moved by the defendant No.1/petitioner under Section 3 and 33 of Indian Stamp Act for impounding the agreement to sell dated 17.07.2019 executed between the respondent No.1/plaintiff and petitioner/defendant No.1, has been rejected. The plaintiff/respondent No.1 filed a Civil Suit for Specific Performing of the contract on the ground that an agreement to sale dated 17.07.2019 was executed between the petitioner and respondent No. 1 for sale of the diverted land bearing Khasra No. 271/2, Plot Nos.38/6, 38/7, Sheet No.3, area 4240 sq. ft. and 2200 sq. ft. situated at Tikrapara, Tahsil and District- Raipur for a consideration of Rs. 1,93,32,000/- wherein Rs. 62,21,000/- was paid as earnest money. It is further pleaded that though notice was issued to the petitioner on 10.06.2020 but he was not forth coming to get the sell deed executed whereas respondent No.1/plaintiff has always been ready and willing to perform his part of contract.

2) The respondent No.1/plaintiff filed written statement and denied the plaint averments. He specifically stated that earnest money as stated by the defendant No.1/petitioner has not been paid to him and the actual consideration amount was Rs. 3,51,00,000/-. In para 16 of written statement it is stated that agreement dated 17.07.2019 is the shame agreement which was executed between them for compelling the tenants to vacate the premises and no date is mentioned on it.

3) At the time of recording of evidence of plaintiff/respondent No.1 while agreement was being exhibited, the petitioner raised an objection to the effect that as from the recital of the document, it is clear that the possession was handed over to the plaintiffs/respondent No.1, therefore, it became conveyance and same is not admissible without affixing the sufficient stamp duty.

4) The petitioner herein moved an application under Sections 3 read with 33 of Indian Stamp Act on the ground that from date of execution of agreement to sell, the possession of the suit property was handed over to the plaintiff/respondent No.1 and same is evident from clause-7 of the agreement. Further, respondent No.1/plaintiff has admitted the factum of the handing over of the possession in reply to the notices sent to him. He further pleaded that without impounding the document same is not admissible in evidence and made a prayer to pass an order accordingly.

5) The respondent No. 1/plaintiff filed reply to the aforestated application and stated that possession has not been handed over to him. The defendant No.1/petitioner in application dated 30.04.2022, has admitted that he is having ownership and the possession of the suit property and in written statement he has nowhere stated that possession was not handed over to him. In written statement he has shown himself as the sole owner and possession holder of the suit property. He further stated that he has made a statement that the agreement to sell is a shame document thus prayed to reject the application moved by the petitioner/defendant No.1.

6) The learned trial Court vide order dated 15.07.2022 came to conclusion that the plaintiff has not pleaded in plaint that he is in possession of the suit property. The learned trial Court considered the clause-3 of the agreement where it is stated that tenants are residing in the suit property and 31st March 2022 is fixed for their eviction. The clause-7 of the said agreement states as to publication of public notice dated 09-05-2018 and the fact that possession of the property has been handed over to the purchaser, are referred. The learned trial Court held that there are contradictory statements as to handing over of the possession, in the documents filed by the petitioner/defendant No.1, therefore, the provisions of Sections 3 and 33 of