Vijay Kumar Goyal (Dead) Thr. Lr. vs Neena Rani

IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 6538 OF 2022

Vijay Kumar Goyal (Dead) Thr. LR. …Appellant(s)

Versus

Neena Rani & Ors. …Respondent(s)

JUDGMENT

M.R. SHAH, J.

1. Feeling aggrieved and dissatisfied with the impugned judgment

and order passed by the High Court of Punjab and Haryana at

Chandigarh in Civil Revision Petition No. CR-3172 of 2018 by which the

High Court has dismissed the said revision application preferred by the

appellant herein and has confirmed the order passed by the Trial Court

directing the appellant – original plaintiff to pay the deficient stamp duty

alongwith the penalty, the original plaintiff has preferred the present

appeal.

2. That the appellant herein has instituted Civil Suit before the Trial

Court for specific performance of the Memorandum of Agreement dated Signature Not Verified Digitally signed by

24.02.1996 and the agreement to sell dated 14.05.2011 with regard to SNEHA Date: 2022.09.16 15:18:37 IST Reason:

the suit land. In the said suit, the Trial Court passed an order directing

1 the original plaintiff – appellant to pay the deficient stamp duty as

leviable under Sub-column No. 2 of Column No. 2 of Entry No. 23 of

Schedule 1-A by observing that as per Schedule 1-A, Entry No. 5 with

respect to Memorandum of Agreement or agreement to sell followed by

or evidencing delivery of possession of the immovable property agreed

to be sold, the stamp duty shall be leviable under Sub-column No. 2 of

Column No. 2 of Entry No. 23 of Schedule 1-A as amended by the State

of Punjab.

2.1 Feeling aggrieved and dissatisfied with the order passed by the

Trial Court ordering the deficient stamp duty alongwith the penalty to be

paid, the original plaintiff – appellant preferred the Civil Revision Petition

No. CR-3172 of 2018 before the High Court. By the impugned judgment

and order, the High Court has dismissed the said revision petition, which

has given rise to the present appeal.

3. Though served, none has appeared on behalf of the respondents.

4. We have heard learned counsel appearing on behalf of the

appellant. We have considered and gone through the Memorandum of

Agreement dated 24.02.1996 and the agreement to sell dated

14.05.2011 of which the specific performance has been sought.

2 4.1 Having gone through the said agreements, it can be seen that the

possession has not been delivered under the said agreements. In these

agreements, it is specifically mentioned that the possession of the

disputed land in question was already with the appellant – Vijay Kumar.

In the Memorandum of Agreement dated 24.02.1996, it is mentioned that

“the above said land is already with my brother Vijay Kumar and after

today, my brother, Vijay Kumar has become the owner in possession of

the above land like me”. In the agreement to sell dated 14.05.2011, in

paragraph 2, it is stated that “that the possession of the above land is

already with party No. 2 and the party No. 2 is having possession of the

same today also”. Thus, it cannot be said that the possession of the

land in question was delivered through under the said agreements of

which the specific performance is sought. In that view of the matter,

Entry No. 5 of Schedule 1-A of the Indian Stamp Act as amended by the

State of Punjab shall not be applicable. As per Entry No. 5 (cc) of

Schedule 1-A applicable under the State of Punjab, “in the case of

agreement to sell followed by or evidencing delivery of possession of the

immovable property agreed to be sold”, the stamp duty is leviable under

Column No. 2 of Entry No. 23 of Schedule 1-A. As observed

hereinabove, the plaintiff was already in possession prior to the

execution of the aforesaid agreements as per the recitals in the

aforesaid two agreements. It is to be noted that even the plaintiff has

3 also not sought the possession in the suit filed by him and has in fact

sought the permanent injunction restraining the defendants from

interfering in the peaceful possession of the plaintiff and from

dispossessing or causing to dispossess the plaintiff from the suit

property.

5. In view of the above and for the reasons stated above, the order

passed by the High Court and that of the Trial Court directing the

appellant – original plaintiff to pay the deficient stamp duty with penalty

applying Sub-column No. 2 of Column No. 2 of Entry No. 23 of Schedule

1-A as amended by the State of Punjab is unsustainable and the same

deserves to be quashed and set aside.

In view of the above and for the reasons stated above, the present

appeal succeeds. The impugned judgment and order passed by the

High Court dismissing the Civil Revision Petition No. CR-3172 of 2018

and the order passed by the Trial Court directing the appellant – original

plaintiff to pay the deficient stamp duty along with the penalty are hereby

quashed and set aside.

Present appeal is accordingly allowed. No costs.

………………………………….J. [M.R. SHAH]

NEW DELHI; ………………………………….J. SEPTEMBER 16, 2022. [KRISHNA MURARI]

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