1 APHC010377492024 IN THE HIGH COURT OF ANDHRA PRADESH AT AMARAVATI (Special Original Jurisdiction) [3329] WEDNESDAY ,THE FIFTH DAY OF MARCH TWO THOUSAND AND TWENTY FIVE PRESENT THE HONOURABLE SRI JUSTICE VENKATESWARLU NIMMAGADDA CIVIL REVISION PETITION NO: 1937/2024 Between: Bolla Sri Kanth, ...PETITIONER AND Kandula Audi Lakshmi ...RESPONDENT Counsel for the Petitioner: 1. SAI GANGADHAR CHAMARTY Counsel for the Respondent: 1. MADHAVA RAO NALLURI 2 HON’BLE SRI JUSTICE VENKATESWARLU NIMMAGADDA C.R.P.No.1937 of 2024 This Court made the following ORDER: The Petitioner herein is the Plaintiff in the suit and Respondent herein is the Defendant in the suit. The instant Civil Revision Petition is filed under Article 227 of the Constitution of India by the Petitioner aggrieved by the order dated 10.07.2024 in I.A.No.555 of 2023 in O.S.No.287 of 2014 on the file of the Court of the I Additional District & Sessions Judge at Ongole, wherein the petition filed under Order XVIII Rule 3 of CPC praying the Court to demark the Ex.B2/un-registered agreement of sale dated 15.11.2012 is dismissed. 2. The case of the Petitioner is that the Petitioner filed O.S.No.287 of 2014 against the Respondent herein for declaration of title over suit schedule property and for the relief of consequential delivery of suit schedule property and for permanent injunction. The Respondent herein also filed a suit in O.S.No.86/2016 against the Petitioner. The Respondent got filed an agreement of sale, said to have been executed by the elder brother of the Petitioner by name Bolla Lakshmi Kanth and another and the said sale agreements were marked as Ex.B1 and B2. In Ex.B2 the respondent has 3 mentioned that got possession over the suit schedule property and constructed an RCC building therein. Under Section 35 of the Indian Stamp Act, (for short “Act”) the Ex.B2 shall be impounded by the respondent either in the Court or get impounded by the District Registrar, but the respondent did not take any such steps. 3. Learned counsel for the Petitioner submits that the suit filed for declaration of title coupled with recovery of possession and also for permanent injunction. Whereas the Court below contrary to the object of Section 35 of the Act marked the Ex.B2-agreement of sale which is an unregistered and insufficient stamped document. In view of non-observation of Section 35 of the Act, Ex.B2 is liable to be demarked by the Court. He further submits that even though the document has been marked as exhibit, the aggrieved party is not precluded from raising its admissibility even at later stage or even in appeal or revision if the matter of objection is relates to substantive law, much less regarding the Registration of Stamp Act. In view of the said settled proposition the Petitioner filed present petition seeking to demark Ex.B2 which is an unregistered and insufficient stamped document, for which the Petitioner relied upon the judgment dated 03.07.2023 of this Court in C.R.P.No.2750/2022 (Mohammed Khaleel Ahmed and another vs. Shaik Noorjahan Begum). He also relied upon the ratio held by 4 Hon’ble Apex Court in G.M Shahul Hameed vs. Jayanth H. Hegde1 dated 09.07.2024. 4. He further submits that it is the primary obligation of the Court below since the Ex.B2 is an unregistered and insufficient stamped document, requires compliance of statutory requirements as per Section 35 of the Act as well as Section 17 of Registration Act, since the document is compulsory registerable document before admitting or before marking the document. But the Court below erroneously marked the document on the ground that there was no objection on the part of the Petitioner/Plaintiff therein at this time of marking document. The said action of the Court below is contrary to the ratio laid down by the Hon’ble Apex Court as stated supra. 5. On the other hand, learned counsel for Respondent denied the contention of the Petitioner and submits that the Ex.B2 is only an endorsing/ratification of the earlier agreement of sale i.e., 03.03.2010 which was entered by the brother of the Petitioner. The recitals of the Ex.B2 confirms the possession of the Respondent herein which was already delivered by his brother pursuant to the agreement of sale dated 03.03.2010. Therefore, the Ex.B2 is only a document of corrigendum or confirming the 1 2024 AIR Supreme Court 3339 = 2024(4) MLJ 382 5 recitals already executed between the brother of the Petitioner and Respondent dated 03.03.2010. 6. The Petitioner herein neither delivered any possession nor alienated independent right through Ex.B2 except confirming the recitals of the earlier agreement dated 03.03.2010. Therefore, Ex.B2 does not require any registration or stamp duty. As such, the impugned order of the Court below is rightly upheld the contention of the Respondent herein also with all reasons out of ratios laid down by this Court as well as Hon’ble Apex Court. As such, the order passed by Court below does not warranty any interference of this Court. Hence the Civil Revision Petition is liable to be dismissed on the ground of devoid of merits. 7. Heard Sri Sai Gangadhar Chamarthy, learned counsel for the Petitioner and Sri Madhava Rao Nalluri, learned counsel for Respondent and perused the material placed on record. 8. The Court below rightly observed that the Respondent was in possession of the property but not through the Ex.B2, but vide oral permission of the brother of the Petitioner the Respondent got constructed the house over the scheduled property. In the absence of any recitals regarding the delivery of the possession of the property in Ex.B2 seeking for 6 registration as well as for payment of insufficient stamped duty along with penalty does not arise, after admission, the document is valid and sustainable as per the Section 36 of the Act. For more understanding Section 36 of the Act is extracted below: “36. Admission of instrument where not to be questioned. —Where an instrument has been admitted in evidence, such admission shall not, except as provided in section 61, be called in question at any stage of the same suit or proceeding on the ground that the instrument has not been duly stamped.” 9. On perusal of the Section 36 of the Act, which mandates admission of insufficiently stamped instrument in evidence, any objection pertaining to insufficient stamped instrument must be raised prior to its admission. Once it has been admitted in evidence then its admissibility cannot be contested at any stage of the proceedings on the ground that it is not duly stamped. In the case on hand the Ex.B2 already marked and admitted in evidence, as such the contention of the Petitioner that the admissibility of the Ex.B2 can be raised at any later stage even at the time of appeal is misconceived and contrary to the mandate of Section 36 of the Act. Utmost the Court below should observe the defect stamp duty should be paid as per Section 35 of the Act by recoursing the procedure as contemplated U/s 61 of the Act while passing its final order. 7 10. The said contention was reiterated by the Hon’ble Apex Court in G.M Shahul Hameed vs. Jayanth H. Hegde (Supra 1) which reads thus: “12. Read in isolation, a literal interpretation of Section 35 of the 1957 Act seems to make the position in law clear that once an instrument has been admitted in evidence, then its admissibility cannot be contested at any stage of the proceedings on the ground of it not being duly stamped. A fortiori, it would follow that any objection pertaining to the instrument’s insufficient stamping must be raised prior to its admission.” (Emphasis Supplied) 11. The facts in the C.R.P.No.2750/2022 which was relied upon by the Petitioner is not at all applicable to the present case in hand. Further, it is observed on perusal of the Ex.B2 that admittedly under which no possession was delivered by the Petitioner and it is only agreeing for relinquishment of his rights in favour of the Respondent pursuant to the earlier agreement of sale said to have been executed by his brother regarding the joint property of the Petitioner and his brother. Therefore, the Ex.B2 requires stamp duty in compliance of Section 35 of the Act. The payment of insufficient stamp duty in compliance of Section 35 of the Act is only the dispute between the respondent and the State but not with the Petitioner herein. As such, the Petitioner is not entitled to question the admissibility of the Ex.B2 at this stage which is already marked and admitted. 8 12. In view of the forgoing discussions, the decisions relied upon by the Petitioner are not applicable to the facts of the present case and this Court is not find any force regarding compliance of Section 35 of the Act at this stage. However, the Court below is hereby directed to observe to apply the mandatory compliance on the part of the Respondent regarding the payment of Stamp Duty U/s 35 of the Act by directing the Respondent to make good the loss caused to the public exchequer by taking recourse U/s 61 of the Act while passing the final orders in the suit. 13. Therefore, the present Civil Revision Petition is devoid of merits and liable to be dismissed. Accordingly, the Civil Revision Petition is dismissed. No costs. As a sequel, interlocutory applications if any pending, shall stand closed. ______________________________________ JUSTICE VENKATESWARLU NIMMAGADDA Dt:05.03.2025 krk 9 THE HONOURABLE SRI JUSTICE VENKATESWARLU NIMMAGADDA 181 Civil Revision Petition No.1937 of 2024 Dt: 05.03.2025 krk