Janardan Sahai, J. - (1.) Proceedings under section 47-A of the Indian Stamp Act were initiated against the petitioner in respect of an instrument which is an agreement of sale executed in favour of the petitioner dated 18.3.2004. The instrument contains apparently two conflicting recitals. In the first part of the agreement, it is ^Stated that the possession of the property will be delivered to the purchasers at the time of execution of the sale deed. In the latter portion of the agreement, it is stated that the purchaser is already in possession of the house and that he is entitled to enjoy the property in the manner he likes and to let it out. The petitioner paid the stamp duty upon the said agreement treating it to be an agreement of sale without possession. The Sub-Registrar, IIIrd, Meerut submitted a report to the Additional District Magistrate (Finance & Revenue), Meerut dated 19.3.2004. The additional District Magistrate found the duty paid by the petitioner sufficient by the order dated 19.11.2005. The said order was recalled by the Additional District Magistrate (Finance & Revenue) by the order dated 13.1.2005 and the case was heard again. The Addl. District Magistrate (Finance & Revenue) this time found that the instrument was deficiently stamped and imposed a penalty of Rs. 1 lakh and deficiency of Rs. 13,27,600/- by his order dated 18.3.2005. Against this order the petitioner filed an appeal before the Chief Controlling Revenue Authority/Board of Revenue which has been dismissed by the order dated 13.10.2005.
(2.) I have heard Sri Rajiv Mishra Counsel for the petitioners and the learned Standing Counsel.
(3.) Several submissions have been made by Sri Rajeev Mishra. His first submission is that a report was submitted by the Tehsildar that the petitioner is not in possession of the property in dispute and in view of the said report the agreement of sale could not be treated as o,'o with delivery of possession. It is also submitted that the owner of the property has also appeared and has stated that he was in possession and he has not delivered the possession to the petitioners. The second submission is that even if there are two contradictory recitals in the agreement of sale, the first one i.e. that the possession will be delivered at the time of possession would prevail. He relies upon a decision reported in Uma Devi Nambair and others v. T.C. Sidlian, 2004 (54) ALR 131 (SC) : 2004 (2) SCC 321 (SC), in which it has been held that in case of two inconsistent recitals in a deed the last would prevail if the instrument is a will and the first would prevail in case of disposition of the property by other modes. In my opinion, none of these contentions has any merit. Stamp duty is payable on the terms of the instrument itself. The enquiry into the question as to whether in fact the possession had been delivered to the purchaser or not is beyond the scope of the proceedings. Therefore, the contention of the petitioners Counsel that the fact that possession was not delivered as brought out by the report of the Naib Tehsildar ought to have been considered, fails. As regards the submission of inconsistency in the two clauses of the deed, it appears that the latter part of the deed contains an elaborate recital which is an admission of the fact that the petitioners are in possession. It is stated in the deed that the petitioners are in possession of the house and they shall continue to enjoy the possession of the property and may also let it out and make repairs themselves. It appears on the reading of the entire deed that the possession was delivered to the petitioners. The first part of the deed which says that the possession will be delivered at the time of sale will be superfluous in view admission about the possession of the petitioners in the latter part. The authorities below in view of the admission did not commit any error in treating the agreement as one where possession has been delivered. The decision cited by Counsel for the petitioner does not apply to the facts of the case. The said decision is applicable in case there are inconsistent terms relating to the disposition of the property. The recital regarding delivery of possession having been made is a recital about accomplishment of a fact and does not relate to inconsistency in the disposition of interest in the property. The recital in the deed that the petitioner is in possession is an admission of a fact.;