The High Court
Case Details
Signature Not Verified Digitally Signed Signed by: MANAS KUMAR PANDA Reason: Authentication Location: OHC, Cuttack Date: 28-Oct-2025 18:10:14 IN THE HIGH COURT OF ORISSA AT CUTTACK CMP No.380 of 2025 (In the matter of an application under Article 227 of the Constitution of India) Sudarsan Sahoo …. Petitioner -versus- A. Bhagaban Patro … Opposite Party Advocate(s) appeared in this case:- For Petitioner
Legal Reasoning
: Mr. T.P. Tripathy, Advocate For Opp. Party : Mr. Md. A. Alam, Advocate (Bhubaneswar) CORAM: JUSTICE B.P. ROUTRAY JUDGMENT 22nd October, 2025 B.P. Routray, J. 1. Heard Mr. T.P. Tripathy, learned counsel for the Petitioner and Md. A. Alam, learned counsel for the Opposite Party. 2. Present Petitioner, who is the Plaintiff, has filed CS No.7749 of 2014 before learned Civil Judge (Senior Division) (LR & LTV), Bhubaneswar praying for specific performance of contract and permanent injunction against the Defendant. Further, he filed an application under Order 39, Rule 1 & 2 of the C.P.C. praying for CMP No.380 of 2025 Page 1 of 6 Signature Not Verified Digitally Signed Signed by: MANAS KUMAR PANDA Reason: Authentication Location: OHC, Cuttack Date: 28-Oct-2025 18:10:14 temporary injunction against the Defendant not to evict him from the suit shop room. The same being rejected by the trial court, the Plaintiff preferred first appeal which was also rejected. Against both the orders of the trial court dated 2nd May 2024 and the 1st Appellate Court dated 7th February 2025, the Plaintiff has come up in the present CMP. 3. The suit property is a shop house and according to the Plaintiff he is inducted in possession thereof as a tenant in the year 2000 and continuing as such till date. As per claim of the Plaintiff, he paid Rs.5 lakhs to the Defendant for sale of said shop room by way of an oral agreement. However, the Defendant retracted from the commitment later on and so, the Plaintiff was compelled to file the suit for specific performance of the contract. 4. The shop room which is the subject matter of the suit is admittedly in possession of the Plaintiff. He possessed the same not as a trespasser but in the capacity of a tenant and as such his possession is permissive one. A party having lawful possession over the suit property can maintain a suit for permanent injunction. In the given facts of the case at hand, admittedly, the plaintiff’s claim is relating to specific performance of contract and according to him, CMP No.380 of 2025 Page 2 of 6 Signature Not Verified Digitally Signed Signed by: MANAS KUMAR PANDA Reason: Authentication Location: OHC, Cuttack Date: 28-Oct-2025 18:10:14 the defendant agreed to sale the suit shop room by oral contract, pursuant to which he paid rupees five lakh. In Suraj Lamp and Industries Private Limited (2) Through Director v. State of Haryana and Another, (2012) 1 SCC 656, Hon’ble Supreme Court explaining the scope of an Agreement to Sale have held as follows; “16. Section 54 of the TP Act makes it clear that a contract of sale, that is, an agreement of sale does not, of itself, create any interest in or charge on such property. This Court in Narandas Karsondas v. S.A. Kamtam, (1977) 3 SCC 247 observed: “32. A contract of sale does not of itself create any interest in, or charge on, the property. This is expressly declared in Section 54 of the Transfer of Property Act. (See Ram Baran Prasad v. Ram Mohit Hazra, AIR 1967 SC 744.) The fiduciary character of the personal obligation created by a contract for sale is recognized in Section 3 of the Specific Relief Act, 1963, and in Section 91 of the Trusts Act. The personal obligation created by a contract of sale is described in Section 40 of the Transfer of Property Act as an obligation arising out of contract and annexed to the ownership of property, but not amounting to an interest or easement therein. 33. In India, the word „transfer‟ is defined with reference to the word „convey‟. … The word „convey‟ in Section 5 of the Transfer of Property Act is used in the wider sense of conveying ownership. * * * * 37. ….. ownership passes from one party to another…..” that only on execution of conveyance, 17. In Rambha Namdeo Gajre v. Narayan Bapuji Dhotra, (2004) 8 SCC 614 this Court held: “10. Protection provided under Section 53-A of the Act to the proposed transferee is a shield only against the CMP No.380 of 2025 Page 3 of 6 Signature Not Verified Digitally Signed Signed by: MANAS KUMAR PANDA Reason: Authentication Location: OHC, Cuttack Date: 28-Oct-2025 18:10:14 transferor. It disentitles the transferor from disturbing the possession of the proposed transferee who is put in possession in pursuance to such an agreement. It has nothing to do with the ownership of the proposed transferor who remains full owner of the property till it is legally conveyed by executing a registered sale deed in favour of the transferee. Such a right to protect possession against the proposed vendor cannot be pressed into service against a third party.” 18. It is thus clear that a transfer of immovable property by way of sale can only be by a deed of conveyance (sale deed). In the absence of a deed of conveyance (duly stamped and registered as required by law), no right, title or interest in an immovable property can be transferred. 19. Any contract of sale (agreement of sell) which is not a registered deed of conveyance (deed of sale) would fall short of the requirements of Sections 54 and 55 of the TP Act and will not confer any title nor transfer any interest in an immovable property (except to the limited right granted under Section 53-A of the TP Act). According to the TP Act, an agreement of sale, whether with possession or without possession, is not a conveyance. Section 54 of the TP Act enacts that sale of immovable property can be made only by a registered instrument and an agreement of sale does not create any interest or charge on its subject-matter.” 5. The Plaintiff in the instant case is claiming specific performance of contract on the basis of an oral agreement with the Defendant, and in support of the same the money receipt under Annexure-5 has been filed mentioning that the amount of Rs.5 lakhs out of Rs.10 lakhs is paid towards advance for sale of the suit property. It goes without dispute that the possession of the Plaintiff over the suit shop room CMP No.380 of 2025 Page 4 of 6 Signature Not Verified Digitally Signed Signed by: MANAS KUMAR PANDA Reason: Authentication Location: OHC, Cuttack Date: 28-Oct-2025 18:10:14 was permissive possession as granted by the Defendant in favour of the Plaintiff in the relationship of landlord and tenant. It is also true that presently the possession of Plaintiff over the said shop room is continuing in the capacity of tenancy between the Plaintiff and Defendant respectively. 6. An agreement to sale does not confer any right on the intended purchaser in respect of the property. In other words the purchaser if not paid the entire consideration amount and is not given with possession of the property thereof, cannot claim any right over the property against the true owner by virtue of such agreement of sale. 7. In the instant case as stated earlier the possession of the Plaintiff over the suit property is in the capacity of a tenant as permitted by the Defendant on payment of rent. Thus the relationship of the Plaintiff and the Defendant being the tenant and owner, regardless of the fact of agreement to sale the property for which advance consideration money has been received, cannot claim any right over the property on his part. Therefore prayer for temporary injunction of the Plaintiff against the Defendant to retain his possession over the suit shop house by virtue of an intending purchaser cannot be granted in his favour. CMP No.380 of 2025 Page 5 of 6 Signature Not Verified Digitally Signed Signed by: MANAS KUMAR PANDA Reason: Authentication Location: OHC, Cuttack Date: 28-Oct-2025 18:10:14 8. In the circumstances no merit is seen in the CMP to interfere with the impugned orders of the trial court and 1st appellate court. Accordingly the CMP is dismissed. M.K. Panda/P.A ( B.P. Routray) Judge CMP No.380 of 2025 Page 6 of 6