Through Director v. State of Haryana and Another
Case Details
Signature Not Verified Digitally Signed Signed by: BASANTA KUMAR BARIK Reason: Authentication Location: High Court of Orissa, Cuttack Date: 07-Nov-2025 10:56:53 IN THE HIGH COURT OF ORISSA AT CUTTACK C.M.P. No.964 of 2025 (In the matter of an application under Article 227 of the Constitution of India) Jaspal Singh …. -versus- Petitioner Smt. Trupti Pattnaik and others …. Opposite Parties Advocate(s) appeared in this case:- For Petitioner
Legal Reasoning
: Mr. D.P. Mohanty, Advocate For Opposite Parties : Mr. B. Mohanty, Advocate For O.P. No.1 Mr. S.K. Pattnaik, Advocate For O.P. Nos.3 to 6 Mr. S.K. Mishra, Advocate For O.P. Nos.2 & 7 CORAM: JUSTICE B.P. ROUTRAY JUDGMENT 27th October 2025 B.P. Routray, J. 1. Heard Mr. D.P. Mohanty, learned counsel for the Petitioner, Mr. B. Mohanty, learned counsel for Opposite Party No.1, Mr. S.K. Pattnaik, learned counsel for Opposite Parties 3 to 6 and Mr. S.K. Mishra, learned counsel for Opposite Parties 2 & 7. C.M.P. No.964 of 2025 Page 1 of 6 Signature Not Verified Digitally Signed Signed by: BASANTA KUMAR BARIK Reason: Authentication Location: High Court of Orissa, Cuttack Date: 07-Nov-2025 10:56:53 2. Present C.M.P. is directed against order dated 30.04.2025 passed by learned Senior Civil Judge, 1st Court, Cuttack in C.S. No.1080 of 2023, wherein the prayer of Opposite Party No.1 to be impleaded as a party as per Order 1 Rule 10, C.P.C. has been allowed. 3. Present Petitioner being the Plaintiff filed the aforesaid suit praying for partition against present Opposite Parties 2 to 7 as Defendants. The common ancestor of the suit property is the father of the Plaintiff and other Defendants. As per the contention of the intervenor-Petitioner (present Opposite Party No.1), the common ancestor made an agreement for sale of the suit property through Defendant No.4 as attorney holder and received part consideration amount from her. Thus, when she came to know about pendency of the suit for partition between the parties filed a petition under Order 1 Rule 10, C.P.C. praying to implead her as one of the Defendants in order to effectively adjudicate the claim in the suit. 4. The intervening purchaser having the agreement for sale in her favour cannot claim for right over the property. An agreement for sale does not create any right in favour of the intending purchaser in respect of right title of the property. The Hon’ble Supreme Court in Suraj C.M.P. No.964 of 2025 Page 2 of 6 Signature Not Verified Digitally Signed Signed by: BASANTA KUMAR BARIK Reason: Authentication Location: High Court of Orissa, Cuttack Date: 07-Nov-2025 10:56:53 Lamp and Industries Private Limited (2) Through Director v. State of Haryana and Another, (2012) 1 SCC 656, while explaining the scope of agreement for sale, have observed 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 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 C.M.P. No.964 of 2025 Page 3 of 6 Signature Not Verified Digitally Signed Signed by: BASANTA KUMAR BARIK Reason: Authentication Location: High Court of Orissa, Cuttack Date: 07-Nov-2025 10:56:53 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. In the case at hand, admittedly the suit is for partition between the family members in jointness of the property and the intervenor is a stranger outsider and her right confines to the effect that there was an agreement for sale made by the common ancestor in her favour and in such respect part payments have been received by the common ancestor. Looking to the claim of the intervenor (present Opposite Party No.1) from this angel, her claim is confined to the aspect of C.M.P. No.964 of 2025 Page 4 of 6 Signature Not Verified Digitally Signed Signed by: BASANTA KUMAR BARIK Reason: Authentication Location: High Court of Orissa, Cuttack Date: 07-Nov-2025 10:56:53 specific performance of contract only without conferring any right upon her in respect of the suit property to enter in between the family members of the joint family property. Thus, her claim being for specific performance of contract, though in respect of entire suit property, it is un-related to the prayer of the Plaintiff for partition of the suit properties in between the members of family and therefore, she is not considered as a necessary party in the present suit. When the relief claimed by the intervenor-stranger is separate from the relief claimed in the suit, the right of the party to be added in the suit by way of provisions contained under Order 1 Rule 10, C.P.C. is not justified though she has a claim for specific performance of contract in respect of the suit property. Therefore, taking note of the nature of prayer in the present suit and the nature of relief claimed by the stranger intervenor, she cannot be treated either as a necessary party or a proper party in order to adjudicate the relief claimed in the suit irrespective her right to be agitated in a separate suit. 6. In view of the aforesaid analysis, the order of the learned trial court permitting the present Opposite Party No.1 to be arrayed as party to the suit for partition within the members of the family cannot be C.M.P. No.964 of 2025 Page 5 of 6 Signature Not Verified Digitally Signed Signed by: BASANTA KUMAR BARIK Reason: Authentication Location: High Court of Orissa, Cuttack Date: 07-Nov-2025 10:56:53 allowed to sustain. As such, the impugned order is set aside and the C.M.P. is allowed. (B.P. Routray) Judge B.K. Barik/Secretary C.M.P. No.964 of 2025 Page 6 of 6