Jharkhand High Court
Nisha Devi @ Nisha Barnwal vs Savitri Devi on 20 August, 2025
Author: Gautam Kumar Choudhary
Bench: Gautam Kumar Choudhary
2025:JHHC:24742
IN THE HIGH COURT OF JHARKHAND AT RANCHI
C. M. P. No.1055 of 2023
1.Nisha Devi @ Nisha Barnwal, W/o Santosh Kumar Barnwal and D/o Late
Sahdeo Modi, R/o Village- Sariya, PO and PS- Sariya, District- Giridih,
presently residing at Kumardhoobi, PO- Sarsapahari, PS- Chirkunda,
Dhanbad.
2.Aasha Devi, W/o Bijay Barnwal and D/o Late Sahdeo Modi, R/o Mohala-
Nadaraganj, PO & PS.- Gaya, District- Gaya, Bihar.
3.Usha Barnwal, W/o Late Ashok Barnwal, D/o Late Sahdeo Modi, R/o
Village- Chandwara, PO and PS- Jhumritelaiya, District- Koderma.
.... .. ... Petitioner(s)
Versus
1. Savitri Devi, Widow of Late Sahdeo Modi
2. Anil Modi, S/o Late Sahedo Modi
Respondent Nos.1 & 2, Resident of Bagodar Road, Sariya, PO & PS-
Sariya, District- Giridih.
3. Usha Devi Agrawal, W/o Shri Ratan Lal Agrwal
4. Ratan Lal Agrwal
Respondent Nos.3 & 4 are resident of Union Board Road, Sariya, PO &
PS- Sariya, District- Giridih. .. ... ...Opp. Party(s)
...........
CORAM :HON'BLE MR. JUSTICE GAUTAM KUMAR CHOUDHARY
.........
For the Petitioner(s) : Mr. Manoj Kumar Choubey, Advocate
Mr. Gautam Kr. Pandey, Adv.
For the O. P(s).3 : Mr. Rupesh Singh, Advocate
Mr. Sudhanshu Singh, Advocate
......
05/ 20.08.2025. Heard, learned counsel for the parties.
1. Petitioners are aggrieved by the order dated 23.05.2022 passed by
learned Principle District Judge, Giridih, in Civil Appeal No.24 of 2020
whereby and whereunder the petition under Order I Rule 10 CPC for
impleadment as intervenor(s) has been rejected.
2. Plaintiff(s) filed the suit for specific performance of contract impleading
the proposed sellers and the suit was decreed in favour of the plaintiff(s).
3. Defendant (s) preferred an appeal against the judgment and decree in
which the present petitioners filed intervenor application for being
impleaded on the ground that they were the daughters of the appellant/
defendant No.1 and the sisters of appellant / defendant No.2 and were
rightful owners of the suit property and have not been impleaded in the
suit. They being the necessary party (s), the application for impleadment
was filed.
4. Learned Trial Court rejected the application for impleadment on the
ground that in a suit for specific performance of contract, no stranger to
the agreement of sale can be added as a party in the suit, therefore,
neither the present intervenor nor vendor nor vendee of the said
2025:JHHC:24742
agreement of sale is the necessary party in view of the ratio as laid down
in 2014 (4) JLJR P.Nos.81 to 85 and (2010) 7 SCC 417.
5. It is argued by learned counsel for the petitioners that in Partition Suit
No.69 of 2006 in which the partition was allowed and preliminary decree
was drawn and final decree was prepared with respect to 1/6th share of
each of the party(s).
6. The main grievance of the petitioners is that the agreement was executed
with respect to half of the share.
7. The matter for consideration is that whether this can be a ground for
impleadment of the intervenor applicant at the stage of appeal.
8. The main grievance of the petitioners is that the defendant who was the
party in the agreement of sale has executed the agreement beyond his
share. Therefore, the decree, as such is inexecutable in view of the
judgment passed in the Partition Suit.
9. The Partition Suit was disposed of in the year 2013 whereas the instant
Suit for specific performance of contract was disposed of in the Year,
2012.
10. This Court is of the considered view that the pendency or decision in
a partition suit cannot by itself constitute a valid ground for impleadment.
It is a settled principle of law, embodied in the maxim nemo dat quod non
habet, that no person can transfer a better title than what he himself
possesses. Accordingly, the execution of a sale deed by the proposed
transferor cannot confer a valid title if he himself lacked the same.
11. The question as to whether the proposed seller had the right to
transfer the suit property is not germane for adjudication in a suit for
specific performance. The learned Trial Court has rightly observed that
the issue of ownership or title cannot be determined in such proceedings.
12. Furthermore, the execution of the sale deed pursuant to the
agreement of sale by the proposed transferor cannot now be resisted at
the appellate stage by the present petitioners, who are none other than
the daughters of the proposed seller. Their plea of complete ignorance
of the proceedings for specific performance appears wholly untenable
and, at this stage, even collusive with the proposed seller.
13. I do not find any merit in the instant CMP and accordingly, the same
stands rejected. Pending I.A., if any, stands disposed of.
Sandeep/- (Gautam Kumar Choudhary, J.)
