Orissa High Court
Jaspal Singh vs Smt. Trupti Pattnaik And Others .... ... on 27 October, 2025
Author: B.P. Routray
Bench: B.P. Routray
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 .... Petitioner
-versus-
Smt. Trupti Pattnaik and others .... Opposite Parties
Advocate(s) appeared in this case:-
For Petitioner : 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.
Signed by: BASANTA KUMAR BARIK
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
Signed by: BASANTA KUMAR BARIK
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. ..... that only on execution of conveyance,
ownership passes from one party to another....."
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
Signed by: BASANTA KUMAR BARIK
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
Signed by: BASANTA KUMAR BARIK
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
Signed by: BASANTA KUMAR BARIK
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
