JASOBANTI MAHAKUD Vs. RAMESH PADHAN

JUDGEMENT

(1.) Order dated 06.07.2010 passed by the learned Civil Judge (Senior Division), Bargarh in C.S.No.75 of 2008 allowing impletion of opposite party No.1 as a party-defendant in the suit has been assailed by the plaintiff in this writ petition.

(2.) The plaintiff s suit is one for specific performance of contract for sale of the suit property and in the alternative to refund the advance amount along with interest, on the assertions that the defendant No.1 is the karta of his joint family and defendant Nos. 2 to 4 are his sons and that in a family partition the suit property fell to the share of defendant No.1 and that defendant Nos. 1 to 4 being in need of money for repayment of loan and development of cultivation jointly executed an agreement for sale of the suit land in favour of the husband of the plaintiff after receiving an advance consideration of Rs.67,500/-. During his life time the husband of the plaintiff-petitioner requested defendant Nos. 1 to 4 to receive the balance consideration and to execute the sale deed and after his death the plaintiff made similar requests, but the defendants denied execution of the agreement.

(3.) Learned counsel for the petitioner relying on the decision of the Apex Court ( Kasturi v.-Iyyamperumal and others, 2005 AIR(SC) 2813) and VIJAY PRATAP v. SAMBHU SARAN SINHA, 1996 AIR(SC) 2755 and the decision of this Court (Panjum Bibi alias Ramjan Bibi & 7 others-v.-Najma Alim & another, 2008 2 OrissaLR 747) has contended that in the suit for specific performance of contract for sale the lis between the purchaser and the vendor shall only be gone into and it is not open to the Court to decide whether a 3 rd party to the contract has acquired any title and possession of the property in question, which is not relevant for the decision in the suit for specific performance of contract for sale. According to him, this is so because the enforceability of the contract between the parties to the contract is only to be gone into in the suit for specific performance and any other person claiming title to the property if allowed to be added, the scope of the suit for specific performance would be enlarged and it would be practically converted to a suit for title.