An Agreement of Sale does not create any interest in the property, and the plaintiff has the discretion to decide the parties involved in the suit.

JUDGMENT

1. This petition emanates from Special Civil Suit 574 of 2015 which is brought by the petitioners/plaintiffs for partition and separate possession.

2. In the suit for partition and separate possession, the respondents 1 to 14 are arrayed as the defendants. Respondents 15 and 16, who are not parties to the suit preferred an application dated 26.10.2018 invoking the provisions of Order I Rule 10 of the Civil Procedure Code, 1908 ('Code') on the premise that the defendant Shri Gopinath Bhimaji Kedar had entered into an Agreement of Sale dated 15.7.2013 in their favour qua agricultural land admeasuring 4.67 H.R. assigned Gat 48 at Mouje Waghad, Taluka Dindori, District Nashik. Respondents 15 and16 claimed to be necessary parties to the suit.

3. The learned trial Judge allowed the application preferred under Order 1 Rule 10 of the Code vide order dated 11.1.2019 on the premise that respondents 15 and 16 have interest in the suit property in view of the Agreement of Sale dated 15.7.2013 executed in their favour by defendant 1, and such interest shall be affected by adjudication in the suit. It is this order which is impugned herein.

4. I have heard the learned counsel Mr.Girish Agrawal on behalf of the plaintiffs and the learned counsel Mr.Ajinkya Jaibhave on behalf of respondents 15 and 16-third parties.

5. It would not be necessary to make an elaborate reference to pleadings. Suffice it to note, that it is common ground that the Agreement of Sale dated 15.7.2013 which is purportedly executed by defendant 1 in favour of the third parties prior to institution of the suit for partition has not fructified into conveyance.

6. The learned trial Judge has assumed that the third parties have share or interest in the suit property. The learned trial Judge clearly erred in labouring under such assumption.

7. Section 54 of the Transfer of Property Act, 1882 clearly spells out that the Agreement of Sale per se does not create any interest in the property which is the subject matter of the agreement. Axiomatically, a person in whose favour, there is an agreement of sale purportedly executed by a party to the suit cannot be heard claiming right to participate in the suit on the premise that the Agreement for Sale creates interest in the property.

8. An identical situation fell for consideration in Shrikrishna Purushottam Gaidhani Vs. Gajanan Mahadev Gaidhani & Ors. Writ Petition 6159 of 2008 which is decided by a learned Single Judge by judgment dated 3.8.2009. In the suit for partition and separate possession, third parties invoked the provisions of Order I Rule 10(2) of the Code on the basis of the Agreement of Sale executed in his favour by some of the defendants. It would be apposite to note the articulation in paragraph 7 of the said decision which reads thus :-

''7. I have carefully considered the submissions. As stated earlier, the suit filed by the petitioner is for partition and separate possession of the alleged share of the petitioner in the suit immoveable properties. The respondent no.14 is claiming on the basis of the agreement for sale executed in his favour by some of the defendants. Admittedly,there is no conveyance executed in favour of the respondent no.14. In view of section 54of the Transfer of Property Act,1882, as of today, the respondent no.14 has no interest in the suit property as agreement for sale does not create any interest in the property subject matter of the agreement. Assuming that there is an agreement for sale executed by some of the defendants in favour of the 14th respondent and assuming that he is entitled to enforce the said agreement, at the most he will be entitled to claim the property which maybe allotted to the share of his vendors at the time of effecting partition. The learned Trial Judge, however,observed that in absence of the respondent no.14 an executable decree cannot be passed. The learned trial Judge has completely ignored that there is no sale deed executed in favour of the respondent no.14