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HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR
Dinesh Mehta, J.
Wasim Akram Pathan – Appellant
Versus
Smt. Ganga Bai & Ors. – Respondents
S.B. Civil Writ Petition No. 45 of 2022
Decided On : 06-01-2022
Impleadment - Partition Suit - The court rejected the petitioner's application for impleadment in a partition suit, stating that the petitioner claiming possession based on an unregistered agreement to sell cannot intervene in the suit.
Fact of the Case:
The petitioner challenged the rejection of their application for impleadment in a partition suit, claiming possession based on an unregistered agreement to sell.
Finding of the Court:
The court found that the petitioner's possession based on the unregistered agreement to sell cannot intermeddle in the partition suit, and the writ petition failed.
Issues: Impleadment in partition suit, possession based on unregistered agreement to sell, rejection of impleadment application.
Ratio Decidendi: The court held that the petitioner claiming possession based on an unregistered agreement to sell cannot intervene in the partition suit.
Final Decision: The writ petition and stay application were dismissed.
ORDER
1. By way of the present writ petition the petitioner has challenged the order dated 08.12.2020 passed by learned Additional District Judge No.3, Udaipur (hereinafter referred to as the 'trial Court').
2. Precisely narrated the facts germane for the present case are that the plaintiffs - respondents No.1 to 3 herein instituted a suit for partition and injunction in relation to their ancestral property.
3. In the suit aforesaid, which was filed in the year 2019, the petitioner moved an application on 14.02.2020 seeking his impleadment inter alia asserting that he has acquired right and interest in the property in furtherance of an agreement to sell dated 10.04.2019.
4. Petitioner's aforesaid application has been rejected by the trial Court inter alia observing that the suit in question is that of partition, in which petitioner claiming to be in possession on the basis of an agreement to sell cannot be permitted to intervene.
5. While rejecting petitioner's application the trial Court has clearly observed that neither the agreement in question is registered nor appropriate stamp duty has been paid thereupon.
6. Learned counsel for the petitioner argued that the learned trial Court has erred in rejecting petitioner's application vide its impugned order dated 08.12.2020, because if the petitioner is impleaded as a party, no prejudice will be caused to the plaintiff or defendants and it will not affect the trial.
7. Learned counsel expressed his apprehension that if injunction is granted in his absence, it would adversely affect petitioner's rights, who has purchased the property from defendants.
8. Having heard learned counsel for the parties and upon perusal of the record including the agreement to sell dated 10.04.2019, this Court is of the view that the petitioner purportedly having possession cannot intermeddle in the extant suit for partition. That apart, petitioner cannot claim any sort of right on the basis of an agreement which is prima facie not properly stamped and unregistered.
9. The writ petition, therefore, fails.
10. Stay application too stands dismissed accordingly.
A party claiming possession based on an unregistered agreement to sell cannot intervene in a partition suit.
A sale deed establishes a presumption of possession, and challengers must provide evidence to rebut this presumption to contest an injunction.
The main legal point established is that the trial court must consider the evidence of possession and purchase before granting a temporary injunction in property disputes.
The party seeking an injunction must prove a prima facie case to go for trial, and if failed, the balance of convenience and irreparable loss are not material.
Refusal orders by registration authorities must provide hearing to all parties and be speaking to comply with natural justice.
An agreement to sell does not confer any title upon the purchaser, and the presence of a registered sale deed is necessary to acquire interest in the property.
An agreement to sell does not create any interest in property; thus, a party claiming rights based on such an agreement cannot be joined in a partition suit without a legal interest.
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