JUDGMENT

B.K. NAYAK, J. — 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.

Defendant Nos.1 to 4 filed their joint written statement denying the plaint assertion and further contending that they have never executed any agreement for sale, but on the other hand borrowed a sum of Rs.50,000/- from plaintiff’s late husband with condition to repay the same with interest and that on different occasions they have repaid more than the amount due in shape of paddy.

In the suit the present opposite party No.1 filed a petition under Order 1 Rule 10 C.P.C. to be impleaded as a party defendant stating that he is the youngest son of defendant No.1 and the suit property being his ancestral property, he has interest therein and therefore he is a necessary party to the suit. The said petition has been allowed by the Court below holding that the land in question bears interest of the petitioner (present opposite party No.1) and though he may be a stranger to the contract, he cannot be said to be the stranger to the consideration under the agreement to sell.

3.Learned counsel for the petitioner relying on the decision of the Apex Court reported in AIR 2005 SC 2813 (Kasturi v. Iyyamperumal and others) and AIR 1996 S.C. 2755 and the decision of this Court reported in 2008 (II) OLR 747 (Panjum Bibi alias Ramjan Bibi and 7 others v. Najma Alim and another) 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 3rd 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.

The learned counsel for opposite party No.1 placing reliance on a single Bench decision of Punjab & Haryana High Court reported in AIR 1984 Punjab & Haryana 365 (Atul Sharma and another v. Gurinder Singh and others) has submitted that in a suit for specific performance of contract for sale, a non-contracting coparcener in respect of the property can be impleaded as a party.

4.In the case of Kasturi (supra) where in a suit for specific performance of contract for sale, a third party to the contract claiming to have independent title and possession over the contracted property filed an application to be impleaded as party, the apex Court negated his claim holding that a stranger to the contract for sale claiming independent title is not a necessary party because the plaintiff has no right to reli