Location: OHC, Cuttack

Date: 28-Oct-2025 18:10:14

IN THE HIGH COURT OF ORISSA AT CUTTACK

CMP No.380 of 2025

(In the matter of an application under Article 227 of the Constitution of

India)

Sudarsan Sahoo …. Petitioner

-versus-

A. Bhagaban Patro … Opposite Party

Advocate(s) appeared in this case:-

For Petitioner : Mr. T.P. Tripathy, Advocate For Opp. Party : Mr. Md. A. Alam, Advocate

(Bhubaneswar)

CORAM: JUSTICE B.P. ROUTRAY

JUDGMENT

22^nd October, 2025

B.P. Routray, J.

1. Heard Mr. T.P. Tripathy, learned counsel for the Petitioner and

Md. A. Alam, learned counsel for the Opposite Party.

2. Present Petitioner, who is the Plaintiff, has filed CS No.7749 of 2014 before learned Civil Judge (Senior Division) (LR & LTV), Bhubaneswar praying for specific performance of contract and permanent injunction against the Defendant. Further, he filed an application under Order 39, Rule 1 & 2 of the C.P.C. praying for

Location: OHC, Cuttack Date: 28-Oct-2025 18:10:14 temporary injunction against the Defendant not to evict him from the suit shop room. The same being rejected by the trial court, the Plaintiff preferred first appeal which was also rejected. Against both the orders of the trial court dated 2^nd May 2024 and the 1^st Appellate Court dated 7^th February 2025, the Plaintiff has come up in the present CMP.

3. The suit property is a shop house and according to the Plaintiff he is inducted in possession thereof as a tenant in the year 2000 and continuing as such till date. As per claim of the Plaintiff, he paid Rs.5 lakhs to the Defendant for sale of said shop room by way of an oral agreement. However, the Defendant retracted from the commitment later on and so, the Plaintiff was compelled to file the suit for specific performance of the contract.

4. The shop room which is the subject matter of the suit is admittedly in possession of the Plaintiff. He possessed the same not as a trespasser but in the capacity of a tenant and as such his possession is permissive one. A party having lawful possession over the suit property can maintain a suit for permanent injunction. In the given facts of the case at hand, admittedly, the plaintiff’s claim is relating to specific performance of contract and according to him, Location: OHC, Cuttack Date: 28-Oct-2025 18:10:14 the defendant agreed to sale the suit shop room by oral contract, pursuant to which he paid rupees five lakh. In Suraj Lamp and Industries Private Limited (2) Through Director v. State of Haryana and Another, (2012) 1 SCC 656, Hon’ble Supreme Court explaining the scope of an Agreement to Sale have held 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 Location: OHC, Cuttack