IN THE HIGH COURT OF ORISSA AT CUTTACK RSA No.465 of 2007 (In the matter of an appeal under Section 100 of the Code of Civil Procedure, 1908) Surendranath Panigrahi @ Surendra Panigrahi …. Appellant -versus- Arun Prasad Bisoyi and another …. Respondents For Appellant - Mr. S.K. Pradhan, Advocate For Respondents - Mr. Samarendra Mohanty, Advocate CORAM: MR. JUSTICE A.C.BEHERA Date of Hearing :19.01.2026:: Date of Judgment :09.02.2026 A.C. Behera, J. This 2nd appeal has been preferred against the confirming judgment. 2. The appellant in this 2nd appeal was the plaintiff before the trial court in the suit vide T.S. No.73 of 1993 and appellant before the 1st appellate court in the 1st appeal vide R.F.A. No.95 of 2005. The respondents in this 2nd appeal were the defendants before the trial court in the suit vide T.S. No.73 of 1993 and the respondents before the 1st appellate court in the 1st appeal vide R.F.A. No.95 of 2005. 3. The suit of the plaintiff (appellant in this 2nd appeal) against the defendants(respondents in this 2nd appeal) vide T.S. No.73 of 1993 was a suit for specific performance of contract with a prayer to direct the defendants to execute and register the sale deed in respect of the suit site (properties) vide Plot No.794/2903 under Khata No.1030/587 A.0.055 decimals situated in Godavarish Nagar in Mouza-Badyanathpur under Berhampur Tahasil in the district of Ganjam in his favour after receiving the balance consideration amount, i.e., Rs.30,049/- along with other reliefs, to which, he(plaintiff) is entitled for in the interest of justice. As per the averments made in the plaint of the plaintiff, the defendant nos.1 and 2 are brother and sister respectively. They(defendant nos.1 and 2) are the son and daughter of Late Krushna Chandra Bisoyi and Prafulla Kumari Bisoyi. The mother of the plaintiff, i.e., Prafulla Kumari Bisoyi had purchased the suit properties on dated 24.05.1965 through registered Sale Deed No.3168/65. The said suit properties were recorded exclusively in the name of their mother, i.e. Prafulla Kumari Bisoyi. When, the mother of the defendants expired, the suit properties left by her devolved upon both the defendants as her successors and accordingly, the defendants are the joint owners of the suit site. The defendant no.1 gave a proposal for sale of the suit site(properties) to the plaintiff for a consideration amount of Rs.85,000/-, to which, the plaintiff accepted and agreed to purchase the same from the defendants. Accordingly, on dated 11.04.1990, the defendant no.1 received Rs.4,951/- out of the consideration amount of Rs.85,000/- as advance from the plaintiff for selling the suit site(properties). Then, on different dates, the defendant no.1 received Rs.54,951/- in total as advance out of consideration amount of Rs.85,000/- from the plaintiff and executed an agreement for sale of the same on dated 01.05.1990 in favour of the plaintiff indicating the time period for execution and registration of the sale deed. When, the defendant no.1 delayed the execution and registration of the sale deed, on the ground of obtaining power of attorney for sale from his sister, i.e., defendant no.2, though the plaintiff was always ready and willing to perform his part of contract, then, he(plaintiff) issued a notice to the defendant no.1 on dated 15.03.1993 requesting him to execute and register the sale deed in respect of the suit site in his favour after receiving the rest consideration amount from him(plaintiff), but, in spite of such notice, the defendant no.1 did not execute and register the sale deed. For which, the plaintiff approached the civil court by filing a suit vide T.S. No.73 of 1993 against the defendants praying for passing a decree for specific performance of contract against them (defendants) directing them(defendants) to execute and register the sale deed in respect of the suit site(properties) in favour of the plaintiff after receiving the balance consideration amount. The defendant no.1 contested the suit of the plaintiff taking his stands in his written statement that, though he (defendant no.1) has executed the agreement to sell in question, but, the said agreement is not voluntary, because, the same was executed at the instance of one Sushanta Panigrahi(brother of the plaintiff). He(defendant no.1) has executed the agreement for sale only for selling his share in the suit site(properties) and he(defendant no.1) has received Rs.34,951/- as advance out of the consideration amount of Rs.2,00,000/-, but, the said agreement for sale was not for selling the entire suit properties including the interest of the defendant no.2 therein. The further case of the defendant no.1 was that, though the defendant no.2 had executed a power of attorney in his favour, but, the said power of attorney was not for the suit site, but, the same was for another property. He(defendant no.1) is ready and willing to perform his part of the contract, but, the plaintiff is not ready for providing the rest consideration amount out of Rs.2,00,000/- deducting the advance money, i.e., Rs.34,951/-. For which, there was no cause of action for the plaintiff for filing the suit, the same is liable to be dismissed. 4. The defendant no.2 filed her written statement denying the execution of agreement for sale in respect of the suit site in favour of the plaintiff taking her stands specifically that, the suit site is the joint and undivided properties of her and her brother, i.e., defendant no.1 and, as she(defendant no.2) is busy in her official works, for which, she had authorized her brother, i.e., defendant no.1 to look after the suit property on her behalf and she has executed a power of attorney in favour of the defendant no.1 in respect of her other properties, but not for the suit site. Due to misunderstandings between her(defendant no.2) and her brother, i.e., defendant no.1, she(defendant no.2) has already revoked the said power of attorney. As such, she(defendant no.2) is the undisputed joint owner of the suit site(properties). Neither she has executed an agreement for sale in respect of the suit site in favour of the plaintiff nor she had authorized her brother, i.e., defendant no.1 for execution of an agreement for sale of the suit site on her behalf in favour of the plaintiff. For which, the plaintiff has no cause of action for filing the suit against her. Therefore, the suit of the plaintiff is liable to be dismissed against her(defendant no.2). 5. Basing upon the aforesaid pleadings and matters in controversies between the parties, altogether eight numbers of issues were framed by the learned trial court in the suit vide T.S. No.73 of 1993 and the said issues are:- I s s u e s 1. Whether the suit is maintainable? 2. Whether the agreement for sale dated 01.05.1990 executed between the plaintiff and defendant no.1 is valid and binding on them? 3. Whether the agreement for sale dated 01.05.1990 executed between the plaintiff and defendant no.1 is binding on defendant no.2? 4. Whether the plaintiff paid Rs.20,000/- as advance to the defendant no.1 on 14.01.1993? 5. Whether the possession of the suit site was delivered to the plaintiff by the defendant no.1 on 14.01.1993? 6. Whether the plaintiff violated the conditions of the agreement dated 01.05.1990? 7. Whether the plaintiff has any cause of action for filing the suit? 8. To what relief(s), the plaintiff is entitled? 6. In order to substantiate the aforesaid relief(s), sought for by the plaintiff in the suit vide T.S. No.73 of 1993 against the defendants, the plaintiff examined altogether two witnesses from his side including him as P.W.2 and relied upon the documents vide Exts.1 to Ext.9/c. On the contrary, in order to nullify/defeat the suit of the plaintiff, the defendant no.1 himself adduced evidence as D.W.1 without proving any document from his side. The defendant no.2 examined her as D.W.1 from her side. One witness was examined as a Court witness, i.e., C.W.1 and four documents were marked as Exts.I to IV at the instance of the court. 7. After conclusion of hearing and on perusal of the materials, documents and evidence available in the record, the learned trial court answered issue nos.1, 2, 3, 5, 6, 7 and 8 against the plaintiff, but, answered the issue no.4 in favour of the plaintiff and basing upon the findings and observations made by the learned trial court in issue nos.1, 2, 3, 5, 6, 7 and 8 against the plaintiff, the learned trial court dismissed the suit vide T.S. No.73 of 1993 of the plaintiff on contest and directed the defendant no.1 for the refund of advance amount, i.e., Rs.54,951/- to the plaintiff with interest at the rate of 6% per annum thereon from the date of filing of the suit till realization, within a period of three months hence, as per its judgment and decree dated 07.10.2005 and 07.11.2005 respectively assigning the reasons that, The defendant nos.1 and 2 being the brother and sister respectively, they are the joint owners of the suit site having equal share each, but, the agreement to sell dated 01.05.1990 vide Ext.2 does not reveal about the involvement of the defendant no.2 in that agreement vide Ext.2 and there was/is no authorization of the defendant no.2 in favour of the defendant no.1 for selling the entire suit site and the suit site has not been partitioned between the defendant nos.1 and 2. Therefore, the so-called agreement to sell dated 01.05.1990 vide Ext.2 is not binding either on the defendant no.1 or on the defendant no.2, because, both the defendants are the joint owners of the suit site and the defendant no.2 has not executed the said agreement for sale in favour of the plaintiff. For which, the said agreement for sale dated 01.05.1990 vide Ext.2 is not legally enforceable under law, but, when it is established that, the defendant no.1 has received Rs.54,951/-, as advance from the plaintiff on the basis of the agreement to sell dated 01.05.1990 vide Ext.2 for selling the entire suit site in favour of the plaintiff, for which, he(defendant no.1) shall refund the said advance money with interest to the plaintiff. The defendant no.1 is not the exclusive owner of the suit site and there is no material in the record to show that, the plaintiff is in possession over the suit site on the strength of the Ext.2. As, Ext.2 is not legally enforceable under law, for which, the plaintiff has no cause of action for filing the suit. Therefore, the suit of the plaintiff is not maintainable. So, the plaintiff is not entitled to get the relief, i.e., for a direction to the defendants to execute and register the sale deed in respect of the suit site in favour of the plaintiff, though, he (plaintiff) is entitled for the refund of the advance money, i.e., Rs.5,4951/- with interest from the defendant no.1. 8. On being dissatisfied with the aforesaid judgment and decree of the dismissal of the suit vide T.S. No.73 of 1995 of the plaintiff passed on dated 07.10.2005 and 07.11.2005 respectively by the learned trial court, the plaintiff challenged the same preferring the 1st appeal vide RFA No.95 of 2005 being the appellant against the defendants arraying them(defendants) as respondents. 9. After hearing, from both the sides, the learned 1st appellate court dismissed to that 1st appeal vide R.F.A. No.95 of 2005 of the plaintiff on contest as per its judgment and decree dated 01.09.2007 and 11.09.2007 respectively concurring/confirming the judgment and decree of the dismissal of the suit of the plaintiff passed by the learned trial court. 10. On being aggrieved with the aforesaid judgments and decrees of the dismissal of the suit and 1st appeal vide T.S. No.73 of 1993 and R.F.A. No.95 of 2005 respectively passed by the learned trial court and the learned 1st appellate court against the plaintiff, he(plaintiff) challenged the same preferring this 2nd appeal being the appellant against the defendants arraying them(defendants) as respondents. 11. This 2nd appeal was admitted on formulation of the following substantial questions of law and the said substantial questions of law are:- (i) When the suit properties are the joint and undivided properties of the defendant nos.1 and 2, whether the defendant no.1 alone is competent under law to execute an agreement for sell vide Ext.2 in favour of the plaintiff to alienate the entire suit properties, in which, his sister, i.e., defendant no.2 has share ? (ii) Whether on the basis of such agreement for sale vide Ext.2, the plaintiff is entitled for the decree of specific performance contract against the defendants ? 12. I have already heard from the learned counsel for the appellant(plaintiff) and the learned counsel for the respondent no.1(defendant no.1). 13. In order to nullify the judgment and decree passed by the learned trial court in T.S. No.73 of 1993 and the judgment and decree passed by the learned 1st appellate court in R.F.A. No.95 of 2005, the learned counsel for the appellant(plaintiff) relied upon the following decisions:- (i) 2015(II)CLR(SC)-707 : (Hanumappa Channappa Hullur(D) By Lrs vrs. Shivamaruthappa Parappa Kalli and others) (decided on 21.08.2015) (ii) 2015(II) CLR(SC)-713 : (M/s. Soorajmull Nagarmull vrs. State of Bihar and others) (iii) Civil Appeal No.4898 of 2000 decided on 03.05.2000(A. Abdul Rashid Khan(Dead) and others vrs. P.A.K.A. Shahul Hamid and others) (iv) AIR 1990 Supreme Court-854(Kartar Singh vrs. Harjinder Singh and others) 14. On the contrary, in support of the impugned judgments and decrees passed by the learned trial court and the learned 1st appellate court, the learned counsel for the respondent no.1(defendant no.1) relied upon the following decision :- Civil Appeal No.7835 of 2014(Arising out of SLP(C) No.24653 of 2012): reported in (2015) 5 SCC-355 decided on 20.08.2014(Pemmada Prabhakar vrs. Youngmen’s Vysya Association) (decided on 20.08.2014). 15. As per the findings and observations made by the learned trial court as well as the learned 1st appellate court in their respective judgments and decrees, on the basis of the pleadings and evidence of the parties, both the aforesaid formulated substantial questions of law are taken up together analogously for their discussions hereunder, as both the aforesaid formulated substantial questions of law are interlinked having ample nexus with each other. 16. It is the unchallenged concurrent findings of both the courts that, the suit site is the joint and undivided properties of the defendant nos.1 and 2, as they (defendant nos.1 and 2) have inherited the same from their mother. The suit site has not been divided/partitioned between them (defendant nos.1 and 2) as yet through any metes and bounds partition. Therefore, the defendant nos.1 and 2 have their undivided half share each in the suit site. 17. When, the suit site is the joint and undivided properties of defendant nos.1 and 2, then at this juncture, “whether the defendant no.1 alone was competent under law to execute an agreement for sale vide Ext.2 in favour of the plaintiff for the alienation of the entire suit site, in which, his sister, i.e., defendant no.2 has half share and whether the said agreement for sale vide Ext.2 in respect of the entire suit site executed by the defendant no.1 alone in favour of the plaintiff without the execution of the same by the defendant no.2(who has half share in the same) is legally enforceable under law and whether the plaintiff is entitled to get the decree for specific performance of contract in the suit vide T.S. No.73 of 1993 against both the defendants and whether the suit of the plaintiff vide T.S. No.73 of 1993 against the defendants for specific performance of contract in respect of the suite site(properties) is maintainable under law ?” 18. On this aspect, the propositions of law has already been clarified in the ratio of the following decisions:- (i) In a case between Manzoor Ahmed Magray vrs. Ghulam Hassan Aram and other : reported in (1999) 7 SCC-703 that, When there is an agreement to sell in respect of the joint family property by one share holder, there is no bar for passing of the decree for Specific Relief with regard to 1/3rd or 2/3rd share owned by the contracting party, he (contracting party) can execute the sale deed. (ii) In a case between A. Abdul Rashid Khan(dead) and others vrs. P.A.K.A. Shahul Hamid and others : reported in (2000) 10 SCC-636 that, Where any property is held jointly and once any party to the contract agreed to sell such joint property by agreement, then, even if, other co-sharer has not joined, at least to the extent of his share, he is bound to execute the sale deed. In absence of other co-sharer, there could not be any decree of any specified part of the property to be partitioned and possession given. Decree could only be to the extent of the share of the appellants in such property. As the appellants had 5/6th share in the property, plaintiff’s suit for specific performance to extent of 5/6th share of the plaintiff was rightly decreed.(Para-14) (iii) In a case between Hanumappa Channappa Hullur(D) By Lrs. vrs. Shivamaruthappa Parappa Kalli and others(decided on 21.08.2015) : reported in 2015 (2) CLR(SC)-707 that, Joint family property belonging to father and two sons—Sale agreement entered into by father (defendant no.1) without concurrence of other sharers, i.e., defendant nos.2 and 3(two sons) to sell the joint family property. Whether, the sale agreement was binding on the vendor(father). Held—Yes. Whether, the impugned judgment of the High Court dismissing the suit for specific performance was liable to be set aside—Held—Yes. Whether the sale agreement can be enforced against vendor(father) to the extent of his 1/3rd share in the suit property—Held—Yes. (iv) In a case between Kartar Singh vrs. Harjinder Singh and others : reported in AIR 1990(S.C.)-854 that, Property held jointly. Vendor entering into agreement for himself and on behalf of his sister. Sister refusing to sell her share in the property—Specific performance can be granted in respect of the vendor’s share. Section 12 of Specific Relief Act does not apply. (Para-5) Because, specific performance in respect of the share of property cannot be refused on the ground that, property will have to be partitioned. The agreement has no legal infirmity, as, the vendee has right to apply for partition and get the share on the basis of the decree for specific performance demarcated.(Para-6) (v) In a case between Kammara Sambamurthty(D) by LRs vrs. Kalipatrapu Atchutamma(D) and others : reported in 2010(II) CLR(S.C.)-1100-(Para-21) Vendor agreeing to sell the property in its entirety, but subsequently discovered to be owner of only half of the property—The agreement is binding on the vendor for his share. 19. When, it has been clarified by the Apex Court in the ratio of the aforesaid decisions that, on the basis of execution of an agreement to sell like Ext.2 in this suit/appeal at hand in respect of the joint properties like the suit site(properties) by one co-sharer like the defendant no.1, there is no impediment under law for passing the decree for specific performance of contract against the contracting party like the defendant no.1 in respect of his share in the joint and undivided suit properties, even if, the other co-sharer like the defendant no.2 had not joint with the defendant no.1 for the execution of such agreement vide Ext.2 and even though, it has been held in the ratio of the decision between Premmada Prabhakar vrs. Yongmen’s Vysya Association by the Apex Court reported in (2015) 5 SCC-355 decided on 20.08.2014 at Para Nos.30 and 33 that, “an agreement to sell is not enforceable under law, as the persons, who have executed the agreement for sale, they have no absolute title in the property”, still then, by referring the ratio of the Apex Court in its later decision between Hanumappa Channappa Hullur(D) By Lrs. vrs. Shivamaruthappa Parappa Kalli and others(decided on 21.08.2015) reported in 2015(II)CLR(SC)-707 at Para nos.23 to 25 on the said point that, “an agreement for sale executed by one co-owner(co-sharer) for alienation of the entire properties without the concurrence of his/her other co-owner(co-sharer) is legally enforceable under law only against the contracting party in respect of the share of such contracting party (executant) in the suit properties,” it is held that, the prayer of the plaintiff made in the suit vide T.S. No.73 of 1993 for the passing of a decree for specific performance of contract cannot be refused in toto, only on the ground that, the suit site has not been partitioned between the defendant no.1 and defendant no.2, because, in view of the ratio of the decisions indicated in Para No.18 of this judgment, the plaintiff is entitled to get the decree for specific performance of contract only against the defendant no.1(contracting party), but not against the defendant no.2. 20. Therefore, the concurrent findings and observations made by the learned trial court and the learned 1st appellate court in their respective judgments and decrees passed in T.S. No.73 of 1993 and R.F.A. No.95 of 2005 that, the agreement for sale dated 01.05.1990 vide Ext.2 executed by the defendant no.1 in favour of the plaintiff in respect of the entire suit site is not legally enforceable cannot be sustainable under law, because, it has been held above that, the agreement for sale vide Ext.2 is legally enforceable only against the defendant no.1(contracting party) only in respect of his half share in the suit site(properties), but, that agreement for sale vide Ext.2 is not enforceable against the defendant no.2, who is not a party to the contract. On this aspect, the propositions of law has already been clarified in the ratio of the following decision:- (i) In a case between Jasobanti Mahakud vrs. Ramesh Pradhan and others : reported in 2011(2) CLR-792—Specific performance cannot be enforced against a person who is not a party to the contract or who is not claiming under such party but claiming independent title. Therefore, the suit of the plaintiff(appellant) vide T.S. No.73 of 1993 for the decree of specific performance of contract cannot be dismissed in its entirety, but, the same is to be allowed in part. For which, there is justification under law for making interference in part with the judgments and decrees passed by the learned trial court and the learned 1st appellate court in T.S. No.73 of 1993 and R.F.A. No.95 of 2005 respectively through this 2nd appeal filed by the appellant(plaintiff), as the plaintiff has been entitled to get the decree for specific performance of contract on the basis of the Ext.2 only against the defendant no.1 in respect of his half share in the suit site(properties), because, as per law, the said Ext.2 cannot be enforced against the defendant no.2, as she(defendant no.2) is not a party to the said Ext.2. 21. It is very fundamental in law that, the court, which pass the decree for specific performance of contract retains the control over the said decree and the said decree is to be termed as a preliminary decree. On this aspect, the propositions of law has already been clarified in the ratio of the following decisions:- (i) In a case between Rajinder Kumar vrs. Shri Kuldeep Singh and others : reported in 2014(1) OLR(SC)-902—Suit for specific performance does not come to an end on passing of a decree and the Court which passed the decree retains control over the decree even after the decree has been passed and the decree is sometimes described as the preliminary decree—Decree for specific performance is a decree in favour of both the plaintiff and the defendant in the suit—Decree can be executed either by the plaintiff or the defendant. (ii) In a case between M/s. Raghava Constructions Rep. by its Managing Partner, P. Srinivas Reddy vrs. M/s. Chitram Movies Rep. by its Managing Partner, Dharmateja : reported in 2013(2) CCC-186(A.P.)—Court which passes decree for specific performance retains control over such decree even after decree has been passed. 22. As per the discussions and observations made above, when it has been held that, the suit of the plaintiff vide T.S. No.73 of 1993 is to be decreed in part, but, not in full and when, there is justification under law for making interference in part with the judgments and decrees passed by the learned trial court and the learned 1st appellate court through this 2nd appeal filed by the appellant(plaintiff), then at this juncture, the appeal filed by the appellant(plaintiff) is to be allowed in part. 23. In result, this 2nd appeal filed by the appellant (plaintiff) is allowed in part. 24. The judgments and decrees passed by the learned trial court as well as the learned 1st appellate court in T.S. No.73 of 1993 and R.F.A. No.95 of 2005 respectively are set aside. The suit be and the same vide T.S. No.73 of 1993 filed by the plaintiff(appellant) is decreed in part on contest only against the defendant no.1, but, the suit vide T.S. No.73 of 1993 is dismissed against the defendant no.2. The defendant no.1 in T.S. No.73 of 1993 is directed to execute and register the sale deed in respect of his half share in the suit site(properties) in favour of the plaintiff after receiving the balance consideration amount of Rs.34,951/- within a period of two months hence, failing which, the plaintiff shall get the decree execute against the defendant no.1 as per Order-21, Rule-32 of the C.P.C., 1908. When, the vendor of the plaintiff, i.e., defendant no.1 has half share in the suit site(properties), then, there is no legal infirmity on the part of the plaintiff/vendee after registration of the sale deed on the basis of the decree passed in the suit to apply for partition and get his share from the suit site partitioned/demarcated. (A.C. Behera), Judge Orissa High Court, Cuttack The 9th of February, 2026/ Jagabandhu, P.A. Designation: Personal Assistant