Gujarat High Court
Dilipbhai Parshottambhai Patel vs The Gujarat Agricultural Produce ... on 3 March, 2026
NEUTRAL CITATION
C/CRA/449/2024 JUDGMENT DATED: 03/03/2026
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CIVIL REVISION APPLICATION NO. 449 of 2024
With
CIVIL APPLICATION (FOR STAY) NO. 1 of 2024
In R/CIVIL REVISION APPLICATION NO. 449 of 2024
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DILIPBHAI PARSHOTTAMBHAI PATEL & ORS.
Versus
THE GUJARAT AGRICULTURAL PRODUCE MARKET PARDRA
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Appearance:
MR HARDIK S SONI(5124) for the Applicant(s) No. 1,2,3,4,5
A R KADRI(7330) for the Opponent(s) No. 1
VASIMRAJA A KURESHI(8609) for the Opponent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE J. C. DOSHI
Date : 03/03/2026
JUDGMENT
1. Heard learned advocates for the parties.
2. Plea to reject plaint under Order 7 Rule 11 of Code of Civil Procedure, 1908 (for short 'CPC') in Regular Civil Suit No.51 of 2019 since warn off by learned Principal Senior Judge, Padra, Vadodara, the original defendant has preferred this Revision Application under section 115 of the CPC.
3. In aforesaid background, let refer facts of the case :-
3.1. The plaintiff filed Regular Civil Suit No. 51 of 2019 seeking relief of declaration, permanent injunction, and specific performance based on an Agreement to Sell dated 30.09.2004 executed by the defendants in respect of land bearing Survey No. 1000, Hec. Are-066-59 of TP Scheme No. 2, Final Plot No. 23, admeasuring 5,422 sq. mtrs. According to the plaintiff, the defendants had agreed to sell 1,662 sq. mtrs. out of 5422 sq.mtrs of the said land to the plaintiff.Page 1 of 18 Uploaded by SATISH C. VEMULLA(HC00206) on Mon Mar 09 2026 Downloaded on : Mon Mar 09 21:06:32 IST 2026
NEUTRAL CITATION C/CRA/449/2024 JUDGMENT DATED: 03/03/2026 undefined 3.2. In aforesaid proceedings, defendants came out with application at Exh.23 under Order 7 Rule 11 of CPC to reject plaint on the ground that Banakath / agreement to sell dated 30.09.2004 is in regards to new tenure land and same is prohibited under section 43 of the Gujarat Tenancy and Agricultural Land Act, 1948 (for short 'the Tenancy Act') and therefore, suit for specific performance in respect of agreement to sell relating to new tenure land is not maintainable. It is also stated that statement made in the plaint is barred by provision of section 43 of the Tenancy Act and thus, plaint deserves to be rejected.
4. Learned Trial Court did not accept plea for rejection of plaint mainly on the ground that agreement to sell is registered document, which it prima facie proves that defendant has accepted Rs.22,89,536/- through cheque and thus defendant having executed agreement to sale cannot turn away. Learned Trial Court also held that plea raised by defendant is suffered by principle of estoppel and grounds raised in the application for rejection of plaint, since involve mixed question of law and facts, it cannot be decided without leading evidence and plaint cannot be rejected at threshold. Rejection of such application, has given rise to present Revision Application.
5. Learned advocate Mr.Hardik Soni for the applicant referred to recent judgment of Full Bench of this Court in the case of (Decd) Shaikh Ismailbhai Hushainbhai v/s. Vankar Ambalal Dhanabhai [2024 (1) GLH 222] and submitted that Full Bench of this Court while referring to section 43 and section 63 of the Tenancy Act held that agreement to sell in respect of restricted Page 2 of 18 Uploaded by SATISH C. VEMULLA(HC00206) on Mon Mar 09 2026 Downloaded on : Mon Mar 09 21:06:32 IST 2026 NEUTRAL CITATION C/CRA/449/2024 JUDGMENT DATED: 03/03/2026 undefined tenure land is illegal and therefore, suit for specific performance of such agreement is not maintainable. It is submitted that in the present case, perusal of plaint as well as agreement to sell, in no uncertain terms, it is crystallized that land in respect of which suit for specific performance is filed is new tenure land or restricted tenure land. It is submitted that agreement to sell or plaint does not mention a word of such pleading that it is suit for specific performance of agreement to sell regarding new tenure land. It is submitted that in view of binding precedent of Full Bench of this Court, learned Trial Court has committed error much less understanding provision of law which attract root of the dispute.
5.1. In view of aforesaid premises, it is submitted to allow the present Revision Application by reversing finding of learned Trial Court impugned in this Revision and consequently to allow application for rejection of plaint and to reject the plaint.
6. Learned advocate for the other side, strenuously argued that once land is converted and necessary permission is obtained from Collector, sale deed can be executed and therefore, the Court can pass conditional decree to that effect. It is submitted that merely on the ground that when agreement to sell was executed, land in question was new tenure land or restricted land, agreement to sell cannot be thrown out as invalid. It is submitted that defendant of the suit did not question about their signature as well as execution of agreement to sell and therefore, it is legally de-barred from raising question that agreement to sell is invalid on the ground that it is new Page 3 of 18 Uploaded by SATISH C. VEMULLA(HC00206) on Mon Mar 09 2026 Downloaded on : Mon Mar 09 21:06:32 IST 2026 NEUTRAL CITATION C/CRA/449/2024 JUDGMENT DATED: 03/03/2026 undefined tenure land or restricted land. It is also submitted that proceedings to obtain permission of Collector is already initiated and in that facts and circumstances, learned Trial Court has rightly believed that question raised by the defendant to reject plaint at threshold is mixed question of facts and law and can be decided after leading evidence.
6.1. Upon above submissions, it is submitted to dismiss the Revision Application.
7. At the outset, having heard learned advocates for the parties, it is to be noted that plea of rejection of plaint is plea of demurer. The Court while dealing with rejection of plaint is obliged to look only into averments made in the plaint in its entirety and documents annexed with the plaint. Averments made in the plaint in its entirety taking them to be correct has to be considered to see that whether plaint discloses cause of action or whether statement made in the plaint are barred by provision of law. The Court or defendant can invoke same to challenge maintainability of suit itself regardless of right of the parties to be decided on merits. The law ostensibly does not contemplate at any stage when the objections can be raised. The word 'shall' used under Order 7 Rule 11 of CPC contemplates duty on the Court to perform its obligations to reject plaint when same is hit by any of the infirmities provided therein, even without intervention of defendant. Real object of Order 7 Rule 11 of CPC is to keep out of Courts irresponsible laws suits. It applies in those cases where the statement made by the plaintiff in the plaint, without any doubt or dispute shows that the suit is barred by any law or it lacks real cause of action. Cause of Page 4 of 18 Uploaded by SATISH C. VEMULLA(HC00206) on Mon Mar 09 2026 Downloaded on : Mon Mar 09 21:06:32 IST 2026 NEUTRAL CITATION C/CRA/449/2024 JUDGMENT DATED: 03/03/2026 undefined action must be reasonable one. Reasonable is stated to mean that some chances of success when only the allegations in the pleadings are considered. Apt to note that the failure of pleadings to disclose a reasonable cause of action is distinct from absence of full particulars. Apposite to note that before rejecting plaint for failure to disclose cause of action, it is necessary to read the plaint as a whole.
8. In the case of Popat and Kotecha Property v/s. SBI Staff Association [(2005) 7 SCC 510], the Hon'ble Apex Court held that Order 7 Rule 11(d) of CPC applies in those cases only where the statement made by the plaintiff in the plaint, without any doubt or dispute shows that the suit is barred by any law. Disputed question cannot be decided in the application.
9. Worthy reference can be made to judgment of this Court in the case of Casme Industrial Park Development India Pvt. Ltd. v/s. Pratik Rameschandra Shah [Civil Revision Application No.53 of 2023], relevant para 9.1 of the said judgment reads as under :-
"9.1. The averments made in the application seeking rejection of the plaint may be adverted to only for the limited purpose of ascertaining whether the case falls within any of the conditions contemplated under Order VII Rule 11 of the Code, solely on the basis of the plaint allegations. Since such an application partakes the character of a demurrer, the Court is legally precluded from embarking upon an enquiry into the defence set up in the written statement or from considering documents relied upon by the defendant. At this nascent stage, the Civil Court is not permitted to adjudicate upon rival or contentious factual assertions, nor can it undertake a roving or fishing enquiry into disputed questions of fact."Page 5 of 18 Uploaded by SATISH C. VEMULLA(HC00206) on Mon Mar 09 2026 Downloaded on : Mon Mar 09 21:06:32 IST 2026
NEUTRAL CITATION C/CRA/449/2024 JUDGMENT DATED: 03/03/2026 undefined
10. Keeping in mind aforesaid settled legal position, let proceed to see whether statement made in the plaint are barred by provision of law.
11. In plaint of Regular Civil Suit No.51 of 2019 at Annexure B, in para 6 (internal page no.4), in unequivocally stated that it is suit for specific performance of restricted tenure land and plaintiff has asked permission for use of restricted land by converting into non agricultural land.
12. Learned advocate for the original plaintiff could not dispute that suit is filed for specific performance of agreement to sell for new tenure land.
13. Base document being agreement to sell executed between the parties on 30.09.2004 is produced at Annexure F, also state that land which is sold through agreement to sell is new tenure land. Para 3 of the agreement to sell is important. It reads as under (it is in Gujarati, for better understanding, it is translated in English) :-
"(3) The land decided to be sold is agricultural land under restricted tenure. I have sought for the permission of its Non-
Agricultural use. Upon receiving such Non-Agricultural use permission, you shall pay us the remaining consideration within three months and on receipt of that remaining consideration, I will execute the final sale deed in your favour."
14. In the aforesaid factual premises, let refer Full Bench judgment of this Court in the case of (Decd) Shaikh Ismailbhai Page 6 of 18 Uploaded by SATISH C. VEMULLA(HC00206) on Mon Mar 09 2026 Downloaded on : Mon Mar 09 21:06:32 IST 2026 NEUTRAL CITATION C/CRA/449/2024 JUDGMENT DATED: 03/03/2026 undefined Hushainbhai (supra). Full Bench of this Court explained provision of law and held that agreement to sell in respect of restricted tenure land is illegal and invalid, therefore, suit for specific performance is not maintainable and deserves to be rejected as said suit is hit by section 43 and section 63 of the Tenancy Act. Relevant para 111 to 126 reads as under :-
"111 From the above discussion, we find ourselves in full concurrence with the decisions in Ganpatlal Manjibhai Khatri (supra) and Hasvantbhai Chhanubhai Dalal (supra) in holding that:-
(i) The transaction between the parties being hit by Section 43 of the Tenancy Act and being opposed to the public policy, as explained under Section 23 of the Contract Act, is not maintainable in law.
(ii) There is a clear bar in entering into an agreement to sell of the lands granted under the Tenancy Act, 1948 to the occupant tenant, without previous permission of the Collector.
(iii) If the agreement is entered into in respect of the granted land (land of restrictive tenure under the Tenancy Act) in violation of Section 43, it is invalid.
(iv) Section 23 of the Indian Contract Act, 1872 bars enforcement of a contract if it is forbidden by law. The agreement offending a statute or public policy or forbidden by law is not merely void, but it is invalid from nativity, the term "law" in Section 23 in this Section must be understood in the sense of the term explained in Article 13(3) of the Constitution. Thus, what is done in contravention of the provisions of the law cannot be made the subject matter of an action.
(v) If the contract is expressly prohibited by law, it is void ab initio and cannot be enforced. The Courts cannot grant the decree for specific performance, subject to the permission, which may be obtained by one of the parties from the Collector. The suit filed by the plaintiff for enforcement of the invalid agreement cannot be decreed by the Civil Court.
112 We are in full agreement with a view of this Court in the Page 7 of 18 Uploaded by SATISH C. VEMULLA(HC00206) on Mon Mar 09 2026 Downloaded on : Mon Mar 09 21:06:32 IST 2026 NEUTRAL CITATION C/CRA/449/2024 JUDGMENT DATED: 03/03/2026 undefined above noted decisions that the suit for specific performance of contract based on an invalid agreement to sell, hit by Section 43 of the Tenancy Act, 1948, is not maintainable in law. If an agreement is rendered invalid under Section 43 of the Tenancy Act, 1948, such an agreement is incapable of being specifically enforced. If the agreement of sale itself is invalid, no decree for specific performance can be passed by the trial Court. Section 14(1)(c) of the Specific Relief Act provides inter alia that a contract, which is in its nature, determinable, cannot be specifically enforced. In such circumstances, the suit for specific performance of agreement to sell cannot be decreed.
(e) Dealing with the specific arguments of the learned Advocates of the first set, for the Vendee:-
113 The contention of Mr. Maulik Nanavati, learned advocate appearing for the transferee that Section 43 does not bar or prohibit the transferee of restricted tenure land and rather permit transfer or conveyance of land subject to obtaining prior permission from the Collector, is a result of misreading and misinterpretation of the Section. As discussed above, the provision being couched in a negative language is an absolute prohibition on any transfer or alienation of the restricted tenure land and even an agreement of transfer, unless the permission of the Collector is obtained. The contention that the transaction made without strict compliance of the requirement of Section 43 not having been declared "null and void" in the Statute, such a transaction is not intended by the legislature to be wholly illegal so as to put no legal effect, is also a result of misrepresentation of the provision.
114 Reliance placed on the decision in State of Kerala (supra) to construe the word "invalid" in contra-distinction to the word "nullity" or "void ab initio" is also misplaced one.
115 The submission that the instrument/agreement subsists and remains fully effective unless and until it is set aside by a Court of competent jurisdiction; until its validity is challenged, its legality is preserved, based on the decision of the Apex Court in the State of Kerala (supra) is a misconceived submission, inasmuch as, the said observations have been made by the Apex Court in light of Page 8 of 18 Uploaded by SATISH C. VEMULLA(HC00206) on Mon Mar 09 2026 Downloaded on : Mon Mar 09 21:06:32 IST 2026 NEUTRAL CITATION C/CRA/449/2024 JUDGMENT DATED: 03/03/2026 undefined the controversy before it in a matter arising under the Kerala Land Reforms Act in connection with the proceedings relating to determination of ceiling area of the respondent therein by the Taluk Land Board, Taliparamba. The first respondent therein challenged the proceedings, whereby he was directed to surrender 6.43 acres of land in revision. The Board, exercising revisional powers, issued a revised draft statement and issued notices to the contesting respondents therein, who did not file any objection. Other respondents filed a fresh petition for impleadment, which was allowed by the Board accepting the plea put forward by the respondent regarding tenancy and it was held that the first respondent was holding lands within the ceiling limit and there was no surplus land to be surrendered. The said decision of the Board was assailed by the State of Kerala before the High Court. The High Court had confirmed thedecision of the Board. However, in the first instance, the impleadment of the same respondent was already rejected by the Board in its order passed at an earlier point of time and in the revision filed by them, it was held that the tenancy put forward by the said respondents was a collusive attempt between the brother and sisters to defeat the provisions of the Act. The revision filed by the impleaded respondents was, thus, dismissed, in the first instance.
116 The short question which has arisen for consideration before the Apex Court was whether the order passed by the Board in the first instance, rejecting the impleadment application of the said respondents and holding that the tenancy put forward by them was a collusive one, which was also affirmed by the High Court, could be ignored in view of the subsequent order passed by the revision filed by the first respondent. It is in these facts and circumstances of the case, the question regarding the validity of the order passed by the Board was considered by the Apex Court and it was concluded that it was not open to the Board to order impleadment of the respondents No.3 and 4 in the revised draft statement by the subsequent order in the proceedings drawn by the first respondent. It was held that the High court had committed a grave error of law in holding that the Board while deciding the revision filed by the first respondent, did not decide any question of law erroneously and, thus, in holding that the proceedings rendered inter se Page 9 of 18 Uploaded by SATISH C. VEMULLA(HC00206) on Mon Mar 09 2026 Downloaded on : Mon Mar 09 21:06:32 IST 2026 NEUTRAL CITATION C/CRA/449/2024 JUDGMENT DATED: 03/03/2026 undefined parties between the State and respondents No.3 and 4 whichfinally stood confirmed by the order of the Board was non- est and could be ignored.
117 The observation of the Apex Court in paragraph no.'7' of the said decision was in the facts and circumstances of the case where only complaint about the initiation of the suo motu proceedings by the Board was that it was not initiated on the intimation by the State Land Board, about the non- filing of the statement as required by Section 85(7) of the Kerala Land Reforms Act. In the said circumstances, it was held by the Apex Court that this was not a case where the infirmity was fundamental.
118 No benefit can be derived from the observations in the said decision, which does not help the learned Advocates relying the same, in the facts and circumstances of the instant case, where the statute itself prohibits transaction by an instrument in writing in the nature of an agreement for transfer of a restricted tenure land.
119 Further to deal with the arguments of the learned Advocates that a conditional decree can be passed based on the decisions pertaining to the transactions hit by Section 63 of the Tenancy Act, 1948, we may note that the contentions placed before us are that there is no bar against the Agreement to Sell and the bar under Section 43 is only against the completed sale. Such agreement which contains averment upon vendor satisfying certain conditions can be specifically enforced by the Civil Court by passing a conditional decree that the transaction would be complete only on satisfying the said conditions. Much emphasis has been laid upon the decision of the Apex Court in Ferrodous Estate (Private) Limited (supra) to substantiate the said point. It was argued that in the said case, the Apex Court has held that in a suit for specific performance, the agreement to Sell which contains a specific clause wherein vendor is mandated to obtain permission from the competent authority under the Tamil Nadu Urban Ceiling Act, is to be enforced by the Civil Court. It was held there that it was incumbent upon the vendors to have obtained the Urban Land Ceiling permission to sell the land that was within their ceiling limit, which they failed to do. It was noted that Page 10 of 18 Uploaded by SATISH C. VEMULLA(HC00206) on Mon Mar 09 2026 Downloaded on : Mon Mar 09 21:06:32 IST 2026 NEUTRAL CITATION C/CRA/449/2024 JUDGMENT DATED: 03/03/2026 undefined the Full Bench of the Madras High Court had itself recognized that there may be an agreement with such clause, in which case it is the Court's duty to enforce such clause. It was held therein that the agreement to Sell cannot be said to be void ab initio, the conditional decree for specific performance can be passed in such cases.
120 While placing the said decision, it was urged that the Full Bench judgment of this Court in Shah Jitendra Nanala had been referred and relied upon therein. The submission, thus, is that in the case of an agreement where condition is mentioned in the agreement itself that the Sale Deed would be executed only after obtaining permission from the Collector, it would be the duty of the Court to pass a conditional decree mandating the vendor to obtain permission and execute the Sale Deed. The Civil Court will not let the vendor to go scot free, who has pocketed sale consideration on the assurance that the Sale Deed would be executed after obtaining sanction from the Collector.
121 We may note that the Full Bench decision of this Court in Shah Jitendra Nanalal (supra) was considered and discussed by two benches of this Court in Rameshbhai Chaturbhai Prajapati (supra) and Hasvantbhai Chhanubhai Dalal (supra). It was held therein that the decision of the Full Bench was in a different context and under the statutory provisions of the Urban Land (Ceiling and Regulation) Act, 1976 where the right to claim exemption under Section 20 of the said Act was available to the holder of the excess vacant land. It was noted in paragraph '20' in Ramesh Chaturbhai Prajapati (supra) and paragraph '45' in Hasvantbhai Chandubhai Dalal (supra); respectively, as under :-
Ramesh Chaturbhai (supra):-
"20. The decision of the Full Bench of this Court in the case of Shah Jitendra Nanalal {1985 GLH 53} [supra], relied upon by learned Senior Advocate Mr. S.B. Vakil for the petitioners, was in a different context and under the statutory provisions of Urban Land [Ceiling and Regulation] Act,1976 whether right to claim exemption under section 20 of the ULC Act was available to the holder of the excess vacant land. In the above decision, agreement to sell certain land was executed on 4.7.1966 and further agreement was entered into on Page 11 of 18 Uploaded by SATISH C. VEMULLA(HC00206) on Mon Mar 09 2026 Downloaded on : Mon Mar 09 21:06:32 IST 2026 NEUTRAL CITATION C/CRA/449/2024 JUDGMENT DATED: 03/03/2026 undefined 1.7.1967 and the civil suit, being Civil Suit No.1915 of 1970, was filed while another suit filed by the defendants as the plaintiffs being Civil Suit No.2063 of 1969 was compromised between the parties thereto and, on the basis of the settlement, a decree was passed on 5.7.1972. Subsequent to institution of the suit, Gujarat Vacant Lands in Urban Areas [Prohibition of Alienation] Act,1972 came into force which later on ceased to operate in its place on the advent of Urban Land [Ceiling and Regulation] Act, 1976. Further, right to claim exemption by the owner of the land under the ULC Act continued until vesting under section 10(3) of the ULC Act and, therefore, a conditional decree for specific performance subject to exemption being obtained under section 20 of the ULC Act was held to be permissible. In the facts of the case, transfer/alienation of tenure land viz. a land given to a tenant by the Government under various provisions of Tenancy Act to the tiller of the land, subject to restriction of Section 43 of the Act, is clearly impermissible without previous sanction of the Collector/Competent Authority, therefore, the law laid down by the Full Bench in Jitendra Nanalal [supra] is not applicable to the facts and circumstances of the present case.
Hasvantbhai (supra)
45. I may now refer to one another decision rendered by a learned Single Judge of this Court in which the Full Bench decision of this Court in the case of Jitendra Nanalal Shah (supra) has been referred to and discussed. In the case of Rameshbhai Chaturbhai Prajapati (supra). The issue before the learned Single Judge revolved aroundbthe nonirrigated agricultural lands which originally belonged to a Charitable Trust. One Rasiklal Tilakram Jaiswal was declared as a tenant of the said land by the Mamlatdar and A.L.T. in the tenancy proceedings. By virtue of such declaration, Rasiklal became the deemed purchaser thereof and the same was confirmed by the Gujarat Revenue Tribunal, thereafter by this Court and by the Apex Court. The respondents Nos.1 to 8 before the learned Single Judge preferred four suits against the petitioners and the respondents Nos.9 to 11 for a declaration that the registered sale deed dated 14th October 1999 in respect of the plot Nos.1 to 4 were not binding on the plaintiffs and for a declaration that the petitioners were not entitled to demand from the respondents Nos.10 and 11 Page 12 of 18 Uploaded by SATISH C. VEMULLA(HC00206) on Mon Mar 09 2026 Downloaded on : Mon Mar 09 21:06:32 IST 2026 NEUTRAL CITATION C/CRA/449/2024 JUDGMENT DATED: 03/03/2026 undefined any building permission and further to restrain them from dealing, plotting, alienating, allotment, etc. of the land in question. In the pending suits, a compromise was arrived at between the petitioners and the respondents Nos.1 to 8 and the same was reduced into writing. It appears that the Trial Court declined to accept such compromise and pass a consent decree on the premise that such compromise was in violation of the provisions or restrictions under Section 43 of the Act and no consent decree could be passed on such a invalid settlement. Before the learned Single Judge, it was argued that the parties can enter into a contract for transfer of land and the Court can pass a conditional decree for specific performance subject to the sanction being obtained.
For the purpose of making such submission good, reliance was placed on the Full Bench decision of this Court in the case of Shah Jitendra Nanalal (supra). The learned Single Judge, while rejecting all the petitions and while discussing the Full Bench decision of this Court in the case of Shah Jitendra Nanalal (supra) at length, held as under:
"20. The decision of the Full Bench of this Court in the case of Shah Jitendra Nanalal {1985 GLH 53} [supra], relied upon by learned Senior Advocate Mr. S.B. Vakil for the petitioners, was in a different context and under the statutory provisions of Urban Land [Ceiling and Regulation] Act,1976 whether right to claim exemption under section 20 of the ULC Act was available to the holder of the excess vacant land. In the above decision, agreement to sell certain land was executed on 4.7.1966 and further agreement was entered into on 1.7.1967 and the civil suit, being Civil Suit No.1915 of 1970, was filed while another suit filed by the defendants as the plaintiffs being Civil Suit No.2063 of 1969 was compromised between the parties thereto and, on the basis of the settlement, a decree was passed on 5.7.1972. Subsequent to institution of the suit, Gujarat Vacant Lands in Urban Areas [Prohibition of Alienation] Act,1972 came into force which later on ceased to operate in its place on the advent of Urban Land [Ceiling and Regulation] Act, 1976. Further, right to claim exemption by the owner of the land under the ULC Act continued until vesting under section 10(3) of the ULC Act and, therefore, a conditional decree for specific performance subject to exemption being obtained under section 20 of the ULC Act was held to be permissible. In the facts of the case, transfer/alienation of tenure land viz. a Page 13 of 18 Uploaded by SATISH C. VEMULLA(HC00206) on Mon Mar 09 2026 Downloaded on : Mon Mar 09 21:06:32 IST 2026 NEUTRAL CITATION C/CRA/449/2024 JUDGMENT DATED: 03/03/2026 undefined land given to a tenant by the Government under various provisions of Tenancy Act to the tiller of the land, subject to restriction of Section 43 of the Act, is clearly impermissible without previous sanction of the Collector/Competent Authority, therefore, the law laid down by the Full Bench in Jitendra Nanalal [supra] is not applicable to the facts and circumstances of the present case.
22. In the case of V. Narasimharaju (AIR 1963 SC 107) [supra], the Apex Court held with regard to unlawful consideration that the agreement would be treated as invalid for the reason that such consideration is opposed to public policy and particularly when previous sanction of the Collector was a mandatory and, admittedly, such previous sanction was not obtained by the parties and the agreement to sell an agricultural land is invalid and even Section 53A of the Transfer of Property Act, 1882 would also not safeguard such agreement. The above aspect is also dealt with by the Bombay High Court in the case of Himatrao Ukha Mali vs. Popat Devram Patil, AIR 1999 Bombay 10, [supra], wherein it is held that Section 43 imposes a total prohibition or legal bar on alienation of the lands vested in favour of the tenants under the provisions of the Tenancy Act. If an agreement of sale or any instrument in respect of the subject land is executed without taking previous sanction of the Collector under section 43(1) of the Tenancy Act, the said agreement shall be invalid as per Section 43(2) of the said Act. Suffice it to say that Section 43(1) of the Tenancy Act bars even entering into agreement or alienating the land and usage of term 'shall' twice in the section including in the penultimate part of the section reveals mandatory character of the language contained therein and to be interpreted as such and, particularly when the agreement/ transaction was barred by subsection (1) of Section 43 of the Tenancy Act and subsection (2) of Section 43 of the said Act clearly refers such agreement or transfer shall be invalid, the trial court has rightly concluded by not probing into the question of declaration of such transaction/agreement as invalid. The satisfaction of the learned Judge based on the understanding of the language contained in subsections (1) and (2) of Section 43 of the Tenancy Act and the relevant materials on record of the case for not passing the decree as prayed for cannot be said to be in any manner contrary to Page 14 of 18 Uploaded by SATISH C. VEMULLA(HC00206) on Mon Mar 09 2026 Downloaded on : Mon Mar 09 21:06:32 IST 2026 NEUTRAL CITATION C/CRA/449/2024 JUDGMENT DATED: 03/03/2026 undefined law warranting any interference by this Court in exercise of powers under Articles 226 and 227 of the Constitution of India.
24. Further, the Division Bench of this Court considered spectrum of Section 43 of the Tenancy Act in the case of Shashikant Mohanlal Desai {AIR 1970 Gujarat 204} [supra] and examined the objects of the Act and while interpreting Section 43 of the Tenancy Act the restrictive nature of tenancy and specific bar contained about previous sanction of the Collector/Competent Authority in case of conversion of such land was held to be statutory and, therefore, according to this Court, the learned Judge has not committed any error either of jurisdiction or of law in considering the nature of agreement whether void or voidable and, therefore, no interference is called for. Further, the learned Judge has taken into consideration all the aspects of the matter as directed by this Court [Coram: M.R. Shah, J.] vide judgment and order dated 22.8.2008 in Special Civil Application Nos. 3117 to 3120 of 2008 and passed the order, which cannot be said to be contrary to said order dated 22.8.2008.
26. In the case of Lotan Ramchandra Shimpi [Manu/ MH/0784/1994] {supra}, it is held that, without sanction under Section 43 of the Tenancy Act, the impugned agreement is invalid and possession given to the purchaser is invalid and the same is not protected under Section 53A of the Transfer of Property Act."
122 It is clear that the proposition of law laid down by the Division Bench in Shah Jitendra Nanalal (supra) was in the circumstance that the right to claim exemption by the owner of the land under the Urban Land (Ceiling and Regulation) Act, was continued till the vesting of the land under Section 10(3) of the Ceiling Act and in such circumstances, a conditional decree for specific performance subject to the exemption being obtained under Section 20 of the Ceiling Act was held permissible. Distinguishing the same, in paragraph '46' in Hasvantbhai Dalal (supra), it was, thus, recorded that :
"46. The proposition of law has been made very clear by the learned Single Judge while distinguishing the Full Bench Page 15 of 18 Uploaded by SATISH C. VEMULLA(HC00206) on Mon Mar 09 2026 Downloaded on : Mon Mar 09 21:06:32 IST 2026 NEUTRAL CITATION C/CRA/449/2024 JUDGMENT DATED: 03/03/2026 undefined decision in the case of Shah Jitendra Nanalal (supra). The learned Single Judge has taken the view that the right to claim exemption by the owner of the land under the U.L.C. Act would continue till the vesting under Section 10(3) of the U.L.C. Act and in such circumstances, a conditional decree for specific performance subject to the exemption being obtained under Section 20 of the U.L.C. Act would permissible. However, transfer / alienation /agreement to sale of tenure land i.e. the land given to a tenant by the Government under the various provisions of the Tenancy Act subject to the restriction of Section 43 of the Act, is clearly impermissible without the previous sanction of the Collector. In my view, the position of law as regards Section 43 of the Tenancy Act is very clear in view of the two decisions referred to above and discussed above. There is no scope for this Court to take any different view on this issue. Even otherwise, the two decisions of the Coordinate Bench are binding to this Court."
123 The decision of the Apex Court in Ferrodous Estate (supra) heavily relied by the learned Advocates of the first set was considered in a recent decision in G.T.Girish (supra) to note that the High Court had dismissed the suit for specific performance taking the view that till 1999, when the Tamil Nadu Urban Land Ceiling Act was repealed, the agreement was not enforceable. That apart, under the agreement, vacant land, in the aggregate, exceeding ceiling limit of the plaintiff would have to be conveyed to him, attracting the VETO contained in Section 5(3) read with Section 6 of the State Act. The Apex Court while reversing the said decision arrived at the conclusion that the agreement to sell contemplated transfer of the land only after getting exemption. Clause (4) of the agreement contemplated that the vendor was to obtain permission from the competent authority under the Urban Land Ceiling Act and hence, the conditional decree can be passed by the Civil Court.
124 It was then observed in paragraph '77' in G.T.Girish (supra) as under :-
"77. We need not multiply authorities. All that is necessary to notice and find is that when an agreement to sell is Page 16 of 18 Uploaded by SATISH C. VEMULLA(HC00206) on Mon Mar 09 2026 Downloaded on : Mon Mar 09 21:06:32 IST 2026 NEUTRAL CITATION C/CRA/449/2024 JUDGMENT DATED: 03/03/2026 undefined entered into, whereunder to complete the title of the vendor and for a sale to take place and the sale is not absolutely prohibited but a permission or approval from an Authority, is required, then, such a contract is, indeed, enforceable and would not attract the shadow of Section 23 of the Contract Act, 1872."
125 From the above discussion, it is evident that Section 23 of the Contract Act, 1872 will not be attracted in a case where the agreement to Sell or sale is not absolutely prohibited but a permission or approval from the authority is required to complete the sale or attach validity thereto. In light of the above, when we note the provisions of Section 43 of the Tenancy Act, 1948, it prescribes of complete prohibition in execution of even an agreement in writing to transfer a land of restricted tenure without the previous sanction of the Collector. As noted hereinbefore, as discussed by the Division Bench of this Court in Shashikant Mohanlal Desai (supra), the sanction of the Collector required in Section 43 is not a mechanical exercise. The Collector will examine the facts and circumstances of the case to decide whether in the exigency of the situation or consistent with the purpose of the Act, the tenant should be permitted to transfer the land. As emphasized therein, the power of the Collector is not to be exercised lightly, rather it is a power which must be exercised with great care and circumspection having regard to the policy of the statute and bearing in mind various circumstances relating to proposed transfer. As held therein, in view of the negative language of the statute, the two conditions of transfer in Sub-section (1) of Section 43 are of mandatory character.
126 We have, thus, not been able to convince ourselves with the submissions of the learned Advocates placing reliance on various decisions noted hereinbefore that a conditional decree can be passed by the Civil Court, in case the agreement hit by Section 43 of the Tenancy Act'1948, contains a condition that permission of Collector would be obtained prior to the execution of the sale deed. It needs no emphasis that Section 43 not only prohibits transfer by sale, lease etc., but it expressly prohibits execution of an agreement in writing, to transfer a land by sale, lease etc., without complying with the conditions in Sub-section (1) of Page 17 of 18 Uploaded by SATISH C. VEMULLA(HC00206) on Mon Mar 09 2026 Downloaded on : Mon Mar 09 21:06:32 IST 2026 NEUTRAL CITATION C/CRA/449/2024 JUDGMENT DATED: 03/03/2026 undefined Section 43."
15. It is apposite to note that judgment of Full Bench has been challenged before the Hon'ble Apex Court by way of Special Leave to Appeal (C) No.6812 of 2023. By order dated 24.04.2023, Hon'ble Apex Court found that there is no ground to interfere with the judgment delivered by Full Bench of this Court and accordingly, dismissed the said Special Leave to Appeal.
16. In view of above and applying ratio culled out from aforesaid judgment, this Court find no hesitation in holding that suit for specific performance of agreement to sale of new tenure land or restricted tenure being Regular Civil suit No.51 of 2019 is barred by section 43 of the Tenancy Act and as such plaint itself is legally invalid. In view of this fact, this Court has no option except to allow the Revision Application and reject the plaint.
17. Apropos, this Revision Application is allowed. Impugned order is quashed and set aside. Application Exh.23 in Regular Civil Suit No.51 of 2019 is hereby allowed. Plaint being Regular Civil Suit No.51 of 2019 is rejected. Learned Trial Court is directed to pass order below Exh.1 in Regular civil Suit No.51 of 2019 to give effect of this order.
Civil Application also stands disposed of.
(J. C. DOSHI,J) SATISH Page 18 of 18 Uploaded by SATISH C. VEMULLA(HC00206) on Mon Mar 09 2026 Downloaded on : Mon Mar 09 21:06:32 IST 2026