Gujarat High Court
Shri Mer Vajshibhai Jivabhai Parmar vs L H Of Kashiben Shantibhai Patel on 5 February, 2025
NEUTRAL CITATION
C/CRA/62/2023 JUDGMENT DATED: 05/02/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CIVIL REVISION APPLICATION NO. 62 of 2023
With
CIVIL APPLICATION (FOR STAY) NO. 1 of 2024
In R/CIVIL REVISION APPLICATION NO. 62 of 2023
With
R/CIVIL REVISION APPLICATION NO. 63 of 2023
With
CIVIL APPLICATION (FOR STAY) NO. 1 of 2024
In R/CIVIL REVISION APPLICATION NO. 63 of 2023
With
R/CIVIL REVISION APPLICATION NO. 64 of 2023
With
CIVIL APPLICATION (FOR STAY) NO. 2 of 2024
In R/CIVIL REVISION APPLICATION NO. 64 of 2023
With
R/CIVIL REVISION APPLICATION NO. 65 of 2023
With
CIVIL APPLICATION (FOR STAY) NO. 2 of 2024
In R/CIVIL REVISION APPLICATION NO. 65 of 2023
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE MAULIK J.SHELAT
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Approved for Reporting Yes No
✓
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SHRI MER VAJSHIBHAI JIVABHAI PARMAR
Versus
L H OF KASHIBEN SHANTIBHAI PATEL & ORS.
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Appearance:
MR RITURAJ M MEENA(3224) for the Applicant(s) No. 1
DELETED for the Opponent(s) No. 3
MANDEEP SINGH SALUJA(8791) for the Opponent(s) No.
10,11,12,13,5,6.1,6.2,7,9
MR PREMAL R JOSHI(1327) for the Opponent(s) No. 1.1
NOTICE SERVED BY DS for the Opponent(s) No. 1.2,1.3,14,2,4,6.3,8
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CORAM:HONOURABLE MR. JUSTICE MAULIK J.SHELAT
Date : 05/02/2025
COMMON ORAL JUDGMENT
1. Rule returnable forthwith. Learned advocates, Mr.Premal R. Joshi and learned advocate Mr.Mandeep Singh Saluja, waive Page 1 of 26 Uploaded by MOHD MONIS(HC01900) on Sat Feb 15 2025 Downloaded on : Sat Feb 22 00:11:17 IST 2025 NEUTRAL CITATION C/CRA/62/2023 JUDGMENT DATED: 05/02/2025 undefined service of notice on behalf of respective respondents.
2. All these revision applications are filed under Section 115 of the Code of Civil Procedure, 1908 (hereinafter referred to as "the Code, 1908") arising out of the rejection of an application filed by the defendant under Order VII, Rule 11 of the Code, 1908.
3. The parties to such applications are common and there is a common issue involved in all these applications. So, with the consent of the learned advocates for the respective parties, all these revision applications are heard together and decided by this common judgment.
4. To appreciate the controversy involved in the present application, I would like to narrate the facts of Civil Revision Application No.62 of 2023, arising out of Special Civil Suit No. 225 of 2011, pending before the Principal Senior Civil Judge, Gandhinagar. The parties will be referred as per their original position in the suit.
4.1 Respondent Nos.1 and 2 are the original plaintiffs of Special Civil Suit No.225 of 2011, filed by them against respondent Nos.3 to 14, who are the original defendant Nos. 1 to 12. The revisionist is the original defendant no.13.
4.2 The suit is filed seeking specific performance of an agreement to sell dated 23.01.2007, executed between the plaintiffs and defendant no.1 to 13. The agreement to sell was an unregistered document in relation to the suit property, Page 2 of 26 Uploaded by MOHD MONIS(HC01900) on Sat Feb 15 2025 Downloaded on : Sat Feb 22 00:11:17 IST 2025 NEUTRAL CITATION C/CRA/62/2023 JUDGMENT DATED: 05/02/2025 undefined which is situated at Revenue Survey no.136/2 situated at Mauje; Valad, Taluka and District Gandhinagar, ad measuring 10,320 square meters of agricultural land, which was new tenure land when the said agreement to sell was executed.
4.3 Paragraph 1 of the plaint itself suggests that such suit land is new tenure land. It is contended by the plaintiffs that as per the unregistered agreement to sell, it was an obligation and condition, that the original owners of the suit land, i.e., defendant Nos.1 to 12, would get the suit land converted from new tenure to old tenure. So, after obtaining the title clearance certificate, the sale deed would be executed in favor of the plaintiffs.
4.4 As nothing has been done by the defendants, rather a notice was published in a newspaper on 28.06.2011 by the defendants intending to sell the suit land, which was objected to by the plaintiffs, but the original owners has decided to sell the land in favor of a third party. The suit has been filed seeking various reliefs. The plaintiffs have approached the court, stating that if defendant Nos. 1 to 12 have executed any documents/agreements/sale deeds etc., in favor of any third party, it shall be declared null and void.
4.5 It is further prayed that the defendants - the original owners, be directed to get the suit land converted from new tenure to old tenure and then execute the sale deed in favor of Page 3 of 26 Uploaded by MOHD MONIS(HC01900) on Sat Feb 15 2025 Downloaded on : Sat Feb 22 00:11:17 IST 2025 NEUTRAL CITATION C/CRA/62/2023 JUDGMENT DATED: 05/02/2025 undefined the plaintiffs, failing which, such execution of the sale deed may be undertaken by appointing a court commissioner. The relief of a permanent injunction, preventing the defendants from transferring, alienating, or creating any interest for third parties, is also prayed for.
4.6 It appears that, pending the suit on 14.07.2016, the original owners of the suit land have executed a registered sale deed in favor of defendant No.13 - the petitioner herein. The suit land appears to have been converted from new tenure to old tenure, and then after, it was sold in favor of defendant No. 13.
4.7 Defendant no.13, having been joined in the suit, appears to have filed an application below Exhibit 84 under Order VII, Rule 11(A) and (D) of the Code, 1908. The impugned application has been objected by the original plaintiffs by filing their written objection below Exhibit 85. Both sides have filed their written submissions below Exhibits 87 and 88, respectively.
4.8 After hearing the parties, the Trial Court, vide its impugned order, rejected such an application, against which the present revision application has been preferred under Section 115 of the Code, 1908.
SUBMISSION OF PETITIONERS (DEFENDANTS)
5. Learned Senior Counsel Mr. R.S.Sanjanwala with learned Page 4 of 26 Uploaded by MOHD MONIS(HC01900) on Sat Feb 15 2025 Downloaded on : Sat Feb 22 00:11:17 IST 2025 NEUTRAL CITATION C/CRA/62/2023 JUDGMENT DATED: 05/02/2025 undefined advocate Mr.R.M.Meena, submit that the impugned order passed by the Trial Court is erroneous, bad in law, and not in exercise of the jurisdiction so vested in it, and therefore, it requires interference by this court by exercising its revisional jurisdiction.
5.1 Learned Senior Counsel Mr. Sanjanwala would submit that the issue involved in the matter is squarely covered by the decision of the Full Bench of this court in the case of Decd. Shaikh Ismailbhai Husainbhai Through L.H. vs. Vankar Ambalal Dhanabhai reported in 2024 (1) GLH 22 2, (hereinafter referred to as "the Full Bench"), thereby, the impugned application requires to be allowed.
5.2 Learned Senior Counsel Mr. Sanjanwala would submit that it is an undisputed fact that as it is clearly stated in the plaint itself, that the suit land was new tenure land and that the unregistered agreement to sell was executed by the plaintiffs with the original owner, then such an agreement is invalid as hit by Section 43 (2) of the Gujarat Tenancy and Agricultural Lands Act, 1948 (hereinafter referred to as "the Gujarat Tenancy Act").
5.3 Learned Senior Counsel Mr. Sanjanwala would further submit that when the agreement, which is sought to be performed by filing the suit, is prohibited under law, it would be void ab initio and performance of such an agreement Page 5 of 26 Uploaded by MOHD MONIS(HC01900) on Sat Feb 15 2025 Downloaded on : Sat Feb 22 00:11:17 IST 2025 NEUTRAL CITATION C/CRA/62/2023 JUDGMENT DATED: 05/02/2025 undefined cannot be sought by the plaintiffs, which has already been held by the Full Bench of this Court.
5.4 Learned Senior Counsel Mr. Sanjanwala would submit that nothing remains to be argued in the present case, as all legal issues, which are so germane, have already been raised and answered by the Full Bench of this court while deciding the aforesaid case.
5.5 Learned Senior Counsel Mr. Sanjanwala would relied upon another decision of the Division Bench of this court in the case of Lalabhai Revabhai Bharwad vs. Ranchhodbhai Amrutlal Patel and Ors. in First Appeal No. 1916 of 2022, which also touches upon the issue germane to the present revision. It is submitted that after following the Full Bench decision, in its said decision, the Division Bench of this court has dismissed suit of a similar nature which was confirmed by the Honourable Supreme Court of India by dismissing the Special Leave to Appeal (C) No. 21649 of 2024 on 17.09.2024.
5.6 Learned Senior Counsel Mr. Sanjanwala would also relied upon another decision of the Division Bench of this Court in the case of Bharatbhai Devashibhai Ukani vs. Vinaben Babaji and Ors in First Appeal 4023 of 2023 dated 26.02.2024 which was passed by placing reliance upon the Full Bench decision of this Court.
Page 6 of 26 Uploaded by MOHD MONIS(HC01900) on Sat Feb 15 2025 Downloaded on : Sat Feb 22 00:11:17 IST 2025NEUTRAL CITATION C/CRA/62/2023 JUDGMENT DATED: 05/02/2025 undefined 5.7 Making the above submissions, he would request this court to allow the revision application, thereby allowing the impugned application, and prayed for the dismissal of the respective suit.
SUBMISSION OF RESPONDENTS (PLAINTIFFS)
6. Per contra, learned advocate Mr. Premal Joshi would vehemently submit that there is no error, much less any jurisdictional error, committed by the Trial Court while rejecting the impugned application, and therefore, no interference is required by this court while exercising its power under Section 115 of the Code, 1908.
6.1 Learned advocate Mr. Joshi would submit that it is true that as per the Full Bench decision of this court, the suit for specific performance of an agreement to sell of new tenure land would not be held maintainable but considering subsequent development taken place thereafter and other reliefs prayed in the suits, there is no merit in the revisions. 6.2 Learned advocate Mr. Joshi would submit that after passing of the Full Bench decision, Honourable Supreme Court of India in the case of Babasaheb Dhondiba Kute vs. Radhu Vithoba Barde, reported in 2024 (4) SCC 310, in a somewhat similar situation, it was held that a suit for specific performance, seeking performance of such an agreement to sell, which is so prohibited by law, is held maintainable.
Page 7 of 26 Uploaded by MOHD MONIS(HC01900) on Sat Feb 15 2025 Downloaded on : Sat Feb 22 00:11:17 IST 2025NEUTRAL CITATION C/CRA/62/2023 JUDGMENT DATED: 05/02/2025 undefined 6.3 Learned advocate Mr. Joshi would submit that provision of S. 36A of Maharashtra Land Revenue Code (herein after referred as 'Land Revenue Code') is pari materia with S. 43 of Gujarat Tenancy Act. So, in view of aforesaid decision Babasaheb Dhondiba Kute (supra), there is no merit in the revision application.
6.4 Learned advocate Mr. Joshi would submit that S.36A of Land Revenue Code containing word 'otherwise' which covers agreement to sale as well. So, thereby he would submit that ratio of Babasaheb Dhondiba Kute (supra) would apply to facts of the present case.
6.5 Learned advocate Mr. Joshi would submit that there are several reliefs prayed for in the suit apart from the performance of the agreement to sell. So, without permitting the plaintiffs to lead evidence, the suit cannot be dismissed at the threshold. As such no error has been committed by trial Court while rejecting impugned application.
6.6 Learned advocate Mr. Joshi would place reliance upon a decision of the Honorable Supreme Court in the case of Bharatbhai Devashibhai Ukani (supra) was passed on 10.07.2024 in Special Leave to Appeal No. 12845 of 2024 filed against decision of division bench of this Court dated 26.02.2024 in First Appeal 4023 of 2023 wherein the Page 8 of 26 Uploaded by MOHD MONIS(HC01900) on Sat Feb 15 2025 Downloaded on : Sat Feb 22 00:11:17 IST 2025 NEUTRAL CITATION C/CRA/62/2023 JUDGMENT DATED: 05/02/2025 undefined Honorable Supreme Court has issued notice and granted status quo to the property.
6.7 Making the above submission, learned advocate Mr. Joshi would request this Court not to entertain the present applications, which may be dismissed as, according to him, there is no merit in the application.
7. Learned advocate Mr. Mandeep Singh Saluja appearing for Respondent Nos.3 to 14 would support the submissions of Learned Senior Counsel Mr. R.S. Sanjanwala thereby support the case of revisionist.
8. Heard learned advocates for the respective parties at length. No other and further submissions are made.
ANALYSIS
9. The issue involved in the present revision application is squarely covered by the decision of the Full Bench of this Court in Decd. Shaikh Ismailbhai Husainbhai Through L.H. (Supra). Nonetheless, considering the submissions made by learned advocate Mr. Joshi appearing for the original plaintiffs and in the light of the judgment of the Honourable Supreme Court of India in the case of Babasaheb dhondiba Kute (Supra), I would like to deal with his submissions.
10. To appreciate the controversy and submission, It would Page 9 of 26 Uploaded by MOHD MONIS(HC01900) on Sat Feb 15 2025 Downloaded on : Sat Feb 22 00:11:17 IST 2025 NEUTRAL CITATION C/CRA/62/2023 JUDGMENT DATED: 05/02/2025 undefined be appropriate to reproduce provisions Section 43 of the Gujarat Tenancy Act and Section 36A of the Maharashtra Land Revenue Code, thereby to compare both these provisions as to whether is it pari materia? It read as under:-
"Section 43. Restriction on transfers of land purchased or sold under this Act. -
[(1) No land or any interest therein purchased by a tenant under section 17B, 32, 32F, 32-I. [*], [32U, 43-1D or 88E] or sold to any person under section 32P or 64 shall be transferred or shall be agreed by an instrument in writing to be transferred, by sale, gift, exchange, mortgage, lease or assignment, without the previous sanction of the Collector and except in consideration of payment of such amount as the State Government may by general or special order determine; and no such land or any interest, therein shall be partitioned without the previous sanction of the Collector]:.........
(2) [Any transfer or partition, or any agreement of transfer, or any land or any interest therein] in contravention of sub-section (1) [or sub-section (1C)] shall be invalid.]"
Maharashtra Land Revenue Code "36A: Restrictions on transfers of occupancies by Tribals:-
(1) Notwithstanding anything contained in subsection (1) of section 36, no occupancy of a Tribal shall, after the commencement of the Maharashtra Land Revenue Code and Tenancy Laws (Amendment) Act,, 1974, be transferred in favour of any non-Tribal by way of sale (including sales in execution of a decree of a Civil Court or an award or order of any Tribunal or authority), gift, exchange, mortgage, lease or otherwise, except on the application of such non-Tribal and except with the previous sanction-
(a)in the case of a lease or mortgage for a period not exceeding 5 years, of the Collector; and
(b) in all other cases, of the Collector with the previous approval of the State Government. Provided that, no such sanction shall be accorded by the Collector unless he is satisfied that no Tribal residing in the village in which the occupancy is situate or within five kilometers thereof is prepared to take the occupancy from the owner on lease, mortgage or by sale or otherwise.Page 10 of 26 Uploaded by MOHD MONIS(HC01900) on Sat Feb 15 2025 Downloaded on : Sat Feb 22 00:11:17 IST 2025
NEUTRAL CITATION C/CRA/62/2023 JUDGMENT DATED: 05/02/2025 undefined (2) The previous sanction of the Collector may be given in such circumstances and subject to such conditions as may be prescribed.
(3) On the expiry of the period of the lease or, as the case may be, of the mortgage, the Collector may, notwithstanding anything contained in any law for the time being in force, or any decree or order of any court or award or order of any Tribunal, or authority, either suo motu or on application made by the Tribal in that behalf, restore possession of the occupancy to the Tribal.
(4) Where, on or after the commencement of the Maharashtra Land Revenue Code and Tenancy Laws (Amendment)Act, 1974, it is noticed that any occupancy has been transferred in contravention or sub- section (1) 1(the Collector shall, not withstanding anything contained in any law for the time being in force, either suo motu or on an application made by any person interested in such occupant, within thirty years) from the date of the transfer of occupancy hold an inquiry in the prescribed manner and decide the matter.
(5) Where the Collector decides that any transfer of occupancy has been made in contravention of sub-section (1), he shall declare the transfer to be invalid, and thereupon, the occupancy together with the standing crops thereon, if any, shall vest in the State Government free of all encumbrances and shall be disposed of in such manner as the State Government may, from time to time direct.
(6) Where an occupancy is vested in the State Government under sub- section (5) is to be disposed of, the Collector shall give notice in writing to the Tribal-transferor requiring him to be state within 90 days from the date of receipt of such notice whether or not he is willing to purchase the land. If such Tribal - transferor agrees to purchase the occupancy, then the occupancy may be granted to him if he pays the prescribed purchase price and undertakes to cultivate the land personally; so however that the total land held by such Tribal-transferor, whether as owner or tenant, does not as for as possible exceed an economic holding."
11. A close reading of both these sections clearly suggests that Section 43 (2) of the Gujarat Tenancy Act, expressly pro- hibits any agreement of transfer in contravention of sub section (1) of Section 43 of the Gujarat Tenancy Act and the same shall be invalid. Whereas the plain reading of Section 36A of Page 11 of 26 Uploaded by MOHD MONIS(HC01900) on Sat Feb 15 2025 Downloaded on : Sat Feb 22 00:11:17 IST 2025 NEUTRAL CITATION C/CRA/62/2023 JUDGMENT DATED: 05/02/2025 undefined the Maharashtra Land Revenue Code, 1966, would not invali- date such an agreement of transfer of land itself, as it is con- fined only to sale, gift, exchange, mortgage, lease, or other- wise.
12. To further appreciate the aforesaid issue which was raised by learned advocate Mr. Joshi, paragraphs 16, 17, and 19 of the decision in the case of Babasaheb Dhondiba Kute (Supra), require to be taken note of, which reads as under:-
"16. On a reading of Section 36-A, what is evident is that there is only a restriction on the transfer to be made by a tribal in favour of the non-tribal by way of sale, gift, exchange, mortgage, lease or otherwise. Such a restriction is in the context of requiring the non-tribal to make an application for a previous sanction before such a conveyance could be made by a tribal (respondent-defendant herein) in favour of non-tribal (appellant-plaintiff herein) before the State Government so as to seek previous approval of the State Government only after a previous approval of the State Government could such a sale take place. The conveyance by way of sale would take place only at the time of registration of a sale deed in accordance with Section 17 of the Registration Act, 2008. Till then, there is no conveyance. Therefore, there is no bar for a tribal to enter into an agreement to sell and seeking advance sale consideration.
17. However, before conveying the land by the tribal in favour of a non-tribal, the requisites of Section 36-A must be complied with by the non-tribal before the State Government in terms of Section 36-A of the Land Revenue Code. That stage has not yet arisen in the instant case, for the reason that the defendant failed to perform his part of the agreement inasmuch as he did not come forward to execute the sale deed. Possibly, if the defendant had come forward to execute the sale deed in favour of the plaintiff, then it would have been Page 12 of 26 Uploaded by MOHD MONIS(HC01900) on Sat Feb 15 2025 Downloaded on : Sat Feb 22 00:11:17 IST 2025 NEUTRAL CITATION C/CRA/62/2023 JUDGMENT DATED: 05/02/2025 undefined the duty of the appellant to have proceeded under Section 36-A of the Land Revenue Code and seek the requisite permission or previous sanction from the Collector.
19. Therefore, on the basis of Section 36-A, the trial court, the first appellate court as well as the High Court could not have declined to grant the decree for specific performance to the plaintiff inasmuch as the considerations under the provisions of the Specific Relief Act, 1963 only had to be made for the purpose of adjudicating the suit between the parties. Since there was no reason to decline the grant of a decree under the provisions of the said Act, the trial court, the first appellate court as well as the High Court ought to have granted the said decree rather than granting an alternative relief."
(Emphasis supplied) 12.1 So, the decision of the Honorable Apex Court in the case of Babasaheb Dhondiba Kute (Supra) would not be stricto sensu applied to the facts of the present case, as the provisions of Section 43 of the Gujarat Tenancy Act are not pari materia with Section 36A of the Maharashtra Land Revenue Code, 1966. Thus, the ratio of the decision in the case Babasaheb dhondiba Kute (Supra) would not ipso facto applied in the present case and the decision of Hon'ble Supreme Court in the case Babasaheb Dhondiba Kute (Supra) is clearly distinguish- able on facts as well as law.
13. So far another limb of submission of learned advocate Mr. Joshi in regards to word "otherwise" so stated in Section 36A (1) of Maharashtra Revenue Code which includes agreement to sale is concern, such submission is not only Page 13 of 26 Uploaded by MOHD MONIS(HC01900) on Sat Feb 15 2025 Downloaded on : Sat Feb 22 00:11:17 IST 2025 NEUTRAL CITATION C/CRA/62/2023 JUDGMENT DATED: 05/02/2025 undefined misconceived at law but contrary to rule of "ejusdem generis :
NOSCITUR A SOCIIS". It is well settled that the Latin expression "ejusdem generis" which means "of the same kind or nature" is a principle of construction, meaning thereby when general words in a statutory text are flanked by restricted words, the meaning of the general words are taken to be restricted by implication with the meaning of the restricted words. This is a principle which arises "from the linguistic implication by which words having literally a wide meaning (when taken in isolation) are treated as reduced in scope by the verbal context". It may be regarded as an instance of ellipsis or reliance on implication. This principle is presumed to apply unless there is some contrary indication.
14. It is profitable to refer and rely upon the decision of Hon'ble Supreme Court in a case of M/S D N Singh versus Commissioner Of Income Tax, Central, Patna And Another reported in (2024) 3 SCC 378 wherein held as under, "M. PRINCIPLE OF EJUSDEM GENERIS; NOSCITUR A SOCIIS"
[73] Section 69A provides for unexplained 'money, bullion, jewellery'. It is thereafter followed by the words 'or other valuable articles'. Does this mean that the words 'other valuable articles' must be read ejusdem generis? The principle applies when the following conditions are present [Principles of Statutory Interpretation by Justice G P Singh, 14th Edition]:
"(1) the statue contains an enumeration of specific words;Page 14 of 26 Uploaded by MOHD MONIS(HC01900) on Sat Feb 15 2025 Downloaded on : Sat Feb 22 00:11:17 IST 2025
NEUTRAL CITATION C/CRA/62/2023 JUDGMENT DATED: 05/02/2025 undefined (2) the subjects of enumeration constitutes a class or category;
(3) that class or category is not exhausted by the enumeration;
(4) the general terms follow the enumeration; and (5) there is no indication of a different legislative intent". If the subjects of enumeration belong to a broad based genus as also to a narrower genus, there is no principle that the general words should be confined to the narrower genus."
[74] In the context of Explanation 3(b) to Section 32(1) of the Act, this Court in Commissioner of Income Tax, Kolkata v. SMIFS Securities Limited, 2012 13 SCC 488 held as follows:
"8. We quote herein below Explanation 3 to Section 32(1) of the Act:
"Explanation 3.-For the purposes of this sub- section, the expressions 'assets' and 'block of assets' shall mean-
(a) tangible assets, being buildings, machinery, plant or furniture;
(b) intangible assets, being know-how, patents, copyrights, trademarks, licences, franchises or any other business or commercial rights of similar nature."
Explanation 3 states that the expression "asset" shall mean an intangible asset, being know-how, patents, copyrights, trademarks, licences, franchises or any other business or commercial rights of similar nature. A reading of the words "any other business or commercial rights of similar nature" in clause (b) of Explanation 3 indicates that goodwill would fall under the expression "any other business or commercial right of a similar nature". The principle of ejusdem generis would strictly apply while interpreting the said expression which finds place in Explanation 3(b).
9. In the circumstances, we are of the view that "goodwill" is an asset under Explanation 3(b) to Page 15 of 26 Uploaded by MOHD MONIS(HC01900) on Sat Feb 15 2025 Downloaded on : Sat Feb 22 00:11:17 IST 2025 NEUTRAL CITATION C/CRA/62/2023 JUDGMENT DATED: 05/02/2025 undefined Section 32(1) of the Act.
[75] In Rohit Pulp and Paper Mills Limited v. Collector of Central Excise, Baroda, 1990 3 SCC 447 the Court was dealing with an exception clause in an exemption notification and considered the applicability of the Principle of Noscitur a Sociis, to the facts:
"12. The principle of statutory interpretation by which a generic word receives a limited interpretation by reason of its context is well established. In the context with which we are concerned, we can legitimately draw upon the "noscitur a sociis" principle. This expression simply means that "the meaning of a word is to be judged by the company it keeps." Gajendragadkar, J. explained the scope of the rule in State of Bombay v. Hosptial Mazdoor Sabha, 1960 2 SCR 866 : AIR 1960 SC 610 : (1960) 1 LLJ 251 in the following words: (SCR pp. 873-74) "This rule, according to Maxwell, means that, when two or more words which are susceptible of analogous meaning are coupled together they are understood to be used in their cognate sense. They take as it were their colour from each other, that is, the more general is restricted to a sense analogous to a less general. The same rule is thus interpreted in "Words and Phrases"
(Vol. XIV, p. 207): "Associated words take their meaning from one another under the doctrine of noscitur a sociis, the philosophy of which is that the meaning of a doubtful word may be ascertained by reference to the meaning of words associated with it; such doctrine is broader than the maxim ejusdem generis". In fact the latter maxim "is only an illustration or specific application of the broader maxim noscitur a sociis". The argument is that certain essential features of attributes are invariably associated with the words "business and trade" as understood in the popular and conventional sense, and it is the colour of these attributes which is taken by the other words used in the definition though their normal import Page 16 of 26 Uploaded by MOHD MONIS(HC01900) on Sat Feb 15 2025 Downloaded on : Sat Feb 22 00:11:17 IST 2025 NEUTRAL CITATION C/CRA/62/2023 JUDGMENT DATED: 05/02/2025 undefined may be much wider. We are not impressed by this argument. It must be borne in mind that noscitur a sociis is merely a rule of construction and it cannot prevail in cases where it is clear that the wider words have been deliberately used in order to make the scope of the defined word correspondingly wider. It is only where the intention of the legislature in associating wider words with words of narrower significance is doubtful, or otherwise not clear that the present rule of construction can be usefully applied. It can also be applied where the meaning of the words of wider import is doubtful; but, where the object of the legislature in using wider words is clear and free of ambiguity, the rule of construction in question cannot be pressed into service."
This principle has been applied in a number of contexts in judicial decisions where the court is clear in its mind that the larger meaning of the word in question could not have been intended in the context in which it has been used. The cases are too numerous to need discussion here. It should be sufficient to refer to one of them by way of illustration. In Rainbow Steels Ltd. v. CST, 1981 2 SCC 141 : 1981 SCC (Tax) 90] this Court had to understand the meaning of the word 'old' in the context of an entry in a taxing traffic which read thus:
"Old, discarded, unserviceable or obsolete machinery, stores or vehicles including waste products......"
Though the tariff item started with the use of the wide word 'old', the court came to the conclusion that "in order to fall within the expression 'old machinery' occurring in the entry, the machinery must be old machinery in the sense that it has become non-
functional or non-usable". In other words, not the mere age of the machinery, which would be relevant in the wider sense, but the condition of the machinery analogous to that indicated by the words following it, was considered relevant for the purposes of the Page 17 of 26 Uploaded by MOHD MONIS(HC01900) on Sat Feb 15 2025 Downloaded on : Sat Feb 22 00:11:17 IST 2025 NEUTRAL CITATION C/CRA/62/2023 JUDGMENT DATED: 05/02/2025 undefined statute."
[76] About Noscitur a Sociis and how it compares with ejusdem generis, the following statement in G.P. Singh (supra) on Statutory Interpretation is apposite:
"It is a rule wider than the rule of ejusdem generis; rather the latter rule is only an application of the former."
(Emphasis supplied)
15. So, word "otherwise" mentioned in Section 36A (1) needs to be judged for the company which it keeps i.e. sale, gift, mortgage, lease etc.. All denote transfer of interest of the immovable property in one form or other as per provisions of Transfer of Property Act unlike agreement to sale of the immovable property which undisputedly not a transfer of interest of the immovable property as per Transfer of Property Act. It is apt to refer and rely upon the recent pronouncement of honourable supreme court dated 07.01.2025 in a case of Indian Overseas Bank Vs. M. A. S. Subramanian in civil appeal no. 282 & 283 of 2025 wherein held as under, "[6] It is well settled that an agreement for sale in respect of an immovable property does not transfer title in favour of the purchaser under the agreement. In view of Section 54 of the Transfer of Property Act, 1882, an agreement for sale does not create any interest in the property. The only mode by which an immovable property worth more than Rs.100/- (Rupees one hundred) can be sold is by a sale deed duly registered in accordance with the Indian Registration Act, 1908."
(Emphasis supplied)
16. Thus, the agreement to sale would not be covered under Section 36A of Land Revenue Code which is so expressly Page 18 of 26 Uploaded by MOHD MONIS(HC01900) on Sat Feb 15 2025 Downloaded on : Sat Feb 22 00:11:17 IST 2025 NEUTRAL CITATION C/CRA/62/2023 JUDGMENT DATED: 05/02/2025 undefined observed in para-16 of Babasaheb Dhondiba Kute (Supra).
17. Now coming back to the facts of case, it is not in dispute that the suit property was a new tenure land when an agreement to sell was executed between the plaintiff and defendant Nos. 1 to 12 - the original owners. The averment about new tenure land is clearly stated by the plaintiffs in the plaint itself. If it be so, such an agreement to sell is hit by Section 43 (2) of the Gujarat Tenancy Act as it is invalid in eye of law.
18. When the agreement itself is prohibited under law, its performance cannot be sought by the plaintiffs by instituting a civil suit. As stated herein above, this issue is already answered in detail by the Full Bench decision of this Court. The relevant observation of the decision of the Full Bench touching on such an issue reads as under:-
"[11] The issues raised before us are : -
(i) Where an agreement contains a condition that prior to effecting the sale, the requisite permission of the competent authority under Section 43 or 63 of the Tenancy Act, 1948 shall be sought, such an agreement whether can be specifically enforced strictly in accordance thereof ?;
(ii) Where an agreement to sell contains condition that the restricted tenure shall first be converted to old tenure and, thereafter, such old tenure land shall be sold, be invalid under Section 43 of the Tenancy Act, 1948 ?;
(iii) Where an agreement contains condition that the Page 19 of 26 Uploaded by MOHD MONIS(HC01900) on Sat Feb 15 2025 Downloaded on : Sat Feb 22 00:11:17 IST 2025 NEUTRAL CITATION C/CRA/62/2023 JUDGMENT DATED: 05/02/2025 undefined agricultural land shall first be converted to non-agricultural land and, thereafter, such non-agricultural land shall be sold, be invalid under Section 63 of the Tenancy Act, 1948;
(iv) Whether invalidity of agreement under Section 43 or 63 of the Tenancy Act, 1948 is limited to the said Act or does it absolves the parties from their reciprocal rights and obligations under the agreement and make the agreement unenforceable in Civil Court?;
(v) Whether a plaint can be rejected on the ground of transaction being invalid under the Tenancy Act, 1948 when the alternative remedy of refund of earnest money or compensation or other remedy like permanent injunction, protection of possession, damages etc, have also been sought in the suit ?;
(vi) In absence of any order passed by the Competent Authority under The Gujarat Tenancy and Agricultural Land Act, 1948 (in short "the Tenancy Act, 1948), invalidating the agreement to sell, whether plaint can be rejected under Order VII Rule 11 of CPC or the suit for specific performance can be dismissed by the Civil Court, on the ground that the said agreement is invalid under Section 43 or 63 of the Tenancy Act, 1948;
(vii) Whether the Civil Court has jurisdiction to adjudicate the issue as to whether such agreement is or not invalid in view of the bar under Section 85 of the Tenancy Act, 1948?;
[17] Coming to Sub-section (2) of Section 43, it clearly provides that any transfer or partition, or any agreement of transfer, of any land or any interest therein, in contravention of Subsection (1)(c), shall be invalid. The plain and simple reading of Sub-section (2) makes it clear that transfer or partition or an agreement to transfer such land or interest therein, mentioned in Sub-section (1), shall ipso facto be invalid. The result is that the transaction between the parties in contravention of Sub-section (1) of Section 43 would be hit by Sub-section (2) of Section 43 of the Tenancy Act, 1948.
[21] Furthermore, in light of the controversy before us, as can be seen from the previous decisions of this Court noted hereinbefore, we do not find any reason to enlarge the scope of the reference and confine ourselves to the question of reference to examine "whether a plaint is liable to be Page 20 of 26 Uploaded by MOHD MONIS(HC01900) on Sat Feb 15 2025 Downloaded on : Sat Feb 22 00:11:17 IST 2025 NEUTRAL CITATION C/CRA/62/2023 JUDGMENT DATED: 05/02/2025 undefined rejected on the ground that the suit for specific performance of contract based on an illegal or invalid agreement to sell, hit by Section 43 of the Tenancy Act, 1948, is not maintainable?"
[104] In light of the above discussion, we find ourselves in complete agreement with the law laid down by this Court in Rameshbhai Chaturbhai Prajapati (supra) and Hasvantbhai Chhanubhai Dalal (supra) in holding that the agreement being unlawfully, barred by Section 43 of the Tenancy Act, 1948, in view of the specific bar contained about the execution of the agreement without previous sanction of the Collector/competent authority, is unenforceable in the eye of law. The reason being that the plaintiff would have no option, but to rely upon an illegal contract to make out his claim and the Courts will refuse an illegal agreement at the instance of a person, who is himself a party to the illegality.
[105] We find ourselves in concurrence with the decision of the Division Bench in Ganpatlal Manjibhai Khatri (supra), wherein it is held that there is a total prohibition of even entering into an agreement in writing for the purpose of sale under Section 43 of the Tenancy Act, 1948. The agreement to sell entered into without the prior permission or sanction of the Collector cannot but be termed as invalid or void as the same was entered into without the prior permission or sanction of the Collector. The suit for specific performance of contract based on invalid agreement to sell, hit by Section 43 of the Tenancy Act, 1948, is not maintainable in law. If the agreement is rendered invalid under Section 43 of the Tenancy Act, 1948, such agreement is incapable of being specifically enforceable. If the agreement to sell itself is invalid, no decree for specific performance can be passed by the trial Court.
[106] We are in concurrence with the observation of the Division Bench in Ganpatlal Manjibhai Khatri (supra) that the jurisdiction to order specific performance of a contract is based on the existence of valid and enforceable contract. Where valid and enforceable contract has not been made, the Court will not make a contract for them. The specific performance will not be ordered if the contract itself suffers from some defect, which makes the contract invalid or unenforceable.Page 21 of 26 Uploaded by MOHD MONIS(HC01900) on Sat Feb 15 2025 Downloaded on : Sat Feb 22 00:11:17 IST 2025
NEUTRAL CITATION C/CRA/62/2023 JUDGMENT DATED: 05/02/2025 undefined [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 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.
Page 22 of 26 Uploaded by MOHD MONIS(HC01900) on Sat Feb 15 2025 Downloaded on : Sat Feb 22 00:11:17 IST 2025NEUTRAL CITATION C/CRA/62/2023 JUDGMENT DATED: 05/02/2025 undefined In such circumstances, the suit for specific performance of agreement to sell cannot be decreed.
[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 Section 43."
(Emphasis supplied)
19. At the cost of repetition, I would like to state that when the agreement to sell of a new tenure land is held to be Page 23 of 26 Uploaded by MOHD MONIS(HC01900) on Sat Feb 15 2025 Downloaded on : Sat Feb 22 00:11:17 IST 2025 NEUTRAL CITATION C/CRA/62/2023 JUDGMENT DATED: 05/02/2025 undefined invalid as per Section 43 (2) of the Gujarat Tenancy Act, so in light of above referred provisions of each Act, it would not be correct approach by holding both these provisions pari materia. The plain reading of Section 36A of the Land Revenue Code would not prohibit to enter into an agreement to sell unlike S. 43 (2) of Gujarat Tenancy Act, whereby an agreement to sale itself invalid then, such agreement to sale held to be void ab initio thereby, not enforceable in law.
20. As far as other reliefs as prayed in the suit are concern, it is settled legal position of law that when the principal relief is not available to the plaintiff i.e. Specific performance of agreement to sale as the suit itself is held not maintainable, the question of granting consequential reliefs as prayed for in the suit would not arise.
21. Thus, looking at it from all angles, the suits instituted by the plaintiff seeking performance of the each agreement to sell is hit by Section 43 of the Gujarat Tenancy Act. So, in view of such provision of law and the binding decision of this Court decided by the Full Bench of this Court in the case of Decd. Shaikh Ismailbhai Husainbhai Through L.H. (Supra), all these suits are held to be not maintainable. Consequently, the impugned application filed by the revisionist requires to be allowed, which is hereby allowed.
22. The judgments delivered by the Division Bench of this Page 24 of 26 Uploaded by MOHD MONIS(HC01900) on Sat Feb 15 2025 Downloaded on : Sat Feb 22 00:11:17 IST 2025 NEUTRAL CITATION C/CRA/62/2023 JUDGMENT DATED: 05/02/2025 undefined Court, wherein the decision of the Full Bench has been followed, which is confirmed by the Honorable Supreme Court of India by dismissing the respective Special Leave to Appeal would fortified view taken herein above. Whereas, in the case of Bharatbhai Devashibhai Ukani (Supra), the Honorable Apex Court has not stayed the impugned judgment and decree passed by the Division Bench of this Court in First Appeal No. 4023 of 2023.
23. So, this Court is of the opinion that, as on today, in the absence of any stay granted by the Honorable Apex Court against either the Full Bench decision or any other decisions passed by Division Bench of this Court, which is otherwise binding to this Court being Full Bench and Division Bench decisions respectively, the same is hereby followed.
CONCLUSION
24. The upshot of the said discussions, observations and reasons, the impugned applications filed by the revisionist in each revision application is hereby allowed, thereby it has been held that the respective suit is not maintainable as it is hit by Section 43 of the Gujarat Tenancy Act.
25. When the suit seeking performance of the agreement to sell, which is hit or barred by law, is not maintainable, the question of granting consequential reliefs in favor of the plaintiffs would not arise, thereby the suit is required to be Page 25 of 26 Uploaded by MOHD MONIS(HC01900) on Sat Feb 15 2025 Downloaded on : Sat Feb 22 00:11:17 IST 2025 NEUTRAL CITATION C/CRA/62/2023 JUDGMENT DATED: 05/02/2025 undefined dismissed in toto.
26. In view of the aforesaid, all these Revision applications are hereby allowed. Rule is made absolute. Consequently, all the suits which are the subject matter of the respective Revision applications are hereby DISMISSED as not maintainable. No order as to costs. In sequel, Civil Application are also disposed of accordingly.
(MAULIK J.SHELAT,J) MOHD MONIS Page 26 of 26 Uploaded by MOHD MONIS(HC01900) on Sat Feb 15 2025 Downloaded on : Sat Feb 22 00:11:17 IST 2025