Gujarat High Court
Ilaben Wd/O Jitendrabhai Ambalal Dave vs Vinodbhai Babubhai Bhatt on 17 November, 2025
NEUTRAL CITATION
C/CRA/29/2018 ORDER DATED: 17/11/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CIVIL REVISION APPLICATION NO. 29 of 2018
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ILABEN WD/O JITENDRABHAI AMBALAL DAVE & ANR.
Versus
VINODBHAI BABUBHAI BHATT
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Appearance:
MR JIGAR P RAVAL(2008) for the Applicant(s) No. 1,2
ADVOCATE NOTICE SERVED for the Opponent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE J. C. DOSHI
Date : 17/11/2025
ORAL ORDER
1. By way of the present revision application, applicants assail the order dated 16.10.2017 passed by the learned 2nd Additional Civil Judge, Borsad, below Exh. 8/A in Civil Suit No. 8 of 2017, whereby the application preferred under Order VII Rule 11 of the Code of Civil Procedure, 1908 (for short, "CPC") came to be rejected. Applicants prayed for the following reliefs:-
"A) Your Lordships may be pleased to admit and allow this application.
(B) Your Lordships may be pleased to quash and set aside the impugned order dated 16/10/2017 Annexure-C passed by the Ld. 2d Additional Civil Judge, Borsad below Ex. 8/A in Civil Suit No. 8/2017 and be further allowed the application Ex. 8/A of the present applicants (Annexure-B).
(C) Pending hearing and till final disposal of this petition, Your Lordships may be pleased to stay the further proceedings of Civil Suit No. 8/2017 pending before the Ld. 2nd Additional Civil Judge, Borsad."Page 1 of 6 Uploaded by MANISH MISHRA(HC01776) on Mon Nov 24 2025 Downloaded on : Mon Nov 24 20:39:29 IST 2025
NEUTRAL CITATION C/CRA/29/2018 ORDER DATED: 17/11/2025 undefined
2. Factual matrix of the case are as under:-
2.1. The plaintiff asserts that the deceased owner, Jitendrabhai Ambalal Dave, had agreed to sell the suit lands bearing Block/Survey Nos. 286/B/1, 286/B/2 and 286/B/4 situated at Khanpur, Taluka Borsad, Distric Anand, for a total consideration of Rs.2,75,000/-, of which Rs.2,25,000/- was paid by demand drafts on 17.02.2005 contemporaneously with the execution of an Agreement to Sell and delivery of possession, and the remaining Rs.50,000/- was subsequently paid by two drafts dated 01.03.2005 and 02.03.2005, duly acknowledged by the deceased in writing on 06.03.2005 along with an affirmation to execute the sale deed whenever required. The plaintiff avers that he has since 2005 continued in uninterrupted, peaceful and open possession of the suit lands, cultivating them and paying land revenue, with full knowledge and acquiescence of the deceased and thereafter his heirs
--the defendants--who are said to have also assured execution of the sale deed. The defendants, however, allegedly declined to execute the sale deed upon being recently requested, and threatened forcible dispossession. The plaintiff had earlier instituted Civil Suit No. 8 of 2017, which came to be dismissed. He has therefore filed the present suit seeking a declaration of his lawful possession and a permanent injunction restraining the defendants from interfering with the same.
3. Heard learned advocate for the applicants. Though notice has been duly served upon the respondents, none has chosen to appear.
4. Learned advocate for the applicants submitted that the learned Page 2 of 6 Uploaded by MANISH MISHRA(HC01776) on Mon Nov 24 2025 Downloaded on : Mon Nov 24 20:39:29 IST 2025 NEUTRAL CITATION C/CRA/29/2018 ORDER DATED: 17/11/2025 undefined Trial Court has committed a serious jurisdictional error in declining to reject the plaint. It is urged that, as per the averments in the plaint, the plaintiff claims to be in possession of the disputed land on the premise that an agreement to sell had allegedly been executed in his favour. It is further contended that the agreement to sell, which forms the very substratum of the reliefs sought in the plaint, pertains admittedly to new tenure land, thereby attracting the rigours of Section 24 of the Tenancy Act, 1948.
5. It is submitted that even the execution of an agreement to sell in respect of new tenure land is statutorily proscribed, and ergo, the consequential reliefs of declaration of possession and injunction restraining the defendants from transferring or altering the nature of the suit property, premised entirely upon such an agreement, are wholly untenable in law and stand completely barred by the statutory mandate.
6. Learned advocate placed reliance upon the Full Bench judgment of this Court in Decd. Shaikh Ismailbhai Hushainbhai through L.Hs. v. Vankar Ambalal Dhanbhai, rendered in Second Appeal No. 208 of 2021, more particularly pages 147 to 149, and submitted that where the very agreement to sell forming the foundation of the suit is unenforceable, no ancillary or consequential relief founded upon such an unenforceable instrument can be claimed by the plaintiff.
7. It is thus contended that the learned Trial Court committed a grave and palpable error in rejecting the application filed under Order VII Rule 11 of the CPC. On the strength of the aforesaid submissions, learned advocate for the applicants fervently urged that Page 3 of 6 Uploaded by MANISH MISHRA(HC01776) on Mon Nov 24 2025 Downloaded on : Mon Nov 24 20:39:29 IST 2025 NEUTRAL CITATION C/CRA/29/2018 ORDER DATED: 17/11/2025 undefined the present revision application be allowed.
8. In Decd. Shaikh Ismailbhai Hushainbhai (supra), the Full Bench of this Court has pertinently held as under:-
"151. On a careful reading of the provision in Order VII, Rule 11 of the Code of Civil Procedure and the law laid down by the Apex Court in Dahiben (supra), in light of the dispute before us, we may note that in order to maintain the suit for specific performance of agreement, which is hit by Section 43(1) of the Tenancy Act, 1948, the plaintiff would be required to disclose the cause of action for seeking a decree of specific performance of such an agreement. The cause of action for a suit for specific performance of an agreement of refusal by the Vendor inspite of readiness and willingness of the vendee to execute the sale deed, will not be existing in a case where the agreement itself is invalid being hit by Section 43(1), inasmuch as, no cause of action can be said to have arisen asking the defendant to perform his part of the contract when there is no sanction and the agreement itself is illegal or invalid. Further, on the averments made in the plaint, in conjunction with the documents relied upon by the plaintiff, the Civil Court will be in a position to ascertain the question of enforceability of the agreement. It will be in a position to ascertain that the agreement, which is the basis of the suit, whether is hit by Section 43(1) or not, inasmuch as, to seek a decree of specific performance of agreement, the plaintiff is required to disclose and establish two circumstances: (i) firstly, that the documents, which is the basis of the suit is a valid document in the eye of law and (ii) secondly, that the cause of action has arisen prior to the presentation of the plaint. If the documents, i.e. the agreement is an illegal or invalid document in the eye of law, the Civil Court from the statement in the plaint itself will ascertain the suit being barred by law. In any case,a suit basis of which is an invalid document in the eye of law or where there exists no cause of action to institute the suit on the date of the presentation of the plaint, the Civil Court will have no option but to reject Page 4 of 6 Uploaded by MANISH MISHRA(HC01776) on Mon Nov 24 2025 Downloaded on : Mon Nov 24 20:39:29 IST 2025 NEUTRAL CITATION C/CRA/29/2018 ORDER DATED: 17/11/2025 undefined the plaint, at the threshold, under Order VII, Rule 11 of the Code of Civil Procedure. The arguments that the Civil court will be required to frame the issue as to the validity of the agreement, which is the basis of the suit and must necessarily proceed with the trial to arrive at the decision as to whether the decree of specific performance of an agreement hit by law, is to be granted or not, does not appeal to us.
152. In view of the above discussion from all angles of the matter, we endorse the ratio of the decisions of this Court in Hasvantbhai Chhanubhai Dalal versus Adesinh Mansinh Raval and others; Ganpatlal Manjibhai Khatri Vs. Maguben Babaji Thakor ; Vijaybhai Shambhubhai Patel versus Sushilaben Dayalbhai Vijay versus Sushilaben Dayalbhai ;Hardikbhai Harshadbhai Patel Versus Amarsang Nathaji as himself and as Karat and Manager ; Naranbhai Kanjibhai Gajera versus Vinodbhai Shankarbhai Patel, wherein it has been held that the trial Court shall be right in rejecting the plaint under Order VII Rule 11 of the Code of Civil Procedure on the ground that the suit for specific performance based on illegal and invalid agreement for sale is not maintainable. The law laid down therein is a good law."
9. Coming back to the case on hand, what emerges with unmistakable clarity is that the plaintiff has instituted the civil suit solely on the basis of an agreement to sell pertaining to new tenure land, as explicitly reflected in paragraph 3 of the plaint. The plaintiff has further sought two consequential reliefs founded entirely upon the said agreement. Firstly, a declaration that he is in lawful possession of the suit land, and secondly, an injunction restraining the defendants from interfering with such alleged possession, which he claims to have derived from the impugned agreement to sell.
9.1. To this Court, the issue is no longer res integra. The Full Page 5 of 6 Uploaded by MANISH MISHRA(HC01776) on Mon Nov 24 2025 Downloaded on : Mon Nov 24 20:39:29 IST 2025 NEUTRAL CITATION C/CRA/29/2018 ORDER DATED: 17/11/2025 undefined Bench of this Court, in the aforementioned authoritative pronouncement, has categorically held that an agreement to sell in respect of new tenure land is squarely hit by Section 43(1) of the Tenancy Act, 1948, and is thus bereft of any enforceability in the eye of law. The Full Bench has further adumbrated that even a suit for specific performance founded upon such an agreement is liable to be rejected in limine in exercise of jurisdiction under Order VII Rule 11 of the CPC.
10. In view of the prevenient ratiocination and in light of the aforesaid legal position, this Court is of the considered view that the learned Trial Court committed a serious and manifest error in declining to reject the plaint.
11. The revision application, ex debito justitiae, therefore deserves to be allowed.
12. Accordingly, the impugned judgment and order passed by the learned Trial Court below Exh. 8/A is hereby quashed and set aside. The plaint in Civil Suit No. 8 of 2017 is ordered to be rejected under Order VII Rule 11 of the CPC. The Civil Revision Application thus stands allowed to the aforesaid extent.
12.1. The learned Trial Court is directed to pass necessary consequential orders below plaint (Exh.1).
(J. C. DOSHI,J) MANISH MISHRA Page 6 of 6 Uploaded by MANISH MISHRA(HC01776) on Mon Nov 24 2025 Downloaded on : Mon Nov 24 20:39:29 IST 2025