Gujarat High Court
Mahendrabhai Popatlal Mehta vs Thakor Gandaji Shanaji on 11 July, 2018
Author: J.B. Pardiwala
Bench: J.B.Pardiwala
C/SA/153/2018 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SECOND APPEAL NO. 153 of 2018
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MAHENDRABHAI POPATLAL MEHTA
Versus
THAKOR GANDAJI SHANAJI
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Appearance:
MR.D K.PUJ(3836) for the PETITIONER(s) No. 1
MR BC DAVE(245) for the RESPONDENT(s) No. 1
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CORAM: HONOURABLE MR.JUSTICE J.B.PARDIWALA
Date : 11/07/2018
ORAL ORDER
Second Appeal is ordered to be admitted on the following substantial questions of law:
"1 Whether in the facts and circumstances of the case and in law, the courts below are justified in holding that the plaintiff could not have filed the suit for specific performance of the new tenure land in view of the provisions contained in Section 43 of the Bombay Tenancy and Agricultural Lands Act, 1948, especially when such a finding given by the courts below is contrary to the law laid down.
2 Whether in the facts and circumstances of the case and in law, the courts below are justified in taking the view that the plaintiff is not entitled to any decree for specific performance of an agreement to sell which is considered to be an invalid agreement in terms of provisions of Section 43 of the Bombay Tenancy and Agricultural Lands Act, 1948, in view of the law laid down by this Hon'ble Court that the conditional decree is permissible and subject to which the court is competent to pass such a Page 1 of 3 C/SA/153/2018 ORDER decree?
3 Whether in the facts and circumstances of the case and in law, the courts below are justified in not passing the decree for specific performance of an agreement, in favour of the plaintiff considering the fact that the post facto permission at the end of the revenue / tenancy authorities, especially when Section 43 of the Bombay Tenancy and Agricultural Lands Act, 1948, as interpreted by this Hon'ble Court envisages such a conditional decree in a given case?
4 Whether in the facts and circumstances of the case and in law, the courts below are justified in holding that no decree can be passed in a suit for specific performance of an unregistered document in view of Section 17 of the Registration Act, especially when Section 49 of the Registration Act contemplates filing of a suit seeking specific performance on the basis of unregistered document?
5 Whether in the facts and circumstances of the case and in law, the courts below are justified in accepting the plea raised by the defendant who has executed the document and pocketed the amount that he has no authority to enter into any transaction with regard to the land in question being an ancestral land?
6 Whether in the facts and circumstances of the case and in law, the courts below are justified in not remanding the matter back to the trial court especially when the appellate court found that the judgment and decree passed by the Trial Court is based on absolutely on a wrong and irrelevant issue with regard to the land which is not the subject matter of the suit?
7 Whether in the facts and circumstances of the case and in law, the Page 2 of 3 C/SA/153/2018 ORDER courts below are justified in merely sending the matter back to the Trial Court for correction of an issue with regard to the subject matter and not remanding the matter for reconsideration after framing the correct issue in respect of the suit land?
8 Whether in the facts and circumstances of the case and in law, the courts below are justified in holding that the plaintiff has no capacity to pay the balance amount of 30% especially when such issue was not framed nor it was requirement of Section 16(c) of the Specific Relief Act and further fact that the plaintiff has already paid more than 70% of the amount and always shown his readiness and willingness to pay the balance amount?
9 Whether in the facts and circumstances of the case and in law, the findings recorded by both the courts are absolutely perverse as the same is based on irrelevant materials and ignoring the relevant materials and documents already on record and thereby the decree and judgment passed by the Trial Court and confirmed by the Appellate Court are absolutely pervert and unreasonable?
10 Whether in the facts and circumstances of the case and in law, the appellate court was justified in holding that no valid and enforceable contract has been made and the contract itself suffers from some defects which make the contract invalid or unenforceable, especially such a finding is absolutely incorrect and untenable in view of various documents available on record and no valid or sustainable reason is given for substantiating such a finding?"
(J.B. PARDIWALA, J.) CHANDRESH Page 3 of 3