Gujarat High Court
Sanjaybhai Raichandbhai Patel vs Decd. Shanaji Devaji Thakor Through ... on 2 April, 2024
NEUTRAL CITATION
C/FA/4211/2023 ORDER DATED: 02/04/2024
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 4211 of 2023
With
CIVIL APPLICATION (FOR STAY) NO. 1 of 2023
In R/FIRST APPEAL NO. 4211 of 2023
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SANJAYBHAI RAICHANDBHAI PATEL
Versus
DECD. SHANAJI DEVAJI THAKOR THROUGH LHRS & ORS.
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Appearance:
MR VISHAL B MEHTA(5319) for the Appellant(s) No. 1
for the Defendant(s) No. 1,1.1,1.2,1.3,1.4,1.5,1.5.1,1.6,1.7,3
KISHAN Y DAVE(8293) for the Defendant(s) No. 2
MR RASESH H PARIKH(3862) for the Defendant(s) No. 2
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CORAM:HONOURABLE MR. JUSTICE DEVAN M. DESAI
Date : 02/04/2024
ORAL ORDER
1. Present appeal is filed under Section 96 of the Civil Procedure Code, 1908 (for short, hereafter referred to as `the Code') challenging the order dated 31 st August, 2023 passed by the learned Additional Sessions Judge, City Civil & Sessions Court, Ahmedabad in Civil Suit No.157 of 2022 below Exhs.1 and 22.
2. The brief facts leading to this appeal are as under:-
Page 1 of 14 Downloaded on : Mon Apr 08 20:33:07 IST 2024NEUTRAL CITATION C/FA/4211/2023 ORDER DATED: 02/04/2024 undefined 2.1 The plaintiff - appellant filed a suit for specific performance of registered agreement to sell dated 12.10.2011 together with a relief of permanent injunction and declaration against the respondents-original defendants. An agricultural land being Survey No.1293 admeasuring about 1 Hector 03 Are 20 square meters situated at Village Vatva, Taluka Daskroi, District Ahmedabad stood in the name of one Sanaji Devaji and after the death of Sanaji, the suit property was mutated in the names of defendant Nos. 1/1 to 1/7. Sanaji Devaji Thakore was a tenant and he got the ownership rights under Section 84(c) of the The Gujarat Tenancy and Agricultural Lands Act, 1948 (for short "the Tenancy Act"). On 12.10.2011, defendant Nos.1/1 to 1/7 executed three different documents namely a registered agreement to sell, a registered general power of attorney and a registered specific power of attorney in favour of the plaintiff. The sale price was agreed at Rs. 81.00 Lacs and one of the conditions in the agreement to sell was to get Page 2 of 14 Downloaded on : Mon Apr 08 20:33:07 IST 2024 NEUTRAL CITATION C/FA/4211/2023 ORDER DATED: 02/04/2024 undefined the land converted from new tenure to old tenure and a duration of the agreement to sell was fixed at three months. The defendant No.2 i.e. present respondent No.2 filed an application at Exh. 22 under Order 7 Rule 11(d) of the Code and contended that since the suit property is new tenure land, no suit for specific performance is maintainable and there is a bar of Section 43 of the Tenancy Act.
2.2 Learned advocate for the appellant -original plaintiff submitted said Sanaji Devaji owned the suit property pursuant to the proceedings under Section 84 (c) of The Gujarat Tenancy and Agricultural Lands Act, 1948 and upon death of Sanaji, the suit property was mutated in the names of defendant Nos. 1/1 to 1/6 . The suit land was a new tenure land and by virtue of a registered agreement to sell defendant Nos. 1/1 to 1/6 agreed to sell the suit property to the appellant - original plaintiff. The substantial part of the consideration was paid to defendant Nos.1/1 to 1/6. Upon perusal of the revenue Page 3 of 14 Downloaded on : Mon Apr 08 20:33:07 IST 2024 NEUTRAL CITATION C/FA/4211/2023 ORDER DATED: 02/04/2024 undefined record, it was found that the name of the respondent No.2 i.e. original defendant No.2 was mutated in the revenue record vide entry No. 22116. The said entry was rejected by the competent authority. Despite the execution of registered agreement to sell couple with two registered Power of Attorneys, defendant Nos.1/1 to 1/7 initiated attempts to transfer or alienate the suit property in favour of third party and therefore, present suit came to be filed for the reliefs prayed for in the plaint.
3. The application under Order 7 Rule 11(d) of the Code was filed by respondent No.2. Learned advocate for the respondent No.2 submitted that the suit is beyond the period of limitation since, the specific performance of agreement to sell dated 12.11.20211 is sought after a period of 11 years. It is also urged by the learned advocate for the respondent No.2 that the suit is barred by provision of Section 43 of the Tenancy Act. It is also submitted that the plaintiff has also averred in the plaint that the suit land is a new tenure land and the documents Page 4 of 14 Downloaded on : Mon Apr 08 20:33:07 IST 2024 NEUTRAL CITATION C/FA/4211/2023 ORDER DATED: 02/04/2024 undefined in support of the plaint also clearly reveals the fact that the suit land is a new tenure land. The clauses of the agreement to sell also reveal that the land is a new tenure land. Plaint does not show any averments that after the execution of the agreement to sell any steps were taken by plaintiff to convert the land from new tenure to old tenure. Even plaintiff has not averred that defendants were informed to initiate steps to convert the land into old tenure. Thus, the suit is hit by the provision of Section 43 of the Tenancy Act. The suit is time barred.
4. Learned advocate for the respondent No.2 has placed the reliance upon case of Decd. Shaikh Ismailbhai Hushainbhai Through Lh. Versus Vankar Ambalal Dhanabhai reported in 2024 (0) AIJEL -HC 247772.
5. After the submission of learned advocate for the respondent No.2 are recorded Ms. Kinjal Patel, learned advocate appearing for Mr. Vishal Mehta, learned advocate for the appellant has appeared and submitted Page 5 of 14 Downloaded on : Mon Apr 08 20:33:07 IST 2024 NEUTRAL CITATION C/FA/4211/2023 ORDER DATED: 02/04/2024 undefined that Mr. Mehta has filed leave note. However, leave note is not reflected in the Board and requested to give an opportunity to argue on merits. Permission was granted to submit case of appellant.
6. Learned advocate Ms. Kinjal Patel for the appellant has relied upon the Written Submissions placed on record by the plaintiff before the learned trial Court.
7. I have heard the submissions of both the sides and considered material placed on record. The limited issue which requires consideration is whether the plaint of the plaintiff is rightly rejected by learned trial Court by invoking the provisions of Order 7 Rule 11(d) of the Code.
While deciding an application under Order 7 Rule 11(d) of the Code, the law is settled that, only the averments made in the plaint and the documents in support of the paint are to be looked into. I have thoroughly and meaningfully gone through the averments made in the plaint. The plaintiff has in clear terms stated in para 3 of Page 6 of 14 Downloaded on : Mon Apr 08 20:33:07 IST 2024 NEUTRAL CITATION C/FA/4211/2023 ORDER DATED: 02/04/2024 undefined the plaint that the suit land is a new tenure land and under the agreement to sell dated 12.10.2011 the land was to be converted from new tenure to old tenure and thereafter, within a period of 3 months from such date, the registered sale deed to be executed. On close reading of the plaint, there are no averments to the effect that any order is passed by the revenue authorities converting the suit land from new tenure to old tenure so the admitted fact which remains even on the date of filing of the suit that the suit land remained as a new tenure land and the plaintiff has filed the suit for specific performance of an agreement to sell which is against the provisions of Tenancy Act. Section 43 of the Tenancy Act which reads as under:-
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, 321, 320, [32U, 43-ID 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 Page 7 of 14 Downloaded on : Mon Apr 08 20:33:07 IST 2024 NEUTRAL CITATION C/FA/4211/2023 ORDER DATED: 02/04/2024 undefined 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.] [(1A) The sanction under sub-section (1) shall be given by the Collector in such circumstances and subject to such conditions, as may be prescribed by the State Government.,][Sub-section (1AA) was inserted by Gujarat 15 of 1969.] Notwithstanding anything contained in sub-section (1), it shall be lawful for such tenant or a person to mortgage or create a charge on his interests in the land in favour of the State Government in consideration of a loam advanced to him by the State Government under the Land Improvement Loans Act, 1983 (XIX of 1983), the Agriculturists' Loans Act, 1984 (XII of 1983), or the Bombay Non-
agriculturists' Loans Act, 1928 (Bombay Ill of 1928), as in force in the State of Gujarat, or in favour of a bank or cooperative society, and without prejudice to any other remedy open to the State Government, bank or co-operative society, as the case may be, in the event of his making default in payment of such loan in accordance with the terms, on which such loan was granted, it shall be lawful for the State Government, bank or co-operative society, as the case may be, to cause his interest in the land to be attached and sold and the proceeds to be applied in payment of such load.
]Explanation. - For the purposes of this sub-section," bank" means-
Page 8 of 14 Downloaded on : Mon Apr 08 20:33:07 IST 2024NEUTRAL CITATION C/FA/4211/2023 ORDER DATED: 02/04/2024 undefined
(a)the State Bank of India constituted under the State Bank of India Act, 1955 (23 of 1955);
(b)any subsidiary bank s defined in clause
(k) of section 2 of the State Bank of India (Subsidiary Banks) Act, 1959 (38 of 1959);
(c)any corresponding new bank as defined in clause (d) of section 2 of the Banking Companies (Acquisition and Transfer of Undertakings) Act, 1970 (5 of 1970);
(d)the Agricultural Refinance and Development Corporation, established under the Agricultural Refinance and Development Corporation Act, 1963 (10 of 1963)] (IB)Nothing in sub-section (1) [Or (1AA) shall apply to land purchased under section 32, 32F, 320 or 64 by a permanent tenant thereof, if prior to the purchase, the permanent tenant, by usage, custom, agreement or decree or order of a Court, held transferable right in the tenancy of the land.] [These words, brackets, figures and letters were substituted for the word, brackets, figure and letter 'or (1A) by President's Act No. 37 of 1976, section 2(ii).] [(1C] The land to which sub-section (1) applies and for which no permission is required under sub-section (1) of section 65B of the Bombay Land Revenue Code, 1879 (Bombay V of 1879) for use of such land for a bona fide industrial purpose may, notwithstanding anything contained in sub-section (1) of this section, be sold without the previous sanction of the Page 9 of 14 Downloaded on : Mon Apr 08 20:33:07 IST 2024 NEUTRAL CITATION C/FA/4211/2023 ORDER DATED: 02/04/2024 undefined Collector under sub-section (1) but subject to payment of such amount as may be determined by the State Government under sub-section (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)][Inserted by Gujarat 7 of 1997, dated 6th March, 1997 (w.r.e.f. 24-12-1996).] shall be invalid.]
8. Even the revenue records also reflects the fact that on the date of the suit, the suit land was a new tenure land.
9. Learned trial Court has considered the provisions of law more particularly Section 43 of the Tenancy Act and the various decisions of this Court as well as of the Hon'ble Supreme Court. The relief for specific performance of an agreement to sell of a new tenure land is not maintainable as there is violation of provision of Section 43 of the Tenancy Act.
10. In the decision of the Full Bench of this Court in the case of Decd. Shaikh Ismailbhai Hushainbhai Page 10 of 14 Downloaded on : Mon Apr 08 20:33:07 IST 2024 NEUTRAL CITATION C/FA/4211/2023 ORDER DATED: 02/04/2024 undefined Through Lh. (Supra) in para 151 152 and 153, Hon'ble Full Bench has observed hereinbelow:-
"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 Page 11 of 14 Downloaded on : Mon Apr 08 20:33:07 IST 2024 NEUTRAL CITATION C/FA/4211/2023 ORDER DATED: 02/04/2024 undefined 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 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.
Conclusion:-
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 Page 12 of 14 Downloaded on : Mon Apr 08 20:33:07 IST 2024 NEUTRAL CITATION C/FA/4211/2023 ORDER DATED: 02/04/2024 undefined 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. 153 We are in respectful agreement with the decision of the Division Bench in Naranbhai Kanjibhai Gajera (supra), holding that the Division Bench decision in Amarben (supra) can be said to be 'per incuriam' ignoring statutory provisions and in view of the decision of another Division.
153. We are in respectful agreement with the decision of the Division Bench in Naranbhai Kanjibhai Gajera (supra), holding that the Division Bench decision in Amarben (supra) can be said to be 'per incuriam' ignoring statutory provisions and in view of the decision of another Division Bench dated 21.06.2021 in Vijaybhai Shambhubhai Patel (supra), which was challenged in Special Leave to Appeal (Civil) No.5124 of 2022, and which has been dismissed vide judgment and order dated 10.11.20222 affirming the Division Bench judgment in Vijaybhai Shambhubhai Patel (supra).
11. In view of the decision of Decd. Shaikh Ismailbhai Hushainbhai Through Lh. (Supra), First Appeal fails and no interference is required by this Court in disturbing the findings and observations made by the learned City Page 13 of 14 Downloaded on : Mon Apr 08 20:33:07 IST 2024 NEUTRAL CITATION C/FA/4211/2023 ORDER DATED: 02/04/2024 undefined Civil & Sessions Court, Ahmedabad. Resultantly, this appeal is dismissed.
ORDER IN CIVIL APPLICATION:-
In view of the order passed in the First Appeal No.4211 of 2023, this application does not survive and stands disposed of accordingly.
(D. M. DESAI,J) VATSAL Page 14 of 14 Downloaded on : Mon Apr 08 20:33:07 IST 2024