Gujarat High Court
Zala Kalusinh Kodarsinh vs Patel Harshadbhai Valjibhai on 9 March, 2023
Author: Nirzar S. Desai
Bench: Nirzar S. Desai
C/CRA/88/2023 ORDER DATED: 09/03/2023
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CIVIL REVISION APPLICATION NO. 88 of 2023
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ZALA KALUSINH KODARSINH
Versus
PATEL HARSHADBHAI VALJIBHAI
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Appearance:
PRITESH M SHAH(8405) for the Applicant(s) No. 1
for the Opponent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE NIRZAR S. DESAI
Date : 09/03/2023
ORAL ORDER
1. By way of this civil revision application, the applicant has prayed for quashing and setting aside the order dated 27.1.2023 passed in an application below Exh.33 in Special Civil Suit No.2 of 2021.
2. Heard learned advocate Mr. Pritesh Shah appearing for the applicant.
3. The present applicant is the original defendant in Special Civil Suit No.2 of 2021 preferred by one Patel Harshadbhai Valjibhai. The facts which Page 1 of 14 Downloaded on : Mon Mar 13 20:38:30 IST 2023 C/CRA/88/2023 ORDER DATED: 09/03/2023 would lead to the filing of present civil revision application are stated as under :-
4. The original plaintiff preferred a suit for specific performance and declaration against the present applicant stating that the present applicants are joint owners and occupiers of an agricultural land admeasuring 5-79-72 Hec-are- Sq.mtr situated at Survey No.377 at Mouje Talod, Taluka at Talod, District Sabarkantha. Out of the aforesaid land held by the present applicant a portion admeasuring 2-14-13 Hec-are-Sq.mtr was decided to be sold to the original plaintiffs by total lamb-sum compensation of Rs.52,22,000/-, for which a registered agreement to sale without possession was executed by the present applicants with the original plaintiffs (present defendants). The aforesaid agreement to sale was executed on 29.9.2015 before the office of Sub Registrar Talod with Registration No.984 and as per the aforesaid agreement to sale, an amount of Rs.27,91,000/- were paid towards part Page 2 of 14 Downloaded on : Mon Mar 13 20:38:30 IST 2023 C/CRA/88/2023 ORDER DATED: 09/03/2023 consideration of total sale consideration. Remaining amount of consideration being Rs.24,29,000/- were to be paid by the defendants (Original plaintiff) to the present applicants upon conversion of land into old tenure land from new tenure land.
5. As the land of the present applicants was a new tenure land, out of remaining sale consideration for conversion of land from new tenure to old tenure, the original plaintiff also paid an amount of Rs.19,70,325/- towards the premium and only an amount of Rs.4,60,675/- was remained to be paid. According to the original plaintiff, over and above the aforesaid amount as the paid of sum of Rs.3,12,906/- also in respect of another portion of land held by the applicant for which an agreement to sale was executed with one Chandrakant Maganbhai Patel and therefore, the plaintiffs were required to pay only a sum of Rs.1,47,769/- towards sale consideration. However, despite the fact that the plaintiffs were ready and wiling to pay the aforesaid Page 3 of 14 Downloaded on : Mon Mar 13 20:38:30 IST 2023 C/CRA/88/2023 ORDER DATED: 09/03/2023 amount of Rs, 1,47,769/-, as the present applicants were not agreeable to accept the aforesaid amount and to execute a sale deed in favour of present applicants and therefore, the plaintiffs preferred an application for a suit for specific performance being Special Civil Suit No.2 of 2021 in the Court of learned Principal Senior Civil Judge, at Prantij.
6. In that suit, the present applicants filed a reply and contended that the suit is barred as there are restrictions on transferring the land, as per Section 43 of the Bombay Tenancy and Agricultural Land, 1948 and therefore, the contract being void ab initio since beginning. Further, an application under Order 7 Rule 11(D) was also preferred by the present applicant below Exh.33 wherein it was stated that the agreement to sale was illegal as the same was executed by father of the defendant No.4 Ranjitsinh i.e. the late father of the applicant No.4/1 to 4/3 and also defendant No.1, 2, 3 i.e. present applicant Nos. 1, 2 and 3 and therefore, Page 4 of 14 Downloaded on : Mon Mar 13 20:38:30 IST 2023 C/CRA/88/2023 ORDER DATED: 09/03/2023 they were legally not duty bound to execute the sale deed in favour of the original plaintiff as the agreement to sale will not bind them. In the application it was stated that the agreement to sale was void ab-initio as it was executed in contravention of provisions of Section 43 of Bombay Tenancy and Agricultural Lands Act, 1948 (for short 'Tenancy Act'), Section 8 of Hindu Succession Act, Section 9, 13, 17 and 20 of Specific Relief Act, Section 7, 8, 53(A) and 54 of Transfer of Property Act, 1882 and Section 10 and 23 of the Contract Act and therefore, the suit is required to be rejected in view of provisions of Order 7 Rule 11(D). Apart from the aforesaid grounds, in the application under Order 7 Rule 11(D) certain averments related to the facts of the matter were also made.
7. The aforesaid application preferred by the applicant was ultimately rejected by the learned Principal Senior Civil Judge, Sabarkantha at Prantij wide order below Exh.33 vide order dated Page 5 of 14 Downloaded on : Mon Mar 13 20:38:30 IST 2023 C/CRA/88/2023 ORDER DATED: 09/03/2023 27.1.2023. The aforesaid order was challenged before this Court by way of present Civil Revision Application.
8. Learned advocate Mr. Pritesh Shah appearing for the applicants submitted that the agreement to sale itself was void ab initio as there was bar of Section 43 of Tenancy Act.
9. Learned advocate Mr. Pritesh Shah appearing for the applicants further submitted that the land being a new tenure land unless prior permission is obtained from the competent authority it could not have been sold and therefore, the order passed by the Trial Court is erroneous and bad in law and deserves to be quashed and set aside.
10. Learned advocate Mr. Pritesh Shah also relied upon the aspect of limitation and submitted that though the agreement to sale was executed in the year 2015 i.e. on 29.9.2015, the suit was preferred in the year 2021 and Page 6 of 14 Downloaded on : Mon Mar 13 20:38:30 IST 2023 C/CRA/88/2023 ORDER DATED: 09/03/2023 therefore, as the suit for specific performs is preferred after six years after the agreement to sale was executed and almost after four years after the land was converted into old tenure land.
11. Learned advocate Mr. Pritesh Shah therefore submitted that the suit was barred by limitation which has not been considered by the Trial court and therefore also impugned order is bad in law and deserves to be quashed and set aside.
12. Learned advocate Mr. Pritesh Shah relied upon the judgment passed in the case of Ganpatlal Manjibhai Khatri Versus Manguben Babaji Thokor reported in 2019(0) AIJEL-HC- 241533 produced on record at page 159 and by relying upon paragraph No.24 as well as by relying upon paragraph Nos. 34, 35 and 36 of the said judgment prayed for quashing of the impugned order. Except the aforesaid submissions, no other submissions were made by learned advocate Mr. Pritesh Shah appearing for Page 7 of 14 Downloaded on : Mon Mar 13 20:38:30 IST 2023 C/CRA/88/2023 ORDER DATED: 09/03/2023 the applicants in support of his contentions nor he relied upon any other judgments.
13. I have perused the record and considered the submissions made by learned advocate Mr. Pritesh Shah appearing for the applicants. Though learned advocate Mr. Pritesh Shah relied upon provisions of Section 43 of the Tenancy Act despite repeated quarry from this Court, he could not answer as to how the land in question would fall within the scope and ambit of Tenancy Act, 1948. During the course of arguments, learned advocate Mr. Pritesh shah submitted that he was a tenant in respect of the aforesaid land and therefore, this being a restricted tenure land, the land in question was a new tenure land. However, he could not point out about any of the proceedings under Tenancy Act and how the land was new tenure land. As in agreement to sale all throughout it is stated that it is an ancestral land and there is no mention of any proceedings under Tenancy law. Further, the Page 8 of 14 Downloaded on : Mon Mar 13 20:38:30 IST 2023 C/CRA/88/2023 ORDER DATED: 09/03/2023 applicant has not produced anything on record or in its reply or application under Order 7 Rule 11 indicating about any proceedings under the Tenancy Act or how the restrictions under Section 43 of the Tenancy Act would apply in the present case.
However, this Court is conscious that this Court is not dealing with the fact as to whether the land was having some restrictions under Section 43 of the Act or how it was new tenure land, facts remains that now the land has converted into old tenure land and therefore, whether the restrictions under Section 43 of the Tenancy Act would apply or not that also can be determined only by leading the evidence. As far as the limitation is concerned, this Court has perused the document for which the specific performance is sought by the original plaintiff. According to the agreement to sale, there is no time limits specified in the agreement to sale for execution of sale deed. It only says that once the land is converted into old tenure land Page 9 of 14 Downloaded on : Mon Mar 13 20:38:30 IST 2023 C/CRA/88/2023 ORDER DATED: 09/03/2023 then only it will cast an obligation upon the present applicant to execute sale deed in favour of the original plaintiff.
14. Even during the course of submission, learned advocate Mr. Pritesh Shah could not dispute the fact that now the land is converted into old tenure land. However, learned advocate Mr. Pritesh Shah submitted that even if, the land is converted into old tenure land on the ground of limitation, the plaint is required to be rejected on the ground of limitation. Wherein agreement to sale there is no specific time frame prescribed for execution of sale deed and it only states about the execution of sale deed after the land is converted from new tenure to old tenure, hence the plaint cannot be rejected only on the ground of limitation.
15. Even the Trial Court in its impugned judgment passed in Special Civil Suit No.2 of 2021 passed by the learned Principal Senior Civil Judge, Sabarkantha at Prantij has observed Page 10 of 14 Downloaded on : Mon Mar 13 20:38:30 IST 2023 C/CRA/88/2023 ORDER DATED: 09/03/2023 in paragraph No.10 and 11 as under :-
"10. Considering the facts and record of this suit and arguments of plaintiff, it is come on record that in the agreement to sale no where time limit is mentioned and it was a term and conditions that as an when the tile clearance certificate is obtained registered sale deed will be executed. Further, the consideration amount for suit property cannot be decided under Order - 7, Rule - 11 of CPC.
Further, the issue regarding evidence pertaining to consideration amount and ground of limitation are contrary to each other.
11. That defendants have further submitted that the suit property was new tenure land which was required to be converted to old tenure land. Further submitted that the plaintiff's registered sale deed is barred by Section 43 of the Bombay (Gujarat) Land Tenancy & Agriculture Land Act, 1948, Section 8 of the Hindu Succession Act. Considering the above facts challenged by the defendants, the said order was obtained from Ld. Collector on dated 22/01/2016. Thereafter as the defendant Page 11 of 14 Downloaded on : Mon Mar 13 20:38:30 IST 2023 C/CRA/88/2023 ORDER DATED: 09/03/2023 No. 4 was expired and the legal heirs of defendant No.4 was minor and therefore permission of Hon'ble District Court was required and accordingly an application under Guardian Act was filed vide application No.29/18 which was decided on 17/09/2018 and the permission was granted. Thereafter on receiving title clear certificate, the sale deed was to be executed in favour of the plaintiff by the defendants. Therefore on dated 03/10/2020 defendants were served with legal notice. The defendants had replied to the said notice on 19/10/2020 and they have denied to perform their part of contract. Considering the above facts, if any mischief had done with the defendants during proceedings of the order of the Collector regarding new tenure land converted into old tenure land, it can be also decided by leading documentary as well as oral evidence. There is a mix question of law and facts hence authorities relied upon by the defendants herein are not applicable and helpful to the defendants. Further, to decide the above facts, oral as well as documentary evidence is required to be produced and for the same, full trial of this suit is Page 12 of 14 Downloaded on : Mon Mar 13 20:38:30 IST 2023 C/CRA/88/2023 ORDER DATED: 09/03/2023 necessary. Furnish sufficient evidence to come to the conclusion to determine the above facts. Evidence is required to be lead which is pivotal to a fair trial and partakes of the character of natural justice and fair play. Further, both sides need to be given a chance to prove their facts by producing documentary as well as oral evidence which can only be made in full trial only. Now, where the conclusion of the bar of law is a mixed question of law and fact, the court does not order the rejection of a plaint. The explanation for such a procedure is quite straightforward, since a mixed question of law and fact cannot be determined on the sole basis of a plaint, and necessitates proper consideration of the evidence by the Court, the plaint is not dismissed. Hence the present application of defendants under Order - 7 Rule - 11 of CPC is hereby rejected and accordingly following order is passed :-
::ORDER ::
(1) This application is hereby ordered to be rejected.
(2) There is no order as to Cost.
Pronounce in open court today on dated 27th day of January, 2023."
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16. Considering the reasoning given by the Trial Court as well as on perusal of plaint, this Court finds that the reasoning given by the learned Trial judge are not required to be interfered with as the Court is in full agreement with the reasoning given by the trial Court. I do not see any reason to interfere with the impugned order. The present civil revision application is required to be dismissed and accordingly dismissed.
(NIRZAR S. DESAI,J) Pallavi Page 14 of 14 Downloaded on : Mon Mar 13 20:38:30 IST 2023