Gujarat High Court
Mukesh Keshavlal Patel & vs Natwarlal Savabhai Prajapati & ... on 5 October, 2016
Author: Z.K.Saiyed
Bench: Z.K.Saiyed
C/CRA/347/2016 CAV ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
CIVIL REVISION APPLICATION NO. 347 of 2016
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MUKESH KESHAVLAL PATEL & 1....Applicant(s) Versus NATWARLAL SAVABHAI PRAJAPATI & 5....Opponent(s) ================================================================ Appearance:
MR MIHIR THAKORE, SENIOR COUNSEL FOR MR.TATTVAM K PATEL, ADVOCATE for the Applicant(s) No. 1 - 2 MR.KAMAL TRIVEDI, SENIOR COUNSEL FOR MR. AMRISH K PANDYA, CAVEATOR for the Opponent(s) No. 1 NOTICE SERVED BY DS for the Opponent(s) No. 1 , 2.1 - 2.4 , 3.1 - 3.6 , 4.1 - 4.6 , 5 - 6 ================================================================ CORAM: HONOURABLE MR.JUSTICE Z.K.SAIYED Date : 05/10/2016 CAV ORDER
1. This Civil Revision Application is preferred under Section 115 of the Code of Civil Procedure, 1908 against the order dated 04.03.2016 passed below Exh.48 in Special Civil Suit No.33/2010, which has been consolidated with Regular Civil Suit No.1357/2015 (Old Special Suit No.1164/2011), decided by the learned 2nd Additional Senior Civil Judge, Ahmedabad (Rural), whereby application under Order-VII Rule-11 of the Code of Civil Procedure, 1908 filed by the present petitioners, was rejected by the trial court.
2. The brief facts, leading to the filing of the present Page 1 of 50 HC-NIC Page 1 of 50 Created On Thu Oct 06 01:11:23 IST 2016 C/CRA/347/2016 CAV ORDER proceedings are summarized as under:
3. Land bearing Block No.178 (Old Survey No.158) of village Jagatpur, Taluka Dascroi, District Ahmedabad admeasuring 12950 sq.mtrs. (15499 sq.yds) (hereinafter referred to as "the subject land") for the sake of brevity) is presently owned by the petitioners herein. Originally, one Kamaluddin Mehmudkhanji was the owner of the land in question. One Trikamlal Vallabhdas and Jenabhai Vallabhdas were the tenants of the subject land under the relevant provisions of the Tenancy Act. The lands were given as new tenure land to the tenants.
4. On 13.06.1978, an agreement to sell was executed by Shankerbhai Jenabhai Patel, Suresh Jenabhai Patel, Trikamlal Vallabhdas Patel and Shyamalbhai Jenabhai Patel in favour of one Natvarlal Savabhai Prajapati.
The price of the land was determined at Rs.17,101/- and an amount of Rs.1,710/- was paid while executing the agreement to sell. Further, amount was paid periodically and lastly payment was made on 08.04.1984. Condition Nos.3 & 4 of the agreement to sell are relevant, which read as under: Page 2 of 50
HC-NIC Page 2 of 50 Created On Thu Oct 06 01:11:23 IST 2016 C/CRA/347/2016 CAV ORDER "3. The period of this agreement is agreed to be kept as 30 months. The time is to be treated as an essence of the contract.
4. During the aforesaid period of agreement, we the Vendor shall have to obtain a certificate that the property under agreement is clear and marketable and shall also obtain on our own costs, all such required permissions from the State Government regarding the sale of this land."
5. Original plaintiff and respondent No.1 in this revision application instituted Civil Suit No.2/2007 on 30.12.2006 (01.01.2007) before the City Civil Court at Ahmedabad for specific performance, declaration as well as for permanent injunction against defendants and respondent Nos.1 to 4 herein, the heirs of Shankerbhai Jenabhai, heirs of Trikamlal Vallabhdas Patel, heirs of Shyamalbhai Jenabhai Patel and against Suresh Jenabhai Patel as three of the original owners had passed away. The suit was later on transferred to the court of learned Principal Senior Civil Judge, Ahmedabad (Rural) and numbered as Special Civil Suit Page 3 of 50 HC-NIC Page 3 of 50 Created On Thu Oct 06 01:11:23 IST 2016 C/CRA/347/2016 CAV ORDER No.1164/2015 and had been re-numbered as Regular Civil Suit No.1357/2015.
6. The land in question was converted to old tenure land on 24.08.2009 on payment of premium of Rs.97,12,500/- (Rupees Ninety Seven Lakhs Twelve Thousand and Five Hundred only). On the same day, the land was sold by the owner to one Kalpeshbhai Atmarambhai Patel, Ramilaben Patel and Mukesh Patel for the sale consideration of Rs.1,10,07,500/-.
Natverlal Savabhai Prajapati had filed second suit being Special Civil Suit No.33/2010 in the month of January, 2010 before the court of learned Civil Judge, Senior Division, Ahmedabad (Rural) for declaration, permanent injunction and also for cancellation of the sale deed executed in favour of defendant Nos.5 to 7 therein namely, Mukesh Patel, Ramilaben Patel and Kalpesh Atmaram Patel. Defendant Nos.5 to 7 have filed an application below Exh.48 under Order-VII Rule- 11(A) and (B) in Special Civil Suit No.33/2010. Present petitioners who were defendant Nos.5 to 7, had given an application under Order-VII Rule-11 of the Code of Civil Procedure, 1908 mainly on the following three counts.
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(i) If the agreement to sell is read as it is, there is
clause No.3 for execution of sale deed within 30 months and time was the essence of the contract. Hence, suit was time barred.
(ii) The suit does not disclose cause of action or does not give any explanation for filing the suit as there was time barred agreement to sell.
(iii) One more aspect was argued about agreement to sell being not registered and therefore, unregistered deed was not enforceable; the suit was barred under Section 49 of the Registration Act.
Though in pleadings of application under Order VII Rule-11 of the Code of Civil Procedure, submission about validity and legality of agreement to sell dated 13.06.1978 because of bar under Section 43 of the Bombay Tenancy and Agricultural Lands Act, 1948, is not mentioned, it being a legal point, has been argued before the trial court. However, it did not appeal to the learned trial court.
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The trial court had given its finding to an effect that on 21.06.1978, according to condition No.12 of the agreement to sell, owner had handed over possession of the suit property to the plaintiff. It has given a further finding that the owner had given a public notice on 22.12.2006 inviting objections or right, if any, which has been replied and objected to within 7 days by the plaintiff and has filed a suit for specific performance of contract on 01.01.2007. It is further found that the suit property was converted into an old tenure and the owner had got permission from the State Government to convert the land into an old tenure land on 24.08.2009 as being a new tenure land, is not permitted to execute registered sale deed without taking permission from the Collector. So, the suit was prima facie within time limit. With this finding the application under Order-VII Rule-11 of the Code of Civil Procedure, 1908 of the present petitioners - original defendant Nos.5 to 7, was not granted. It is also observed by the learned trial court that subsequent Civil Suit No.33/2010 Page 6 of 50 HC-NIC Page 6 of 50 Created On Thu Oct 06 01:11:23 IST 2016 C/CRA/347/2016 CAV ORDER has become part of the main suit which was filed for specific performance and both the suits are consolidated as per the order passed below Exh.13 of Special Civil Suit No.1164/2011 (New No. being Regular Civil Suit No.1357/2015).
7. In the above background, the present Civil Revision Application is preferred by the petitioners, who are original defendant Nos.5 to 7 and subsequent purchasers of the land. Heard learned Senior Counsel Mr. Mihir Thakore for the petitioners and learned Senior Consel Mr. Kamal Trivedi for respondent No.1. It has been agreed between the parties to hear the matter finally.
8. Mr. Thakore, Senior Counsel has taken me through plaint and documents produced along with the plaint as well as various documents as produced by way of paper book filed by the respondents before this Court. Mr. Thakore has raised the following contentions:
(i) Undisputedly land in question was a new tenure land. Even the transaction - agreement to sell is prohibited under Section 43 of the Page 7 of 50 HC-NIC Page 7 of 50 Created On Thu Oct 06 01:11:23 IST 2016 C/CRA/347/2016 CAV ORDER Bombay Tenancy and Agricultural Lands Act, 1948. When law prohibits acquisition of any sale document in the nature of agreement to sell, such transaction deserves to be treated as null and void. There cannot be specific performance of agreement, which is void in the eye of law. In view of this fact, the suit for specific performance filed by the plaintiff being originally numbered as Civil Suit No.2/2007 in City Civil Court, Ahmedabad, which has been transferred to the court of learned Principal Senior Civil Judge, Ahmedabad (Rural) and numbered as Special Civil Suit No.1164/2011 and later on renumbered as Regular Civil Suit No.1357/2015 is not maintainable. Once the suit for specific performance is not maintainable, there is no explanation for filing the suit for declaration or for cancellation of sale deed without there being any cause of action. Plaintiff has no right, claim or title over the property as the so-called agreement to sell itself is void in the eye of law, in view of the provisions of Section 43 of the Tenancy Act.
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(ii) Mr. Thakore had further argued that the so-called agreement to sell is executed on 13.06.1978. The sale deed, as per Clause-3 thereof, was to be executed within 30 months. Merely because, there is a pleading of handing over of possession would not extend the limitation and the limitation would be governed as per Article-54 of the Indian Limitation Act for specific performance of the contract and which provides for limitation of three years from the date of cause of action. In the present case, the date is fixed for performance, namely, 30 months from the date of execution of the agreement to sell. Under such circumstance, the suit filed in the year 2007 for specific performance is time barred and pursuant to which the suit filed for cancellation of the sale deed is also not having any cause of action. The suit deserves to be filed within three years period while in the present case, the suits are filed in the year 2007 and 2010 respectively.
(iii) Mr. Thakore has further argued taking me through the paper book produced by the Page 9 of 50 HC-NIC Page 9 of 50 Created On Thu Oct 06 01:11:23 IST 2016 C/CRA/347/2016 CAV ORDER respondents (original plaintiffs) before this Court, on page-58, which is a caveat filed by Patel Govindbhai Trikamlal and Bharatbhai Shankerbhai Patel who are heirs of the original land owners, against the plaintiff herein, claiming that the respondents have no interest or any of the rights in the subject land. In spite of filing of such caveat dated 24.09.1993, which can be said that there is notice to the plaintiff that performance is refused as per second limb of Article-54, the suit is not filed within three years and therefore also the suit is time barred.
(iv) So far as the second suit being Regular Civil Suit No.33/2010 is concerned, even if it is filed in the year 2009, there is no legal cause of action or explanation to file the suit and hence the suit is not maintainable. According to Mr. Thakore,contentions raised in the suit are not legal contentions and therefore cannot be construed to have any cause of action.
(v) Mr. Thakore had relied upon the law settled by
this Court in the case of Gunvantbhai
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Ratanchand Vs. Ramesh P. Patel reported in 2001(2) GCD, 1518 : 2000 GLHEL-HC-204453, case reported in AIR 2000 Guj. 290 (para-24) and Appeal from Order No.489/2013 decided on 12- 13.04.2016 for the principles that the transaction prohibited under Section43 & 63 of the Bombay Tenancy and Agricultural Lands Act, 1948 is void and cannot be specifically enforced. Mr. Thakore has further relied upon the law decided by the Hon'ble Supreme Court in the case of Church of Christ Charitable Trust and Educational Charitable Society, represented by its Chairman Vs. Ponniamman Educational Trust, represented by its Chairperson/Managing Trustee, reported in (2012) 8 SCC 706 for the proposition that if the date is one which attracts bar of limitation, plaint must conform to Order VII Rule-6 and specific and clear ground on which contention of bar of limitation is claimed and also propose that there is specific cause of action shown against the particular defendant. In the case on hand, no cause of action is shown against the present petitioners.
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(vi) Mr. Thakore has further relied upon the
judgement in the case of Saleembhai Vs. State of Maharashtra, reported in (2003) 1, SCC 557 to propose that under Order VII Rule-11 of the Code of Civil Procedure, 1908, court has power to exercise at any stage of the suit before conclusion of the trial. Mr.Thakore has also relied upon the judgement in the case of Church of Christ Charitable Trust and Educational Charitable Society, represented by its Chairman Vs. Ponniamman Educational Trust, represented by its Chairperson/Managing Trustee, reported in (2012) 8 SCC 706 for the proposition that power of Order VII Rule-11 of the Code of Civil Procedure, 1908 can be exercised at any stage of the suit i.e. before registering the plaint or after issuance of summons to the defendant or at any time before the conclusion of the trial.
(vii) Mr. Thakore, learned Senior Counsel has also relied upon the judgement reported in (2007) 5 SCC, 614 and contended that the rejection of plaint on the ground of limitation, is Page 12 of 50 HC-NIC Page 12 of 50 Created On Thu Oct 06 01:11:23 IST 2016 C/CRA/347/2016 CAV ORDER contemplated under Order-VII Rule-11(d) wherein "law" within the meaning of Order-VII Rule-11(d) must include the "Law of Limitation".
(viii) Mr. Thakore also relied upon the judgement in the case of Maharaj Shri Manvendrasinhji Ranjitsinhji Jadeja Vs. Rajmata Vijaykunwarba, reported in 1998(2) G.L.H. 823 proposing that any averment made contrary to law cannot be considered as disclosing cause of action and even after framing of issues Court has powers to exercise jurisdiction under Order VII Rule-11 of the Code of Civil Procedure, 1908.
9. Per Contra, Mr. Kamal Trivedi, learned Senior Counsel had raised the following contentions.
(i) As regards Clause Nos.3, 4, 6, 7 and 8 of the Agreement to Sell Mr.Trivedi, learned Senior Counsel has raised the contention that owner was to get the right, title cleared by getting the permission from the State government and till such permission is not obtained, the limitation does not begin and therefore, suit cannot be Page 13 of 50 HC-NIC Page 13 of 50 Created On Thu Oct 06 01:11:23 IST 2016 C/CRA/347/2016 CAV ORDER treated as one barred by limitation. Alternative, Mr. Trivedi has submitted that the owner had given a public notice about the title on 22.12.2006 against which the suit was filed immediately in the month of January, 2007 (01.01.2007), therefore, suit cannot be said to be time barred.
(ii) So far as the second suit is concerned, being Regular Civil Suit No.33/2010 for declaration and injunction as well as for cancellation of sale deed filed by the plaintiff is concerned, Mr. Trivedi had taken me through the contentions of the suit and made a submission that on coming to know about the sale transaction entered into by the owner, immediately the suit is filed. It is submitted that the cause of action can be said to have arisen on 24.08.2009 i.e. the date on which the sale deed was executed. Under such circumstances, so far as Special Civil Suit No.33/2010 is concerned, it cannot be said to be barred by limitation.
(iii) Mr. Trivedi, had made submissions that there is a Page 14 of 50 HC-NIC Page 14 of 50 Created On Thu Oct 06 01:11:23 IST 2016 C/CRA/347/2016 CAV ORDER difference between void and invalid transaction. It is submitted that the transaction where permission of the authority is required, can be regularized by having subsequent permission.
(iv) Mr. Trivedi has further submitted that at present application Exh.5 is already decided by the trial court and the suits are to be tried and therefore, at this belated stage, powers under Order VII Rule-11 of the Code of Civil Procedure, 1908 should not be exercised and prayed to permit plaintiff for leading evidence to prove the case.
(v) Mr. Trivedi has relied upon the law settled by the Hon'ble Supreme Court of India in the case of Ramesh B. Desai and others Vs. Bipin Vadilal Mehta and others, reported in (2006) 5 SCC 638 and canvassed the principle that the averments made in the plaint alone have to be seen and they have to be presumed to be correct for deciding the application under Order VII Rule-11 of the Code of Civil Procedure, 1908. Learned Senior Cousel has further submitted that, it is not permissible to look into the plea raised in the Page 15 of 50 HC-NIC Page 15 of 50 Created On Thu Oct 06 01:11:23 IST 2016 C/CRA/347/2016 CAV ORDER written statement or in any other piece of evidence. It is further stated by relying upon the aforesaid two decisions that limitation is a mixed question of fact and law and therefore requires to be tried but from the principles of demmurrer same cannot be decided.
(vi) Learned Senior Counsel has further relied upon the decision of this Court in Civil Revision Application No.299/2011 decided on 14.03.2012 and the one delivered in the case of Ramprakash Gupta Vs. Rajivkumar Gupta, reported in 2007(3) GLH, 647 to contend that, it is disapproved by the Hon'ble Court that rejection of plaint under Order VII Rule-11 of the Code of Civil Procedure, at a belated stage after filing of written statement, after framing of issues and cross- examination. It has been further contended that, in view of this fact, at this stage the plaint may not be rejected when, in the present case application Exh.5 is already decided.
(vii) Mr. Trivedi, learned Senior Counsel has also relied upon the law settled by the Hon'ble Page 16 of 50 HC-NIC Page 16 of 50 Created On Thu Oct 06 01:11:23 IST 2016 C/CRA/347/2016 CAV ORDER Surpreme Court in the case of Gunvantbhai Munchand Shah Vs. Anton Elis Farel & others, reported in (2006) 3, SCC 634 as well as the judgement in the case of Panchanandhara Vs. Monmatha Nath reported in (2006) 5 SCC 340 and submitted that so far as the two limbs of Article-54 are concerned, the question of limitation can be dealt with only after evidence is taken and not as a preliminary issue, more particularly, when the date for performance of contract is not fixed and after the date of notice of refusal of performance issued by the defendant, suit is filed within time by the plaintiff. Mr. Trivedi has also relied upon the decision in the case of Balasaheb Dayandeo Naik (Dead) through LRs and others Vs. Appasaheb Dattatraya Pawar, reported in (2008) 4 SCC 464 for the proposition of law that in case of specific performance of immovable property, time is not an essence of the contract as delivered by the Constitution Bench in the case of Chandrani, reported in (1993)1 SCC 519.
(viii) Mr. Trivedi has also relied upon the decision of Page 17 of 50 HC-NIC Page 17 of 50 Created On Thu Oct 06 01:11:23 IST 2016 C/CRA/347/2016 CAV ORDER the Hon'ble Supreme Court reported in (2011) 3 SCC 364 to show the distinction between void or voidable transaction and contended that when transaction can be regularized same can be said to be voidable. In case of invalid transaction, ultimately, transaction can be regularized by an appropriate permission of authority.
(ix) Mr. Trivedi has also relied upon the decision of this Court in the case of Mavji Dhoroji and others Vs. State of Gujarat, reported in 1994(1) GLH, 20 to show the difference between void and invalid. It is submitted that an invalid transaction will have to be validated by exercising powers in that respect by the authority while so far as voidable transactions are concerned, power for the purpose will have to be exercised within reasonable time. It is submitted that no such challenge has been made by the land owners in the past.
(x) Lastly, Mr. Trivedi, learned Senior Counsell has relied upon the decision of this Court in the case reported in 2013(2) GLH, 559 for the proposition Page 18 of 50 HC-NIC Page 18 of 50 Created On Thu Oct 06 01:11:23 IST 2016 C/CRA/347/2016 CAV ORDER that no document other than the plaint, can be seen for deciding application under Order-VII Rule-11 of the Code of Civil Procedure, 1908.
10. Heard learned Senior Counsels for the respective parties. After hearing, the parties have also chosen to file written submissions in support of as well as opposing the application. Such written submissions are taken on record. So far as Civil Suit No.2/2007 filed for specific performance of the agreement to sell dated 13.06.1978 in City Civil Court, Ahmedabad which has been transferred to the court of learned Principal Senior Civil Judge, Ahmedabad (Rural) and renumbered as Special Civil Suit No.1164/2015 and once again renumbered as Regular Civil Suit No.1357/2015 and Regular Civil Suit No.33/2010 filed for declaration, permanent injunction and for cancellation of the sale deed executed by the land owner in favour of the present petitioners, original defendant Nos.5 to 7 in the said suit, are concerned, the pivotal document is agreement to sell dated 13.06.1978. For deciding this application the following three important issues arise, which can be culled out from the submissions of the parties.
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(i) Whether an agreement to sell which has been
executed for new tenure land, can be said to be specifically enforced in spite of specific prohibition u/s 43 of the Bombay Tenancy and Agricultural Lands Act where the said transaction can be termed as void transaction in the eye of law.
(ii) Whether the suit for specific performance filed on 30.11.2006 (01.01.2007) in respect of agreement to sell executed on 13.06.1978 can be said to have been time barred and correspondingly Regular Civil Suit No.33/2010 can be said to be without there being any explanation of cause of action?
(iii) Whether Regular Civil Suit No.33/2010 discloses any cause of action or explanation for filing the suit for declaration, permanent injunction and cancellation of sale deed executed in favour of the present petitioners?
11. For deciding the aspect that agreement to sell Page 20 of 50 HC-NIC Page 20 of 50 Created On Thu Oct 06 01:11:23 IST 2016 C/CRA/347/2016 CAV ORDER executed for new tenure land whether relief of specific performance can be granted or not, it is to be noted that it is an undisputed fact that the land was of restricted tenure. The relevant part of Section 43(1) and 43(2) of Bombay Tenancy and Agricultural Lands Act, 1948 are reproduced hereunder:
"Section 43 - Restriction on transfer of land purchased or sold under this Act -
(1) No land or any interest therein purchased by a tenant under section 17B, 32, 32F, 32-1, [32-
O], [32U, 43-ID or 88E] or sold to any person under 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.
To sub-sec. (1), the following provisos shall be added, namely: -
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HC-NIC Page 21 of 50 Created On Thu Oct 06 01:11:23 IST 2016 C/CRA/347/2016 CAV ORDER Provided that, no previous sanction of the Collector shall be required, if the partition of the land is among the members of the family who have direct blood relation or among the legal heirs of the tenant;
Provided further xxxx (2) [Any transfer or partition, or any agreement of transfer, of any land or any interest therein] in contravention of sub-section (1) shall be invalid.]"
12. From the aforesaid provision, it clearly transpires that the land of restricted tenure cannot be transferred or agreed to be transferred or sold without the previous sanction of the Collector and that any transaction or any agreement for transfer of land or interest therein, if made without the previous sanction of the Collector, would be invalid. At this juncture it may be noted that, as per Section 10 of the Indian Contract Act, all the agreements are contracts if they are made by the free consent of parties competent to contract, for a lawful consideration and with a lawful object and are not expressly declared to be void in the Act. Section 23 of Page 22 of 50 HC-NIC Page 22 of 50 Created On Thu Oct 06 01:11:23 IST 2016 C/CRA/347/2016 CAV ORDER the Contract Act, inter alia, states that the consideration or object of the agreement is lawful, unless it is forbidden by law or is of such a nature that if permitted, it would defeat the provision of any law. It further states that in such cases, the consideration or object of an agreement is sought to be unlawful and every agreement of which the object and consideration is unlawful, is void. Since the agreements for sale in question executed without the previous sanction of the Collector were forbidden u/s 43(1), they were invalid u/s 43(2) of the Tenancy Act. The consideration or object of such an agreement would also, therefore, be unlawful and any such agreement would be void agreement in view of Section 23 of the Contract Act. There is no provision in the Tenancy Act which would authorize any authority under the said Act to validate such agreement to sell executed without the previous sanction of the Collector and in violation of Section 43(1) of the said Act.
13. On this aspect Mr. Thakore had relied upon the judgement of this Court reported in 2001(2) GCD, Page 23 of 50 HC-NIC Page 23 of 50 Created On Thu Oct 06 01:11:23 IST 2016 C/CRA/347/2016 CAV ORDER 1518, more particularly, paragraph Nos.31 & 36, which deals with Section 63 of the Bombay Tenancy and Agricultural Lands Act. The said paragraph Nos.31 and 36 are reproduced herein below.
"31. So far as the permission under the Bombay Tenancy Act is concerned, it was already applied for by the respondents nos.1 to 5 within a period of one year from the execution of the agreement to sell which was refused by the Prant Officer, as discussed in the forgoing portions of this judgement. In this view of the matter, the respondents nos.1 to 5 or, for that matter, the respondents nos.1 to 7 are not required to approach again and file application for permission u/s 63 of the Bombay Tenancy Act. Shri Nanavati, has however argued regarding legislative changes in Sec. 63 of the Bombay Tenancy Act so far as it applies to Gujarat State with reference to the Gujrat Town Planning and Urban Development Act, 1976. Section 63 of the Bombay Town Planning Act provides that save as provided in this Act, (a) no sale (including sales in execution of a decree of a Civil Court or for recovery of arrears of land revenue or for sums Page 24 of 50 HC-NIC Page 24 of 50 Created On Thu Oct 06 01:11:23 IST 2016 C/CRA/347/2016 CAV ORDER recoverable as arrears of land revenue), gift, exchange or lease of any or interest therein, or (b) no mortgage of any land or interest therein in which the possession of the mortgaged property is delivered to the mortgagee or (c) no agreement made by an instrument in writing for the sale, gift, exchange, lease or mortgage of any land or interest therein, shall be invalid in favour of a person who is not an agriculturist or who being an agriculturist cultivates personally and not less than the ceiling area whether as an owner or tenant or partly as owner and partly as tenant or who is not an agricultural labourer. The proviso to this section further empowers the Collector or an officer authorised by the State Government in this behalf who may grant permission for such sale, gift, exchange, lease or mortgage on conditions as may be prescribed. Prant Officer was certainly an officer authorised to grant permission under this Section and he had already refused to grant such permission to the respondents nos.1 to 5. Consequently, in view of this provision, the agreement to sell executed at the first stage, namely, by the respondents nos.1 to 5 in favour of the defendants nos.8 to 12 will not be valid, so also Page 25 of 50 HC-NIC Page 25 of 50 Created On Thu Oct 06 01:11:23 IST 2016 C/CRA/347/2016 CAV ORDER the second agreement executed by the defendants nos.8 to 12 in favour of the plaintiffs. The trial Court has observed that the defendants nos.8 to 12 as well as the plaintiffs are not agriculturists. This conclusion was reached from the evidence on record.
36. In view of the foregoing discussions, I am of the view that the plaintiffs are not entitled to decree for specific performance of the agreement to sell merely because of their readiness and willingness to perform their part of the contract. As discussed above, the contract has become determinable, hence, no decree for specific performance can be granted. Further in view of bar of Sec. 63 of the Bombay Tenancy and Agricultural Lands Act, no decree for specific performance of the agreement could be granted. Subsequent events, namely, legislative changes also do not entitle the plaintiffs to a decree for specific performance and lastly it is inequitable to grant a decree for specific performance on the facts and circumstances of the case."
14. Mr. Thakore has further relied on the judgement in the case of Ashwinkumar Manilal Shah Vs. Chhotabhai Page 26 of 50 HC-NIC Page 26 of 50 Created On Thu Oct 06 01:11:23 IST 2016 C/CRA/347/2016 CAV ORDER Jethabhai Patel, reported in AIR 2001(Guj) 90 (DB) more particularly paragraph-25 thereof, which is reproduced hereunder :
"25. The effect of deletion of Section 121 will be that with effect from 12-6-1985 Section 121 will be deleted and if this is so, then at the time when we are deciding the appeal, provisions of Bombay Tenancy and Agricultural Lands Act, 1948, shall apply and in view of Section 63(3) of Chapter V. agreement to sell by a person in favour of a person who is not an agriculturist shall not be valid. If the agreement is rendered invalid under Section 63(c) of the Bombay Tenancy and Agricultural Lands Act, 1948, such agreement is incapable of being specifically enforced. If the agreement to sell itself is invalid, no decree for specific performance could be passed by the trial Court. The agreement which is invalid is in its nature determinable. 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. For this reason also, the suit for specific performance of agreement to sell could not have been decreed." Page 27 of 50
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15. Mr. Thakore, Senior Counsel has also relied upon the decision of this Court in Appeal from Order No.489/2013 dated 12-13.04.2016 wherein this Court had preferred not to grant interim relief in the suit for specific performance when an agreement to sell was for a new tenure land, holding that such an agreement to sell cannot be permitted to be specifically enforced.
16. On the other hand, learned Senior Counsel Mr. Kamal Trivedi has tried to convince this court by distinguishing void order and an invalid order by relying upon the judgement reported in 1994(1) GLH, 20 and submitted that a transaction can be validated by subsequent permission of the Collector in the subject matter. Mr. Trivedi, learned Senior Counsel even relied on the judgement of the Hon'ble Supreme Court in the case of Krishnadevi Malchand Kamathia and others Vs. Bombay Environmental Action Group and others, reported in (2011) 3 SCC 363 to make distinction between a void and voidable order.
17. In my view, so far as the suit for specific performance is concerned, it is absolutely a discretionary relief.
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This Court cannot direct to enforce agreements, which are unlawful and void, in view of Section 23 of the Contract Act read with Section 43 of the Bombay Tenancy and Agricultural Lands Act, as no decree for specific performance can be passed by the Court. In view of this fact, the suit of the plaintiff for enforcement and specific performance of an agreement to sell of an agricultural land which is a new tenure land and the same is prohibited to be transferred by way of an agreement to sell u/s 43, cannot be said to be maintainable as there is a specific bar of law about such transaction. In my view, so far as Regular Civil Suit No.33/2010 wherein the sale deed is prayed to be cancelled is concerned, on the basis of existence of agreement to sell in favour of the plaintiff at the relevant when the sale deed was executed, when is found to be void, hence, no cause of action is disclosed as the suit is absolutely based on the agreement to sell dated 13.06.1978 executed between plaintiff and the defendants.
18. The second question arises about whether the suit filed for enforcement of specific performance being Regular Civil Suit No.1357/2015 (Old Special Civil Suit Page 29 of 50 HC-NIC Page 29 of 50 Created On Thu Oct 06 01:11:23 IST 2016 C/CRA/347/2016 CAV ORDER No.1164/2011) can be termed as barred by law of limitation and if found to be barred by limitation, whether Regular Civil Suit No.33/2010 filed seeking declaration for cancellation of sale deed executed in favour of the present petitioners can be termed without there being explanation or cause of action correspondingly.
19. For deciding this aspect, question requires to be considered is recital of the agreement to sell. The agreement to sell, in Clause-3, specifically mentions about the period of 30 months for execution of the sale deed. Two other clauses are vital for deciding the issue being Clause Nos.4 & 12. Clause-4 deals with the aspect that the owner had to get right, title and interest cleared and to obtain permission from the State Government while Clause-12 deals with the aspect that on deposit of 25% of the amount, the banakhat holder would get the possession of the land. As per the plaintiff, they had also made payment later on i.e. after 13.06.1978 and possession of land was given on 21.06.1978 to the plaintiff. Submissions are made on behalf of the respondent that, limitation is a mixed question of fact and law. For proving the aspect Page 30 of 50 HC-NIC Page 30 of 50 Created On Thu Oct 06 01:11:23 IST 2016 C/CRA/347/2016 CAV ORDER that the suit is within limitation, evidence is required to be permitted to be led. It is also further submitted that on 22.12.2006 a public notice was issued by the original owner for obtaining a title clearance certificate and, therefore, on 01.01.2007 Special Civil Suit No.2/2007 was filed by the plaintiff before the City Civil Court, Ahmedabad and that therefore, there was no delay on the part of plaintiff in instituting the suit. It is further submitted that permission required to be obtained from the State Government for title clearance, is not obtained by the owner and that therefore, the suit cannot be treated to be time barred. It has been vehemently submitted that so far as a suit for specific performance of agreement to sell of immovable property is concerned, time is not treated as an essence of the contract. In support of this submission, decision in the case of Balasaheb Dayandeo Naik (Dead) through LRs and othes Vs. Appasaheb Dattatraya Pawar, reported in (2008) 4 SCC, 464 is relied upon. It is further submitted that, when a vendor is having certain responsibility to be performed by way of an agreement for compliance of statutory requirement and there is delay thereof, then Page 31 of 50 HC-NIC Page 31 of 50 Created On Thu Oct 06 01:11:23 IST 2016 C/CRA/347/2016 CAV ORDER the Vendor cannot be permitted to take advantage of his own wrong so as to raise a plea of limitation. In support of this submission, reliance is placed in the decision rendered in the case of Panchanan Dhara and others Vs. Monmatha Nath Maity (dead) through LRs and another, reported in (2006) 5 SCC 340.
20. Now, the question deserves to be considered is about the aspect of beginning of limitation. Article-54 of the Limitation Act deals with the aspect in the subject matter, which reads as under:
"54. For Specific Performance of a Contract - three years - the date fixed for the performance, or if no such date is fixed when the plaintiff has notice that performance is refused".
It is undisputed that agreement to sell is executed on 13.06.1978 and suit for specific performance thereof being Special Civil Suit No.2/2007 was filed before the City Civil Court, Ahmedabad on 01.01.2007. Learned Senior Cousel has vehemently submitted by relying upon the decision of the Hon'ble Supeme Court in the case of Balasaheb Dayandeo Naik (dead) through LRs Page 32 of 50 HC-NIC Page 32 of 50 Created On Thu Oct 06 01:11:23 IST 2016 C/CRA/347/2016 CAV ORDER and others Vs. Appasaheb Dattaraya Pavar, reported in (2008) 4 SCC, 464 submitted that time is not the essence of the contract in case of specific performance of immovable property. However in the said case and other cases relied by the learned Senior Counsel, the facts were quite different inasmuch as the suits were within the period of limitation i.e. three years from the date of arising of cause of action. There cannot be any dispute with the principle that time is not the essence of the contract in case of specific performance of immovable property. However, the question which deserves to be considered in the present case is that from the bare reading of plaint of Regular Civil Suit No.1357/2015 if suit is found to be time barred, can it be permitted to proceeded? If the said suit is time barred, the subsequent suit filed based on the previous suit which has been consolidated being Regular Civil Suit No.33/2010, be treated as without cause of action?.
21. The trial court has given a reason for rejecting the application of the petitioners by giving a finding that the subject land is handed over by giving possession of the land and as such, there was no delay in filing Page 33 of 50 HC-NIC Page 33 of 50 Created On Thu Oct 06 01:11:23 IST 2016 C/CRA/347/2016 CAV ORDER the suit. The trial court has given its further finding that the land is of new tenure land and till it is got converted into old tenure land on 24.09.2009, sale deed could not have been executed and therefore, prima facie the suit is within time limit.
22. The trial court has given one more finding that there was a notice for obtaining title clearance certificate on 22.12.2006, inviting objections or right, if any, which has been replied by the plaintiff and the suit was filed on 01.01.2007 and held that the suit was within the time limit.
23. In my view, the trial court has erred in not considering the recital of the agreement to sell. It is to be seen that the agreement to sell is executed on 13.06.1978; the period for execution of the sale deed is decided between the parties to be of 30 months; it was a specific time decided between the parties; the period of limitation begins on completion of 30 months period. At the most the limitation gets extended when the last amount is received which, even as per the claim of the plaintiff, is 19.04.1984. Therefore, the period of limitation of three years gets ended then and Page 34 of 50 HC-NIC Page 34 of 50 Created On Thu Oct 06 01:11:23 IST 2016 C/CRA/347/2016 CAV ORDER there only. Admittedly, the suit is not filed for specific performance of the agreement within three years of occurrence of any of the events i.e. immediately after 30 months of the execution of the agreement to sell or even within three years of the last date of payment being 19.04.1984. The law of limitation is based on the principle of equity. On completion of the period of limitation, the defendant is relieved of the liabilities or responsibilities, which have been burdened by any of the agreement. Even if law of limitation applies harshly, same is required to be applied as per the prescribed rigour and the same cannot be extended on the ground of equity. The trial court has also committed an error in giving much emphasis to the possession of land being handed over to the plaintiff on 21.06.1978 as per the agreement and as pleaded in the plaint. Even if it is presumed that possession of the land is handed over to the plaintiff by the original land owner, it does not extend the period of limitation in any manner. The suit for specific performance of an agreement to sell is required to be filed within three years from the date of cause of action. The 30 months period prescribed by the parties and/or three years Page 35 of 50 HC-NIC Page 35 of 50 Created On Thu Oct 06 01:11:23 IST 2016 C/CRA/347/2016 CAV ORDER after receipt of the last payment or the period of limitation prescribed thereof. It is also to be noted that the trial court has committed an error that the State Government permission was not sought for by the owners for transfer of the land. In my view, such permission had arrived after filing of the suit on 24.08.2009. Therefore, non-receipt of permission of State Government, after 30 months period prescribed by the parties for execution of the sale deed, would not extend the limitation for all times to come or the time prescribed by Article-54 of the Limitation Act. In my view, the suit for specific performance of the agreement to sell dated 13.06.1978 filed on 01.01.2007, was absolutely time barred and the same cannot be allowed to be proceeded. These facts get revealed from the undisputed fact which is on record.
24. At this state it is worthwhile to refer to the documents produced by way of paper-book of respondent No.1 (original plaintiff) herein. At page-58 a caveat is filed by Govindbhai Trikambhai Patel and Bharatbhai Shankerbhai Patel (who are defendants in suits), on 24.09.1993 against plaintiff herein, openly refusing Page 36 of 50 HC-NIC Page 36 of 50 Created On Thu Oct 06 01:11:23 IST 2016 C/CRA/347/2016 CAV ORDER claim of the plaintiff about the subject land. The plaintiff did not choose to file suit thereafter also. Therefore also, after refusal of the claim of plaintiff, suit is not filed. In view of this fact, in my view, as per Article-54 of the Limitation Act, the cause of action arose lastly on 24.09.1993 and thereafter also no suit is filed within three years thereof. It is relevant to note that this document is produced the plaintiff himself. In my view, notice for seeking title clearance certificate published by original defendant Nos.1 to 4 on 22.12.2006, cannot be termed as initiation of cause of action.
25. In the above background, so far as the contents of Special Civil Suit No.33/2010 filed by the plaintiff for declaration and injunction as well as for cancellation of the sale deed of the present petitioners are concerned, it shows that it is prima facie based on the agreement to sell dated 13.06.1978. As discussed hereinabove, it was a void agreement, in view of the prohibition of Section 43 of the Bombay Tenancy and Agricultural Lands Act. It is also to be noted that specific performance of such an agreement to sell is time barred. Under such circumstances, any legal cause of Page 37 of 50 HC-NIC Page 37 of 50 Created On Thu Oct 06 01:11:23 IST 2016 C/CRA/347/2016 CAV ORDER action arising from the subject matter, can be considered from the following pleadings. Paragraph No.3 and 21 of the suit read as under:
"3. The plaintiff states that originally the Survey No.158 property of Jagatpur village, the said was transferred into block No.178 and the said property's ownership was of Shankerbhai Zenabhai Patel, Shamalbhai Zenabhai Patel, Sureshbhai Zenabhai Patel and Trikamlal Vallabhbhai Patel. The said property was a joint property of the above said 4 persons and the defendant No.1 to 4, each had 25% equal rights in the said property. The plaintiff submits that the above said 4 persons wanted to sell the above said property and therefore there was one agreement that was entered into and executed between the plaintiff and defendant No.1 to 4 on 13.06.1978. The plaintiff submits that the total consideration price of the above said property was fixed at Rs.21,665/- (Rupees Twenty One Thousand Six Hundred Sixty Five only) and it was also decided that the defendants No.1 to 4 have to execute the sale deed in favour of the plaintiff within a period of 30 months from 13.06.1978.
It was also decided between the parties that the Page 38 of 50 HC-NIC Page 38 of 50 Created On Thu Oct 06 01:11:23 IST 2016 C/CRA/347/2016 CAV ORDER defendant No.1 to 4 have to obtain title clearance certificate with respect to the said property in favour of the plaintiff.
21. The cause of action has arisen for filing of the present suit in the jurisdiction of this Hon'ble Court, because the defendant No.1 to 4 have illegally executed the sale deed in favour of defendant No.5 to 7 and the cause of action have arisen when the plaintiff has received the certified copy of the said document on 08.01.2010 and moreover the defendant No.5 to 7 have tried to forcibly and illegally taken over the possession of said property on 10.01.2010 with the help of anti-social elements as well as security guards and therefore the present suit has been filed and proper cause of action have arisen in the jurisdiction of this Court.
26. In view of the above referred details, it can be seen that no legal cause of action is described by the plaintiff in this suit and that the suit is based purely on the agreement to sell executed on 13.06.1978, which has been found to be time barred and legally prohibited, as discussed herein above. Therefore, in Page 39 of 50 HC-NIC Page 39 of 50 Created On Thu Oct 06 01:11:23 IST 2016 C/CRA/347/2016 CAV ORDER my considered view, Special Civil Suit No.33/2010 does not disclose any legal cause of action against original defendant Nos.5 to 7 and petitioners herein. The trial court, therefore, cannot be permitted to proceed with the suit and such plaint is required to be rejected.
27. I have also come across a decision of this Court in the case of Subhash Bhikhubhai Patel Vs. Bimal Ramakant Halpati, reported in 2015(0)-AIJEL-HC-232588 wherein question was about a land which was prohibited under Section 73AA of the Gujarat Land Revenue Code to get transferred without permission of the Collector being a tribal land had been transferred by way of a Will and ownership thereof was claimed wherein the Court had dealt with a similar issue about transfer of land for interwoven. Paragraph Nos.7, 8 and 9 of the said judgement read as under:
"7. In a slightly different context, Division Bench of this Court in case of Rajenbhai Baldevbhai Shah Vs. Baijiben Kabhaibhai Patanvadia (supra) also held that term `assignment' used in Section 43 of the Bombay Tenancy and Agricultural Lands Act would include a Page 40 of 50 HC-NIC Page 40 of 50 Created On Thu Oct 06 01:11:23 IST 2016 C/CRA/347/2016 CAV ORDER Will and in view of the restrictions contained in Section 63 of the said Act a holder of agriculture land cannot execute a Will in favour of a non agriculturist and defeat the object and purpose of the Act.
8. In view of these judicial pronouncements, the conclusion of the Trial Court that the transaction in favour of the plaintiffs was definitely hit by Section 73AA of the Gujarat Land Revenue Code gets confirmed. Despite such findings, the Trial Court refused to dismiss the plaint only on the ground that the question of forcible dispossession of the plaintiffs was yet to be decided. In my view, this was a clear error. Even the plaintiffs have not voiced any apprehension of illegal or forcible dispossession in the suit. It is not even the case of the plaintiffs that the defendants were likely to take law in their hands and evict them out of the said property. Merely therefore to survive the suit on this basis, would be to give artificial life to a litigation which is a dead cause. Order 7 Rule 11 of the Code of Civil Procedure would require the Court to reject the plaint inter alia when it does not disclose the cause of action or where the suit Page 41 of 50 HC-NIC Page 41 of 50 Created On Thu Oct 06 01:11:23 IST 2016 C/CRA/347/2016 CAV ORDER appears from the statement of the plaint to be barred by any law. When the very basis of the plaintiffs' claim to the suit property namely, the Will made by the Tribal is hit by a statutory restriction, the suit could be stated to have been lacking in disclosure of any cause of action. Learned counsel Mr. Rao however drew my attention to sub-section (3) of Section 73AA of the Gujarat Land Revenue Code and contended that since the plaintiffs are also tribal, within two years, the transferor tribals would have to make an application for restoration of the possession of the suit land failing which the transfer would continue to operate. However, this contention ignores the provision of Section 73AC of the Gujarat Land Revenue Code. Sub section (1) whereof which provide that no civil court shall have jurisdiction to settle, decide or deal with any question which is by or under Section 73A or Section 73AA or Section 73AB required to be settled, decided or dealt with by the Collector nor shall the Civil Court have jurisdiction to entertain any suit or application for grant of injunction in relation to such question.
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9. In the result, the revision petition is allowed. The application Exhibit 34 filed by the present petitioners under Order 7 Rule 11 is granted. Plaint stands rejected. It is again clarified that I have not decided the nature of the rights of the present petitioners defendants No.14 and 15 qua the said land and all pending proceedings with respect to the same will be decided unmindful of these observations."
28. An attempt was made to make a submission that at this belated stage plaint may not be rejected as both the suits being Regular Civil Suit No.1357/2015 (Old Special Civil Suit No.1164/2011) and Regular Civil Suit No.33/2010, are consolidated and issues are framed. Reliance is placed on the decision of this Court in the judgement rendered in the case of Civil Revision Application No.299/2011 to emphasise on the observation that application under Order-VII Rule-11 of the Code of Civil Procedure, 1908, at a belated stage after filing of written statement, framing of issues and cross-examination, should not be rejected.
29. So far as law settled by the Hon'ble Supreme Court on this aspect is concerned, in the case of Saleembhai Vs. Page 43 of 50 HC-NIC Page 43 of 50 Created On Thu Oct 06 01:11:23 IST 2016 C/CRA/347/2016 CAV ORDER State of Maharashtra, reported in (2003) 1 SCC, 557, more particularly, para-9 thereof reads as under:
"9. A perusal of Order 7 Rule-11 CPC makes it clear that the relevant facts which need to be looked into for deciding an application thereunder are the averments in the plaint. The trial court can exercise the power under Order 7 Rule-11 CPC at any stage of the suit - before registering the plaint or after issuance of summons to the defendant at any time before the conclusion of the trial. For the purposes of deciding an application under clauses (a) and (d) of Rule 11 of CPC, the averments in the plaint are germane; the pleas taken by the defendant in the written statement would be wholly irrelevant at that stage, therefore, direction to file the written statement without deciding the application under Order 7 Rule 11 CPC cannot but be procedural irregularity touching the exercise of jurisdiction by the trial court. The order, therefore, suffers from non-exercising of the jurisdiction vested in the court as well as procedural irregularity. The High Court, however, did not advert to these aspects."
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30. The same aspect is once again concerned by the Hon'ble Supreme Court in the case of Sopan Sable Vs. Assistant Charity Commissioner, reported in (2004) 3 SCC 137 wherein it is observed by the Hon'ble Supreme Court that powers under Order-VII Rule-11 of the Code of Civil Procedure, 1908 can be exercised at any stage of the suit but before judgement is pronounced.
31. It is to be noted that in the application filed before the trial court as well as before this Court, averments are made and contentions are raised challenging maintainability of the suit on the basis and aspect of unregistered agreement to sell and violation of Section 49 of the Registration Act. However, learned Senior Counsel for the petitioner has not pressed much on the said point or argued the point about maintainability of the suit on the basis of unregistered agreement to sell and has preferred to argue the other points which are discussed hereinabove. In view of this fact, I leave the issue about maintainability of the suit filed on the basis of an unregistered agreement to sell to be decided in other appropriate case.
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32. With the above discussion, following principle of law for Order-VII Rule-11 of the Code of Civil Procedure, 1908 emerges.
(i) The power under Order VII Rule-11 of the Code of Civil Procedure, 1908 can be exercised at any stage of the suit either before registering the plaint or after the issuance of summons to the defendants or at any time before the conclusion of the trial.
(ii) Plaint can be rejected on the ground of limitation only that the suit appears from the statement in the plaint to be barred by any law. The "Law" within the meaning of Order VII Rule-11(d) of the Code of Civil Procedure, 1908 must include the law of limitation. No court is having authority or jurisdiction or power to extend the limitation period prescribed by the Statute. Law of Limitation is required to be applied in its prescribed rigour howsoever it may apply harshly. It is to be reckoned that ultimately Limitation Act provides relieving of a party from a Page 46 of 50 HC-NIC Page 46 of 50 Created On Thu Oct 06 01:11:23 IST 2016 C/CRA/347/2016 CAV ORDER contractual liability on completion of the period of limitation. Therefore, court cannot extend it on any equitable ground.
(iii) While analysing whether suit discloses any cause of action or not, any averment made contrary to law cannot be considered as disclosing cause of action.
(iv) The court would not permit for specific enforcement of an agreement, which is contrary to Section 23 of the Contract Act, void, illegal or opposed to the public policy of India suit for such performance of agreement deserves to be rejected.
(v) When the court finds that suit is not maintainable under Order VII Rule-11 of the Code of Civil Procedure, 1908, power must be exercised to see that futile litigation does not remain pending and litigating party gets relieved from pursuing the suit. The provision of Order-VII Rule-11 of CPC is intended mainly to ensure that a litigation which is meaningless and bound to prove abortive, should not be permitted to occupy the time of Page 47 of 50 HC-NIC Page 47 of 50 Created On Thu Oct 06 01:11:23 IST 2016 C/CRA/347/2016 CAV ORDER the court. This power deserves to be exercised to curb the menance of meaningless and legally abusive litigation.
33. In my view, when it is found that the agreement to sell executed between the parties itself is void in the eye of law and it has no existence in the eye of law, allowing the trial court to proceed with such suit would be a total futility. Therefore, this is the right stage where the issue as to whether the plaint deserves to be rejected or not, deserves to be decided. If any irresistible conclusion is arrived at by the court that the suit itself is not maintainable in the eye of law, allowing such suit to be proceeded, is nothing but a futile exercise of conducting the trial and it creates untold hardship to the litigating parties. In view of this fact, the plaint, which is prima facie not disclosing any legal cause of action against the present petitioners, deserves to be rejected. It is to be noted that though the suits have been consolidated, yet evidence has not begun and therefore, no prejudice would be caused to the parties if the application under Order VII Rule-11 of the Code of Civil Procedure, 1908 is decided on merits. On the other hand, allowing to proceed with Page 48 of 50 HC-NIC Page 48 of 50 Created On Thu Oct 06 01:11:23 IST 2016 C/CRA/347/2016 CAV ORDER such suit would be a futile exercise on the part of the trial court.
34. In view of the above discussion, in my view, the agreement to sell executed on 13.06.1978 is void in view of the restrictions of Section 43 of the Bombay Tenancy and Agricultural Lands Act being a new tenure land. The suit filed for specific performance being Original Civil Suit No.2/2007 converted to Special Civil Suit No.1164/2011 and later on renumbered as Regular Civil Suit No.1357/2015, filed on 01.01.2007, was time barred. Pursuant thereto, Regular Civil Suit No.33/2010 filed for cancellation of sale deed of the subsequent purchasers - petitioners herein does not disclose any legal cause of action. Therefore, the plaint of Regular Civil Suit No.33/2010 filed before the court of learned 2nd Additional Senior Civil Judge, Ahmedabad (Rural), deserves to be rejected and is accordingly hereby rejected under Order-VII Rule-11 of the Code of Civil Procedure, 1908. Accordingly, this Civil Revision Application of the petitioner stands allowed to the above extent.
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(Z.K.SAIYED, J.)
PALAK
FURTHER ORDER
Learned advocate Mr.Amrish Pandya requests to stay this order for a period of six weeks.
Learned advocate Mr.Tatvam Patel strongly opposed the request made by learned advocate Mr.Pandya.
Request is granted. The order is stayed for a period of four weeks from today.
(Z.K.SAIYED, J.) PALAK Page 50 of 50 HC-NIC Page 50 of 50 Created On Thu Oct 06 01:11:23 IST 2016