Gujarat High Court
Rameshbhai Bachubhai Sangani vs Binaben D/O Lallubhai Nathubhai @ ... on 10 February, 2025
Author: Biren Vaishnav
Bench: Biren Vaishnav
NEUTRAL CITATION
C/FA/2858/2024 CAV JUDGMENT DATED: 10/02/2025
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Reserved On : 29/08/2024
Pronounced On : 10/02/2025
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 2858 of 2024
With
CIVIL APPLICATION (FOR INTERIM RELIEF) NO. 1 of 2024
In R/FIRST APPEAL NO. 2858 of 2024
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE BIREN VAISHNAV
and
HONOURABLE MS. JUSTICE NISHA M. THAKORE
=============================================
Approved for Reporting Yes No
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RAMESHBHAI BACHUBHAI SANGANI
Versus
BINABEN D/O LALLUBHAI NATHUBHAI @ NARAYANBHAI AND
W/O DAHYABHAI PATEL & ORS.
=============================================
Appearance:
MR MA KHARADI(1032) for the Appellant(s) No. 1
MR PREMAL S RACHH(3297) for the Defendant(s) No. 6
Mr. R.S.Sanjanwala, Senior Advocate with MR. AADIT R
SANJANWALA(9918) for the Defendant(s) No.
10,11,12,13,14,15,16,9
=============================================
CORAM:HONOURABLE MR. JUSTICE BIREN VAISHNAV
and
HONOURABLE MS. JUSTICE NISHA M. THAKORE
CAV JUDGMENT
(PER : HONOURABLE MS. JUSTICE NISHA M. THAKORE)
1. The present appeal is filed by the original plaintiff under Section 96 of the Code of Civil Procedure, 1908 (hereinafter referred to the as the "Code") being aggrieved and dissatisfied with the order dated 18.03.2024 passed by the learned Additional Senior Civil Judge, Surat below Exhs. 17 & Page 1 of 29 Uploaded by RATHOD KAUSHIKSINH JILUSINH(HC00957) on Tue Feb 11 2025 Downloaded on : Tue Feb 11 22:38:48 IST 2025 NEUTRAL CITATION C/FA/2858/2024 CAV JUDGMENT DATED: 10/02/2025 undefined 18 in Special Civil Suit No.164 of 2023. By the said impugned order, the learned Judge has allowed the application preferred by the present respondent nos. 6 & 7 as well as application at Exh.178 under Order VII Rule 11 of the Code essentially on the ground that the suit was barred by law under Section 43 of the Gujarat Tenancy and Agriculture Land Act, 1948 (hereinafter referred to as the "Tenancy Act") and under Section 23 of the Indian Contract Act. Hence, by the impugned order, the learned Judge has rejected the plaint of Special Civil Suit No.164 of 2023.
2. In order to appreciate the controversy involved, the facts as pleaded by the original plaintiff- appellant herein are reproduced herein under:
2.1. The dispute pertains to agricultural land bearing revenue survey no.520 block no.462 admeasuring hectare 0-
77-90 sq mtrs of village Pal, Tal: Choriyasi (presently Adajan), Dist. Surat (hereinafter referred to as the "suit land"). The aforesaid suit land belonged to the ownership of the Kamnath Mahadev Temple Trust and it was running in the name of its administrator -Chunilal Nanchand. The said administrator expired on 15.6.1950 and the Managing Committee of the trust by Resolution dated 13.09.1950 and pursuant to the order passed by the Mamlatdar dated 17.01.1951 had entered the names of Govanbhai Ranchodji and Karshanji Page 2 of 29 Uploaded by RATHOD KAUSHIKSINH JILUSINH(HC00957) on Tue Feb 11 2025 Downloaded on : Tue Feb 11 22:38:48 IST 2025 NEUTRAL CITATION C/FA/2858/2024 CAV JUDGMENT DATED: 10/02/2025 undefined Narotambhai Patel as its administrator. 2.2. In the second column of the revenue record, name of one Lallubhai Nathubhai @ Naranbhai appeared in the year 1955- 56 as tenant. The said tenant had expired on 13.04.1964, whereby, name of his heirs and legal representatives - Diwaliben wd/o Lallubhai Nathubhai, Babarbhai Lallubhai, Ambaben Lallubhai, Jekishanbhai Lallubhai, Kamuben Lallubha, Jinabhai Lallubhai and Benaben Lallubhai names were entered as tenant. The proceedings under Tenancy Act were conducted by the Mamlatdar and ALT, Songadh and by order dated 6.9.1971 passed in Tenancy Case No.63 of 1971 had declared the aforesaid heirs of deceased tenant Lallubhai Nathubhai to be the lawful owners and occupants which was recorded in the revenue record vide mutation entry no.3567 dated 18.08.1973 and certified on 23.04.1974. On the demise of the wife of the original tenant Diwaliben who expired on 21.07.1965, her name was deleted from the revenue record, which fact is recorded in revenue record vide mutation entry no.4153 dated 10.02.1990, certified on 1.11.1990. 2.3. By referring to the aforesaid facts, original plaintiff has pleaded that the defendant no.1 - Benaben d/o Lallubhai Nathubhai had derived 1/6th share in the suit land in her capacity as co-owner of the suit land. She had right to manage Page 3 of 29 Uploaded by RATHOD KAUSHIKSINH JILUSINH(HC00957) on Tue Feb 11 2025 Downloaded on : Tue Feb 11 22:38:48 IST 2025 NEUTRAL CITATION C/FA/2858/2024 CAV JUDGMENT DATED: 10/02/2025 undefined her part of share and had accordingly agreed to sale the aforesaid part of the suit land to the original plaintiff. The consideration amount was agreed towards which Bana amount of Rs.5 lakhs was paid by the original plaintiff to the defendant no.1. The terms and conditions of the agreement were reduced in writing by executing agreement to sell dated 22.08.2008 by defendant no.1 in favour of the original plaintiff acknowledging the fact of defendants having received Bana amount of Rs.5 lakhs. The said document was executed before the notary which was also entered in the register of notary vide entry no.4511 of 2008 dated 22.08.2008. It is further pleaded that the receipt was also issued by the defendant no.1 as against the Bana amount. The defendant no.1 had agreed to sell her share of the suit land, it was clarified that the suit land was new tenure land and upon partition of the share of the respective co-owners and pursuant to the block division and conversion of land to old tenure land as well as upon obtaining title clearance certificate. It is further pleaded by the plaintiff that all throughout the plaintiff has persuaded the defendant no.1 to obtain necessary permission as per the terms and conditions of the agreement and were always ready and willing to perform their part of obligation. Since the aforesaid exercise had been prolonged the parties have orally agreed to increase consideration amount, whereby, the plaintiff claims to have paid further amount of Rs.5 lakhs in Page 4 of 29 Uploaded by RATHOD KAUSHIKSINH JILUSINH(HC00957) on Tue Feb 11 2025 Downloaded on : Tue Feb 11 22:38:48 IST 2025 NEUTRAL CITATION C/FA/2858/2024 CAV JUDGMENT DATED: 10/02/2025 undefined cash on 18.1.2021, against which, the receipt has also been issued by the defendant no.1. With such conduct of the defendant no.1, the original plaintiff was under bonafide belief being assured that the agreement to sell had remained in force and no cause had arose to approach the Court to seek specific performance. The plaintiff has pleaded further that it is only on 14.6.2023 when copy of the 7/12 extracts were collected and the copy of the revenue record of the respective entries were examined, the plaintiff derived the knowledge about the fact that defendant no.1 along with other co-owners in collusion had entered into registered sale deed dated 3.2.2021 in favour of defendant nos. 6 & 7. The plaintiff at that stage realize that the defendant no.1 in collusion with the co-owners-defendant nos. 3 to 5 had got converted the suit land into an old tenure land on 20.08.2020 and thereafter had also got converted the suit land into non agricultural land. 2.4. It is further pleaded that the different sale deeds have been subsequently entered upon in favour of the defendant no.6 by the other co-owners in respect of their share in the suit land bearing registration no.1560 dated 10.05.2021, registration no.485 dated 10.05.201 and registration no.3469 dated 11.05.2021. The mutation entry in respect of the aforesaid sale deeds have also been entered in the revenue record which has been duly certified.
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NEUTRAL CITATION C/FA/2858/2024 CAV JUDGMENT DATED: 10/02/2025 undefined 2.5. In such circumstances, the plaintiff had raised objection against such mutation entry on 21.6.2023 before the Mamlatdar, Adajan. The RTS case no.153 of 2021 was registered and was heard before the learned Deputy Collector, City Prant Surat, which is pending for adjudication.
3. The plaintiff was therefore, constrained to approach the Court of learned Additional Senior Civil Judge, Surat by filing suit praying for specific performance of his agreement to sell in respect of 1/6th share of the suit land. The plaintiff has also prayed for declaration seeking cancellation of the illegal sale deed executed by the defendant no.1 bearing registration nos.12579 of 2022 and 13535 of 2023. The plaintiff has also prayed for partition of the aforesaid 1/6th share of the suit property and thereby seeking further direction against defendant no.1 to execute the registered sale deed in view of the agreement to sell dated 22.08.2008 and thereafter as agreed on 18.01.2021 by accepting the additional amount of consideration. Alternatively, directions are sought for appointment of the Court Commissioner by partitioning 1/6th share of the suit property and thereafter to execute a registered deed in favour of plaintiff. The plaintiff has also prayed for permanent injunction against the defendant from transferring the suit land in favour of third party in any Page 6 of 29 Uploaded by RATHOD KAUSHIKSINH JILUSINH(HC00957) on Tue Feb 11 2025 Downloaded on : Tue Feb 11 22:38:48 IST 2025 NEUTRAL CITATION C/FA/2858/2024 CAV JUDGMENT DATED: 10/02/2025 undefined manner. Along with plaint, plaintiff has also submitted application at Exh.5 seeking interim injunction in terms of permanent injunction as prayed for in the suit, pending the suit.
4. Initially, it transpires that the summons were issued upon the defendants by the learned Judge. Defendant nos. 9 to 16 has preferred application at Exh.17, whereas, defendant nos. 6 and 7 have preferred application at Exh.18 under Order VII Rule 11 of the Code of Civil Procedure, 1908 praying for rejection of the plaint. Essentially, prayer for rejection of plaint was sought on the ground that the agreement to sell is void and no relief for specific performance can be granted by the Court as the same is not enforceable. The provisions of Section 43 of the Gujarat Tenancy and Agriculture Land Act, 1948 were relied upon which mandates the parties to obtain prior permission of the Collector before entering into the agreement to sell. In absence of any prior permission being obtained, the alleged agreement to sell was urged to be treated as void agreement to sell in view of Section 23 of the Indian Contract Act. The reliance was placed on the Full Bench decision of this Court in the case of Deceased Shaikh Ismailbhai Husainbhai Through Legal Heirs vs. Vankar Ambalal Dhanabhai reported in 2024 AIJEL HC 247772. Page 7 of 29 Uploaded by RATHOD KAUSHIKSINH JILUSINH(HC00957) on Tue Feb 11 2025 Downloaded on : Tue Feb 11 22:38:48 IST 2025
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5. The plaintiff has refuted the aforesaid contentions by filing reply at Exh.23. While referring to the aforesaid events, it was contended that suit land was converted from new tenure to old tenure though subsequently but prior to filing of the suit. It was also pointed out to the learned Judge that agreement to sell was executed on 22.08.2008, however, thereafter the additional consideration was received by the defendant no.1 on 18.1.2021 in continuation of the original agreement to sell. It was therefore, urged that the decision of the Full Bench of this Court would not be applicable in the facts of the case as the such situation did not arose for consideration before the Full Bench while deciding on the issue of agreement to sell executed in breach of Section 43 of the Tenancy Act being void for all purposes.
6. The learned Judge upon examining the submissions made by the respective parties and the legal position prevailed noticed that permission of converting the suit land from new tenure to old tenure was subsequent to the agreement to sell. The plaintiff had cleverly tried to project the fact of additional consideration, however upon reading the terms and conditions of the agreement to sell dated 22.08.2008, no such condition of converting the suit land from new tenure to old tenure was found. Hence, learned Judge has arrived at a conclusion that the agreement to sell was invalid document right from its Page 8 of 29 Uploaded by RATHOD KAUSHIKSINH JILUSINH(HC00957) on Tue Feb 11 2025 Downloaded on : Tue Feb 11 22:38:48 IST 2025 NEUTRAL CITATION C/FA/2858/2024 CAV JUDGMENT DATED: 10/02/2025 undefined inception being executed in breach of Section 43 of the Tenancy Act. Taking into consideration the aforesaid legal position, the learned Judge hold that the suit for specific performance was not maintainable as the agreement to sell was void document which cannot be enforce in eye of law as being hit by provisions of Section 43 of the Tenancy Act r/w section 23 of the Indian Contract Act. Hence, present appeal at the instance of the original plaintiff.
7. Mr. M.A. Kharadi, learned advocate has appeared on behalf of the appellant. Respondent no.6 has entered caveat and is represented by learned advocate Mr. Premal Ranch. The paper book of relevant documents has been tendered by the learned advocate for the appellant. Later on learned advocate Mr. Adit Sanjanwala has appeared under the instructions on behalf of respondent nos. 8 to 16 who was permitted to enter his appearance. Learned Senior Advocate Mr. R.S. Sanjanwala has appeared on behalf of respondents and has placed on record the paper book of documents produced before the trial Court at Exhs. 3, 23 and 24.
8. Learned advocates were heard at length and the matter was reserved for orders. Mr. M A Kharadi, learned advocate for the appellant has invited our attention to the impugned order and has submitted that the learned Judge committed Page 9 of 29 Uploaded by RATHOD KAUSHIKSINH JILUSINH(HC00957) on Tue Feb 11 2025 Downloaded on : Tue Feb 11 22:38:48 IST 2025 NEUTRAL CITATION C/FA/2858/2024 CAV JUDGMENT DATED: 10/02/2025 undefined serious error in not appreciating the facts of the case. According to him, the learned Judge committed error in applying Section 43 of the Tenancy Act read with Section 23 of the Indian Contract Act without appreciating the fact that consequently the defendant no.1 had obtained permission from the Collector and the land was converted from new tenure to old tenure agriculture land for agriculture purpose. Even the non agriculture permission was also obtained by the defendant no.1.
8.1. Learned advocate has placed on record the policy / instructions of the State Government, which indicates that the lands ceased to be a new tenure land once it emerges on record that the holder of the land had cultivated the new tenure agriculture land continuously for more than 15 years. The circular dated 11.3.1996 issued by the Deputy Secretary, Revenue Department, State of Gujarat was referred to and relied upon, whereby, the State has instructed the competent officer to follow the policy adopted by the State in respect of new and impartible tenure land to be converted into old tenure land which also includes the lands with restrictions under Section 43 of the Tenancy Act. He, therefore, submitted that in view of the aforesaid circular, it was for the competent officer to take appropriate steps to declare the land to be old tenure land.
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NEUTRAL CITATION C/FA/2858/2024 CAV JUDGMENT DATED: 10/02/2025 undefined 8.2. As regards the payment of premium is concerned, he had relied upon the resolution dated 20.12.2006 issued by the Deputy Secretary, Revenue Department, State of Gujarat fixing the rate of premium by classifying the lands into three categories. As per present policy, it was declared by the State Government that in cases of agricultural land falling within the rural area other than the ULC Area, Mahanagarpalika area, Urban Development Authority Area or Municipal Bureau where occupation was more than 15 years, the rate of premium fixed was 0%. While inviting our attention to the last column of the aforesaid new policy, it was submitted that upon expiry of period of 15 years the land was to be automatically treated as old tenure land. It was only for the purpose of use of land for non agricultural purpose that the premium amount was required to be fixed. It was therefore submitted that as on the date of agreement dated 22.08.2008 the land ceased to be a new tenure land and therefore, there was no reason for the learned Judge to treat such land as a new tenure land and consequently the agreement sought to be enforced as a void document.
8.3. It was further submitted that even otherwise pursuant to the notification dated 20.07.2006 the land had been covered under the extended area of corporation limits from 26.12.2006. He has therefore, submitted that the provision of Page 11 of 29 Uploaded by RATHOD KAUSHIKSINH JILUSINH(HC00957) on Tue Feb 11 2025 Downloaded on : Tue Feb 11 22:38:48 IST 2025 NEUTRAL CITATION C/FA/2858/2024 CAV JUDGMENT DATED: 10/02/2025 undefined the Tenancy Act would cease to apply to such lands falling within the corporation limits.
8.4. The prayer was therefore, made to quash and set aside the impugned order and to restore the suit to its original file and to permit the plaintiff to lead his evidence.
9. Mr. R.S. Sanjanwala, learned Senior Advocate with Mr. Premal Ranch, learned advocate on caveat for respondent no.6 and Mr. Aadit Sanjanwala, learned advocate for the respondent nos. 8 to 16 has vehemently objected to the aforesaid submissions of the learned advocate for the appellant. Learned Senor counsel at the outset invited our attention to the relevant provisions of the Tenancy Act, more particularly, Section 32 as well as Section 43. It was submitted that the plain reading of the Section 43(2) clearly prohibits even agreement to sell in respect of the agricultural land having restriction on transfer in view of land being purchased pursuant to inquiry under Section 32 G of the Tenancy Act. Much emphasis was made on the term "previous sanction of the Collector" appearing in the said provision. It was submitted that Section 43 had undergone amendment inasmuch as prior to the amendment term "agreement" was not appearing in the expressive language of the said provision. Having noticed lacuna, whereby it clearly frustrated Page 12 of 29 Uploaded by RATHOD KAUSHIKSINH JILUSINH(HC00957) on Tue Feb 11 2025 Downloaded on : Tue Feb 11 22:38:48 IST 2025 NEUTRAL CITATION C/FA/2858/2024 CAV JUDGMENT DATED: 10/02/2025 undefined the object of the special enactment legislation, had brought amendment in the said provision, whereby, term "agreement" was also inserted. Learned senior counsel has thereafter referred to Section 23 of the Indian Contract Act. 9.1. Learned Senior Advocate placed heavy reliance on the recent decision of the Full Bench of this Court in the case of Deceased Shaikh Ismailbhai Husainbhai Through Legal Heirs (supra). According to him, this Court has no jurisdiction to take a different view in view of the aforesaid Full Bench decision. Our attention was invited to the reference which had arose for consideration before the Hon'ble Full Bench as recorded in para 9 of the said decision. Learned senior advocate has made valiant attempt to convince us that in view of the observations made by the Full Bench which also took into consideration the decision of the Coordinate Bench in the case of Ganpat Manjibhai Khatri vs. Manguben Babaji Thakor reported in 2019(0) JX (Guj) 1122, wherein it is held that there is total prohibition of even entering into writing for the purpose of sale under Section 43 of the Tenancy Act. It was submitted that agreement to sell would not be entered without prior permission or the sanction of the Collector and any agreement entered in breach of Section 43 of the Tenancy Act is invalid and is incapable of being enforced. While concurring with the the aforesaid view, Page 13 of 29 Uploaded by RATHOD KAUSHIKSINH JILUSINH(HC00957) on Tue Feb 11 2025 Downloaded on : Tue Feb 11 22:38:48 IST 2025 NEUTRAL CITATION C/FA/2858/2024 CAV JUDGMENT DATED: 10/02/2025 undefined Hon'ble Full Bench held that the jurisdiction to order specific performance of a contract is based on the existence of valid and enforceable contract. The Court further held that where valid and enforceable contract has not been made, the Court will not make a contract for them. The specific performance will not be ordered if the contract itself suffers from some defect, which makes the contract invalid or unenforceable. 9.2. While responding to the submissions made by learned advocate for the appellant as regards the permission being obtained from the competent authority prior to filing of the suit, learned senior advocate submitted that even subsequent event would not make the contract valid and enforceable in view of Section 43 of the Tenancy Act read with Section 23 of the Indian Contract Act. It was submitted that such agreement is a stillborn agreement which can never be enforced and subsequent change in the event of obtaining permission will not resurrect the agreement which is void right from its inception. Our attention was invited to the judgment of the Hon'ble Supreme Court in the case of Ferrodous Estate (Private) Limited vs. P. Gopirathnam (dead) reported in AIR 2020 SC 5041 which was considered by the Full Bench. Learned senior advocate has taken us through the view expressed by the Full Bench while concurring with the decision in the case of Ganpat Manjibhai Khatri (supra). Page 14 of 29 Uploaded by RATHOD KAUSHIKSINH JILUSINH(HC00957) on Tue Feb 11 2025 Downloaded on : Tue Feb 11 22:38:48 IST 2025
NEUTRAL CITATION C/FA/2858/2024 CAV JUDGMENT DATED: 10/02/2025 undefined Mr. Sanjanwala, learned senior advocate has also referred to the recent unreported decision of the Hon'ble Supreme Court in the case of Babasaheb Dhondiba Kute vs. Radhu Vithba Barde rendered in SLP(C)29462 of 2019. While inviting our attention to the facts of the case and the provision of law, it was submitted that the Court was called upon to examine the trial Court and First Appellate Court order in a suit seeking relief of specific performance of the agreement to sell entered in breach of Section 36 A Maharashtra Land Revenue Code, 1966 which specifically deals with the restrictions put on transfer of occupancy of agricultural land by the tribals. It was the case where the defendants - respondents herein executed an agreement to sell in favour for the plaintiff who was a non-tribal. The Hon'ble Supreme Court upon appreciation of the aforesaid provisions noticed that the restrictions were only made against the transfer to be made by a tribal in favour of non tribal by way of sale, gift, exchange, mortgage, lease or otherwise. Thus, the Court noticed that such restriction is in context of the relevant provision requiring the non-tribal to make an application for a previous sanction before such a conveyance could be made by a tribal in favour of non tribal. Noticing the aforesaid expressive language, the Hon'ble Supreme Court found that the trial Court, First Appellate Court as well as High Court could not have declined to grant decree for specific Page 15 of 29 Uploaded by RATHOD KAUSHIKSINH JILUSINH(HC00957) on Tue Feb 11 2025 Downloaded on : Tue Feb 11 22:38:48 IST 2025 NEUTRAL CITATION C/FA/2858/2024 CAV JUDGMENT DATED: 10/02/2025 undefined performance to the plaintiff inasmuch as considerations under the provisions Specific Relief Act, 1963 only had to be made for the purpose of adjudicating the suit between the parties. It is in this peculiar circumstances, the Hon'ble Supreme Court has modified the orders passed by the lower Courts by holding that the plaintiff was entitled for relief of specific performance. However, putting a further note on occasion to seek prior permission as provided under Section 36 A of the Land Revenue Code/ proceedings with the conveyance of the subject land. While referring to the aforesaid observations of the Hon'ble Supreme Court, learned senior advocate has submitted that a similar proviso appears in the Maharashtra Land Revenue Code restricting a transfer of agricultural land by a tribal to a non-tribal. Reference was also made to Section 63 of the Tenancy Act which prohibits the transfer of agricultural land by an agriculturist to a non-agriculturist. At this juncture, learned Senior advocate has once again taken us to the analysis done by the Hon'ble Full Bench in the case of Deceased Shaikh Ismailbhai Husainbhai Through Legal Heirs (supra). The Full Bench has taken into consideration the expressive language of Section 43 vis-a-vis Section 63 of the Tenancy Act. Relevant extract of the judgment of this Court in the case of Ganpat Manjibhai Khatri (supra) was also referred to. It was therefore, submitted that scope of conditional decree is available where Page 16 of 29 Uploaded by RATHOD KAUSHIKSINH JILUSINH(HC00957) on Tue Feb 11 2025 Downloaded on : Tue Feb 11 22:38:48 IST 2025 NEUTRAL CITATION C/FA/2858/2024 CAV JUDGMENT DATED: 10/02/2025 undefined agreement to sell is entered in case of Section 63 of the Tenancy Act. He has therefore, submitted that in absence of any provision permitting the post facto permission to be obtained in case of agreement to sell executed in breach of Section 43 of the Tenancy Act, no conditional decree for specific performance can be passed. While addressing us on merits of the case, learned senior advocate has submitted that the pleadings of the plaint if read over is nothing but an illusory cause has been projected to make the suit maintainable within the prescribed period of limitation. The only explanation which come forward from the plain reading of the plaint what is sought to be enforced is an agreement of year 2008 by filing a suit in the year 2023 with an explanation that the plaintiff had repeatedly reminded the defendant no.1 to obtain requisite permission and had placed reliance upon the assurance given by the defendant no.1. While referring to the paper book produced on record, our attention was invited to the copy of 7/12 which clearly goes to indicate that pursuant to the sale deed executed in favour of the defendant nos. 8 to 16 in the year 2021. Relevant mutation entry has also been recorded on the aspect of claim of the plaintiff of having paid additional amount of consideration of Rs.5 lakhs in cash on 18.1.2021, learned counsel has submitted that the learned Judge has rightly dealt with the aforesaid submission. It was submitted that once the agreement to sell itself was Page 17 of 29 Uploaded by RATHOD KAUSHIKSINH JILUSINH(HC00957) on Tue Feb 11 2025 Downloaded on : Tue Feb 11 22:38:48 IST 2025 NEUTRAL CITATION C/FA/2858/2024 CAV JUDGMENT DATED: 10/02/2025 undefined void right from its inception the subsequent grant of permission by the Collector would not cure the defects of the validity of the agreement. He, has therefore, prayed for dismissal of the appeal.
10. We have given thoughtful consideration to the submissions, made by learned advocates, appearing for the respective parties and have examined the judgement and order under challenge, in light of the legal principles laid down in the decisions relied upon by the respective parties. The short question which falls for consideration before this court in the present appeal is whether the learned judge committed any error in dismissing the suit at threshold under order VII rule 11 of the Code of Civil Procedure, 1908, in the facts of the case?.
11. Before entering into the merits of the case, it would be appropriate to reproduce the findings and the reasons assigned by the learned judge while passing impugned judgement and order. The learned judge has held:
(a) Upon appreciation of the case of the plaintiff, in light of the documents produced on record, mainly the agreement to sell at Mark 3/24 and the receipt dated 18.01.2021 at Mark 3/25, noticed that admittedly, the subject land is new tenure land.
However, on examination of the recitals of the Page 18 of 29 Uploaded by RATHOD KAUSHIKSINH JILUSINH(HC00957) on Tue Feb 11 2025 Downloaded on : Tue Feb 11 22:38:48 IST 2025 NEUTRAL CITATION C/FA/2858/2024 CAV JUDGMENT DATED: 10/02/2025 undefined agreement to sell, there is no stipulation of conversion of new tenure land to old tenure land as pleaded in plaint.
(b) The judgement of the Hon'ble Supreme Court in case of Babasaheb Dhoniba kute (Supra) is distinguished in light of section 36A of Maharashtra land revenue code,1986 which is similar to section 73 AA of the Gujarat land revenue code by observing that section 36A does not prohibit agreement to sell.
(d) The judgment of this Court in the case of Hardik Harshadbhai Patel vs. Amarsang Nathaji reported in ( 2016) 7 SCC Guj 3788 has been relied upon wherein though land was converted to old tenure prior to filing of suit, however this Court refused to grant relief for injunction in a suit seeking specific performance of an agreement of new tenure land.
(e) The avernments in the plaint indicated that the agreement to sell dt. 22.08.2008 and receipt dt. 18.01.2021 were forming part of same transaction and therefore the contention of plaintiff to treat new agreement having been entered subsequently after conversion of land to old tenure and therefore suit seeking specific performance being maintainable, was not entertained.
(f) After considering the legal provisions as well as the legal principles vis-a-vis, the agreement entered in breach of subclause (1) or subsection (1C) of section 43 of Tenancy Act to be void in view of section 23 of the Indian Contract Act, such agreements being not enforceable, suit was liable to be rejected under order VII rule 11 of the Code of Page 19 of 29 Uploaded by RATHOD KAUSHIKSINH JILUSINH(HC00957) on Tue Feb 11 2025 Downloaded on : Tue Feb 11 22:38:48 IST 2025 NEUTRAL CITATION C/FA/2858/2024 CAV JUDGMENT DATED: 10/02/2025 undefined Civil Procedure, 1908."
12. After taking cognizance of the above findings and reasons assigned by the learner judge, we are of the considered opinion that the learned judge has followed the law down by this Court in its various decisions as stood reaffirmed by the recent view of the Hon'ble Full Bench of this court. In our opinion, no error of law is committed by the learned judge, which calls for any interference of this court in the present appeal.
13. We are mindful of the fact that the first appeal cannot be dismissed at the threshold of admission hearing as the scope of dismissal of appeal without calling for records, under order XLI rule 11 of CPC is very narrow and akin to power of order VII rule 11 of CPC. It would be appropriate to look into the relevant observation of the Hon'ble Supreme Court in case of DAHIBEN vs. ARVINDBHAI KALYANJI BHANUSALI (GAJRA) (D) THR LRS. The Hon'ble Court has laid down a few important aspects to be strictly adhered to while deciding an application under Order VII rule 11. The Hon'ble Supreme Court has made the following observations:
"1. The power conferred on the court to terminate a civil action is, however, a drastic one, and the conditions enumerated in Order VII Rule 11 are required to be strictly adhered to.Page 20 of 29 Uploaded by RATHOD KAUSHIKSINH JILUSINH(HC00957) on Tue Feb 11 2025 Downloaded on : Tue Feb 11 22:38:48 IST 2025
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2. Under Order VII Rule 11, a duty is cast on the Court to determine whether the plaint discloses a cause of action by scrutinizing the averments in the plaint, read in conjunction with the documents relied upon, or whether the suit is barred by any law.
3. The documents filed alongwith the plaint, are required to be taken into consideration for deciding the application under Order VII Rule 11
(a). When a document referred to in the plaint, forms the basis of the plaint, it should be treated as a part of the plaint.
4. In exercise of power under this provision, the Court would determine if the assertions made in the plaint are contrary to statutory law, or judicial dicta, for deciding whether a case for rejecting the plaint at the threshold is made out.
5. At this stage, the pleas taken by the defendant in the written statement and application for rejection of the plaint on the merits, would be irrelevant, and cannot be adverted to, or taken into consideration.
6. The test for exercising the power under Order VII Rule 11 is that if the averments made in the plaint are taken in entirety, in conjunction with the documents relied upon, would the same result in a decree being passed. This test was laid down in Liverpool & London S.P. & I Assn. Ltd. v. M.V.Sea Success I & Anr., (2004) 9 SCC 512.
7. It is not permissible to cull out a sentence or a passage, and to read it in isolation. It is the substance, and not merely the form, which has to be looked into. The plaint has to be construed as it stands, without addition or subtraction of words. If the allegations in the plaint prima facie show a cause of action, the court cannot embark upon an enquiry whether the allegations are true in fact. Hardesh Ores (P.) Ltd. v. Hede & Co. (2007) 5 SCC 614.
8. If on a meaningful reading of the plaint, it is found that the suit is manifestly vexatious and without any merit, and does not disclose a right to sue, the court Page 21 of 29 Uploaded by RATHOD KAUSHIKSINH JILUSINH(HC00957) on Tue Feb 11 2025 Downloaded on : Tue Feb 11 22:38:48 IST 2025 NEUTRAL CITATION C/FA/2858/2024 CAV JUDGMENT DATED: 10/02/2025 undefined would be justified in exercising the power under Order VII Rule 11 CPC.
9. The power under Order VII Rule 11 CPC may be exercised by the Court at any stage of the suit, either before registering the plaint, or after issuing summons to the defendant, or before conclusion of the trial. Saleem Bhai v. State of Maharashtra 7 (2003) 1 SCC 557.
10."Cause of action" means every fact which would be necessary for the plaintiff to prove, if traversed, in order to support his right to judgment.
It consists of a bundle of material facts, which are necessary for the plaintiff to prove in order to entitle him to the reliefs claimed in the suit.
11. While considering an application under Order VII Rule 11 CPC what is required to be decided is whether the plaint discloses a real cause of action, or something purely illusory.
12. Law cannot permit clever drafting which creates illusions of a cause of action. What is required is that a clear right must be made out in the plaint. I.T.C. Ltd. v. Debt Recovery Appellate Tribunal, (1998) 2 SCC 170.
13. If, however, by clever drafting of the plaint, it has created the illusion of a cause of action, it should be nipped in the bud, so that bogus litigation will end at the earliest stage. Madanuri Sri Ramachandra Murthy v. Syed Jalal.
14. The Court must be vigilant against any camouflage or suppression, and determine whether the litigation is utterly vexatious, and an abuse of the process of the court.
14. Keeping in mind the above principles we would like to examine the contentions raised by learned advocate for the appellant.
15. As regards the issue of void transaction, for the first time Page 22 of 29 Uploaded by RATHOD KAUSHIKSINH JILUSINH(HC00957) on Tue Feb 11 2025 Downloaded on : Tue Feb 11 22:38:48 IST 2025 NEUTRAL CITATION C/FA/2858/2024 CAV JUDGMENT DATED: 10/02/2025 undefined in appeal learned advocate has tried to digress from the issue of void transaction and its enforceability by placing reliance upon government resolutions dated 11.03.1996 and 20.12.2006, whereby the State has resolved to lift restrictions of section 43 of Tenancy Act on payment of premium. However, in our considerate view, no pleadings have been made in the plaint to demonstrate in what manner the case of plaintiff would be governed by the aforesaid Government resolutions . Indisputably, on the date of execution of the agreement to sell, the land was a new tenure land. There is no material or pleading made in the plaint to demonstrate that the restrictions over the subject land were to be treated as lifted in terms of order of competent authority to treat the subject land as old tenure on the basis of continuous possession of land for more than 15 years or on payment of premium. Admittedly, the subject land has been converted into old tenure land upon payment of premium vide order dt. 28.08.2020. Learned advocate has raised contention that in view of instructions more particularly clause 3 of the GR dt. 11.03.1996 the restrictions stood lifted automatically however, in our view the very fact that the premium was realised by the State authorities for removal of restrictions as pleaded by the plaintiff in the plaint vide order dt. 28.08.2020 contradicts the aforesaid contention raised by learned advocate for the appellant original plaintiff. In our view, the Page 23 of 29 Uploaded by RATHOD KAUSHIKSINH JILUSINH(HC00957) on Tue Feb 11 2025 Downloaded on : Tue Feb 11 22:38:48 IST 2025 NEUTRAL CITATION C/FA/2858/2024 CAV JUDGMENT DATED: 10/02/2025 undefined act of subsequent consideration paid after removal of restrictions towards such illegal transaction at the stage when restrictions were lifted would neither make the original transaction valid nor enforceable. In the case of V. Narasimharaju , AIR 1963 SC 107, the Apex Court held with regard to unlawful consideration that the agreement would be treated as invalid for the reason that such consideration is opposed to public policy and in case on hand particularly when previous sanction of the Collector was a mandatory and, admittedly, such previous sanction was not obtained by the parties and therefore the agreement to sell an agricultural land was held invalid and it was also held that even Section 53A of the Transfer of Property Act, 1882 would also not safeguard such agreement.
16. The second contention which was raised by the learned Counsel for the appellant is that when the suit was preferred on 14 August 2023, the subject land was converted to old land and therefore the bar under section 23 of Indian Contract Act was not applicable. It is also contended that the learned judge committed an error in holding that no decree for specific performance can be drawn in view of section 14(1) (c) of the Specific Relief Act. The present case also stands covered by the ratio laid down by this Court in the case of Ganpatlal Manjibhai Khatri vs. Manguben Babaji Thakor, reported in Page 24 of 29 Uploaded by RATHOD KAUSHIKSINH JILUSINH(HC00957) on Tue Feb 11 2025 Downloaded on : Tue Feb 11 22:38:48 IST 2025 NEUTRAL CITATION C/FA/2858/2024 CAV JUDGMENT DATED: 10/02/2025 undefined 2019 JX (Guj.) 1122 , wherein the Court relied upon the principles laid down in the case of Satish Kumar vs. Karan Singh & Anr., Civil Application No.7385 of 2013, decided on 21st January, 2016 and in para 29 to 35 observed as under :-
"29. It is well settled that the jurisdiction to order specific performance of contract is based on the existence of a valid and enforceable contract. Where a valid and enforceable contract has not been made, the Court will not make a contract for them. Specific performance will not be ordered if the contract itself suffers from some defect which makes the contract invalid or unenforceable. The discretion of the Court will not be there even though the contract is otherwise valid and enforceable.
We shall now deal with the second contention of Mr. Joshi as regards Sections 85 and 85A of the Act. Section 85 of the Act reads as follows:-
"Section 85 Bar of jurisdiction (1) No Civil Court shall have jurisdiction to settle, decide or deal with any question [(including a question whether a person is or was at any time in the past a tenant and whether any such tenant is or should be deemed to have purchased from his landlord the land held by him) which is by or under this Act required to be settled, decide or dealt with by the Mamlatdar or Tribunal, a Manager, Collector or the [Maharashtra Revenue Tribunal] in appeal or revision or the [State] Government in exercise of their powers of control.
(2) No order of the Mamlatdar, the Tribunal, the Collector or the [Maharashtra Revenue Tribunal] or the [State] Government made under this Act shall be questioned in any Civil or Criminal Court.
Explanation:- For the purposes of this section a Civil Court shall include a Mamlatdar's Court constituted under the Mamlatdar's Courts Act, 1906."
32. Section 85A of the Act reads as follows:
"Section 85A Suits involving issues required to be decided under this Act (1) If any suit instituted in any Civil Court involves any issues which are Page 25 of 29 Uploaded by RATHOD KAUSHIKSINH JILUSINH(HC00957) on Tue Feb 11 2025 Downloaded on : Tue Feb 11 22:38:48 IST 2025 NEUTRAL CITATION C/FA/2858/2024 CAV JUDGMENT DATED: 10/02/2025 undefined required to be settled, decided or dealt with by any authority competent to settle, decide or deal with such issues under this Act (hereinafter referred to as the "competent authority") the Civil Court shall stay the suit and refer such issues to such competent authority for determination.
(2) On receipt of such reference from the Civil Court, the competent authority shall deal with and decide such issues in accordance with the provisions of this Act and shall communicate its decision to the Civil Court and such Court shall thereupon dispose of the suit in accordance with the procedure applicable thereto.
Explanation:- For the purpose of this section a Civil Court shall include a Mamlatdar's Court constituted under the Mamlatdar's Court Act, 1906.]"
33. In our opinion, it would be within the jurisdiction of the Civil Court alone to determine whether the agreement on the basis of which the suit for specific performance is instituted is a valid agreement or not. To put it in other words, the jurisdiction exercisable for the determination of the enforceability of the agreement of sale clearly resided in the Civil Court which alone had the jurisdiction to make an adjudication on that question.
34. In the aforesaid context, we may refer to a Division Bench decision of the Karnataka High Court in the case of Neminath Appayya Hanamannanavar vs. Jamboorao Satappa Kocheri, reported in 1966 AIR (Kar.) 154, wherein the Court observed as under:
"[89] Section 70(mb) authorises and empowers the Mamlatdar to decide the validity of a transfer or acquisition and to make that decision under Section 84B or section 84C. Section 848 among other matters authorises a Mamlatdar when he has reason to believe that a transfer or acquisition made on or after June 15, 1955, contravenes sections 63 or 64 of the Act as it stood before the commencement of the amending Act, 1955. to make an enquiry and decide whether the transfer or acquisition was or was not valid.
[90] Section 84C empowers the Mamlatdar to Page 26 of 29 Uploaded by RATHOD KAUSHIKSINH JILUSINH(HC00957) on Tue Feb 11 2025 Downloaded on : Tue Feb 11 22:38:48 IST 2025 NEUTRAL CITATION C/FA/2858/2024 CAV JUDGMENT DATED: 10/02/2025 undefined hold an enquiry by the option of the procedure prescribed in section 84B whether a transfer or acquisition made after the commencement of the amending Act,1955. was valid.
[91] Since the agreement of sale in the case before us was made after the commencement of the amending Act,1955, the relevant statutory provision under which the Mamlatdar can make the enquiry authorised by section 70(mb) is section 84C. But. what is authorised by section 84C is an enquiry into the validity of a transfer or acquisition made after the commencement of the amending Act 1955. So. the condition precedent for the exercise of jurisdiction by the Mamlatdar is a transfer or acquisition made in that way and that Judge is unavailable until the transfer or acquisition actually comes into being.
[92] In this case, no such transfer or acquisition had yet been made by any one. The acquisition which the plaintiff wanted to make was an acquisition which he could make only after he obtained a decree for specific performance and the invalidity of the acquisition if it was in contravention of section
35 would attack itself to the acquisition only after delivery of possession to the plaintiff of an area of land in excess of what is permitted by the law.
[93] In that view of the matter, the jurisdiction exercisable for the determination of the enforceability of the agreement of sale clearly resided in the Civil Court which alone had the jurisdiction to make an adjudication on that question. Surely, the Mamlatdar could not have at a stage when the acquisition or transfer had not yet been made and all that the plaintiff wanted to do was to enforce an agreement of sale so that he could make the acquisition or obtain a transfer under the terms of the agreement exercised power under S.70(mb) or under section 84C and made one he would have this exercised his jurisdiction prematurely and that adjudication would have invited the Page 27 of 29 Uploaded by RATHOD KAUSHIKSINH JILUSINH(HC00957) on Tue Feb 11 2025 Downloaded on : Tue Feb 11 22:38:48 IST 2025 NEUTRAL CITATION C/FA/2858/2024 CAV JUDGMENT DATED: 10/02/2025 undefined criticism that it was one without competence. [94] In my opinion, when a question arises in a suit for specific performance whether the agreement on which that suit is based is void on the ground that any acquisition made pursuant thereto would contravene or transgress the provisions of Section 35 of the Bombay Tenancy and Agricultural Lands Act, the Civil Court Is the only forum in which an adjudication is possible and the Mamlatdar cannot make any such adjudication. The power to make any adjudication under section 84C arises and accrues to the Mamlatdar only after the acquisition or the transfer as the assessee may be is completed and not before."
35. In the overall view of the matter, we are of the view that the impugned order passed by the Civil Court, rejecting the plaint on the ground that the suit is time barred, may not be sustainable in law, but at the same time, no interference is warranted in the present first appeal, because in our opinion, the plaint is liable to be rejected mainly on the ground that the suit for specific performance based on an illegal or invalid agreement to sell is not maintainable as, such a contract is not enforceable."
17. In view of the above settled legal position, the third contention raised by learned advocate for the appellant questioning the jurisdiction of civil court to examine validity of the agreement in light of section 43 of Tenancy Act which otherwise falls within preview of Mamlatdar & ALT under section 84c of the Tenancy Act, stands answered.
18. For the foregoing reasons, in our view the Court below has rightly come to the conclusion that the agreement to sell dated 22.08.2008 entered into between the original plaintiff Page 28 of 29 Uploaded by RATHOD KAUSHIKSINH JILUSINH(HC00957) on Tue Feb 11 2025 Downloaded on : Tue Feb 11 22:38:48 IST 2025 NEUTRAL CITATION C/FA/2858/2024 CAV JUDGMENT DATED: 10/02/2025 undefined and the defendants No.1 was in breach of Section 43 of the Tenancy Act and therefore being invalid and void in eyes of law under section 23 of the Indian Contract Act, the same could not be enforced in law in light of section 14(1)(c) of the Specific Relief Act. Having held so, the learned Judge below has rightly exercise its power to reject the plaint under order VII rule 11 of the Code of Civil Procedure, 1908, consequently leading to dismissal of suit. Hence, the present appeal fails. Notice stands discharged. No order as to cost.
19. In view of dismissal of First Appeal, connected Civil Application also stands dismissed.
(BIREN VAISHNAV, J) (NISHA M. THAKORE,J) RATHOD KAUSHIKSINH Page 29 of 29 Uploaded by RATHOD KAUSHIKSINH JILUSINH(HC00957) on Tue Feb 11 2025 Downloaded on : Tue Feb 11 22:38:48 IST 2025