Gujarat High Court
Naranbhai Kanjibhai Gajera vs Vinodbhai Shankarbhai Patel on 10 April, 2023
Author: A.S. Supehia
Bench: A.S. Supehia
NEUTRAL CITATION
C/FA/1268/2022 JUDGMENT DATED: 10/04/2023
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 1268 of 2022
With
CIVIL APPLICATION (FOR STAY) NO. 1 of 2022
In R/FIRST APPEAL NO. 1268 of 2022
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE A.S. SUPEHIA sd/-
and
HONOURABLE MR. JUSTICE D. A. JOSHI sd/-
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1 Whether Reporters of Local Papers may be allowed NO
to see the judgment ?
2 To be referred to the Reporter or not ? YES
3 Whether their Lordships wish to see the fair copy NO
of the judgment ?
4 Whether this case involves a substantial question NO
of law as to the interpretation of the Constitution
of India or any order made thereunder ?
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NARANBHAI KANJIBHAI GAJERA
Versus
VINODBHAI SHANKARBHAI PATEL
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Appearance:
MR DHRUVIK K PATEL(7769) for the Appellant(s) No. 1
MEETKUMAR J PANDIT(9479) for the Defendant(s) No. 2
MR VIMAL PATEL, ADVOCATE for
VMP LEGAL(7210) for the Defendant(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE A.S. SUPEHIA
and
HONOURABLE MR. JUSTICE D. A. JOSHI
Date : 10/04/2023
ORAL JUDGMENT
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1. ADMIT. Learned advocates appear and waive service of notice of admission on behalf of the respective respondents.
2. The present appeal has been filed against the order dated 09.02.2022 passed by 2nd Additional Senior Civil Judge, Ahmedabad (Rural), Ahmedabad (Rural) at Mirzapur below application Exh.14 being Special Civil Suit No.122 of 2021, whereby the Trial Court has rejected the suit under Order 7, Rule 11(a) and (d) of the Code of Civil Procedure, 1908 (the CPC).
SUBMISSIONS :-
3. Learned advocate Mr.Dhruvik K. Patel, appearing for the appellant has submitted that by the order dated 13.12.2022 passed in Second Appeal No.208 of 2021, this Court has referred the issue raised in the present first appeal to the Larger Bench. He has submitted that the decision of the Division Bench in the case of Amarben Wd/o Ramjibhai Desai Vs. Udaji Kanaji and others (passed in First Appeal No.1845 of 2017 dated 15.11.2017) is not considered by the Division Bench in case of Ganpatlal Manjibhai Khatri Vs. Manguben Babaji Thakore reported in 2019 JX (Guj) 1122 (judgment dated 02.08.2019 passed in First Appeal No.4979 of 2018) and hence, since the issue is pending, the present first appeal may not be taken up.
3.1 So far as the merits of the matter is concerned, learned advocate Mr.Dhruvik Patel, has submitted that the impugned order dated 09.02.2022 passed under Exh.14 rejecting the suit is required to be set aside as per the observations made by the Page 2 of 13 Downloaded on : Sun Sep 17 18:22:35 IST 2023 NEUTRAL CITATION C/FA/1268/2022 JUDGMENT DATED: 10/04/2023 undefined Division Bench in the order dated 15.11.2017 in the case of Amarben Wd/o Ramjibhai Desai (supra), since it is held that the question of applicability of Section 43 of the Bombay Tenancy and Agricultural Lands Act (the Tenancy Act) can be gone into by the Trial Court at the time of trying the suit. It is also submitted that the Court below has fallen in error, while rejecting the plaint on the ground of limitation since in an agreement to sell where the time is not the essence of the contract and the suit of the specific performance can be filed within a period of 12 years. Thus, it is submitted that the impugned order dated 09.02.2022 may be quashed and set aside.
4. Per contra, learned advocate Mr.Vimal Patel, appearing for the respondent No.1 has submitted that the reference made by the learned Single Judge of this Court referring the issue to the Larger Bench is uncalled for. It is submitted that the First Appeal No.1667 of 2021 between Laljibhai Jivarajbhai Aslaliya Vs. Musabhai Yusuf Isufbhai Miya which is referred in the order dated 13.12.2022 passed in Second Appeal No.208 of 2021 is still pending. It is further submitted that the in the case of Vijaybhai Shambhubhai Patel Vs. Sushilaben Dayalbhai and Others (passed in First Appeal No.1556 of 2021 dated 21.06.2021), the Division Bench has already considered the decision of Ganpatlal Manjibhai Khatri (supra) and has held that the suit is not maintainable, if it is hit by the bar of Section 43 of the Tenancy Act. It is submitted that the aforesaid order of the Division Bench has been confirmed by the Supreme Court vide order dated 10.11.2022 passed in Special Leave to Appeal (C) No.5124 of 2022. It is submitted Page 3 of 13 Downloaded on : Sun Sep 17 18:22:35 IST 2023 NEUTRAL CITATION C/FA/1268/2022 JUDGMENT DATED: 10/04/2023 undefined that this order was not brought to the notice of the learned Single Judge while referring the matter to the Larger Bench and hence, the First appeal may be decided on merit.
4.1 Learned advocate Mr.Patel, while referring to the observations made by the Division Bench in the case of Vijaybhai Shambhubhai Patel (supra) has submitted that in the present case, the agreement to sell dated 30.01.2006 itself is contrary to the provisions of Section 43 of the Tenancy Act since the agreement to sell is for new tenure land, for which, no agreement to sell could have been entered into as the same is hit by the provisions of Section 43 of the Tenancy Act. It is thus submitted that the Court below has precisely rejected the suit while exercising the powers under Order 7 Rule 11(a) and (d) of the CPC.
5. We have heard the learned advocates appearing for the respective parties.
CONCLUSION :-
6. The appellant-plaintiff filed a Special Civil Suit No.122 of 2021 seeking prayers for specific performance of the agreement to sell dated 30.01.2006 and for cancellation of sale deed dated 19.02.2021 executed in favour of defendant no.2. The respondent filed an application below Exh.14 under the provisions of Order 7, Rule 11(a) and (d) seeking rejection of the plaint . It is the case of the defendant that since the suit is based upon an agreement to sell dated 30.01.2006 for sale of new tenure land, the same cannot be sold without permission of the Collector and is hit by the provision of section 43 of the Act.
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7. The appellant has not disputed and in fact, admitted that the agreement to sell dated 30.01.2006 pertains to sale of land of new tenure, which is hit by the provisions of Section 43 of the Tenancy Act.
8. The entire case of the appellant hinges on the order dated 15.11.2017 passed by the Division Bench in First Appeal No.1845 of 2017 in the case of Amarben Wd/o Ramjibhai Desai (supra). The Division Bench, after examining the provisions of Section 43 of the Tenancy Act, has observed thus : -
"13. Coming to the second question of the applicability of section 43 of the Tenancy Act, number of issues would arise. Firstly, sub-section (1) of section 43 of the Tenancy Act inter alia provides that no land or any interest therein purchased by a tenant under section 17B, 32 etc. 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. As per sub-section (2) of section 43 of the Tenancy Act, any transfer or partition or any agreement of transfer or any land or any interest therein in contravention of sub-section (1) shall be invalid. Significantly, section 43 does not make agreement to sale hit by sub-section (1) void. The applicability of section 43 of the Tenancy Act to the agreement to sale in question and subsequent transactions entered into by the original land owners with respect to such land would be an issue which can be gone into by the Trial Court at the time of trying the suit. Only on this count, the plaint could not have been rejected."
9. The Division Bench thus has held that the applicability of Section 43 of the Tenancy Act to the agreement to sell in question and subsequent transactions entered into by the original owners with respect to such land would be an issue, which has gone into by the Trial Court at the time of trying the Page 5 of 13 Downloaded on : Sun Sep 17 18:22:35 IST 2023 NEUTRAL CITATION C/FA/1268/2022 JUDGMENT DATED: 10/04/2023 undefined suit and only on this count, the plaint could not have been rejected.
10. In the present case unquestionably the agreement to sell dated 30.01.2006 is hit by the provisions of Section 43 of the Tenancy Act, which are incorporated as under : -
"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: -
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.]"
11. After the agreement to sell was executed, subsequently in the year 2021, the land in question was further sold to the defendant No.2 by executing a registered sale deed on 19.02.2021.
12. Since the appellant has pointed out the order of reference dated 13.12.2022 passed in Second Appeal No.208 of 2021, we Page 6 of 13 Downloaded on : Sun Sep 17 18:22:35 IST 2023 NEUTRAL CITATION C/FA/1268/2022 JUDGMENT DATED: 10/04/2023 undefined may also deal with the same. The learned Single Judge has referred the matter to the Larger Bench by observing that there is quite contradictory views taken to the judgment rendered in the case of Ganpatlal Manjibhai Khatri (supra) and hence, the matters are required to be referred to the larger bench. The learned single judge has observed thus : -
"1. The present appeal is referred to the Larger Bench for the following questions.
(a) That there are two different opinion of the Hon'ble Division Bench of this Court with regard to the applicability of Section 43 of the Gujarat Tenancy and Agricultural Lands Act, 1948 wherein the issue involved is that Sub Section (1) of Section 43 of the Tenancy Act inter alia provides that no land or any interest therein purchased by a tenant under Section 17B, 32 etc. 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. As per Sub Section (2) of Section 43 of the Tenancy Act, any transfer or partition or any agreement of transfer or any land or any interest therein in contravention of Sub-
Section (1) shall be invalid. Significantly, Section 43 does not make agreement to sale hit by Sub-Section (1) void. The applicability of Section 43 of the Tenancy Act to the agreement to sale in question and subsequent transactions entered into by the original land owners with respect to such land would be an issue which can be gone into by the Trial Court at the time of trying the suit.
2. Subsequently, the said ratio without pointing out to the another Hon'ble Division Bench, the Hon'ble Division Bench in the case of Ganpatlal Manjibhai Khatri Vs. Maguben Babaji Thakor, 2019 (0) AIJEL - HC - 241533 held as under:-
"Code of Civil Procedure, 1908 - Or. 7 R. 11(d), S. 96 - Bombay Tenancy and Agricultural Lands Act, 1948 - S. 43 - rejection of plaint - Court below rejected plaint on the ground that suit filed by plaintiff for specific performance of contract based on an agreement to sell is time barred -Page 7 of 13 Downloaded on : Sun Sep 17 18:22:35 IST 2023
NEUTRAL CITATION C/FA/1268/2022 JUDGMENT DATED: 10/04/2023 undefined whether plaint is liable to be rejected on the ground that suit for specific performance of contract based on an illegal or invalid agreement to sell hit by S. 43 of the Act, 1948 is not maintainable - held, for the purpose of rejecting plaint under Order 7 Rule 11, relevant facts for deciding an application thereunder are the averments made in plaint - defence of defendant is inconsequential - averments made in written statement are also inconsequential - it would be within the jurisdiction of Civil Court alone to determine whether agreement on the basis of which suit for specific performance is instituted is a valid agreement or not - plaint is liable to be rejected mainly on ground that suit for specific performance based on an illegal or invalid agreement to sell is not maintainable as such a contract is not enforceable - no interference warranted in first appeal - appeal dismissed."
(b) The next question is that subsequently, the very Hon'ble Division Bench issued notice as the Hon'ble Division Bench has also not aware with regard to earlier unreported decision of the Hon'ble Division Bench of this Court and, therefore, the Court issued notice in the case of Laljibhai Jivrajbhai Aslaliya Vs. Musabhai Yusuf Isufbhai Miya in First Appeal No. 1667 of 2021."
13. The aforesaid terms of reference does not record any contrary decision of the Division Bench, but only refers to the issuance of notice by the same bench in First Appeal No.1667 of 2021. It is reported to us that the First Appeal No.1667 of 2021 is still pending before this Court, which has been referred in paragraph No.(b). It is pertinent to note that the First Appeal No.1667 of 2021 is already admitted vide order dated 13.09.2021 and hence, there is no contrary decision to the decision of Ganpatlal Manjibhai Khatri (supra) which has been recorded in the order dated 13.12.2022. Hence, in our considered opinion, the order dated 13.12.2022 referring the matter to the Larger Bench was uncalled for.
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14. However, learned advocate Mr.Dhruvik K. Patel has placed reliance on the order dated 15.11.2017 passed by the Division Bench in First Appeal No.1845 of 2017, as referred hereinabove and has submitted that the aforesaid observations runs contrary to the decision of Ganpatlal Manjibhai Khatri (supra) wherein the Division Bench after analyzing the provisions of Section 43 of the Tenancy Act, in has held thus : -
"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."
15. The Division Bench specifically held that the plaint is liable to be rejected mainly on the ground that the suit for specific performance based on an illegal and invalid agreement to sell is not maintainable as such a contract is not enforceable. In view of the specific bar of Section 43 of the Tenancy Act.
16. Thus, there are two division bench judgments which took quite contrary views i.e. (1) order dated 15.11.2017 passed by the Division Bench in First Appeal No.1845 of 2017, and (2) in case of Ganpatlal Manjibhai Khatri (supra).
17. We have noticed that the entire issue of bar of section 43 has be reconsidered, subsequently by the Division Bench in the judgment dated 21.06.2021 passed in First Appeal No.1556 of Page 9 of 13 Downloaded on : Sun Sep 17 18:22:35 IST 2023 NEUTRAL CITATION C/FA/1268/2022 JUDGMENT DATED: 10/04/2023 undefined 2021 in the case of Vijaybhai Shambhubhai Patel (supra), wherein the Division Bench after considering the decision in the case of Gapatlal Manjibhai Khatri (supra) has observed thus : -
"15. In view of the above settled legal position, the Court below has rightly come to the conclusion that the agreement to sell dated 30.9.2003 entered into between the defendants No.1 to 6 and the appellant itself being hit by the bar under Section 43 of the Tenancy Act could be said to be invalid and not enforceable in law.
16. The Trial Court has rightly rejected the plaint by correctly following the ratio as laid down in the various decisions of this Court as well as the Supreme Court as discussed above."
18. Thus, the Division Bench has reiterated that if the agreement to sell is being hit by the bar of Section 43 of the Tenancy Act in that event it could be safely said to be invalid and not enforceable in law and the Trial Court was justified in rejecting the plaint by correctly following the ratio laid down in various decisions of the Supreme Court as well as this Court. Thus, after considering the array of judgments both of the Supreme Court and this Court, the Division Bench in the order dated 21.06.2021 has categorically observed that if the agreement to sell is hit by the bar under Section 43 of the Tenancy Act, the plaint can be rejected only on this ground. The aforesaid judgment was assailed further in the Supreme Court by filing petition being Special leave to Appeal (C) No.5124 of 2022 and by the order dated 10.11.2022, the Supreme Court has confirmed the judgment dated 21.06.2021 passed by the Division Bench by observing thus : -
"Heard learned senior counsel appearing for the parties Page 10 of 13 Downloaded on : Sun Sep 17 18:22:35 IST 2023 NEUTRAL CITATION C/FA/1268/2022 JUDGMENT DATED: 10/04/2023 undefined Having perused the impugned judgment and keeping in view the nature of consideration made by the High Court, we see no reason to interfere with the judgment.
Though we have arrived at the above conclusion, to serve the ends of justice it was suggested to the learned senior counsel for the respondents to refund the amount which had been paid under the Agreement dated 30.09.2003. Without adverting to the legal aspects of the matter about the relief in the suit seeking refund, to provide a quietus to the issue, the learned senior counsel appearing for the respondents on instructions, has submitted that the respondents are agreeable to repay the amount of Rs.1,56,172/with interest @ 6% per annum. In order to avoid confusion with regard to the calculation, it would be appropriate to square of the matter with the respondents paying a sum of Rs.5,00,000/to the petitioner within a period of four weeks from the date of receipt of a copy of this order.
It is made clear that if the amount is not paid within four weeks, the same would attract interest @ 9% per annum, on the expiry of four weeks till payment. All issues between the parties stand concluded, by this order.
The Special Leave Petition is, accordingly, disposed of.
Pending application(s) shall stand disposed of."
19. Thus, the Supreme Court has refused to interfere with the judgment of the Division Bench and while exercising the power under Article 136 of the Constitution of India, further directions are issued directing the respondent to pay sum of Rs.5 lacs to the petitioner. The said directions were issued by the Hon'ble Apex Court with the consensus of the parties that the respondents were ready and agreeable to repay the amount mentioned in the said order.
20. Thus, the law is well settled as mentioned hereinabove with regard to the provisions of Section 43 of the Tenancy Act Page 11 of 13 Downloaded on : Sun Sep 17 18:22:35 IST 2023 NEUTRAL CITATION C/FA/1268/2022 JUDGMENT DATED: 10/04/2023 undefined and the transfer of any agreement to land is impermissible if it is hit by the provisions of Section 43 of the Tenancy Act, hence the plaint can be rejected and there is no need of full-fledged trial. The decision on which the appellant has placed reliance of the Division bench dated 15.11.2017 passed in First Appeal No.1845 of 2017 can be said to be per incuriam in view of the subsequent decision dated 21.06.2021 passed in First Appeal No.1556 of 2021, confirmed by the Supreme Court. The Division Bench vide judgment dated 21.06.2021 has confirmed the law enunciated by the Division Bench of this Court in the case of Ganpatlal Manjibhai Khatri (supra). Hence, the request of the appellant to adjourn the matter due to pendency of the aforesaid reference is rejected.
21. Accordingly, since the appellant has only placed reliance on the order dated 15.11.2017 passed in First Appeal No.1845 of 2017, and it is contended that even if the agreement to sell dated 30.01.2006 is hit by the bar of provisions of Section 43 of the Tenancy Act, the same would still be triable issue, such submission does not merit acceptance in view of the subsequent decision of the Division Bench confirmed by the Apex Court. Hence, this Court does not find any illegality or infirmity in the order dated 09.02.2022 rejecting the suit being Special Civil Suit No.122 of 2021.
22. In the result, the First Appeal fails and the same stands dismissed accordingly. There shall be no order as to costs.
23. After the appeal was heard and the Court is not inclined to entertain the appeal, learned advocate Mr.Dhruvik K. Patel, has submitted that the money, which was paid pursuant to Page 12 of 13 Downloaded on : Sun Sep 17 18:22:35 IST 2023 NEUTRAL CITATION C/FA/1268/2022 JUDGMENT DATED: 10/04/2023 undefined agreement to sell is already lying with the opponents and hence, suitable observations may be made in this regard.
24. It is noticed by this Court that in the prayers made in the plaint, there is no whisper with regard to the claim of the amount by the appellant. Even in the First Appeal, there is no averment in the memo of the appeal with regard to such claim of the amount, for which, the claimant is made by the appellant that he has already paid to the opponents.
25. Under the circumstances, this Court is refraining itself in observing in this regard. However, it will be open for the appellant to file appropriate proceedings if he desires to do so.
26. With these observations, the First Appeal stands dismissed.
27. In view of the disposal of the first appeal, civil application does not survive and the same is disposed of accordingly. No order as to costs.
28. Registry shall take note of the present order while considering the order of reference dated 13.12.2022 passed in Second Appeal No.208 of 2021.
sd/-
(A. S. SUPEHIA, J) sd/-
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