Gujarat High Court

Zala Kalusinh Kodarsinh vs Patel Harshadbhai Valjibhai on 9 March, 2023

Bench: Nirzar S. Desai

    C/CRA/88/2023                               ORDER DATED: 09/03/2023




       IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

    R/CIVIL REVISION APPLICATION NO.                88 of 2023

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               ZALA KALUSINH KODARSINH
                        Versus
             PATEL HARSHADBHAI VALJIBHAI
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Appearance:
PRITESH M SHAH(8405) for the Applicant(s) No. 1
 for the Opponent(s) No. 1
=====================================================

 CORAM:HONOURABLE MR. JUSTICE NIRZAR S. DESAI

                         Date : 09/03/2023

                              ORAL ORDER

1. By way of this civil revision application, the

applicant has prayed for quashing and setting

aside the order dated 27.1.2023 passed in an

application below Exh.33 in Special Civil Suit

No.2 of 2021.

2. Heard learned advocate Mr. Pritesh Shah

appearing for the applicant.

3. The present applicant is the original defendant

in Special Civil Suit No.2 of 2021 preferred by

one Patel Harshadbhai Valjibhai. The facts which

C/CRA/88/2023 ORDER DATED: 09/03/2023

would lead to the filing of present civil

revision application are stated as under :-

4. The original plaintiff preferred a suit for

specific performance and declaration against the

present applicant stating that the present

applicants are joint owners and occupiers of an

agricultural land admeasuring 5-79-72 Hec-are-

Sq.mtr situated at Survey No.377 at Mouje Talod,

Taluka at Talod, District Sabarkantha. Out of

the aforesaid land held by the present applicant

a portion admeasuring 2-14-13 Hec-are-Sq.mtr was

decided to be sold to the original plaintiffs by

total lamb-sum compensation of Rs.52,22,000/-,

for which a registered agreement to sale without

possession was executed by the present

applicants with the original plaintiffs (present

defendants). The aforesaid agreement to sale was

executed on 29.9.2015 before the office of Sub

Registrar Talod with Registration No.984 and as

per the aforesaid agreement to sale, an amount

of Rs.27,91,000/- were paid towards part

C/CRA/88/2023 ORDER DATED: 09/03/2023

consideration of total sale consideration.

Remaining amount of consideration being

Rs.24,29,000/- were to be paid by the defendants

(Original plaintiff) to the present applicants

upon conversion of land into old tenure land

from new tenure land.

5. As the land of the present applicants was a new

tenure land, out of remaining sale consideration

for conversion of land from new tenure to old

tenure, the original plaintiff also paid an

amount of Rs.19,70,325/- towards the premium and

only an amount of Rs.4,60,675/- was remained to

be paid. According to the original plaintiff,

over and above the aforesaid amount as the paid

of sum of Rs.3,12,906/- also in respect of

another portion of land held by the applicant

for which an agreement to sale was executed with

one Chandrakant Maganbhai Patel and therefore,

the plaintiffs were required to pay only a sum

of Rs.1,47,769/- towards sale consideration.

However, despite the fact that the plaintiffs

were ready and wiling to pay the aforesaid

C/CRA/88/2023 ORDER DATED: 09/03/2023

amount of Rs, 1,47,769/-, as the present

applicants were not agreeable to accept the

aforesaid amount and to execute a sale deed in

favour of present applicants and therefore, the

plaintiffs preferred an application for a suit

for specific performance being Special Civil

Suit No.2 of 2021 in the Court of learned

Principal Senior Civil Judge, at Prantij.

6. In that suit, the present applicants filed a

reply and contended that the suit is barred as

there are restrictions on transferring the land,

as per Section 43 of the Bombay Tenancy and

Agricultural Land, 1948 and therefore, the

contract being void ab initio since beginning.

Further, an application under Order 7 Rule 11(D)

was also preferred by the present applicant

below Exh.33 wherein it was stated that the

agreement to sale was illegal as the same was

executed by father of the defendant No.4

Ranjitsinh i.e. the late father of the applicant

No.4/1 to 4/3 and also defendant No.1, 2, 3 i.e.

present applicant Nos. 1, 2 and 3 and therefore,

C/CRA/88/2023 ORDER DATED: 09/03/2023

they were legally not duty bound to execute the

sale deed in favour of the original plaintiff as

the agreement to sale will not bind them. In the

application it was stated that the agreement to

sale was void ab-initio as it was executed in

contravention of provisions of Section 43 of

Bombay Tenancy and Agricultural Lands Act, 1948

(for short 'Tenancy Act'), Section 8 of Hindu

Succession Act, Section 9, 13, 17 and 20 of

Specific Relief Act, Section 7, 8, 53(A) and 54

of Transfer of Property Act, 1882 and Section

10 and 23 of the Contract Act and therefore, the

suit is required to be rejected in view of

provisions of Order 7 Rule 11(D). Apart from the

aforesaid grounds, in the application under

Order 7 Rule 11(D) certain averments related to

the facts of the matter were also made.

7. The aforesaid application preferred by the

applicant was ultimately rejected by the learned

Principal Senior Civil Judge, Sabarkantha at

Prantij wide order below Exh.33 vide order dated

C/CRA/88/2023 ORDER DATED: 09/03/2023

27.1.2023. The aforesaid order was challenged

before this Court by way of present Civil

Revision Application.

8. Learned advocate Mr. Pritesh Shah appearing for

the applicants submitted that the agreement to

sale itself was void ab initio as there was bar

of Section 43 of Tenancy Act.

9. Learned advocate Mr. Pritesh Shah appearing for

the applicants further submitted that the land

being a new tenure land unless prior permission

is obtained from the competent authority it

could not have been sold and therefore, the

order passed by the Trial Court is erroneous and

bad in law and deserves to be quashed and set

aside.

10. Learned advocate Mr. Pritesh Shah also

relied upon the aspect of limitation and

submitted that though the agreement to sale was

executed in the year 2015 i.e. on 29.9.2015, the

suit was preferred in the year 2021 and

C/CRA/88/2023 ORDER DATED: 09/03/2023

therefore, as the suit for specific performs is

preferred after six years after the agreement to

sale was executed and almost after four years

after the land was converted into old tenure

land.

11. Learned advocate Mr. Pritesh Shah therefore

submitted that the suit was barred by limitation

which has not been considered by the Trial court

and therefore also impugned order is bad in law

and deserves to be quashed and set aside.

12. Learned advocate Mr. Pritesh Shah relied

upon the judgment passed in the case of

Ganpatlal Manjibhai Khatri Versus Manguben

Babaji Thokor reported in 2019(0) AIJEL-HC-

241533 produced on record at page 159 and by

relying upon paragraph No.24 as well as by

relying upon paragraph Nos. 34, 35 and 36 of the

said judgment prayed for quashing of the

impugned order. Except the aforesaid

submissions, no other submissions were made by

learned advocate Mr. Pritesh Shah appearing for

C/CRA/88/2023 ORDER DATED: 09/03/2023

the applicants in support of his contentions nor

he relied upon any other judgments.

13. I have perused the record and considered

the submissions made by learned advocate Mr.

Pritesh Shah appearing for the applicants.

Though learned advocate Mr. Pritesh Shah relied

upon provisions of Section 43 of the Tenancy Act

despite repeated quarry from this Court, he

could not answer as to how the land in question

would fall within the scope and ambit of Tenancy

Act, 1948. During the course of arguments,

learned advocate Mr. Pritesh shah submitted that

he was a tenant in respect of the aforesaid land

and therefore, this being a restricted tenure

land, the land in question was a new tenure

land. However, he could not point out about any

of the proceedings under Tenancy Act and how the

land was new tenure land. As in agreement to

sale all throughout it is stated that it is an

ancestral land and there is no mention of any

proceedings under Tenancy law. Further, the

C/CRA/88/2023 ORDER DATED: 09/03/2023

applicant has not produced anything on record or

in its reply or application under Order 7 Rule

11 indicating about any proceedings under the

Tenancy Act or how the restrictions under

Section 43 of the Tenancy Act would apply in the

present case.

However, this Court is conscious that this

Court is not dealing with the fact as to whether

the land was having some restrictions under

Section 43 of the Act or how it was new tenure

land, facts remains that now the land has

converted into old tenure land and therefore,

whether the restrictions under Section 43 of the

Tenancy Act would apply or not that also can be

determined only by leading the evidence. As far

as the limitation is concerned, this Court has

perused the document for which the specific

performance is sought by the original plaintiff.

According to the agreement to sale, there is no

time limits specified in the agreement to sale

for execution of sale deed. It only says that

once the land is converted into old tenure land

C/CRA/88/2023 ORDER DATED: 09/03/2023

then only it will cast an obligation upon the

present applicant to execute sale deed in favour

of the original plaintiff.

14. Even during the course of submission,

learned advocate Mr. Pritesh Shah could not

dispute the fact that now the land is converted

into old tenure land. However, learned advocate

Mr. Pritesh Shah submitted that even if, the

land is converted into old tenure land on the

ground of limitation, the plaint is required to

be rejected on the ground of limitation.

Wherein agreement to sale there is no specific

time frame prescribed for execution of sale deed

and it only states about the execution of sale

deed after the land is converted from new tenure

to old tenure, hence the plaint cannot be

rejected only on the ground of limitation.

15. Even the Trial Court in its impugned

judgment passed in Special Civil Suit No.2 of

2021 passed by the learned Principal Senior

Civil Judge, Sabarkantha at Prantij has observed

C/CRA/88/2023 ORDER DATED: 09/03/2023

in paragraph No.10 and 11 as under :-

"10. Considering the facts and record of this suit and arguments of plaintiff, it is come on record that in the agreement to sale no where time limit is mentioned and it was a term and conditions that as an when the tile clearance certificate is obtained registered sale deed will be executed. Further, the consideration amount for suit property cannot be decided under Order - 7, Rule - 11 of CPC. Further, the issue regarding evidence pertaining to consideration amount and ground of limitation are contrary to each other.

11. That defendants have further submitted that the suit property was new tenure land which was required to be converted to old tenure land. Further submitted that the plaintiff's registered sale deed is barred by Section 43 of the Bombay (Gujarat) Land Tenancy & Agriculture Land Act, 1948, Section 8 of the Hindu Succession Act.

Considering the above facts challenged by the defendants, the said order was obtained from Ld. Collector on dated 22/01/2016. Thereafter as the defendant

C/CRA/88/2023 ORDER DATED: 09/03/2023

No. 4 was expired and the legal heirs of defendant No.4 was minor and therefore permission of Hon'ble District Court was required and accordingly an application under Guardian Act was filed vide application No.29/18 which was decided on 17/09/2018 and the permission was granted. Thereafter on receiving title clear certificate, the sale deed was to be executed in favour of the plaintiff by the defendants. Therefore on dated 03/10/2020 defendants were served with legal notice. The defendants had replied to the said notice on 19/10/2020 and they have denied to perform their part of contract. Considering the above facts, if any mischief had done with the defendants during proceedings of the order of the Collector regarding new tenure land converted into old tenure land, it can be also decided by leading documentary as well as oral evidence. There is a mix question of law and facts hence authorities relied upon by the defendants herein are not applicable and helpful to the defendants. Further, to decide the above facts, oral as well as documentary evidence is required to be produced and for the same, full trial of this suit is

C/CRA/88/2023 ORDER DATED: 09/03/2023

necessary. Furnish sufficient evidence to come to the conclusion to determine the above facts. Evidence is required to be lead which is pivotal to a fair trial and partakes of the character of natural justice and fair play. Further, both sides need to be given a chance to prove their facts by producing documentary as well as oral evidence which can only be made in full trial only. Now, where the conclusion of the bar of law is a mixed question of law and fact, the court does not order the rejection of a plaint. The explanation for such a procedure is quite straightforward, since a mixed question of law and fact cannot be determined on the sole basis of a plaint, and necessitates proper consideration of the evidence by the Court, the plaint is not dismissed. Hence the present application of defendants under Order - 7 Rule - 11 of CPC is hereby rejected and accordingly following order is passed :-

::ORDER ::

(1) This application is hereby ordered to be rejected.

(2) There is no order as to Cost.

Pronounce in open court today on dated 27th day of January, 2023."

C/CRA/88/2023 ORDER DATED: 09/03/2023

16. Considering the reasoning given by the

Trial Court as well as on perusal of plaint,

this Court finds that the reasoning given by the

learned Trial judge are not required to be

interfered with as the Court is in full

agreement with the reasoning given by the trial

Court. I do not see any reason to interfere with