Gujarat High Court

Basil Trust Thru Trustee Aryalummottil ... vs State Of Gujarat on 31 January, 2025

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                              C/SA/348/2019                                ORDER DATED: 31/01/2025

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                                   IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
                                           R/SECOND APPEAL NO. 348 of 2019
                                                         With
                                      CIVIL APPLICATION (FOR STAY) NO. 1 of 2019
                                          In R/SECOND APPEAL NO. 348 of 2019
                                                         With
                                            R/SECOND APPEAL NO. 350 of 2019
                                                         With
                                      CIVIL APPLICATION (FOR STAY) NO. 1 of 2019
                                          In R/SECOND APPEAL NO. 350 of 2019
                                                         With
                                            R/SECOND APPEAL NO. 349 of 2019
                                                         With
                                      CIVIL APPLICATION (FOR STAY) NO. 1 of 2019
                                          In R/SECOND APPEAL NO. 349 of 2019
                      ==========================================================
                           BASIL TRUST THRU TRUSTEE ARYALUMMOTTIL MATHAI MATHEW
                                                    Versus
                                           STATE OF GUJARAT & ORS.
                      ==========================================================
                      Appearance:
                      MR.NANDISH H THACKAR(7008) for the Appellant(s) No. 1
                      MR SP MAJMUDAR(3456) for the Respondent(s) No. 4.2,4.3,4.4
                      MR. HJ KARATHIYA(7012) for the Respondent(s) No. 4.2,4.3,4.4
                      ==========================================================
                         CORAM:HONOURABLE MR. JUSTICE MAULIK J.SHELAT

                                                       Date : 31/01/2025
                                                     COMMON ORAL ORDER

1. All these appeals are filed under Section 100 of the Code

of Civil Procedure, 1908 (hereinafter referred to as "the Code

1908") arising out of the judgments passed by the learned Trial

Court in Special Civil Application No.331 of 1993 (New-

No.3160 of 2015) for specific performance of the Registered

Agreement dated 31.03.1984, Special Civil Suit No. 1157 of

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1992 seeking injunction and Special Civil Suit No.768 of 1999

for declaration and permanent injunction and against the

aforesaid judgments, the plaintiff has also filed Regular Civil

Appeal Nos.113 of 2018, 114 of 2018 and 115 of 2018, which

were also dismissed by common judgment dated 08.08.2019 by

the Lower Appellate Court.

2. With the consent of the learned advocates for the

respective parties, as the issues involved in all these appeals

are common has been decided by the common judgment,

hence, all these appeals are taken for final hearing together.

3. To better understand the issue involved in these appeals,

the shorts facts, which are necessary to adjudicate the present

Second Appeals reads as follows:-

3.1 The appellant - Trust is the original plaintiff, who is a

school, entered into registered agreement to sale with the

respondent - original defendant- Pratapbhai

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Raisinghbhai@Dhanabhai Chauhan to purchase the suit land in

question i.e., Revenue Survey No.48 (admeasuring about 1

Acre 18 gunthas at Village Tandalija, District Vadodara) of a

New Tenure (Restricted Tenure) and paid Rs.10,000/- as

earnest amount and thereafter, on 03.02.1990, the said

agreement to sale was cancelled by Mamlatdar in Tenancy case

No. 5974 of 1988 and thereafter, the plaintiff has failed in its

challenge before Deputy Collector as the suit land was

governed by the provisions of Section 43 of the Gujarat

Tenancy and Agricultural Lands Act, 1948 (hereinafter referred

to as "the Gujarat Tenancy Act").

3.2 Thereafter, plaintiff has filed Regular Civil Suit

No.3160 of 2015, seeking specific performance of a registered

agreement to sell dated 31.03.1984 and also seeking a

permanent injunction. The respondents- defendants are the

legal heirs of the original landowner. The plaintiff has also

filed Special Civil Suit No. 1157 of 1992 seeking injunction and

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Special Civil Suit No.768 of 1999 for declaration and

permanent injunction.

3.3 The defendants appear to have filed an application

under Order VII Rule 11(A) and (D) of the Code 1908 in the

respective suits i.e., Special Civil Suit No.3160 of 2015, Special

Civil Suit No. 1157 of 1992 seeking injunction and Special

Civil Suit No.768 of 1999.

3.4 After hearing the parties and appreciating the

controversy involved in the matter, the suits came to be

dismissed by the Trial Court vide its judgments dated

12.02.2018.

3.5 The plaintiff herein appears to have challenged the

aforesaid judgment and decree passed by the Trial Court by

way of a regular appeal, being Regular Civil Appeal No.113 of

2018 and other appeals, respectively, which were also

dismissed by the Appellate Court by its common judgment and

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decree dated 08.08.2019.

4. Being aggrieved and dissatisfied with the aforesaid

judgment and decree passed by the Appellate Court in their

respective appeals, the present second appeals have been

preferred by the original plaintiff.

SUBMISSION OF THE APPELLANT

5. Learned advocate Mr. Nandish H Thackar, appearing for

the appellant-plaintiff, would submit that the Trial Court as

well as the Appellate Court has committed a gross error in

dismissing the suits and also the appeals by misinterpreting the

provisions of law.

5.1 Learned advocate Mr.Nandish H Thackar would further

submit that the impugned application filed under Order VII

Rule 11 of the Code, 1908 is misconceived at law and that,

without permitting the plaintiffs to lead evidence to prove its

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case, the suits could not have been dismissed at the threshold

by exercising power under Order VII Rule 11(A) and (D) of the

Code, 1908.

5.2 Learned advocate Mr. Nandish H Thackar would

submit that there are disputed questions of fact and law

involved in the matter, which require examination by the Trial

Court. After leading evidence on record, the Trial Court was

supposed to decide the lis between the parties.

5.3 Learned advocate Mr.Nandish H Thackar would submit

that the plaintiffs had entered into a registered agreement to

sell, whereby the original owner - the defendant, had put the

plaintiff into possession of the suit property. The plaintiff,

being a trust running a school in the suit property, would

suffer great hardship, along with the students studying in the

school, if no relief as prayed for in the appeal is granted.

5.4 Moreover, according to Learned advocate Mr. Nandish

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H Thackar appearing for the appellant that the substantial

questions of law framed in the memo of appeal may be

considered by this court in the interest of justice. Hence, he

would humbly submit that the present appeal may be

admitted.

SUBMISSION OF THE RESPONDENT

6. Per contra, learned advocate Mr. S.P. Majumdar,

appearing for the original defendant-owner, would submit that

neither the Trial Court nor the Appellate Court has committed

any gross error or jurisdictional error, thereby requiring no

interference by this court to entertain the second appeals.

7. He would further submit that the issue involved in the

matter is squarely covered against the appellant as already

decided by the Full Bench of this Court in a case of

Decd.Shaikh Ismailbhai Husainbhai Through L.H. vs. Vankar

Ambalal Dhanabhai reported in 2024 (1) GLH 222. So,

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according to him, there is no substance in the appeal.

8. To buttress his argument, he would also rely upon

Following decisions:-

(i) Division Bench judgment of this Court in First Appeal No.2346 of 2024, which was confirmed by the Hon'ble Supreme Court of India, dismissed Special Leave to Appeal (C) No(s).25043 of 2024 by its order dated 22.10.2024

(ii) Rameshbhai Chaturbhai Prajapati vs. Minaxiben Wd/o Rasiklal Tilakram reported in 2011 (2) GCD 1765;

(iii) Sheena Textiles Limited vs. Arunkumar Radhakrushna Agarwal reported in 2023 (0) JX (Guj) 231;

9. No other further submissions are being made by any of

the learned advocates appearing for the respective parties.

10. Heard learned advocates for the respective parties at

length.

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ANALYSIS

11. The present appeals are filed against the dismissal of the

suits, which were confirmed by the Appellate Court by

dismissing the appeal. Thus, there are two courts concurrently

holding against the appellant.

12. It has remained an undisputed fact during the course of

submission by the learned advocates for the respective parties

that the suit land is of a restricted nature of new tenure land

and is governed by the provisions of Section 43 of the Gujarat

Tenancy Act. It is appropriate to reproduce the observations

made by the Appellate Court in its impugned judgment passed

in Regular Civil Appeal No.113 of 2019, which reads as

under:-

"20] Indisputably, the suit land is of a restricted nature of new tenure land. No any permission as required under Section 43 of the Tenancy Act was obtained while entering into the agreement of sale. Furthermore, the Mamlatdar (ALT), Vadodara had initiated the proceedings under Section 84(C) of the Tenancy Act vide Tenancy Case No. 5974/88 and

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declared the agreement invalid as it was executed in violation of Sec.43 of the Tenancy Act. Moreover, the Tenancy Appeal preferred by the plaintiff to challenging the order of Mamlatdar was also rejected by the Deputy Collector vide his order dated 30/11/1990. No any appeal or revision was preferred by the plaintiff before the Gujarat Revenue Tribunal or before any higher forum. Thus, the competent authority has already declared the agreement of sale as invalid and therefore, no any Court of Law can enforce such agreement. It is well settled law that if the parties have entered into such agreement without prior permission of the Collector, such transaction would be invalid. Thus, it is for the Collector to decide whether permission should be granted or not. The Collector has also right to inquire whether such transactions is void under the law or violates the provisions of any law. Moreover, Section 85 of the Tenancy Act makes clear that no Civil Court shall have jurisdiction to settle, decide or deal with any question which is settled and decided by the Mamlatdar or Tribunal. In view of the above, the agreement of sale entered into between the parties is already cancelled by the Competent Authority as it was executed in violation of Section 43 of the Tenancy Act and thus, the suit for declaration and permanent injunction based on an Invalid agreement of sale hit by Section 23 of the Indian Contract Act. Therefore, in my view, such agreement of sale is expressly prohibited by law and it is void ab-initio and cannot be enforced by law. The learned trial court has also observed that the agreement of sale entered into between the parties on 31/03/1984 was cancelled by the Mamlatdar (ALT), Vadodara and the order of the Mamlatdar was confirmed by the Deputy Collector in Tenancy Appeal also. It is pertinent to note that, no any appeal or revision has been preferred by the plaintiff to challenge the order of the Mamlatdar and thus, the order of the Mamlatdar (ALT) has attained its finality.

Therefore, any right, title or interest conferred upon the plaintiff over the suit land based on such invalid agreement of sale.

21] Considering the aforesaid discussions and also considering the finding and reasons given by this court hereinabove, I am of the view that th learned lower court has rightly applied its mind and also discussed th relevant provisions of the Tenancy Act. The learned trial court ha rightly observed the provisions of Order 7 Rule 11 of CPC an therefore, this Court has not found any infirmities or illegalities i rejecting the suit of the plaintiff. Thus, this Court

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is not required t interfere with the order passed by the learned trial court."

13. In view of the above, the aforesaid undisputed fact that

the suit land was a new tenure land governed by Section 43 of

the Gujarat Tenancy Act, and thereby a prior permission was

required from the Collector before affecting the transfer in any

manner whatsoever.

14. The issue involved in these appeals is squarely covered

by the decisions of the Full Bench of the Court in the case of

Decd. Shaikh Ismailbhai hushainbhai (Supra) . While analyzing

the provisions of the Gujarat Tenancy Act and similar

controversies, which are germane to the present matters, the

Full Bench has answered this issue as under:-

"111. From the above discussion, we find ourselves in full concurrence with the decisions in Ganpatlal Manjibhai Khatri (supra) and Hasvantbhai Chhanubhai Dalal (supra) in holding that:-

(i) The transaction between the parties being hit by Section 43 of the Tenancy Act and being opposed to the public policy, as explained under Section 23 of the Contract Act, is not maintainable in law.

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(ii) There is a clear bar in entering into an agreement to sell of the lands granted under the Tenancy Act, 1948 to the occupant tenant, without previous permission of the Collector.

(iii) If the agreement is entered into in respect of the granted land (land of restrictive tenure under the Tenancy Act) in violation of Section 43, it is invalid.

(iv) Section 23 of the Indian Contract Act, 1872 bars enforcement of a contract if it is forbidden by law. The agreement offending a statute or public policy or forbidden by law is not merely void, but it is invalid from nativity, the term law in Section 23 in this Section must be understood in the sense of the term explained in Article 13(3) of the Constitution. Thus, what is done in contravention of the provisions of the law cannot be made the subject matter of an action.

(v) If the contract is expressly prohibited by law, it is void ab initio and cannot be enforced. The Courts cannot grant the decree for specific performance, subject to the permission, which may be obtained by one of the parties from the Collector. The suit filed by the plaintiff for enforcement of the invalid agreement cannot be decreed by the Civil Court.

112. We are in full agreement with a view of this Court in the above noted decisions that the suit for specific performance of contract based on an invalid agreement to sell, hit by Section 43 of the Tenancy Act, 1948, is not maintainable in law. If an agreement is rendered invalid under Section 43 of the Tenancy Act, 1948, such an agreement is incapable of being specifically enforced. If the agreement of sale itself is invalid, no decree for specific performance can be passed by the trial Court. 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. In such circumstances, the suit for specific performance of agreement to sell cannot be decreed.

(e) Dealing with the specific arguments of the learned Advocates of the first set, for the Vendee:-

121. We may note that the Full Bench decision of this Court in Shah Jitendra Nanalal (supra) was considered and discussed by two benches of this Court in Rameshbhai Chaturbhai Prajapati (supra) and Hasvantbhai Chhanubhai Dalal (supra). It was held therein that the decision of the Full Bench was in a different context and under the statutory provisions of the Urban Land (Ceiling and Regulation) Act, 1976 where the right to claim exemption under Section 20 of the said Act was available to the

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holder of the excess vacant land. It was noted in paragraph 20 in Ramesh Chaturbhai Prajapati (supra) and paragraph 45 in Hasvantbhai Chandubhai Dalal (supra); respectively, as under :-

Ramesh Chaturbhai (supra):-

20. The decisionIt has been laid down by this Hon'ble Court that any agreement executed in violation of Section 43 of the Tenancy Act is not invalid and void and the transaction is opposed by public policy and thereby also hit by section 23 of the Contract act. The agreement is not enforceable without prior permission as mentioned in section 43 of the act.

The Hon'ble Bench also referred to Judgment of Rameshbhai Chaturbhai Prajapati-2011 in para 121 as well as referred to one judgment of Bombay High Court in para 121 at page no 59 in which it is mentioned that without sanction under section 43 of the Tenancy Act, the impugned Agreement is invalid and possession given to the of the Full Bench of this Court in the case of Shah Jitendra Nanalal {1985 GLH 53} [supra], relied upon by learned Senior Advocate Mr. S.B. Vakil for the petitioners, was in a different context and under the statutory provisions of Urban Land [Ceiling and Regulation] Act,1976 whether right to claim exemption under section 20 of the ULC Act was available to the holder of the excess vacant land. In the above decision, agreement to sell certain land was executed on 4.7.1966 and further agreement was entered into on 1.7.1967 and the civil suit, being Civil Suit No.1915 of 1970, was filed while another suit filed by the defendants as the plaintiffs being Civil Suit No.2063 of 1969 was compromised between the parties thereto and, on the basis of the settlement, a decree was passed on 5.7.1972. Subsequent to institution of the suit, Gujarat Vacant Lands in Urban Areas [Prohibition of Alienation] Act,1972 came into force which later on ceased to operate in its place on the advent of Urban Land [Ceiling and Regulation] Act, 1976. Further, right to claim exemption by the owner of the land under the ULC Act continued until vesting under section 10(3) of the ULC Act and, therefore, a conditional decree for specific performance subject to exemption being obtained under sIt has been laid down by this Hon'ble Court that any agreement executed in violation of Section 43 of the Tenancy Act is not invalid and void and the transaction is opposed by public policy and thereby also hit by section 23 of the Contract act. The

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agreement is not enforceable without prior permission as mentioned in section 43 of the act.

Hasvantbhai (supra)

45. I may now refer to one another decision rendered by a learned Single Judge of this Court in which the Full Bench decision of this Court in the case of Jitendra Nanalal Shah (supra) has been referred to and discussed. In the case of Rameshbhai Chaturbhai Prajapati (supra). The issue before the learned Single Judge revolved around the nonirrigated agricultural lands which originally belonged to a Charitable Trust. One Rasiklal Tilakram Jaiswal was declared as a tenant of the said land by the Mamlatdar and A.L.T. in the tenancy proceedings. By virtue of such declaration, Rasiklal became the deemed purchaser thereof and the same was confirmed by the Gujarat Revenue Tribunal, thereafter by this Court and by the Apex Court. The respondents Nos.1 to 8 before the learned Single Judge preferred four suits against the petitioners and the respondents Nos.9 to 11 for a declaration that the registered sale deed dated 14th October 1999 in respect of the plot Nos.1 to 4 were not binding on the plaintiffs and for a declaration that the petitioners were not entitled to demand from the respondents Nos.10 and 11 any building permission and further to restrain them from dealing, plotting, alienating, allotment, etc. of the land in question. In the pending suits, a compromise was arrived at between the petitioners and the respondents Nos.1 to 8 and the same was reduced into writing. It appears that the Trial Court declined to

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accept such compromise and pass a consent decree on the premise that such compromise was in violation of the provisions or restrictions under Section 43 of the Act and no consent decree could be passed on such a invalid settlement. Before the learned Single Judge, it was argued that the parties can enter into a contract for transfer of land and the Court can pass a conditional decree for specific performance subject to the sanction being obtained. For the purpose of making such submission good, reliance was placed on the Full Bench decision of this Court in the case of Shah Jitendra Nanalal (supra). The learned Single Judge, while rejecting all the petitions and while discussing the Full Bench decision of this Court in the case of Shah Jitendra Nanalal (supra) at length, held as under:

20. The decision of the Full Bench of this Court in the case of Shah Jitendra Nanalal {1985 GLH 53} [supra], relied upon by learned Senior Advocate Mr. S.B. Vakil for the petitioners, was in a different context and under the statutory provisions of Urban Land [Ceiling and Regulation] Act,1976 whether right to claim exemption under section 20 of the ULC Act was available to the holder of the excess vacant land. In the above decision, agreement to sell certain land was executed on 4.7.1966 and further agreement was entered into on 1.7.1967 and the civil suit, being Civil Suit No.1915 of 1970, was filed while another suit filed by the defendants as the plaintiffs being Civil Suit No.2063 of 1969 was compromised between the parties thereto and, on the basis of the settlement, a decree was passed on 5.7.1972. Subsequent to institution of the suit, Gujarat Vacant Lands in Urban Areas [Prohibition of Alienation] Act,1972 came into force which later on ceased to operate in its place on the advent of Urban Land [Ceiling and Regulation] Act, 1976. Further, right to claim exemption by the owner of the land under the ULC Act continued until vesting under section 10(3) of the ULC Act and, therefore, a conditional decree for specific performance subject to exemption being obtained under section 20 of the ULC Act was held to be permissible. In the facts of the case, transfer/alienation of tenure land viz. a land given to a tenant by the Government under various provisions of Tenancy Act to the tiller of the land, subject to restriction of Section 43 of the Act, is clearly impermissible without previous sanction of the Collector/Competent Authority, therefore, the law laid down by the Full Bench in Jitendra Nanalal [supra] is not applicable to the facts and circumstances of the present case.

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22. In the case of V. Narasimharaju (AIR 1963 SC 107) [supra], 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 particularly when previous sanction of the Collector was a mandatory and, admittedly, such previous sanction was not obtained by the parties and the agreement to sell an agricultural land is invalid and even Section 53A of the Transfer of Property Act, 1882 would also not safeguard such agreement. The above aspect is also dealt with by the Bombay High Court in the case of Himatrao Ukha Mali vs. Popat Devram Patil, AIR 1999 Bombay 10 , [supra], wherein it is held that Section 43 imposes a total prohibition or legal bar on alienation of the lands vested in favour of the tenants under the provisions of the Tenancy Act. If an agreement of sale or any instrument in respect of the subject land is executed without taking previous sanction of the Collector under section 43(1) of the Tenancy Act, the said agreement shall be invalid as per Section 43(2) of the said Act. Suffice it to say that Section 43(1) of the Tenancy Act bars even entering into agreement or alienating the land and usage of term 'shall' twice in the section including in the penultimate part of the section reveals mandatory character of the language contained therein and to be interpreted as such and, particularly when the agreement/ transaction was barred by subsection (1) of Section 43 of the Tenancy Act and subsection (2) of Section 43 of the said Act clearly refers such agreement or transfer shall be invalid, the trial court has rightly concluded by not probing into the question of declaration of such transaction/agreement as invalid. The satisfaction of the learned Judge based on the understanding of the language contained in subsections (1) and (2) of Section 43 of the Tenancy Act and the relevant materials on record of the case for not passing the decree as prayed for cannot be said to be in any manner contrary to law warranting any interference by this Court in exercise of powers under Articles 226 and 227 of the Constitution of India.

24. Further, the Division Bench of this Court considered spectrum of Section 43 of the Tenancy Act in the case of Shashikant Mohanlal Desai {AIR 1970 Gujarat 204} [supra] and examined the objects of the Act and while interpreting Section 43 of the Tenancy Act the restrictive nature of tenancy and specific bar contained about previous sanction of the Collector/Competent Authority in case of conversion of such land was held to be statutory and, therefore, according to this Court, the

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learned Judge has not committed any error either of jurisdiction or of law in considering the nature of agreement whether void or voidable and, therefore, no interference is called for. Further, the learned Judge has taken into consideration all the aspects of the matter as directed by this Court [Coram: M.R. Shah, J.] vide judgment and order dated 22.8.2008 in Special Civil Application Nos. 3117 to 3120 of 2008 and passed the order, which cannot be said to be contrary to said order dated 22.8.2008.

26. In the case of Lotan Ramchandra Shimpi [Manu/ MH/0784/1994] {supra}, it is held that, without sanction under Section 43 of the Tenancy Act, the impugned agreement is invalid and possession given to the purchaser is invalid and the same is not protected under Section 53A of the Transfer of Property Act.

136. A conjoint reading of the aforesaid provisions indicates that there is a clear bar of jurisdiction of the Civil Court to settle, decide or deal with any question which is by or under the Tenancy Act, 1948 required to be settled, decided or dealt with by the Mamlatdar etc. Section 85A provides that wherever such an issue is raised before the Civil Court, it shall stay the suit and refer such issue to such competent authority for determination. Section 84C provides that in a case where a dispute has arisen in respect to the transfer or acquisition of land made on or after the commencement of the Amended Act, 1955, or if the Mamlatdar suo motu or on the application of any person interested in such land, has reason to believe that such transfer or acquisition is or becomes invalid under any of the provisions of the Act, it shall issue notice and hold an inquiry to decide as to whether the transfer or acquisition is or is not valid. Sub-section (3) of Section 84C further provides that in case of a declaration made by Mamaltdar under Sub-section (2) after holding such inquiry that the transfer or acquisition of land to be invalid, the land shall be deemed to vest in the State Government free from all encumbrances.

137. From a bare reading of the above provisions, there is no doubt that any dispute relating to validity of an agreement executed in violation of Section 43 of the Tenancy Act, 1948, if arises, shall have to be decided by the Mamlatdar and Civil Court will have no jurisdiction to decide the disputed questions relating to validity of such an agreement.

138. We may clarify that we are not concerned with the dispute pertaining to the validity of an agreement, i.e. the dispute whether an agreement is hit by Section 43 or not, i.e. whether it is valid or not? The issue before us is plain and simple; as to whether the agreement which has been executed with a view to transfer a restricted tenure land as prescribed in Section 43(1), without the permission of the Collector, can be specifically enforced by the

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Civil Court by granting a decree of specific performance of such an agreement. Our concern is about the jurisdiction of the Civil Court to decide on the question of enforceability of such an agreement of sale, which in our considered opinion clearly resides in the Civil Court as held by the Division Bench in Ganpatlal (supra) The Civil Court alone will have jurisdiction to adjudicate on the question of enforceability of the agreement of sale, on the basis of which the suit for specific performance has been executed. It is the Civil Court which alone can look into the fact as to whether the agreement on the basis of which the suit for specific performance is instituted is a valid agreement, not hit by any statutory provision, or forbidden by law or opposed to public policy.

144. While examining the law applicable for deciding an application under Order VII, Rule 11 of the Code of Civil Procedure, it was noted by the Apex Court that the remedy under Order VII, Rule 11 is an independent and special remedy, wherein the Court is empowered to summarily dismiss the suit at the threshold, without proceeding to record evidence and conducting the trial, on the basis of the evidence adduced, if it is satisfied that the action should be terminated on any of the grounds contained in the said provision. The underlying object of Order VII, Rule 11 is that if no cause of action is disclosed in the plaint or the suit is barred by limitation, as per Order VII, Rule 11(a)(d), the Court would not permit the plaintiff to unnecessarily protract the proceedings under the suit. In such a case, it would be necessary to put an end to the sham litigation, so that further judicial time is not wasted.

146. It was noted therein that the power under Order VII, Rule 11 of the Code of Civil Procedure may be exercised by the Court

[41] Azhar Hussain vs. Rajiv Gandhi, 1986 Supp SCC 315

at any stage of the suit, either before registering the plaint, or after issuing summons to the defendant, or before conclusion of the trial. It was contended that the plea that once the issues are framed, the Court must necessarily go to trial was repelled by the Apex Court in Azhar Hussain(supra)."

Emphasis Supplied.

14.1 It has been laid down by the Full Bench of this Court

that any agreement executed in violation of Section 43 of the

Tenancy Act is invalid and void and the transaction is opposed

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by public policy, thereby, hit by section 23 of the Contract

act. The agreement is not enforceable without prior permission

as mentioned in section 43 of the act.

14.2 The Hon'ble Full Bench also referred the judgment of

Rameshbhai Chaturbhai Prajapati (Supra) as well as referred to

one judgment of Bombay High Court while laying down that

without sanction under section 43 of the Tenancy Act, the

impugned Agreement is invalid and possession given to the

purchaser is invalid and the same is not protected under

Section 53A of the Transfer of Property Act.

15. It is apt to refer and rely upon the decision of this Court

in the case of Ashokbhai Madhubhai Patel (supra), wherein the

Hon'ble Division of this Court has held thus:-

6.2 Question (V) when read indicates that the Full Bench before it had the issue to be considered was whether a plaint can be rejected on the ground of transaction being invalid when the alternative remedy of refund of earnest money or compensation or other remedy have also been sought in the suit. Extensively arguments have been raised by the learned counsels for the respective parties even on the issue of

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whether the relief of compensation could have been prayed for and the suit could have been dismissed. Reading paras 33 and 34 of the decision in the Full Bench give us an insight of the arguments before the Full Bench. Paras 33 and 34 read as under:

" 33 Ms. Trusha M. Patel, learned advocate, adding to the above argument, would submit that the question is as to whether in absence of any order passed by the competent authority under the Tenancy Act, 1948 invalidating the Agreement to Sell, the plaint can be rejected or the suit for specific performance can be dismissed by the Civil Court, merely on the ground that the said agreement is invalid under Section 43 of the Tenancy Act. She tries to impress upon us by submitting that when the alternative remedy of refund of earnest money or compensation, or other remedies, such as permanent injunction, protection of possession, damages etc. have been sought in the suit while seeking the decree of specific performance of agreement, the plaint cannot be rejected on the ground of the transaction being invalid under the Tenancy Act. For rejection of the plaint, under Order VII, Rule 11 of the Code of Civil Procedure, the suit has to be barred and not the remedy sought in the said suit. The plaint cannot be rejected where other reliefs have been sought, which can only be granted by the Civil Court. Partial rejection of the plaint is not permissible. 34 It was further argued that Section 65 of the India Contract Act,1872, puts an obligation on a person, who has received advantage under a void contract or a contract that becomes void. In view of the said provision, in a suit where alternative relief of refund of sale consideration is sought or the reliefs of compensation and damages are prayed, it would be maintainable and plaint cannot be rejected under Order VII, Rule 11 of the Code of Civil Procedure. Reference has been made to Section 65 of the Transfer of Property Act to assert that the said provision recognizes the rights and liabilities of the buyer and seller in absence of a contract to the contrary and seller is bound to disclose to the buyer any material defect in the property or his seller's title thereto or which the seller is and the buyer is not aware, and which the buyer could not, with ordinary care, discover."

6.6 Therefore, what is evident from the extract reproduced hereinabove is that the Full Bench dealt

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with the discussion in context of the term in the Contract Act being "invalid", "forbidden by law" and "void" as understood in context of the provisions of the Indian Contract Act. Perusal of paragraph 96 of the decision would indicate that, it set out the difference between void and illegal agreements. Relying on a decision in the case of Rajasthan Housing Board (supra), we find that the Hon'ble Supreme Court had the occasion to consider the provisions of the Rajasthan Tenancy Act. Before the Supreme Court was a case in context of the land acquisition proceedings where parcels of lands were transferred by the scheduled castes Khatedars in favour of a person who was not a member of a scheduled caste. The Supreme Court held that such a transfer was void ab initio. Para 26 of the decision in the case of Rajasthan Housing Board (supra), reads as under:-

"26. In the instant case, the transaction is ab initio void that is right from its inception and is not voidable at the volition by virtue of the specific language used in section 42 of the Rajasthan Tenancy Act. There is declaration that such transaction of sale of holding "shall be void". As the provision is declaratory, no further declaration is required to declare prohibited transaction a nullity. No right accrues to a person on the basis of such a transaction. The person who enters into an agreement to purchase the same, is aware of the consequences of the provision carved out in order to protect weaker sections of Scheduled Castes and Scheduled Tribes. The right to claim compensation accrues from right, title or interest in the land. When such right, title or interest in land is inalienable to non-SC/ST, obviously the agreements entered into by the Society with the Khatedars are clearly void and decrees obtained on the basis of the agreement are violative of the mandate of section 42 of the Rajasthan Tenancy Act and are a nullity. Such a prohibited transaction opposed to public policy, cannot be enforced. Any other interpretation would be defeasive of the very intent and protection carved out under section 42 as per the mandate of Article 46 of the Constitution, in favour of the poor castes and downtrodden persons, included in the Schedules to Articles 341 and 342 of the Constitution of India.

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27. In State of Madhya Pradesh v. Babu Lal [(1977) 2 SCC 435] : (AIR 1977 SC 1718), the provisions contained in section 165(6) of M.P. Land Revenue Code, 1959 came up for consideration before this Court. The High Court directed the State to file a suit for declaring the decree null and void. The decision was set aside. It was held that the case was a glaring instance of violation of law as such the High Court erred in not issuing a writ. The decision of the High Court was set aside. The transfer which was in violation of proviso to section 165(6) transferring the right of Bhuswami belonging to a tribe, was set aside.

28. This Court in Lincal Gamango v. Dayanidhi Jena [(2004) 7 SCC 437 : AIR 2004 SC 3457] while considering the provisions of Orissa Scheduled Areas Transfer of Immovable Property (by Scheduled Tribes) Regulation, 1956 which prohibited alienation of rural property by a tribal to a non-tribal, declared such transaction to be null and void. This Court while relying upon the decision in Amrendra Pratap Singh v. Tej Bahadur Prajapati [(2004) 10 SCC 65 : AIR 2004 SC 3782] has laid down that no right can be acquired by adverse possession on such inalienable property. Adverse possession operates on an alienable right. It was held that non- tribal would not acquire a right or title on the basis of adverse possession.

30. This Court in Amrendra Pratap, ((2004) 10 SCC 65 : AIR 2004 SC 3782) (supra) has laid down that the expression 'transfer' would include any dealing with the property when the word 'deal with' has not been defined in the statute.Dictionary meaning as the safe guide can be extended to achieve the intended object of the Act. The transaction or the dealing with alienable property to transfer title of an aboriginal tribe and vesting the same in non- tribal was construed as transfer of immovable property. Extending the meaning of the expression 'transfer of immovable property' would include dealing with such property as would have the effect of causing or resulting in transfer of interest in immovable property.

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When the object of the legislation is to prevent a mischief and to confer protection on the weaker sections of the society, the court would not hesitate in placing an extended meaning, even a stretched one, on the word, if in doing so the statute would succeed in attaining the object sought to be achieved. When the intendment of the Act is that the property should remain so confined in its operation in relation to tribals that the immovable property to one tribal may come but the title in immovable property is not to come to vest in a non-tribal the intendment is to be taken care by the protective arm of the law and be saved from falling prey to unscrupulous devices, and this Court concluded any transaction or dealing with immovable property which would have the effect of extinguishing title, possession or right to possess such property in a tribal and vesting the same in a nontribal, would be included within the meaning of 'transfer of immovable property'.

65. In Ram Karan v. State of Rajasthan [(2014) 8 SCC 282], the Supreme Court has laid down that the transfer of holding by a member of Scheduled Caste to a member not belonging to the Scheduled Caste by virtue of Section 42 of the Rajasthan Tenancy Act is forbidden and unenforceable. Such a transaction is unlawful even under Section 23 of the Contract Act and an agreement or such transfer would be void under Section 2(g) of the Contract Act. This principle of law, as explained by the Supreme Court in Ram Karan (supra) fortifies the view taken by the learned Single Judge of this Court in the case of Hardik Harshadbhai Patel (supra). Keeping this principle in mind, I have arrived to the conclusion that the word "invalid"

or the word "void", so far as the Section 43 of the Tenancy Act is concerned, would not make by difference. The true test is whether the transaction is unlawful, as opposed to the public policy. Whether such transaction would defeat the very object with which such restriction has been imposed in Section 43 of the Tenancy Act."

6.7 Reading thereof would indicate that in light of the

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specific bar under the Tenancy Act, the transaction of sale was void. The Supreme Court held that the right to claim compensation would accrue from the right, title or interest of the land and when the agreements entered into itself were clearly void and a nullity, such a transaction being opposed to public policy cannot be enforced. The transaction being null and void, the Supreme Court therefore held that the right to claim compensation would also not accrue. Reliance as is evident from para 99 of the decision of the Full Bench was based on a decision of the Supreme Court in the case of Sitaram Vs. Radha Bai & Ors., reported in AIR 1968 Supreme Court 534., which reads as under:

"99 The decision of the Apex Court in the case of Sita Ram (supra), has been noted in paragraph Nos."75" and "85" therein as under:

-

"75. The Supreme Court in the case of Sita Ram v. Radha Bai reported in AIR 1968 SC 534 has very succinctly explained the law on the subject. I may quote the relevant observations as under:

"12. The principle that the Courts will refuse to enforce an illegal agreement at the instance of a person who is himself a party to an illegality or fraud is expressed in the maxim In pari causa potior est conditio possidentis. But as stated in Anson's 'Principles of the English Law of Contracts', 22 nd Ed., p. 343:"there are exceptional cases in which a man will be relieved of the consequences of an illegal contract into which he has entered-cases to which the maxim does not apply They fall into three classes (a) where the illegal purpose has not yet been substantially carried into effect before it is sought to recover money paid or goods delivered in furtherance of it (b) where the plaintiff is not in pari delicto with the defendant : (c) where the plaintiff does not have to rely on the illegality to make out his claim."

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13. There was in this case no plea by the plaintiff t hat there was any illegal purpose in entrusting the jewellery to Lachhmi Narain. It was also the plaintiffs case that Gomti Bai knew that the jewellery in dispute was entrusted by the plaintiff to Lachhmi Narain, and if the averments made in the plaint are to be the sole basis for determining the contest, Gomti Bai did not suffer any loss in consequence of the entrustment.

Assuming that the Trial Court was competent without a proper pleading by the appellant and an issue to enter upon an enquiry into the question whether the plaintiff could maintain an action for the jewellery entrusted by her to Lachhmi Narain, the circumstances of the case clearly make out a case that the parties were not "in pari delicto". It is settled law that "Where the parties are not in pari delicto, the less guilty party may be able to recover money paid, or property transferred, under the contract. This possibility may arise in three situations. First, the contract may be of a kind made illegal by statute in the interests of a particular class of persons of whom the plaintiff is one.* * *

Secondly, the plaintiff must have been induced to enter into the contract by fraud or strong pressure.

***

Thirdly, there is some authority for the view that a person who is under a fiduciary duty to the plaintiff will not be allowed to retain property, or to refuse to account for moneys received, on the ground that the property or the moneys have come into his hands as the proceeds of an illegal transaction" See Anson's 'Principles of the English Law of Contract' p. 346..."

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xxx xxx xxx

85. The principle that the Courts will refuse to enforce an illegal agreement at the instance of a person who is himself a party to an illegality has been very succinctly explained by the Supreme Court in its decision in the case of Sita Ram (supra) by applying the maxim in pari causa potior est conditio possidentis. The Supreme Court, by referring to Anson's 'Principles of the English Law of Contracts', explained that there are exceptional cases in which a person would be relieved of the consequences of an illegal contract into which he has entered and the above referred maxim is not applied. The Supreme Court classified the three exceptional circumstances : (a) where the illegal purpose has not yet been substantially carried into effect, (b) where the plaintiff is not in pari delicto with the defendant, and (c) where the plaintiff does not have to rely on the illegality to make out his claim. This principle explained by the Supreme Court in Sita Ram (supra) applies on all fours to the case on hand. The plaintiff could be said to be in pari delicto with the defendants and he has no other option, but to rely upon the invalid agreement of sale for the purpose of seeking the discretionary relief of specific performance. It is not the case of the plaintiff that he had been induced to enter into the contract by fraud or strong pressure."

6.10 The aforesaid paragraphs of the decision of the Full Bench would indicate that the Full Bench positively held that any transfer which is in violation of the statutory provisions being invalid, cannot be enforced by a Civil Court by granting a decree of specific performance. Even the argument of the learned counsels of having pocketed the sale consideration cannot be permitted in light of dismissal of the suit on the principle that "No act of the Court can prejudice a party". In light of this, the submission of the learned Senior Advocate Mr.Vyas, that the Full Bench had not dealt with the issue of the alternative relief of compensation or damages cannot be

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accepted. It is in light of this, that the submission of the learned Counsel for the appellant that the plaintiff's plaint cannot be rejected in part cannot be accepted in light of the fact that the alternative relief of compensation arose itself out of a contract which was held to be incapable and invalid to be performed of which, the plaintiff and the defendants were very much aware of, which therefore leads us to believe that on the principle of pari delicto and in light of the decision of the Supreme Court in the case of Sita Ram (supra), the contention that the plaint was rejected in part also cannot be accepted."

Emphasis supplied.

15.1 Thus, the Division Bench of this Court in the case of

Ashokbhai Madhubhai Patel (supra) has held that alternative

prayer for recovery of amount is also not maintainable in view

of the agreement which itself is barred under Section 43 of the

Act.

15.2 It is pertinent to note that the decision in the case of

Ashokbhai Madhubhai Patel (supra) has been carried to the

Hon'ble Supreme Court by way of Special Leave to Appeal No.

Hon'ble Supreme Court, which reads as under:-

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"Heard Mr. Navin Pahwa, learned senior counsel appearing for the petitioner.

Having noticed the basis for the decision against the petitioner on the absence of Collector's prior permission required under Section 43 of the Gujarat Tenancy and Agricultural Land Act, 1948, we see no reason to interfere. The Special Leave Petition is therefore dismissed.

Pending application(s), if any, shall stand closed."

Emphasis supplied.

16. It is also apt to refer and rely upon the decision of

Hon'ble in the Rameshbhai Chaturbhai Prajapati (Supra), ,

wherein it has been held as under:-

"22. In the case of V. Narasimharaju (AIR 1963 SC 107) [supra], 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 particularly when previous sanction of the Collector was a mandatory and, admittedly, such previous sanction was not obtained by the parties and the agreement to sell an agricultural land is invalid and even Sec. 53A of the Transfer of Property Act, 1882 would also not safeguard such agreement. The above aspect is also dealt with by the Bombay High Court in the case of Himatrao Ukha Mali V/s. Popat Devram Patil, AIR 1999 Bombay 10, [supra], wherein it is held that Sec. 43 imposes a total prohibition or legal bar on alienation of the lands vested in favour of the tenants under the provisions of the Tenancy Act. If an agreement of sale or any instrument in respect of the subject land is executed without taking previous sanction of the Collector under Sec. 43(1) of the Tenancy Act, the said agreement shall be invalid as per Sec. 43(2) of the said Act. Suffice it to say that Sec. 43(1) of the Tenancy Act bars even entering into agreement or alienating the land and usage of term 'shall' twice in the Section including in the penultimate part

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of the Section reveals mandatory character of the language contained therein and to be interpreted as such and, particularly when the agreement/transaction was barred by sub-sec. (1) of Sec. 43 of the Tenancy Act and sub-sec. (2) of Sec. 43 of the said Act clearly refers such agreement or transfer shall be invalid, the trial Court has rightly concluded by not probing into the question of declaration of such transaction/agreement as invalid. The satisfaction of the learned Judge based on the understanding of the language contained in sub-secs. (1) and (2) of Sec. 43 of the Tenancy Act and the relevant materials on record of the case for not passing the decree as prayed for cannot be said to be in any manner contrary to law warranting any interference by this Court in exercise of powers under Arts. 226 and 227 of the Constitution of India.

26. In the case of Lotan Ramchandra Shimpi {supra}, it is held that, without sanction under Sec. 43 of the Tenancy Act, the impugned agreement is invalid and possession given to the purchaser is invalid and the same is not protected under Sec. 53A of the Transfer of Property Act."

Emphasis supplied.

16.1 It has been held by this Court that if subject land is

restricted tenure land then, as per Section 43 (2) of the

Tenancy Act, even any agreement of transfer in contravention

to sub-section (1) of Section 43 of the Tenancy Act is invalid

thereby possession given to the purchaser is invalid and the

same is not protected under Sec. 53A of the Transfer of

Property Act.

17. Lastly, it is also apposite to refer and rely upon the

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decision of Sheena Textiles Limited (supra), wherein it has

been held as under:-

"16. In order to claim the protection under Section 53A of the Transfer Property Act, it is necessary that all three prerequisites, as mentioned hereinabove, are required to be fulfilled. Thus, the plaintiffs would not be entitled to any protection under Section 53A of the T.P.Act, as there is no written contract between them.

17. It is the case of the plaintiffs that they had stopped the payment of three cheques when it was noticed that his two properties was mortgaged by the defendant and until and unless the mortgage was removed, the plaintiffs were constrained to stop further payment. In absence of any written contract in this regard, the plaintiffs cannot seek shelter on the pretext that the defendant was required to remove the mortgage on the suit land in wake of the fact that they are unable to prove the mortage of the land for which the oral agreement to sell was understood between them. It is an admitted fact that three post dated cheques were initially returned twice on the ground of inefficient funds and on the third time, they were returned for the reason of stop payment. In view of such approach of the plaintiffs, the defendant was constrained to file a criminal complaint. It is also not in dispute that during the pendency of the suit also, no attempt was made by the plaintiffs to perform their part for paying the rest of the amount as orally agreed between the parties. Nothing is forthcoming from the evidence, which has surfaced on record that the plaintiffs were ready and willing to perform the part of third contract. Even assuming that they were put in possession and they had undertaken construction, the same will not in any manner come to their rescue, in wake of the fact that they were not willing to perform the part of the contract. It is well settled proposition of law that in a suit for specific performance of a contract for sale, it has to be proved that the plaintiffs, who are seeking a decree for specific performance of the contract for sale must always be ready and willing to complete the terms of the agreement for sale, and that he has not abandoned the contract and his intention is to keep the contract subsisting till it is executed and for the grant of such decree, the issue of readiness and willingness is of utmost importance. Merely because the defendant had allowed to put up some RCC construction, the same will not eclipse his unwillingness to perform the contract. It is established that at the time of putting such construction, the plaintiffs had only paid the earnest money of Rs.4,00,000/-. Hence, the plaintiff cannot compel the defendant to execute the sale deed only on the payment of earnest money.

21. It is enunciated by the Apex Court that the person is entitled to

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defend his possession of taking recourse of Section 53A of the T.P. Act but once his suit for specific performance stands dismissed, the protection available under Section 53A of the T.P. Act would not be longer available to him and after the dismissal of suit for specific performance, he becomes an authorized and illegal occupant thereby entitling the owners of the suit land to claim back such suit property. Thus, in the present case, once the suit seeking specific performance is dismissed, the possession, if any of the plaintiffs, on the suit land can be termed as unauthorized."

17.1 It has been held that once the suit for Specific

performance is dismissed, protection available under Section

53A of Transfer Property Act would be no longer available and

plaintiff becomes an unauthorized and illegal occupant.

18. Thus, in light of the aforesaid discussion, the law on this

issue is well settled and already decided by the Full Bench of

this court i.e., Decd. Shaikh Ismailbhai hushainbhai (Supra) as

well as by the Division Bench of this court in the case of

Ashokbhai Madhubhai Patel (supra) and decisions of this Court

in the case of Rameshbhai Chaturbhai Prajapati (Supra) &

Sheena Textiles Limited (supra). I do not find any merit in the

present second appeals, as the so-called question of law raised