Gujarat High Court
Jinabhai Parsottambhai Patel vs Dahiben Wd/O Haribhai Ramjibhai on 1 September, 2025
NEUTRAL CITATION
C/SA/290/2025 ORDER DATED: 01/09/2025
undefined
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SECOND APPEAL NO. 290 of 2025
With
CIVIL APPLICATION (FOR INTERIM RELIEF) NO. 1 of 2025
In
R/SECOND APPEAL NO. 290 of 2025
================================================================
JINABHAI PARSOTTAMBHAI PATEL
Versus
DAHIBEN WD/O HARIBHAI RAMJIBHAI & ORS.
================================================================
Appearance:
MR MANAN MAHETA(6037) for the Appellant(s) No. 1
MS POONAM M MAHETA(11265) for the Appellant(s) No. 1
================================================================
CORAM:HONOURABLE MR.JUSTICE SANJEEV J.THAKER
Date : 01/09/2025
ORAL ORDER
1. The present Second Appeal has been filed under Section
100 of the Code of Civil Procedure, challenging the judgment
and decree passed by Principal District Judge, Surat, in Regular
Civil Appeal No.22 of 2018, dated 28.08.2025, whereby the
judgment and decree passed in Regular Civil Suit No.3 of 2012
passed by Principal Senior Civil Judge, Olpad has been
confirmed.
2. For the sake of convenience, the parties are referred to as
per their original status as that in the suit.
3. The brief facts arising in the present Second Appeal are
that the plaintiff filed Regular Civil Suit No.3 of 2012, on the
ground that the father of the defendants had agreed to sale the
suit property to the plaintiff for an amount of Rs.11,111/- and an
agreementt to that effect was entered into between the plaintiff
NEUTRAL CITATION
C/SA/290/2025 ORDER DATED: 01/09/2025
undefined
and the father of the defendants, on 24.04.1980 and at the time
when the agreement to sale was entered into beween the plaintiff
and defendants, the suit property was a new tenure land which
required permission under Section-43 of the Gujarat Tenancy
and Agricultural Land Act, 1948 and as the suit property was a
new tenure land, father of the defendants assured that the suit
property will be transferred in favour of the plaintiff and a sale
deed will be executed in favour of the plaintiff after the suit
property is converted from the new tenure land to old tenure
land.
4. It is also averred in the plaint that the father of the
defendants expired on 28.07.2009 and that the plaintiffs were
always ready and willing to abide by the terms and conditions of
the agreement and as the defendants were trying to transfer,
assign and sale the suit property to a third party and a public
notice to that effect was also issued by the defendants in Gujarat
Mitra newspaper on 15.12.2012, the suit has been filed by the
plaintiff for specific performance of the agreement dated
24.04.1980.
5. The cause of action to file the present suit as stated by the
plaintiff in the plaint is that at the time of entering into an
agreement, the suit property was a new tenure land and the
NEUTRAL CITATION
C/SA/290/2025 ORDER DATED: 01/09/2025
undefined
agreement was that the father of the defendants shall convert the
suit property from new tenure land to old tenure land, that, only
recently defendants are trying to sale the suit property to a third
party and that as recently the suit property has converted from
new tenure land to old tenure land, the plaintiff has filed the suit
for specific performance of the contract and for an ancillary
relief for injunction.
6. The defendants appeared in the said suit and at the time
when the mattter was placed for cross-examination of the
plaintiff, the defendants filed application under VII Rule 11 (a)
& (d) of the Code of Civil Procedure, vide Exhibit-86 on the
ground that as the suit land was restricted land and a new tenure
land and agreement to sale without the permission of
appropriate authority could not have been executed and hence
the agreement to sale is without the permission and therefore
barred by law.
7. The trial Court allowed the said application and rejected
the plaint. Aggrieved by the said order, the plaintiffs filed
Regular Civil Appeal No.22 of 2018 and after reappreciation of
the evidence, the first appellate Court dismissed the said appeal.
Hence, the present Second Appeal.
NEUTRAL CITATION
C/SA/290/2025 ORDER DATED: 01/09/2025
undefined
8. Learned advocate for the plaintiff has mainly argued that
at the time when the suit was filed, the suit property was already
converted into the old tenure land, and therefore, the trial Court
and the appellate Court could not have rejected the plaint under
the provisions of Section 43 of the Gujarat Tenancy and
Agricultural Land Act, 1948.
9. It has also been argued by learned advocate for the
plaintiff that, the trial Court had already framed issues, vide
Exhibit-54 on 14.03.2016 and one of the issue before the trial
Court was "whether the defendants prove that the suit property
is new tenure land and Section-43 of the Bombay Tenancy and
Agricultural Lands Act, 1948", therefore, as the said issues have
already been framed, the trial Court could not have rejected the
plaint on the said ground.
10. Moreover, it has been argued that the said suit was at the
stage of cross-examination of the plaintiff's witness. The
plaintiff had already filed examination-in-chief, vide Exhibit-48,
and therefore, at that stage, the trial Court could not have
rejected the plaint. Learned advocate for the plaintiff has also
argued that the cause of action to file the suit arises only after
the suit property was converted from new tenure land to old
tenure land, and therefore, the suit that has been filed by the
NEUTRAL CITATION
C/SA/290/2025 ORDER DATED: 01/09/2025
undefined
plaintiff is for specific performance of a property which on the
date of filing the suit was an old tenure land.
11. Moreover, with respect to the fact of limitation, learned
advocate for the plaintiff has also argued that the cause of action
to file the suit has arisen in the year 2012 when the suit property
was converted from new tenure land to old tenure land.
12. Learned advocate for the plaintiff has also argued that
since there is a delay of 10 years in filing the application under
the provision of Orde VII Rule 11 of the Code of Civil
Procedure and when the matter is at the stage of cross-
examination of the plaintiff's witness, the trial Court could not
have allowed the said application.
13. Learned advocate for the plaintiff has also argued that the
plaintiff is in continuous possession of the suit premises since
the year 1980, and therefore, also as one of the relief in the
plaint was with respect to protection of the possession of the suit
property, the trial Court could not have rejected the plaint and in
view of the said fact, it has been argued that there are substantial
questions of law which are formulated in the memorandum of
appeal, and therefore, the Second Appeal is required to be
admitted on the following substantial question of law:-
NEUTRAL CITATION
C/SA/290/2025 ORDER DATED: 01/09/2025
undefined
(i) Whether the Courts below erred in law in rejecting the
plaint under Order 7 Rule 11(a) and (d) of CPC when the issue
of limitation and the question of validity/enforceability of the
agreement were mixed questions of law and fact, requiring full
trial and evidence?
(ii) Whether the Courts below committed error in law by not
appreciating that the appellant was protected under Section 53A
of the Transfer of Property Act, 1882, having been put in
possession of the suit land pursuant to an agreementt to sale
and having performed his part of the contract?
(iii) Whether the Courts below erred in holding the agreement
to sale void or unenforceable under Section 23 of the Indian
Contract Act, 1872, when the agreement was conditional upon
obtaining requisite permission under Section 43 of the Bombay
Tenancy and Agricultural Lands Act, 1948, and the cause of
action arose only after removal of such restriction?
(iv) Whether the Courts below failed to exercise jurisdiction
vested in them by rejecting the plaint without poperly
considering that the appellant's prayer for possession and
protection thereof was an independent and ancillary relief
which could not have been summarily rejected under Order 7
Rule 11 CPC?
(v) Whether the Courts below erred in not considering the
legal principle that conditional agreemens are not per se void
and are enforceable upon fulfillmentt of conditions, and thereby
failed to apply Section 10 of the Specific Relief Act, 1963
correctly?
(vi) Whether the Courts below committed a serious eror in law
by failing to consider that the conduct of the respondents
amounted to an estoppel under Section 115 of the Evidece Act,
NEUTRAL CITATION
C/SA/290/2025 ORDER DATED: 01/09/2025
undefined
1872, and that they could not take advantage of their own
wrong?
(vii) Whether the findings of the Courts below that the suit is
barred by limitation are perverse and contrary to law, in view of
the fact that the appellant's cause of acttion arose only upon
conversion of the land into old tenure in 2011 and refusal of the
defendants to execute the sale deed thereafter?
(viii) Whether the Courts below misapplied the provisions of
Order 7 Rule 11 CPC by virtually deciding the suit on merits at
the threshold stage without a full-fledged trial, contrary to well-
settled principles of law?
14. Having heard learned advocate for the plaintiff. The
following are the admitted facts:-
(i) The father of the defendant entered into an agreement to
sale, dated 24.04.1980.
(ii) The fact also remains that at the time of the execution of
agreemen to sale, the suit property was new tenure land.
(iii) The fact also remains that till filing of the suit i.e. from
the date of agreement to sale, till the plaintiff filed suit, the
plaintiffs have not sent any communication showing their
readiness and willingness to abide by the terms and conditions
of the agreement.
(iv) The fact also remains that to decide the dispute beween the
NEUTRAL CITATION
C/SA/290/2025 ORDER DATED: 01/09/2025
undefined
parties, it would be appropriate to reappreciate provision of
Section-43 of the Gujarat Tenancy and Agricultural Land Act,
1948, which reads as under:-
"43. (1) No land or any interest therein purchased by a
tenant under section 17B, 32, 32F, 32-I. 6[*], 7[32U, 43-
1D or 88E] or sold to any person under section 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
[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 that the partition of the land as
aforesaid shall not be valid if it is made in
contravention of the provisions of any other law for the
time being in force: Provided also that such members
of the family or the legal heirs shall hold the land, after
the partition, on the same terms, conditions and
restrictions as were applicable to such land or interest
therein purchased by the tenant or the person."
15. The provisions of Section-43(2) of the Gujarat Tenancy
and Agricultural Land Act, 1948 expressely prohibits any
agreement of transfer in contravention of sub section-1 of
section-43 of the Gujarat Tenancy and Agricultural Land Act,
1948 and there is no dispute that the suit property was a new
NEUTRAL CITATION
C/SA/290/2025 ORDER DATED: 01/09/2025
undefined
tenure land when the plaintiff and the father of the defendant
entered into an agreement to sale, dated 24.04.1980. The
averments with respect to the suit property being new tenure
land is clearly stated by the plaintiff in the plaint and if the said
fact is considered then such an agreement to sale is clearly
barred under Section-43(2) of the Gujarat Tenancy and
Agricultural Land Act, 1948 as it is invalid in the eyes of law.
16. Fact remains that Agreement on which the Plaintiff is
seeking specific performance also states that the suit property
was a new tenure land and in the Plaint also, there is a clear
averment of the Plaintiff that the suit property was a new tenure
land.
17. At the time when the Agreement dated 24.04.1980 was
entered into between the parties, the suit property was new
tenure land and the same was to be converted into an old tenure
land and thereafter the sale-deed was to be executed between the
parties. Therefore, the admitted position before the Court is that
an Agreement that was entered into between the parties was
with respect to new tenure land and hence, its sale or agreement
to sell was barred by law. The suit has been filed for specific
performance of the agreement dated 24.04.1980, which in view
of Section 43 of the Tenancy Act is illegal in view of restrictions
NEUTRAL CITATION
C/SA/290/2025 ORDER DATED: 01/09/2025
undefined
contained therein.
18. The Division Bench of this Court in the case of
Bharatbhai Devashibhai Ukani vs. Vinaben Babaji and ors. in
First Appeal No. 4023 of 2023 in Para 11, has referred to the
issue in question that has been decided by the Full Bench in the
case of deceased Shaikh Ismailbhai Husenbhai thro' Legal Heirs
(supra), which reads as under:
"11. Issue, in question is no longer res-integra in view
of the recent judgment of the Full Bench, in the case of
deceased Shaikh Ismailbhai Hushainbhai through legal
heirs (supra). The Full Bench, has confined its
examination to the provision of Section 43 of the Act of
1948. Paragraph 21 in this behalf reads thus;
"21. Furthermore, in light of the controversy before us,
as can be seen from the previous decisions of this
Court noted hereinbefore, we do not find any reason to
enlarge the scope of the reference and confine
ourselves to the question of reference to examine
"whether a plaint is liable to be rejected on the ground
that the suit for specific performance of contract based
on an illegal or invalid agreement to sell, hit by
Section 43 of the Tenancy Act,1948, is not
maintainable?"
19. In view of the said judgment it has been held and observed
that it is only the Civil Court that 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 and not hit by any
statutory provisions or forbidden by law or opposed to public
NEUTRAL CITATION
C/SA/290/2025 ORDER DATED: 01/09/2025
undefined
policy.
20. If the agreement itself is invalid being hit by section 43 of
the Tenancy Act, no cause of action can be said to have arisen
asking Defendant to perform his part of the contract and there is
no sanction and the agreement itself is illegal and invalid. Para
12 of the decision rendered in First Appeal No. 4023 of 2023
reads as under:
"12. It has been held and observed that the Civil Court,
alone can look into the fact that 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 oppose to
public policy. The Full Bench, has also considered the
object and scope of Order VII Rule 11 of the Code, and
referred to the judgment in the case of Dahiben vs.
Arvindbhai Bhanusali (Gajara) dead through LHS.,
reported in (2020) 7 SCC 366, wherein, it has been held
and observed that the cause of action for a suit for specific
performance of an agreement of refusal by the Vendor
inspite of readiness and willingness of the vendee to
execute the sale deed, will not be existing in a case where
the agreement itself is invalid being hit by Section 43 of
the Act of 1948, inasmuch as, no cause of action can be
said to have arisen, asking the Defendant to perform his
part of the contract when there is no sanction and the
agreement itself is illegal or invalid. Paragraphs 138, 139,
151 and 153 of the judgment of Full Bench, read thus;
"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
NEUTRAL CITATION
C/SA/290/2025 ORDER DATED: 01/09/2025
undefined
land as prescribed in Section 43(1), without the
permission of the Collector, can be specifically enforced
by the 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.
139. The question as to enforceability of an
agreement hit by Section 43 of the Tenancy Act, 1948, to
grant a decree of specific performance, cannot be by any
stretch of imagination, a question within the scope of the
jurisdiction of the revenue authority under the Tenancy
Act, 1948. There is no gainsaying that Civil Court will not
be required to stay a suit for specific performance based
on an agreement hit by Section 43(1) of the Tenancy Act,
1948 and relegate the parties to approach the Mamaltdar
to decide on the question of validity of such an agreement.
(g) Enforceability of the agreement hit by Section 43 of
the Tenancy Act:-
151. On a careful reading of the provision in Order VII,
Rule 11 of the Code of Civil Procedure and the law laid
down by the Apex Court in Dahiben (supra), in light of
the dispute before us, we may note that in order to
maintain the suit for specific performance of agreement,
which is hit by Section 43(1) of the Tenancy Act, 1948,
the Plaintiff would be required to disclose the cause of
action for seeking a decree of specific performance of
such an agreement. The cause of action for a suit for
specific performance of an agreement of refusal by the
NEUTRAL CITATION
C/SA/290/2025 ORDER DATED: 01/09/2025
undefined
Vendor inspite of readiness and willingness of the
vendee to execute the sale deed, will not be existing in a
case where the agreement itself is invalid being hit by
Section 43(1), inasmuch as, no cause of action can be
said to have arisen asking the Defendant to perform his
part of the contract when there is no sanction and the
agreement itself is illegal or invalid. Further, on the
averments made in the plaint, in conjunction with the
documents relied upon by the Plaintiff, the Civil Court
will be in a position to ascertain the question of
enforceability of the agreement. It will be in a position to
ascertain that the agreement, which is the basis of the
suit, whether is hit by Section 43(1) or not, inasmuch as,
to seek a decree of specific performance of agreement, the
Plaintiff is required to disclose and establish two
circumstances: (I) firstly, that the documents, which is the
basis of the suit is a valid document in the eye of law and
(ii) secondly, that the cause of action has arisen prior to
the presentation of the plaint. If the documents, i.e. the
agreement is an illegal or invalid document in the eye of
law, the Civil Court from the statement in the plaint itself
will ascertain the suit being barred by law. In any case, a
suit basis of which is an invalid document in the eye of
law or where there exists no cause of action to institute
the suit on the date of the presentation of the plaint, the
Civil Court will have no option but to reject the plaint, at
the threshold, under Order VII, Rule 11 of the Code of
Civil Procedure. The arguments that the Civil court will
be required to frame the issue as to the validity of the
agreement, which is the basis of the suit and must
necessarily proceed with the trial to arrive at the decision
as to whether the decree of specific performance of an
agreement hit by law, is to be granted or not, does not
appeal to us.
153. We are in respectful agreement with the decision of
the Division Bench in Naranbhai Kanjibhai Gajera
(supra), holding that the Division Bench decision in
Amarben (supra) can be said to be 'per incuriam'
ignoring statutory provisions and in view of the decision
of another Division Bench dated 21.06.2021 in Vijaybhai
NEUTRAL CITATION
C/SA/290/2025 ORDER DATED: 01/09/2025
undefined
Shambhubhai Patel (supra), which was challenged in
Special Leave to Appeal (Civil) No.5124 of 2022, and
which has been dismissed vide judgement and order
dated 10.11.20222 affirming the Division Bench
judgement in Vijaybhai Shambhubhai Patel (supra)."
21. In any case, this Court is bound by the judgment of the
Hon'ble Full Bench in Shaikh Ismailbhai Hushainbhai
through legal heirs (supra) and Hon'ble Division Bench in
Bharatbhai Devashibhai Ukani vs. Vinaben Babaji and ors.
(supra). These judgments squarely cover the position of law on
the application of Order VII Rule 11 to Agreements hit by
Section 43 of the Tenancy Act and hence, they squarely apply to
the facts of the present case.
22. Therefore, in view of provisions of Section 43 of the
Tenancy Act and the admitted position that the suit property was
a new tenure land, the plaint was liable to be rejected under
provisions of Order VII Rule 11 of the CPC on the ground that
the suit for specific performance of the contract based on illegal
and invalid agreement to sale which is hit by section 43 of the
Tenancy Act and hence, is not maintainable.
23. Therefore, the trial Court has rightly held that the plaint is
barred in view of Section-43 of the Gujarat Tenancy and
Agricultural Land Act, 1948 with respect to the fact of
limitation the plaintiff is seeking specific performance of an
NEUTRAL CITATION
C/SA/290/2025 ORDER DATED: 01/09/2025
undefined
agreement which is executed in the year 1980. In view of the
fact that there is no averment in the plaint that the plaintiff had
ever approached the defendant's father for execution of the sale
deed and the fact that the defendant's father had also expired in
the year 2009, there is nothing on record to show that the
plaintiff was ready abide by the terms and conditions of the
agreement and had sought for specific performance.
24. In the present case, the appeal does not suggest any
substantial question of law. It is well settled legal position that
the substantial question of law shall be a question which is
substantial in nature and which has never been decided by any
Court of law including the Hon'ble Apex Court of India and
also such an issue goes to the root of the matter whereby any
fundamental error is committed by the trial Court or appellate
Court while adjudicating the dispute between the parties.
25. In the present case, the Courts below have not ignored
important evidence or acted on no evidence and looking at the
judgment passed by the trial Court and confirmed by the
appellate Court, it cannot be said that the Courts below had
drawn wrong inference from applying the law erroneously and
in the present case while exercising powers under Section 100 of
the Code of Civil Pocedure, this Court while examining the
NEUTRAL CITATION
C/SA/290/2025 ORDER DATED: 01/09/2025
undefined
judgment and decree passed by the trial Court and confirmed by
the appellate Court as well as considering the plaint and the
documents annexed with the plaint, no error can be found by
this Court in the judgment and decree passed by the trial Court
as well as the appellate Court. In view of the same, there is no
substance in the present Second Appeal and the substantial
questions of law which have been formulated in the
memorandum of appeal cannot be considered as substantial
question of law.
26. In view of the same, the present Second Appeal is
dismissed at the admission stage.
27. In view of the order passed in the main matter, Civil
Application does not survive and stands disposed of
accordingly.
(SANJEEV J.THAKER,J)
Manoj Kumar Rai
