Gujarat High Court
Patel Amitkumar Bhagwanbhai vs Thakor Jhemaben Wd/O Meruji Kala on 1 September, 2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SECOND APPEAL NO. 240 of 2025
With
CIVIL APPLICATION (FOR STAY) NO. 1 of 2025
In R/SECOND APPEAL NO. 240 of 2025
With
CIVIL APPLICATION (FOR AMENDMENT) NO. 2 of 2025
In CIVIL APPLICATION (FOR STAY) NO. 1 of 2025
In R/SECOND APPEAL NO. 240 of 2025
With
CIVIL APPLICATION (FOR AMENDMENT) NO. 3 of 2025
In R/SECOND APPEAL NO. 240 of 2025
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE SANJEEV J.THAKER Sd/-
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Approved for Reporting Yes No
✔
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PATEL AMITKUMAR BHAGWANBHAI & ORS.
Versus
THAKOR JHEMABEN WD/O MERUJI KALA & ORS.
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Appearance:
MS PREETI R DIXIT(11328) for the Appellant(s) No. 1,2,3,4
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CORAM:HONOURABLE MR.JUSTICE SANJEEV J.THAKER
Date : 01/09/2025
ORAL JUDGMENT
1. The present Second Appeal has been filed under Section 100
of the Code of Civil Procedure, 1908 (for short "the Code")
challenging the judgement and decree passed by the 3 rd
Additional District Judge, Patan, in Regular Civil Appeal
no.14 of 2015, vide order dated 31.12.2024 whereby the
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appeal filed by the plaintiff has been dismissed and the
judgement and decree passed in Regular Civil Suit no.131 of
2013 has been confirmed.
2. For the sake of brevity and convenience, the parties are
referred to as per their original status as that in the suit.
3. The brief facts arising in the present case are that the plaintiff
filed Regular Civil Suit No.131 of 2013, on the ground that,
the ancestors of the plaintiff entered into an agreement to sell
with the ancestors of the defendant on 16.05.1980 and
pursuant to the said agreement to sell, the possession of the
property was handed over to the father of the plaintiff and at
the time of entering into said agreement to sell, the suit
property was new tenure land and it was specifically agreed
that the defendants shall convert the suit property from new
tenure to old tenure and thereafter execute the sale deed and
therefore, the plaintiff has filed the suit for specific
performance of an agreement executed in the year 1980 with
respect to the property which was a new tenure land at the time
of execution of agreement to sell. The Trial Court framed
issues vide Exhibit 32 as under:
"(1) Whether the Plaintiff proves that the disputed land was
legally obtained by deceased Meruji Kalaji Thakor as per tenancy
rights and that he was thereby the lawful owner and occupant of
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the disputed land?
(2) Whether the Plaintiff proves that deceased Meruji Kalaji
Thakor had executed a legal agreement of sale regarding the
disputed land in favor of the father of Plaintiffs on 16/05/1980?
(3) Whether the plaintiff proves that based on the basis of the
agreement dated 16/05/1980, possession of the disputed land was
handed over to the deceased father of plaintiffs, and since then
until the date of the suit, the plaintiffs enjoy peaceful and direct
possession?
(4) Whether the plaintiff is entitled to the relief sought in the
plaint?
(5) What order and decree?"
4. The plaintiff examined himself vide Exhibit 26 and witnesses
of the plaintiff were examined vide Exhibit 27. The defendant
did not examine themselves and after considering the oral
evidence, documentary evidence and giving finding on all the
issues, the Trial Court dismissed the said suit. Aggrieved by
the said judgement and decree, the plaintiff filed Regular Civil
Appeal and the after re-appreciating the evidence, the
Appellate Court confirmed the judgement and decree passed
by the Trial Court and dismissed the appeal, hence the present
Second Appeal.
5. Learned advocate for the plaintiff has mainly argued that the
entire suit of the plaintiff is based only on the ground that the
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defendant had to convert the suit property from new tenure to
old tenure and thereafter, execute the sale deed and therefore,
the suit that has been filed by the plaintiff is not for purchase
of new tenure land but the suit has been filed for specific
performance of the property, after the suit property has been
converted by the defendant to old tenure land and therefore,
the Trial Court and the Appellate Court could not have
dismissed the said suit.
6. Learned advocate for the plaintiff has also argued that while
deciding the appeal, the Appellate Court has not framed
substantial questions of law as per the provisions of Order 41
Rule 31 of the Code and therefore, the First Appellate Court
without framing the point of determination expressing general
expression of concurrent view with the Trial Court judgement,
passed the order of dismissal of the appeal and therefore, the
present Second Appeal is required to be admitted.
7. Learned advocate for the plaintiff has relied on the judgement
passed vide order dated 03.11.2023 in Second Appeal No.297
of 2023, in the case of Gordhanbhai Ranchodbhai Patel Vs.
Dineshbhai Laxmanbhai Patel and relied on the judgement
passed vide order dated 20.10.2022 in Second Appeal No.432
of 2022, in the case of Ramabhai Galabhai Bariya Through
LHR Vs. State of Gujarat and in view of the said fact, it has
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been argued that the Trial Court and the Appellate Court could
not have disallowed the claim of the plaintiff and the Appellate
Court could not have decided the appeal without properly
framing and deciding the appropriate points for determination
as required under Order 41 Rule 31 of the Code and in view of
the said fact, it has been argued that the present Second Appeal
is required to be admitted on the following substantial
questions of law:
"A) Whether the learned first appellate Court has erred in
passing the impugned judgment order and decree contrary to
the provisions of Section 96 of the Code of Civil Procedure,
1908?
(B) Whether the learned first appellate Court has erred in
passing impugned judgment, order and decree contrary to the
provisions of Order 41 of Code of Civil Procedure 1908?
(C) Whether the learned first appellate Court has erred in
passing impugned judgment order and decree contrary to the
provisions of Order 41 Rule 31 of the Code of Civil Procedure,
1908?
(D) Whether the learned first appellate Court has erred in not
framing points of determination as mandatory under the
provisions of Order 41 Rule 31(a) of the Code of Civil
Procedure, 1908?
(E) Whether the learned first appellant Court has erred in not
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giving the decision on the point determination as mandatory
as per the provisions of Order 41 Rule 31(b) (c) of Code of
Civil Procedure, 1908?
(F) Whether the first appellate Court has erred in dismissing
the Regular Civil appeal No. 14 of 2015 without framing point
of determination and without adjudicating the point of
determination?
(G) Whether the learned first appellate Court has erred in not
discussing and not re-appreciating the oral as well as
documentary evidence on record and further erred in passing
the impugned judgment, order and decree?
(H) Whether both the Courts below erred in rejecting the
reliefs claimed having accepted that the possession of the said
disputed land in question was with the plaintiffs since 1980."
8. Having heard learned advocate for the plaintiff, the fact
remains that Agreement on which the Plaintiff is seeking
specific performance also states that at that time, 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.
9. To decide the dispute beween the parties, it would be
appropriate to reappreciate provision of Section-43 of the
Gujarat Tenancy and Agricultural Land Act, 1948, which
reads as under:-
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"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."
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10. At the time when the Agreement 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,
which in view of Section 43 of the Tenancy Act is illegal
in view of restrictions contained therein.
11. 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;
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"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?"
12. 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 policy.
13. 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
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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
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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 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,
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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 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
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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
Shambhubhai Patel (supra), which was challenged in
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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)."
14. 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.
15. 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 suit for specific performance of the
contract based on illegal and invalid agreement to sale is hit by
section 43 of the Tenancy Act.
16. It is required to be noted that in Second Appeal, the scope is
very limited and the Court cannot re-appreciate the evidence. In the
case of Navaneethammal v. Arjuna Chetty reported in 1996 (6)
SCC 177, the Hon'ble Apex Court has observed as under:-
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"11. This Court, time without number,
pointed out that interference with the
concurrent findings of the courts below by
the High Court under Section 100 CPC must
be avoided unless warranted by compelling
reasons. In any case, the High Court is not
expected to reappreciate the evidence just to
replace the findings of the lower courts."
17. In the case of Jaichand (Dead) through Lrs and Other
v. Sahnulal and Another reported in 2024 SCC OnLine SC
3864, the Hon'ble Apex Court has observed as under:-
"28. It is thus clear that under Section 100
CPC, the High Court cannot interfere with
the findings of fact arrived at by the first
Appellate Court which is the final Court of
facts except in such cases where such
findings were erroneous being contrary to
the mandatory provisions of law, or its
settled position on the basis of the
pronouncement made by the Apex Court or
based upon inadmissible evidence or
without vidence."
18. In the present case, the Courts below have not
ignored important 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 two parts by applying the law
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erroneously and in the present case while exercising
powers under Section 100 of the Code of Civil Procedure,
this Court while examining the 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.
19. In view of the same, the present Second Appeal is
required to be dismissed.
20. In view of the fact that Appellate Court has dealt with all
the issues and has also considered the oral evidence, the
present Second Appeal is dismissed. In view of the disposal of
the main matter the connected Civil Applications are
accordingly disposed of.
(SANJEEV J.THAKER,J)
URIL RANA
