VANZARA HARJI VALVAJI vs BHALUBHAI KODARBHAI PATEL

C/SA/78/2006 JUDGMENT DATED: 29/10/2026
(GJHC240526492006)
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SECOND APPEAL NO. 78 of 2006
With
R/SECOND APPEAL NO. 79 of 2006

FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE MAULIK J.SHELAT
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Approved for Reporting Yes No
√
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VANZARA HARJI VALVAJI & ORS.
Versus
BHALUBHAI KODARBHAI PATEL
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Appearance:
MR VISHRUT JANI FOR MR RC JANI(357) for the Appellant(s) No.
1,2,2.1,2.2,2.3,2.4.1,2.4.2,2.4.3,2.4.4,2.4.5,2.5,3.1,3.2,3.3,3.4,3.5
MR VISHAL C MEHTA for Respondent(s)
MR BB NAIK, SENIOR ADVOCATE WITH MR PARTHIV A
BHATT(5331) for the Respondent(s) No. 1
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CORAM: HONOURABLE MR. JUSTICE MAULIK J.SHELAT
Date : 29/10/2026
COMMON JUDGMENT
1. Heard Mr.Vishrut Jani, learned advocate for the
appellants, Mr. Vishal C. Mehta, learned advocate for
supporting respondents and Mr.B.B.Naik, learned Senior
Advocate with Mr. Parthiv Bhatt, learned advocate for
respondent No.1.
2. Since the issues involved in the appeals are more or less
similar in both these appeals, rather they are dependent upon
each other, at the joint request of learned advocates for the
respective parties, both these appeals are heard together and
decided by way of this common judgment.
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C/SA/78/2006 JUDGMENT DATED: 29/10/2026
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3. Second Appeal No.78 of 2006 is directed against the
judgment and decree dated 13/01/2005 passed by the Extra
Assistant Judge, Sabarkantha, Camp at Modasa in Civil Appeal
No.52 of 1998 and Second Appeal No. 79 of 2006 is directed
against the judgment and decree dated 13/01/2005 passed by
the Extra Assistant Judge, Sabarkantha, Camp at Modasa in
Civil Appeal No. 53 of 1998, whereby the Appellate Court had
confirmed the common judgment dated 17/09/1998 passed by
nd
the 2 Civil Judge (Junior Division), Modasa in Regular Civil
Suit Nos. 166 of 1985 and 195 of 1986, respectively. The Trial
Court appears to have allowed Regular Civil Suit No.166 of
1985 filed by respondent No.1 herein, whereas it dismissed
the Regular Civil Suit No.195 of 1986 filed by the appellant
herein.
4. The parties will be referred as per their original
positions in Regular Civil Suit No.166 of 1985, which is the
lead matter. The appellant herein is the original defendant
No.1, respondent No. 1 herein is the original plaintiff and the
rest of the respondents are the original defendants Nos. 2 and
3 (subsequent purchasers).
5. The short facts of the case appear to be that the plaintiff
and defendant No.1 jointly purchased the agricultural land
bearing Survey No.23A at Village Rahiyol, Taluka Modasa,
District Sabarkantha, admeasuring 13 acres and 24 Gunthas
by way of a registered sale deed dated 19/06/1981. As per the
sale deed, the aforesaid agricultural land was jointly
purchased and to be jointly cultivated by the plaintiff and
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C/SA/78/2006 JUDGMENT DATED: 29/10/2026
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defendant No.1. It was categorically mentioned in the sale
deed that out of 13 Acres and 24 Gunthas, the share of the
plaintiff would be 7 Acres and 24 Gunthas and the remaining
6 Acres would be of defendant No.1.
6. The defendant No.1 appears to have sold his share, i.e.,
6 Acres, to defendants Nos.2 and 3 by way of a registered sale
deed dated 04/07/1985, which is the subject matter of the
suit, (herein after referred as “ the suit land ”). Having come
to know about such sale by defendant No.1 in favour of
defendants Nos.2 and 3, the plaintiff instituted Regular Civil
Suit No.166 of 1985 seeking a declaration and injunction that
he has the first right to purchase and that the sale in question
is hit by the provisions of the Gujarat Prevention of
Fragmentation and Consolidation of Holdings Act, 1947
(hereinafter referred to as "the Act, 1947" ), thereby sale
deed dated 04/07/1985 shall be declared as void. He also
prayed for a permanent injunction. Whereas the defendant
No.1 appears to have instituted a counter-suit, being Regular
Civil Suit No.195 of 1986 seeking a prayer for permanent
injunction only.
7. The defendants of the respective suits appeared and
contested the suits by filing their written statements. The
Trial Court framed various issues to decide both the suits.
Thereafter, the parties led their oral evidence. At the end of
the trial, upon appreciation of the evidence on record, the
Trial Court found that the sale deed executed by defendant
No.1 in favour of defendants Nos.2 and 3 is hit by the
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C/SA/78/2006 JUDGMENT DATED: 29/10/2026
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provisions of the Act, 1947. Accordingly, the Trial Court
declared the sale deed dated 04/07/1985 executed by
defendant No.1 in favour of defendants Nos.2 and 3 is
void/illegal. Consequently, the Trial Court decreed the suit in
favour of the plaintiff by further declaring that the plaintiff
has a first right to purchase the suit land from defendant No.1
whenever he desires to sell. So far as the suit filed by
defendant No.1, being Regular Civil Suit No.195 of 1986 is
concerned, it was dismissed.
8. Feeling aggrieved and dissatisfied with the common
judgment passed by the Trial Court and the decrees passed
respectively in the suits, all the defendants of Regular Civil
Suit No.166 of 1985 preferred a joint appeal, being Regular
Civil Appeal No. 52 of 1998 and the plaintiff of Regular Civil
Suit No.195 of 1986 (defendant No.1) also preferred a
separate appeal, being Regular Civil Appeal No.53 of 1998.
After hearing the parties and upon re-appreciation of the
evidence on record, the Appellate Court vide its separate
impugned judgment and decree dismissed the respective
appeals. Therefore, the original defendants-appellants are
before this Court by way of these Second Appeals.
9. This Court, while admitting the respective Second
Appeals, framed the following substantial questions of law:
“ SECOND APPEAL NO.78/2006 :
(i) Whether on the facts and in the circumstances of
the case, the learned trial court could grant an
injunction against the appellant Nos.1 and 2 who had
purchased a part of the joint family property without
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declaring the said sale deed as null and void?
(ii)Whether on the facts and in the circumstances of
the case, could the trial court issue an injunction
against the defendant No.1 / appellant No.1 that
whenever he wants to sell the part of Survey
No.23(A), he would sell the same to the plaintiff?
(iii)Whether on the facts and in the circumstances of
the case, could such a condition be continued if the
present appellant / defendant No.1 proposes to file a
suit for partition by metes and bounds and he obtains
certain land / property in his possession as his
exclusive property?
SECOND “ APPEAL NO.79/2006 :
(i) Whether on the facts and in the circumstances of
the case, the appellant would be entitled to an
injunction against the defendants that his possession
which he claims to be exclusive, should not be
disturbed by the plaintiff?”
10. At the outset, Mr.B.B.Naik, learned Senior Counsel
assisted by Mr. Pathik Bhatt, learned advocate appearing for
the original plaintiff, would concede before this Court that
Regular Civil Suit No.166 of 1985 instituted by the plaintiff
before the Civil Court was in fact not maintainable, in view of
the prayers sought in the suit. Mr. Naik, learned Senior
Counsel, would fairly concede before this Court that there is a
clear bar under the Act, 1947 whereby the Civil Court has no
jurisdiction to decide as to whether the transaction entered
into between defendant No.1 and defendant Nos.2 and 3 by
way of registered sale deed dated 04/07/1985 is void pursuant
to the provisions of the Act, 1947.
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C/SA/78/2006 JUDGMENT DATED: 29/10/2026
(GJHC240526492006)
10.1 According to Mr. Naik, learned Senior Counsel for the
plaintiff, the finding recorded by the Civil Court in its
impugned judgment would not survive as the suit filed by the
plaintiff itself was not maintainable. Mr.Naik, learned Senior
Counsel, would further concede that the original defendant,
being the co-owner of the suit land, is also entitled to the
decree as prayed for in the suit, being Regular Civil Suit
No.195 of 1986 and an appropriate order may be passed as
regards the permanent injunction prayed for in such suit. In
short, Mr. Naik, learned Senior Counsel, would request this
Court not to further delve into the issues framed at the time of
the admission of these appeals.
11. Per contra, Mr.Jani and Mr. Mehta, learned advocates
appearing for the defendants-respective parties, would submit
that since Mr. Naik, learned Senior Counsel, would concede
that the suit filed by his client-the plaintiff was not
maintainable, this Court may not go further into this aspect.
Nonetheless, they would submit that so far as the claim made
by the plaintiff as regards the right of first purchase is
concerned, in the absence of any express covenant in the sale
deed executed by the original owner in favour of the plaintiff
and defendant No.1 and in the absence of any express
provision of law, the plaintiff could not have claimed such
right to first purchase the suit land and any finding recorded
by the Trial Court in this regard in favour of the plaintiff is
also required to be interfered with by this Court. It is
submitted that the Courts below have completely lost sight of
Section 44 of the Transfer of Property Act, 1882 (hereinafter
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referred to as 'the Act, 1882' ), while adjudicating the lis
between the parties.
12. Having heard the learned advocates for the respective
parties and taking note of the stand now taken by the original
plaintiff before this Court, there is nothing further to be
discussed by this Court as regard to the findings of fact
recorded by the Trial Court while passing the impugned
judgment in relation to the applicability of the provisions of
the Act, 1947 on the registered sale deed dated 04/07/1985
executed by defendant No.1 in favour of defendant Nos.2 and
3.
12.1 Since the plaintiff has declared before this Court
through his learned Senior Counsel that Regular Civil Suit
No.166 of 1985 filed by him was not maintainable, considering
such submission advanced before this Court and taking note
of Section 36A of the Act, 1947, it is hereby held that Regular
Civil Suit No.166 of 1985 was not maintainable, inasmuch as
the Civil Court has no jurisdiction to decide the lis between
the parties so far as the transaction entered into between
defendant No.1 in favour of defendant Nos.2 and 3 in the form
of a registered sale deed dated 04/07/1985 was hit by the
provisions of the Act, 1947.
13. So far as the aspect of the right to first purchase by the
original plaintiff is concerned, prima facie , the Trial Court has
not assigned any independent finding or reasons on such
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C/SA/78/2006 JUDGMENT DATED: 29/10/2026
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issue, but having found that to avoid any fragment, the
plaintiff has a right of first purchase and accordingly decreed
the suit in favour of the plaintiff. Even Mr.Naik, learned Senior
Counsel for the plaintiff, is also unable to lay his hands on any
covenant in the registered sale deed dated 19/06/1981
whereby any right of first purchase was available to the
parties, i.e., the plaintiff in the present case. No provision of
law brought to my notice, whereby it can be held that in a
case of joint ownership, the first right to purchase always
available to other joint owner in a case of sale; rather, Section
44 of the Act, 1882 entitles the co-owner of immovable
property to transfer his share of such property. Thus,
considering the said facts and circumstances, the Courts
below have recorded perverse finding that the plaintiff has the
first right to purchase the suit land.
14. As far as the suit filed by defendant No.1, being Regular
Civil Suit No.195 of 1986 is concerned, he being a co-owner of
the suit land, is surely entitled to claim protection of
possession of the area which entitles him to possess/occupy
under the sale deed dated 19/06/1981. Accordingly, the
defendant No.1 of that suit (the plaintiff of Regular Civil Suit
No. 166/1985) ought to have been injuncted not to interfere
with the possession of defendant No.1 and/or his servants. As
such, Mr. Naik, learned Senior Counsel has fairly conceded
that the defendant No.1 being co-owner is entitled to enjoy
the possession of the suit land and injunction prayed for ought
to have been granted in his favour. Thus, in view of the
aforesaid, the Trial Court has committed a gross error of law
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C/SA/78/2006 JUDGMENT DATED: 29/10/2026
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by dismissing Regular Civil Suit No.195 of 1986 filed by the
defendant No.1 of Regular Civil Suit No. 166/1985, that too
without assigning any reasons for its dismissal.
15. In view of the foregoing discussion and reasons, the
substantial questions of law framed by this Court are
answered accordingly. Since the plaintiff of Regular Civil Suit
No. 166 of 1985 has conceded before this Court that his suit
was not maintainable, the judgment and decree dated
13/01/2005 passed by the Extra Assistant Judge, Sabarkantha,
Camp at Modasa in Civil Appeal No.52 of 1998 and the
nd
judgment and decree dated 17/09/1998 passed by the 2 Civil
Judge (Junior Division), Modasa in Regular Civil Suit Nos. 166
of 1985, are hereby quashed and set aside. Whereas, the
judgment and decree dated 13/01/2005 passed by the Extra
Assistant Judge, Sabarkantha, Camp at Modasa in Civil Appeal
No. 53 of 1998 and the judgment dated 17/09/1998 passed by
nd
the 2 Civil Judge (Junior Division), Modasa in Regular Civil
Suit No.195 of 1986 are hereby quashed and set aside.
Accordingly, Regular Civil Suit No. 195 of 1986 filed by
defendant No.1 is allowed.
16. Both these appeals are allowed in the aforesaid terms.
Decree shall be drawn accordingly. There shall be no order as
to costs. The Registry is directed to send back the record and
proceedings to the concerned Court, forthwith.
(MAULIK J. SHELAT, J)
GAURAV J THAKER
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