RAMESHBHAI LAKSHMANBHAI SAKARIYA vs NANDIBEN WD/O MAGANBHAI VALJIBHAI
- Court
- Gujarat High Court
C/FA/2140/2024 JUDGMENT DATED: 29/06/2026
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 2140 of 2024
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RAMESHBHAI LAKSHMANBHAI SAKARIYA
Versus
NANDIBEN WD/O MAGANBHAI VALJIBHAI & ORS.
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Appearance:
JATIN V YADAV(8946) for the Appellant(s) No. 1
MR GAURAV M PATEL(10185) for the Appellant(s) No. 1
REFUSED SERVED (N)(10) for the defendant(s) No. 1,2.1,2.2,2.3,3,4,6,7,8
UNSERVED EXPIRED (N) for the defendants(s) No. 5
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CORAM: HONOURABLE MR. JUSTICE J. C. DOSHI
Date : 29/06/2026
JUDGMENT
1. Cause list shows that respondent nos.1,2.1 to 2.3,3,4 and
6 to 8 have refused to accept the process. Respondent No.5
though expired, no attempt has been made to bring her heirs
on record.
2. The present first appeal is directed against the order
dated 11th March 2024, passed by the learned Seventh
Additional Senior Civil Judge, Surat in Special Civil Suit No.
344 of 2012, whereby the learned Judge rejected the plaint
filed by the plaintiff under Order 7 Rule 11(A) of the Code of
Civil Procedure, 1908 (in short “the Code”).
3. Briefly stated facts are that the plaintiff filed the
aforesaid suit against the defendants seeking relief of specific
performance of an agreement to sell. In the alternative, the
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plaintiff sought relief of compensation. The suit land is
described as Survey No. 233/1, Block No. 256, Mauje Village,
Puna, District: Surat, admeasuring 0-70-82 sq mtr. The said
land belongs to and is owned by the defendants. It is an
undisputed fact that the suit land is new tenure land,
governed under the provisions of Section 43 of the Gujarat
Tenancy and Agricultural Lands Act, 1948. The defendants
agreed to sell the suit land to the plaintiff at a rate of Rs. 700/-
per sq mtr, making the total sale consideration Rs.
nd
61,00,000/-. An agreement to sell was executed on 2 May,
2005 before the Notary Public Mr. Rampal, which is
registered at Serial No.19601. At the time of execution of the
agreement to sell, the defendants handed over possession of
the suit land to the plaintiff. A sum of Rs. 12,00,000/- was paid
to the defendants at that time. The remaining amount of Rs.
48,80,000/- was to be paid in eighteen monthly equal
installments.
3.1 Since the suit land is new tenure land, it was agreed
between the parties that the defendants shall obtain the
necessary permission to convert the land from new tenure to
old tenure. All expenses for such conversion were to be borne
accordingly. In the event that permission for such conversion
was not granted, the amount of sale consideration was agreed
to be forfeited.
3.2 Since the defendants was not taking any steps to obtain
the permission required for conversion of the new tenure land
into old tenure land, the plaintiff filed the present suit with an
additional relief to restrain the defendants from changing the
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hands of the suit land.
3.3 During the pendency of the suit, defendants No. 4 to 7
filed an application at Exhibit 17 under Order 7 Rule 11(A) of
the Code seeking rejection of the plaint. The basis of the
application was that a suit for specific performance of an
agreement to sell in respect of new tenure land executed
without prior permission of the Collector is not maintainable
under the law.
3.4 After hearing both the parties, the learned trial court
was pleased to allow the said application and rejected the
plaint.
3.5 Being aggrieved by the said order, the plaintiff has filed
the present first appeal before this Court.
4. Having heard learned advocate for the appellant, at the
outset, let refer relief claimed by the plaintiff in the plaint as
under:-
“1. The defendants are hereby declared to have no
right or authority to sell, mortgage, gift, transfer or
assign the land claimed by the defendants or any part
thereof to third parties and to do any such
transaction and we hereby declare that the
defendants have no right or authority to do any act
which may prejudice the rights of the plaintiffs.
(2) The land bearing survey no. 233/1, Moje village
Puna, Sub-district, Surat City, having an area of 0-70-
82 sq.m., bearing block no. 25d, is hereby ordered to
be sold, mortgaged, gifted, transferred, assigned to
any third party and to not cause any other third party
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to take any action that may create interest in the land
in question and to not cause any interference,
obstruction or interference in the possession or
enjoyment of the plaintiff or any other act that may
impair the rights of the plaintiff.
(3) Surat District, Sub-District Surat City, Moje
Village Puna, Survey No. 233/1, Block No. 256, land
with area 0-70-82 sq.m. The defendants have
executed the contract of sale dated 05.05.2012 and
have obtained the necessary permissions to convert
the new condition to the old condition. We hereby
order the defendants to issue a legally registered sale
document of the claimed land to the plaintiff. We
hereby order the plaintiff to issue a decree in favor of
the plaintiff and if the defendants fail to issue the
document, we hereby order the court commissioner
with the appropriate authority of the esteemed court
to issue a sale document of the claimed land to the
plaintiff.
(4) If in any case the Hon'ble Court does not find it
appropriate and reasonable to grant the right of
special execution of the contract of sale as mentioned
in para (3) of the said paragraph, then in respect of
the land in question, the sale consideration paid by
the plaintiff to the defendants in addition to Rs.
61,00,000/- shall be forfeited to the defendants
Considering the current market value, please
determine the appropriate amount of damages for
breach of contract and include interest or interest
damages at the rate of 24% from the date of claim
until recovery of that total amount and establish a
charge on the claimed land and announce it and issue
a decree against the defendant to recover the same
from the defendant's property in favor of the plaintiff.
(5) Order the defendants pay the costs of this suit?”
5. In para 9, the plaintiff has pleaded following as cause of
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action.
“The cause of action is that the defendants have paid
the full amount of the sale consideration as stipulated
in the sale deed dated 05.05.2012 to the plaintiff in
respect of the said land in installments in cash and by
cheque and the defendant has refused to renege on
the sale deed and accept the full amount of the sale
consideration and has filed a petition for forcible
possession from the plaintiff on 06.07.2012 and is
seeking transfer and assignment to a third party and
has arisen daily thereafter.”
6. The core issue that falls for determination in the present
appeal is whether, in view of Section 43 and/or Section 63 of
the Gujarat Tenancy and Agricultural Lands Act, 1948, a suit
for specific performance of an agreement to sell in respect of
new tenure land without prior permission of the Collector is
maintainable?
7. The Full Bench of this Court in case of Decd Shaikh
Ismailbhai Hushainbhai Through Lh Versus Vankar
Ambalal Dhanabhai, 2024 (1) GLH 222 , in a reference,
decided the issue in the context of scope and power of the
court to reject a plaint. In concluded para 152 to 155, the Full
Bench of this Court has held as under:-
“152 In view of the above discussion from all angles of
the matter, we endorse the ratio of the decisions of
this Court in Hasvantbhai Chhanubhai Dalal versus
Adesinh Mansinh Raval and others; Ganpatlal
Manjibhai Khatri Vs. Maguben Babaji Thakor ;
Vijaybhai Shambhubhai Patel versus Sushilaben
Dayalbhai Vijay versus Sushilaben
Dayalbhai ;Hardikbhai Harshadbhai Patel Versus
Amarsang Nathaji as himself and as Karat and
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Manager ; Naranbhai Kanjibhai Gajera versus
Vinodbhai Shankarbhai Patel, wherein it has been
held that the trial Court shall be right in rejecting the
plaint under Order VII Rule 11 of the Code of Civil
Procedure on the ground that the suit for specific
performance based on illegal and invalid agreement
for sale is not maintainable. The law laid down therein
is a good law.
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 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).
154 There is no other contrary decision placed before
us.
155 The question of reference framed by us whether
the plaint is liable to be rejected under Order VII,
Rule 11 of the Code of Civil Procedure 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 is answered in the AFFIRMATIVE. The
Reference is answered, accordingly.”
8. Thus, the Full Bench of this Court comprehensively
examined the issue and categorically held that a suit for
specific performance based on an agreement to sell, in
respect of new tenure land, executed without previous
permission of the Collector is in clear contravention of Section
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43 of the Tenancy Act and not maintainable. The judgment of
the Full Bench of this Court has been carried to the Hon’ble
Apex Court by filing SLP No.6812 of 2023. However, the
Hon’ble Apex Court was not inclined to entertain the SLP and
dismissed the same. Therefore, issue has attained finality.
The issue in this appeal is squarely covered by aforesaid
judgment. Thus, present First Appeal is arid of merit.
9. Therefore, suit for specific performance of agreement to
sell in regards to the new tenure land has rightly been
rejected by the learned trial Court. Learned advocate for the
appellant failed to make out any different point or any other
authority or pronouncement.
10. Resultantly, present First Appeal fails and stands
dismissed. Interim relief, if any, granted earlier stands vacated
forthwith.
11. Registry is directed to return back the R & P, if any, to
the concerned Court forthwith.
(J. C. DOSHI,J)
SHEKHAR P. BARVE
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