Gujarat HC Rejects Co-Owner’s Claim To First Right To Buy Fellow Owner’s 6 Acres, Finding No Legal Basis or Sale-Deed Covenant

The plaintiff and defendant No. 1 jointly purchased agricultural land under a registered sale deed dated 19 June 1981, which allotted them shares of 7 acres 24 gunthas and 6 acres respectively.

Defendant No. 1 later sold his 6-acre share to defendants Nos. 2 and 3. The plaintiff sued to have that sale declared void under the Gujarat Prevention of Fragmentation and Consolidation of Holdings Act, 1947, and claimed a first right to purchase; defendant No. 1 brought a separate suit seeking an injunction to protect his possession.

The trial court decreed the plaintiff’s suit and dismissed defendant No. 1’s suit; the first appellate court dismissed both appeals.

In the second appeals, the plaintiff conceded that his suit was not maintainable because the Civil Court lacked jurisdiction to decide the Act-related issue.

Section 36A of the Gujarat Prevention of Fragmentation and Consolidation of Holdings Act, 1947 bars the Civil Court from deciding matters assigned to the authorities under that Act, including whether the impugned transaction contravenes its provisions.

Section 44 of the Transfer of Property Act, 1882 permits a co-owner to transfer his share in immovable property.

A co-owner does not, merely by virtue of joint ownership, have a first right to purchase another co-owner’s share; such a right requires a contractual covenant or a statutory basis.

No precedent was cited.

The plaintiff’s concession, considered alongside Section 36A, established that the Civil Court could not adjudicate whether the 1985 sale violated the 1947 Act; accordingly, the findings on that issue and the decree in the plaintiff’s suit could not stand.

The Court also found no covenant in the 1981 sale deed and no statutory provision conferring a first-purchase right, while Section 44 permitted transfer of a co-owner’s share; it therefore set aside the finding granting the plaintiff that right.

As to defendant No. 1’s separate suit, the Court held that he was entitled, as a co-owner, to protection of his possession of the area attributable to his share under the deed, and found the dismissal of his suit erroneous.

The judgments and decrees concerning Regular Civil Suit No. 166 of 1985 were quashed and set aside on the ground that the suit was not maintainable; the finding that the plaintiff had a first right to purchase was also set aside.

The judgments concerning Regular Civil Suit No. 195 of 1986 were quashed and set aside, and that suit was allowed, granting defendant No. 1 the claimed protection of possession.

No order as to costs was made.