Sought Specific Performance Based on New Tenure Land Agreement is Barred Under Section 43 of Tenancy Act.

The Appellants (original plaintiffs) filed a suit for the cancellation of sale deeds dated 24.02.2023 and 27.03.2023 and for a declaration of pre-emptive rights over the "suit land".

The plaintiffs’ claim was based on an "agreement of understanding" dated 15.06.2006 executed by Defendant No. 27 (Power of Attorney holder for the original owners).

It was admitted in the plaint and the agreement that the suit land was of "restricted tenure" (new tenure) at the time of the agreement.

The Respondents filed an application under Order VII Rule 11 of the CPC, arguing the suit was barred by law because Section 43 of the Gujarat Tenancy and Agricultural Lands Act, 1948, prohibits transfers or agreements to transfer new tenure land without prior Collector permission.

The Trial Court rejected the plaint, leading to this statutory appeal.

1. Whether the Trial Court erred in concluding that the agreement to sell was hit by Section 43 of the Gujarat Tenancy and Agricultural Lands Act, 1948, warranting rejection of the plaint under Order VII Rule 11 of the CPC.

Section 43 of the Gujarat Tenancy and Agricultural Lands Act, 1948, which restricts the alienation of certain lands without previous sanction of the Collector.

Binding precedent of the Larger Bench of the Gujarat High Court in Deceased Shaikh Ismailbhai Hushainbhai Through LRs v. Vankar Ambalal Dhanabhai (2024), which established that an agreement to sell restricted tenure land without prior permission is invalid and a suit for specific performance based on such an agreement is barred by law at the threshold.

Order VII Rule 11(d) of the Code of Civil Procedure, 1908, regarding the rejection of a plaint where the suit appears from the statement in the plaint to be barred by any law.

The Court observed that the plaintiffs themselves admitted in paragraph 3 of the plaint that the land was "new tenure" land at the time the agreement was executed in 2006.

Under the principle settled by the Larger Bench in Shaikh Ismailbhai, any agreement to transfer such land without the prior sanction of the Collector is void ab initio and cannot create a cause of action for specific performance or related reliefs.

The Court rejected the Appellants' argument that the agreement was contingent upon future conversion to "old tenure," noting that the statutory bar under Section 43 applies to the act of entering into the agreement itself.

Since the documents relied upon by the plaintiffs clearly demonstrated a violation of a statutory prohibition, the Court reasoned that the Trial Court correctly exercised its power under Order VII Rule 11(d) to reject the plaint without a full trial.

The Court held that a suit based on an agreement hit by Section 43 of the Tenancy Act is legally maintainable and the plaint must be rejected at the threshold under Order VII Rule 11.