Specific performance plaints based on agreements violating Section 43 Tenancy Act are liable for threshold rejection.

The appellant (original plaintiff) filed a Special Civil Suit for specific performance of a registered agreement to sell dated 07.10.2013 executed by defendant Nos. 1 and 2 regarding "new tenure" land.

At the time of execution, the land was restricted under Section 62 of the Gujarat Land Revenue Code and Section 43 of the Tenancy Act.

Subsequently, the defendants sold the land to defendant No. 3 via a registered sale deed on 04.02.2020, after the land was converted to "old tenure" and premium was paid.

Defendant No. 3 filed applications under Order VII Rule 11 of the CPC (Exhs. 20 and 36), arguing the suit was barred by law because the underlying agreement to sell concerned new tenure land without prior statutory permission.

The trial court allowed the applications and rejected the plaint.

Whether the trial court erred in concluding that the agreement to sell is hit by Section 43 of the Gujarat Tenancy and Agriculture Lands Act, 1948, and whether the plaint is liable to be rejected under Order VII Rule 11 of the CPC.

Section 43 of the Gujarat Tenancy and Agricultural Lands Act, 1948, which restricts the transfer of restricted tenure land without the prior sanction of the Collector.

The Larger Bench decision in Decd Shaikh Ismailbhai Hushainbhai Through Lh v. Vankar Ambalal Dhanabhai (2024), which held that a suit for specific performance based on an agreement hit by Section 43 is not maintainable and the plaint is liable for rejection under Order VII Rule 11.

The principles from Dahiben v. Arvindbhai Bhanusali (2020) regarding the rejection of a plaint where no valid cause of action arises from an illegal or invalid agreement.

The Court observed that at the time the agreement to sell was executed (2013), the suit land was admittedly "new tenure" land.

Under Section 43(1) of the Tenancy Act, any transfer or agreement to transfer such land without prior permission is invalid.

The Court rejected the appellant's argument that Section 63 applied instead of Section 43, noting that the Collector’s conversion order specifically referenced Section 43.

Following the Larger Bench ratio in Shaikh Ismailbhai, the Court reasoned that the Civil Court has the jurisdiction to determine at the threshold whether an agreement is forbidden by law.

Since the agreement was hit by a statutory restriction at its inception, it was void, and no cause of action for specific performance could arise.

The subsequent conversion of the land to "old tenure" in 2020 did not cure the initial illegality of the 2013 agreement.

The appeal was dismissed, and the trial court's judgment and decree were upheld.

All pending civil applications were disposed of accordingly.