The appellants ori. defendants Nos.5 to 10 have filed this Second Appeal under Section 100 of the Civil Procedure Code challenging the judgment and decree passed by the learned Additional District Judge, Mehsana on 15.3.2007 in Regular Civil Appeal No.87 of 2005 whereby the learned Additional District Judge, Mehsana has allowed the Appeal filed by the ori. plaintiff and passed a decree for specific performance in favour of the plaintiffs.

It is the case of the original defendants Nos.5 to 10 that the plaintiffs Nos.1 and 2 had filed a Suit for specific performance in respect of an agreement to sell allegedly executed by the defendants Nos.5 to 10 in favour of the ori. defendants Nos.1 to 4 and also asked for a specific performance in respect of an agreement to sell executed by original defendants Nos.1 to 4 in favour of the plaintiffs. Both the agreements were entered into in respect of the new tenure land and hence the specific performance of agreement to sell could not be granted in the eye of law.

It is also the case of the defendants Nos.5 to 10 that after hearing the parties, the trial Court has dismissed the suit of the plaintiffs and refused to pass decree for specific performance and exercised the discretion on the equitable principles in favour of the defendants Nos.5 to 10. It is also their case that there was no privity of contract between the plaintiffs and the defendants Nos.5 to 10 and, therefore, the ori. plaintiffs have no right to seek specific performance of agreement to sell from the defendants Nos.5 to 10. The trial Court has dismissed the suit of the plaintiffs by judgment and decree dated 25.10.1999 in Special Civil Suit No.68 of 1995.

Being aggrieved by the said judgment and decree of the trial Court the ori. plaintiffs have filed First Appeal No.7581 of 1999 before this Court. Thereafter, on coming into force the Gujarat Civil Courts Act, 2005, the proceedings of the First Appeal were transferred to the District Court and it was numbered as Regular Civil Appeal No.87 of 2005. The said Appeal was allowed by the learned Additional District Judge. It is this order of the learned Additional District judge which is under challenge in the Second Appeal.

Mr.Shital Patel, learned advocate appearing for the appellants/ defendants Nos.5 to 10 has submitted that the learned Appellate Court has committed serious error in appreciating the fact that the first agreement to sell executed by the defendants Nos.5 to 10 in favour of ori. defendants Nos.1 to 4 and an agreement to sell executed by ori. defendants Nos.1 to 4 in favour of the ori. plaintiffs are admittedly in breach of Section 43 of the Bombay Tenancy and Agricultural Act and, therefore, the decree for specific performance cannot be granted in respect of an illegal agreement to sell as per Section 43 of the Tenancy Act. It is further submitted that the Appellate Court has committed serious error in not appreciating the fact that the decree of specific performance is based upon the discretion and on the basis of doctrine of equity. When the trial Court exercised the discretion in favour of the defendants Nos.5 to 10 there was no reason for the Appellate Court to reverse the decree of the learned trial Judge without any substantial reason and thus the Appellate Court has committed serious error in granting the decree in favour of the ori. plaintiffs. He has further submitted that the Appellate Court has committed serious error in not appreciating the fact that the decree for specific performance is discretionary remedy and based upon the equity. This will have to be seen in the context of the fact that the alleged agreements to sell on which the specific performance is granted are of the years 1984/1986 and the judgment and decree passed by the Appellate Court is in the year 2007 which is almost after a lapse of 23 years. In between there is a huge escalation in price of the land in question and, therefore, granting of decree of specific perform