T. U. MEHTA, J.:- This Appeal arises out of the suit filed by the appellant-plaintiff for obtaining a decree for declaration that the agreement to sell the suit lands entered into between him and the respondent No. 1 on 9-1-1965 is still subsisting. The plaintiff has also claimed a permanent injunction restraining the defendants from transferring the suit lands to any other person, The said suit was filed in the court of the Civil Judge, S.D., Baroda, which was registered as Special Civil Suit No. 30/68. The learned trial Judge having dismissed the suit, the plaintiff has filed this First Appeal,

2. Short facts of the case are that the suit is with reference to agricultural land bearing S. No. 3/1 situated in the sim land of village Nagarwada near Baroda. On 9th January, 1965 the suit land was standing in the name of the defendant No. 1 in the revenue record. On that day the plaintiff and the defendant No. 1 entered into an agreement by virtue of which the defendant No. 1 agreed to sell the suit land to the plaintiff at the rate of Re, 0.75 per sq. ft, and also gave (received ?) the earnest money of Rs. 150/-. At that time the suit land was cultivated by one Dahyabhai Ranchhodbhai as a tenant. The agreement to sell, therefore, stipulated that the document of sale should be executed and the remaining amount of consideration should be paid up by the plaintiff after vacant possession of the suit land was obtained by the defendant No. 1 from the tenant Dahyabhai Ranchhodbhai. This agreement is found at Ex. 28 in the record of the case.

3. Several months thereafter i. e. on 2nd December, 1965 the defendant No. 1 got the land mutated to the name of the defendant No. 2, who is related to him as his mother. The mutation entry which is found at Ex. 39, shows that land was eventually mutated to name of the defendant No. 2 as it was alleged that the land was partitioned and had gone to the share of the defendant. No. 2 as early as 17-5-1949. In proof the said partition some document a seems to have been produced before the revenue authorities for the purpose mutation. The case of the plaintiff is that he knew nothing about this mutation.

4. The plaintiff has alleged that thereafter tenancy case No. 58/67 was filed on 5-1-67 against the tenant Dahyabhai Ranchhodbhai, who is said to have agreed to surrender his tenancy rights voluntarily. The record of the case possesses at Ex. 30 the order of the Tenancy Mamlatdar dt. 30th June, 1967, The Tenancy Mamlatdar made a further order in the said case giving over the possession of the suit land to the defendant No.2 This is evident from Ex. 31. The mutation entries found at Ex.27 further reveal that possession from the tenant was ordered to be taken over on 14-8-67. Thereafter by his order dt. 22nd February. 1968 the Collector, Baroda, took, under Section 76-A of the Bombay Tenancy and Agricultural Lands Act, 1948, further proceedings in suo motu revision with a view to satisfy himself as to the regularity and the propriety of the above said orders passed by the Tenancy Mamlatdar. These proceedings before the Collector were pending when this suit was filed on 30th March, 1968.

5. The plaintiff's case is that since the defendants are trying to sell away the suit land at higher price in breach of the terms of the Banakhat, it has been necessary to file this suit for declaration that the Banakhat is still subsisting.

6. The suit has been resisted by the defendants on various grounds. The learned Judge framed several issues and kept some of these issues as preliminary issues. He gave finding on these preliminary issues in favour of the plaintiff but on issues which were on the merits of the case, he came to the conclusion that the suit land never belonged to defendant No. 1 and, therefore, the defendant No. 1 had no right, tile or interest to execute this disputed Banakhat. In view of these findings on merits, the learned Judge dismissed the suit.

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