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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
G.R. UDHWANI, J.
L.H. of Chimanbhai Kalidas Patel and Others – Appellants
Versus
Agriculture Produce Market Committee Bavla – Respondent
Civil Revision Application Nos. 424, 425, 427 of 2017
Decided On : 04-02-2020
Code of Civil Procedure – O.7 R.11 – Bombay Tenancy and Agricultural Lands Act – Section 63 – Plaint was sought to be defended on the ground that in absence of challenge to the agreement, such contention was not maintainable. It was also argued that it was permissible for the Court to pass conditional decree requiring the plaintiff to comply with Section 63 of the aforesaid Act. Held – In the opinion of this Court, the trial Court was oblivious of the fact that in absence of the demonstration of readiness and willingness to perform its part of the contract, the plaintiff had no cause of action and in case of agreement to sell entered into in the year 2008, the specific performance of the contract which can be filed within a period of three years of the denial of execution of the sale-deed, was clearly barred by limitation as it was filed after about six years of the date of the agreement to sell. Impugned orders are quashed and set aside, plaint in each of the suit is ordered to be rejected – Applications allowed. (Paras 8 and 9)
Facts of the Case:
Plaint was sought to be defended on the ground that in absence of challenge to the agreement, such contention was not maintainable. It was also argued that it was permissible for the Court to pass conditional decree requiring the plaintiff to comply with Section 63 of the aforesaid Act.
Finding of the Court:
Specific performance of the contract which can be filed within a period of three years of the denial of execution of the sale-deed, was clearly barred by limitation as it was filed after about six years of the date of the agreement to sell. Impugned orders are quashed and set aside, plaint in each of the suit is ordered to be rejected.
Result: Applications allowed.
JUDGMENT :
G.R. UDHWANI, J.
1. These Revision Applications arise out of the order rendered under O.7 R.11 of the Code of Civil Procedure (for short CPC) rejecting the application in a suit lodged by the opponent for specific performance of the contract in respect of different parcels of land involved in respective revision applications.
2. Application under O.7 R.11 came to be tendered by the opponent urging the rejection of the plaint on the ground that it was barred by Section 63 of the Bombay Tenancy and Agricultural Lands Act; the plaintiff not being an agriculturist (02) that it was also barred by limitation since the suit was filed only in the year 2014 seeking specific performance of the contract in relation to the land in question executed in the year 2008 and (03) that the plaintiff has no cause of action since it could not demonstrate how it was ready and willing to perform its part of the contract.
3. Per contra, the plaint was sought to be defended on the ground that in absence of challenge to the agreement, such contention was not maintainable. It was also argued that it was permissible for the Court to pass conditional decree requiring the plaintiff to comply with Section 63 of the aforesaid Act.
4. To appreciate the controversy, it would be appropriate to reproduce Section 63 of the Gujarat Tenancy and Agricultural Land Act:
“63. (1) Save as provided in this Act:
(a) no sale (including sales in execution of a decree of a Civil Court or for recovery of arrears of land revenue or for sums recoverable as arrears of land revenue), gift exchange or lease of any land or interest therein.
(b) no mortgage of any land or interest therein, in which the possession of the mortgaged property is delivered to the mortgage.
(c) no agreement made by an instrument in writing for the sale, gift, exchange, lease or mortgage of any land or interest therein.
Shall be valid in favour of a person who is not an agriculturist [or who being an agriculturist cultivates personally land not less than the ceiling area whether as an owner or tenant or partly as owner and partly as tenant or who is not an agricultural labourer]:
Provided that the Collector or an officer authorised by the [State] Government in this behalf may grant permission for such sale, gift, exchange, lease or mortgage [or for such agreement] on such conditions as may be prescribed:
Provided further that no such permission shall be granted, where land is being sold to a person who is not an agriculturist for agricultural purpose, if the annual income of such person from other sources exceeds five thousand rupees.
(1A) The State Government may, by notification in the Official Gazette, exempt from the provisions of sub-section (1), for the transfer of any agricultural land to any public trust established for the charitable purpose and which is non-profitable in nature, for the use of such land in the field of health and education, subject to such conditions as may be specified therein.
(2) Nothing in this section shall be deemed to [prohibit the sale, gift, exchange or lease, or the agreement for the sale, gift, exchange or lease of] a dwelling house or the site thereof or any land appurtenant to it in favour of an agricultural labourer or an artisan [or a person carrying on any allied pursuit].
(3) Nothing in this section shall apply or be deemed to have applied to a mortgage of any land or interest therein effected in favour of a cooperative society as security for the loan advanced by such society [or any transfer declared to be a mortgage by a court under section 24 of the Bombay Agricultural Debtors' Relief Act, 1947].
(4) Nothing in section 63A shall apply to any sale made under sub-section (1).”
4.1 Clearly, clause (c) of Section 63(1) bars an agreement to sell. In fact, any agreement in breach of the said provisions is declared to be invalid, if the proposed purchaser is non-agriculturist, however as indicated in the proviso, it would be open for the Collector to grant the permission
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