Point of Law: When a question arises in a suit for specific performance whether the agreement on which that suit is based is void on the ground that any acquisition made pursuant thereto would contravene or transgress the provisions of Section 35 of the Bombay Tenancy and Agricultural Lands Act, the Civil Court Is the only forum in which an adjudication is possible and the Mamlatdar cannot make any such adjudication. The power to make any adjudication under section 84C arises and accrues to the Mamlatdar only after the acquisition or the transfer as the assessee may be is completed and not before.

JUDGMENT :

VAIBHAVI D. NANAVATI, J.

1. This First Appeal under Section - 96 of the Code of Civil Procedure is at the instance of the original plaintiffs and is directed against the judgment and decree below Exh.31 dated 24.03.2021 passed by the 2nd Additional Senior Civil Judge, Surat in the Special Civil Suit No.274 of 2019, by which, the Court rejected the plaint under Order 7 Rule 11 of the Code of Civil Procedure.

2. The appellant instituted the suit seeking for specific performance of the contract based on an agreement to sell dated 30.09.2003. At the time of the execution of the agreement to sell, the subject land was a new tenure land. In other words, the subject land was hit by Section-43 of the Bombay Tenancy And Agricultural Lands Act, 1948. In such circumstances, an understanding was arrived at as stipulated in the agreement to sell that the sellers i.e. the original defendants nos.1 to 6 shall take all necessary steps to get the land converted from new tenure to old tenure and such steps shall be taken by the seller within a period of one year from the date of execution of the agreement to sell. After the said agreement came to be executed in 2003, no action was taken by the parties till 2019.

3. It appears that thereafter, the land came to be converted to old tenure vide order dated 29.05.2019. On the very next day, i.e. on 30.05.2019, the original owners i.e. the defendants nos.1 to 6 executed a registered sale-deed of the subject land in favour of the defendant no.7.

4. In such circumstances referred to above, the appellant herein instituted a suit for specific performance of contract based on the agreement to sell dated 30.09.2003. The respondent no.7 herein [purchaser of the property] preferred an application under Order 7 Rule 11(D) of the Code of Civil Procedure and prayed for rejection of the plaint on the ground that the suit itself was not maintainable as a decree of specific performance cannot be granted on the basis of a invalid or void agreement to sell hit by Section-43 of the Bombay Tenancy And Agricultural Lands Act. The rejection of plaint was also prayed for on the ground that the suit is time barred.

5. The Trial Court allowed the application below Exh-31 filed by the respondent no.7 herein and rejected the plaint.

6. Being dissatisfied with the judgment and decree passed by the Court below rejecting the plaint, the original plaintiff is here before this Court with the present appeal.

7. The original plaintiff instituted Special Civil Suit No.274 of 2019 praying for the following reliefs :-

“(A) Your Honour may be pleased to pass the order in favour of I-the Plaintiff directing the Defendants or their heirs, guardian, agent to specifically perform the agreement to sell executed in favour of I-the Plaintiff on 30/09/2002 and to receive the outstanding amount of consideration from I-the Plaintiff and to hand over the peaceful and direct possession of the suit land after executing the sale deed in the name of I-the Plaintiff or in the name of any other person as per my wish by appearing in Surat Sub-Registrar Office in respect of the land registered vide R.S.No.49/1, block No.62 admeasuring to 2630 sq.mt. in moje Parvat village, Ta-Udhana, Dist: Surat. If the Defendant refuses to execute the sale deed, your honour may be pleased to pass the order appointing the competent court commissioner and to direct the court commissioner to be present in the Sub-Registrar Office and execute the Registered sale deed in favour of I-the Plaintiff or in the name of any other person as per my wish and to get the peaceful and direct possession of the suit land from the Defendants and hand over the same to I-the Plaintiff.

At the Alternative

If Hon'ble court does not deem it fit to grant the above prayer, Your Honour may be pleased to pass an order in favour of I-the Plaintiff and against the Defendants directing them to pay Rs.1,66,172/- of the earnest money deed and Rs.1,50,00,000/- towards compensation for damages to me after