Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2022 Supreme(Guj) 542

IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
A.P. Thaker, J.
Savitaben Wd/o Somabhai Hathibhai Patel – Appellant
Versus
Virendra Ramchandra Gandhi – Respondent
R/Appeal From Order No. 79 of 2021 With Civil Application (For Stay) No. 1 of 2021 In R/Appeal From Order No. 79 of 2021 With Civil Application (For Orders) No. 2 of 2021 In R/Appeal From Order No. 79 of 2021 With R/Civil Revision Application No. 173 of 2021 With R/Civil Revision Application No. 172 of 2021 With R/Civil Revision Application No. 169 of 2021 With R/Civil Revision Application No. 170 of 2021 With R/Appeal From Order No. 76 of 2021 With Civil Application (For Stay) No. 1 of 2021 In R/Appeal From Order No. 76 of 2021 With R/Appeal From Order No. 72 of 2021 With Civil Application (For Stay) No. 1 of 2021 In R/Appeal From Order No. 72 of 2021 With R/Appeal From Order No. 74 of 2021 With Civil Application (For Stay) No. 1 of 2021 In R/Appeal From Order No. 74 of 2021 With Civil Application (For Orders) No. 2 of 2021 In R/Appeal From Order No. 74 of 2021
Decided On : 06-05-2022

Advocates:
Advocate Appeared:
For the Appellant :Mr. Y.N.Ravani, Advocate With A A Daudivhora
For the Respondent:Mr. Mihir Thakor, Sr. Advocate With Mr Ashish H Shah, MR. Rajan J Patel

An agreement to sell is not void ab initio if it is subject to a condition that the seller will obtain the necessary permission from the authorities to convert the land from new tenure to old tenure land.

Headnote:
The Court held that the agreement to sell was not void ab initio and, therefore, the basis of the Division Bench judgment under appeal goes. Resultantly, the judgments in Jacques v. Withy, Hitchcock v. Way, and Ram Kristo Mandal v. Dhankisto Mandal cited by Shri Giri in support of the proposition that the repeal of a statute which makes void an agreement cannot revive such void agreement have no application on the facts of this case.
Fact of the Case:

The facts of the case are that the plaintiffs had filed a suit for specific performance of an agreement to sell dated 18.3.1995 entered into between them and deceased Somabhai Hathidas Patel for the land of old tenure. The defendants raised various objections, including that the suit was barred by limitation, the agreement to sell was void, and the plaintiffs were not agriculturists and, therefore, could not purchase the land.
Finding of the Court:

The Court found that the agreement to sell was not void ab initio and that the plaintiffs were agriculturists and, therefore, could purchase the land. The Court also found that the suit was not barred by limitation.
Issues: 1. Whether the agreement to sell was void ab initio? 2. Whether the plaintiffs were agriculturists and, therefore, could purchase the land? 3. Whether the suit was barred by limitation?
Ratio Decidendi: The Court held that the agreement to sell was not void ab initio because it was subject to a condition that the seller would obtain the necessary permission from the authorities to convert the land from new tenure to old tenure land. The Court also found that the plaintiffs were agriculturists and, therefore, could purchase the land. Finally, the Court found that the suit was not barred by limitation because the cause of action arose when the defendants took steps to mutate the names of other defendants in the revenue record, thereby indicating their intention not to execute the agreement to sell.
Final Decision: The Court dismissed the defendants' appeal and upheld the trial court's order granting an injunction in favor of the plaintiffs and rejecting the defendants' applications under Order 7 Rule 11.

JUDGMENT :

1. This group of Appeal from Orders and Civil Revision Applications have been arisen from the Order passed below Exh-5 and Exh-23 & Exh-26 in the Special Civil Suit No. 225 of 2020 and Special Civil Suit No. 226 of 2020 by the learned 5th Additional Senior Civil Judge, Ahmedabad (Rural) whereby the applications preferred by the plaintiff for interim injunction came to be allowed and applications filed by the appellants for rejection of Plaint came to be dismissed.

1.1 The Appeal from Order No. 72 of 2021 is preferred by defendant Nos. 5 to 10 and Appeal from Order No. 79 of 2021 is preferred by defendant Nos. 1 to 4 against the order below Exh-5 in Special Civil Suit No. 225 of 2020 whereas, Appeal from Order No. 74 of 2021 is preferred by defendant Nos. 5 to 10 and Appeal from Order No. 76 of 2020 is preferred by defendant Nos. 1 to 4 against the order passed below Exh-5 in Special Civil Suit No. 226 of 2020.

1.2 The Civil Revision Application No. 169 of 2021 is preferred by defendant Nos. 1 to 4 against order below Exh-26 and Civil Revision Application No. 172 of 2021 is preferred by original defendant Nos. 5 to 10 against the order below Exh-23 in Special Civil Suit No. 225 of 2020 whereas Civil Revision Application No. 170 of 2021 is preferred by defendant Nos. 1 to 4 against order below Exh-26 and Civil Revision Application No. 173 of 2021 is preferred by the original defendant Nos. 5 to 10 against order below Exh-23 passed in Special Civil Suit No. 226 of 2020.

1.3 The facts of the Appeal from Order 79 of 2021 has been taken as a lead matter for the purpose of disposal of all the Appeal from Orders and Civil Revision Applications. The Appellants are original defendants No. 1 to 4 whereas respondent Nos. 1 to 3 are the original plaintiffs and respondent Nos. 4 to 9 are the original defendant Nos. 5 to 10 before the trial Court.

2. Respondents Nos. 1 to 3, who are the original plaintiffs had preferred Civil Suit No. 225 of 2020 claiming and seeking declaration that the land bearing Survey No. 124/2/1 (New Survey No. 124/5) admeasuring 2327 sq. Mtrs of agricultural land situated at village: Gota, Taluka: Daskroi, District and Sub-District: Ahmedabad, which was belonging to one Somabhai Hathibhai Patel, has become the land of the ownership of the plaintiff in view of the registered Will dated 16.4.2004 of Somabhai Hathibhai Patel. Alternatively, it is claimed by the plaintiff that for the land in question, an agreement to sell dated 18.3.1995 was executed by the deceased Somabhai Hathibhai Patel, which may be specifically performed and for that purpose, Plaintiff has sought for relief of specific performance and has also sought for declaration that by revenue entry No. 8010, the claim of ownership of original defendant Nos. 5 to 10 may not be granted and may not be permitted to develop and they may not be declared as owners of the land. Along with the plaint, the plaintiff has also filed an application for interim injunction vide Exh-5, which came to be allowed by the trial Court.

3. In the aforesaid suit, the present Appellants i.e. defendant Nos. 1 to 4 preferred application under Order 7 Rule 11 of the Civil Procedure Code vide Exh-26 and defendant nos. 5 to 10 have also preferred an application below Exh-23 under Order 7 Rule 11 of the Civil Procedure Code by common order dated 10.3.2021. The trial Court has rejected both these application. Being aggrieved by the said order, the defendant Nos. 1 to 4 have preferred Civil Revision Application No. 169/2021 and defendant Nos. 5 to 10 have preferred Civil Revision Application No. 170/2021.

4. Heard Mr. Y.N. Ravani, learned advocate with Mr. Daudhivhora, learned advocate for the appellants, learned advocate Mr. Ranjan Patel for respondent Nos. 4, 8 and 9 and Mr. Mihir Thakor, learned Senior Counsel with Mr. Ashish Shah, learned advocate for respondent Nos. 1, 2 and 3 at length. Perused the material and decisions cited at bar.

5. Mr. Ravani, learned advocate for the appella

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2022 Supreme(Guj) 542

An agreement to sell is not void ab initio if it is subject to a condition that the seller will obtain the necessary permission from the authorities to convert the land from new tenure to old tenure land.

Cases Referred (45)