An unregistered agreement to sell is not admissible in evidence and cannot be the sole basis for a suit for specific performance.

JUDGMENT :

1. The present Appeal from Order is preferred by the appellant herein – original defendant no.6 under Order 43, Rule 1 r/w. Section 151 of the Civil Procedure Code, 1908 challenging the impugned order dated 26.03.2018 passed by the learned Principal Senior Civil Judge, Gandhinagar below application at Exhibit 5 in Special Civil Suit No. 37 of 2017.

2. Brief facts of the present case are that the original plaintiffs – respondents no.1 and 2 herein filed Special Civil Suit No.37 of 2017 for specific performance of two agreement to sell executed on 30.07.2007 and 04.08.2007 with respondents no.3 to 7 and on the basis of the said agreement to sell, respondents no.1 and 2 filed the said suit along with ancillary relief of cancellation of registered sale deed executed on 18.06.2016 with respect to the agriculture land bearing Block No.176 admeasuring 4728 square meter situated at Village: Randeson, District: Gandhinagar. The plaintiffs have executed one unregistered agreement to sell on 30.07.2007 before the Notary and original defendant no.1 and present respondent no.3 i.e. legal heirs of Juhaji Shivaji Thakor for 1/8th share of agriculture land bearing Block No.176 admeasuring 1176 square meter situated at Village: Randeson, District: Gandhinagar. It is further averred by the original plaintiffs that on the same day, one another agreement to sell executed between the original defendant no.4 – respondent no.6 herein for the agriculture land admeasuring 2352 square meters of the northern side, which is undivided ancestral property. That in both the agreement to sell, no time period of performance was mentioned and as alleged within a period of two months, when the land in question may eligible, to execute the agreement to sell. That the original plaintiffs produced an order on the Gujarat Revenue Tribunal whereby the Tribunal allowed the revision application of the original owner and the dispute with regard to tenancy between original owner came to an end on 23.03.2015 and as per document at Annexure – B, the time period of executing the sale deed is commenced but the plaintiffs never did any act of performance within stipulated time period or more over till the date of execution of sale deed dated 11.03.2016.

2.1 The original plaintiffs have filed the aforesaid suit along with the application at Exhibit 5 for interim injunction. The Trial Court allowed the application at Exhibit 5 and directed to maintain status-quo granted earlier with respect to entire land admeasuing 9409 square meter of Block No.176 situated at Village: Randeson and confirmed said order till final disposal of the suit.

3. Feeling aggrieved and dissatisfied with the impugned aforesaid order, the appellant has preferred the present appeal.

4. Heard Mr.Kartik Pandya, learned counsel appearing for the appellant, Mr.M. B. Parikh, learned counsel appearing for respondents no.5.1, 5.6, 6.1, 6.2, 6.3 and Mr.Riddhesh Trivedi, learned counsel appearing for the respondents no.1 and 2.

5. Mr.Pandya, learned counsel appearing for the appellant has submitted that the findings given by the Trial Court is against the record of the case, contrary to law and suffers from non-application of mind. He has submitted that the plaintiffs filed the suit on the basis of an unregistered agreement to sell which is not sustainable in the eyes of law as per the Registration Act and the decisions of the Hon’ble Apex Court. He has submitted that as per the say of the plaintiffs, they have entered into an agreement with regard to the land admeasuring 4728 square meters of Block No.176 admeasuring 9409 square meters, however, the plaintiffs have shown the entire land as a suit property which is void ab-initio and they have no right to file such suit of whole land of Block No.176. He has submitted that the land in question is ancestral land and no right of any of the owners to enter into an agreement for any particular piece of land without making any partition by metes and bounds and alleg