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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
A.P. Thaker, J.
Shri Dattatray Ganpatrao Surve – Appellant
Versus
Heeraben D/O Deceased Bhagvanbhai M Patel – Respondent
R/Second Appeal No. 408 of 2019 With Civil Application (For Stay) No. 1 of 2019
Decided On : 23-12-2022
The plaintiff filed a suit for specific performance of an agreement to sell agricultural land. The defendant contended that the plaintiff was not an agriculturist and therefore could not purchase the land under the Bombay Tenancy and Agricultural Lands Act, 1948. The trial court and the appellate court dismissed the suit. The plaintiff appealed to the High Court, which also dismissed the appeal. The plaintiff then filed a second appeal to the Supreme Court. The Supreme Court held that the question of whether the plaintiff was an agriculturist was a substantial question of law that should have been referred to the Tenancy Court under Section 85(A) of the Bombay Tenancy and Agricultural Lands Act, 1948. However, the failure to refer the issue to the Tenancy Court did not affect the ultimate result of the suit because the plaintiff had not produced any evidence to show that he was an agriculturist. The Supreme Court also held that the relinquishment of the defendant's share in the land in favor of her brothers did not require registration under Section 17 of the Registration Act because it was part of a family arrangement. The Supreme Court dismissed the second appeal.
Fact of the Case:
The plaintiff filed a suit for specific performance of an agreement to sell agricultural land. The defendant contended that the plaintiff was not an agriculturist and therefore could not purchase the land under the Bombay Tenancy and Agricultural Lands Act, 1948. The trial court and the appellate court dismissed the suit. The plaintiff appealed to the High Court, which also dismissed the appeal. The plaintiff then filed a second appeal to the Supreme Court.
Finding of the Court:
The Supreme Court held that the question of whether the plaintiff was an agriculturist was a substantial question of law that should have been referred to the Tenancy Court under Section 85(A) of the Bombay Tenancy and Agricultural Lands Act, 1948. However, the failure to refer the issue to the Tenancy Court did not affect the ultimate result of the suit because the plaintiff had not produced any evidence to show that he was an agriculturist. The Supreme Court also held that the relinquishment of the defendant's share in the land in favor of her brothers did not require registration under Section 17 of the Registration Act because it was part of a family arrangement.
Issues: 1. Whether the question of whether the plaintiff was an agriculturist was a substantial question of law that should have been referred to the Tenancy Court under Section 85(A) of the Bombay Tenancy and Agricultural Lands Act, 1948? 2. Whether the failure to refer the issue to the Tenancy Court affected the ultimate result of the suit? 3. Whether the relinquishment of the defendant's share in the land in favor of her brothers required registration under Section 17 of the Registration Act?
Ratio Decidendi: 1. The question of whether the plaintiff was an agriculturist was a substantial question of law that should have been referred to the Tenancy Court under Section 85(A) of the Bombay Tenancy and Agricultural Lands Act, 1948, because it was a question that was required to be settled, decided, or dealt with by the Tenancy Court under the Act. 2. The failure to refer the issue to the Tenancy Court did not affect the ultimate result of the suit because the plaintiff had not produced any evidence to show that he was an agriculturist. Therefore, even if the issue had been referred to the Tenancy Court, the court would have likely found that the plaintiff was not an agriculturist and would have dismissed the suit. 3. The relinquishment of the defendant's share in the land in favor of her brothers did not require registration under Section 17 of the Registration Act because it was part of a family arrangement. A family arrangement is an agreement between members of a family that is intended to resolve disputes and preserve family property. Such agreements are not required to be registered under Section 17 of the Registration Act.
Final Decision: The Supreme Court dismissed the second appeal.
JUDGMENT :
1. The present Second Appeal is filed under Section 100 of the Code of Civil Procedure by the appellant original plaintiff against the judgment and decree dated 14.08.2019 passed by the learned 8th Additional District Judge, Vadodara in Regular Civil Appeal No.173 of 2018, dismissing the Civil Appeal and confirming the judgment and decree passed by the learned 11th Additional Senior Civil Judge, Vadodara in Regular Civil Suit No.3852 of 2015 (Old Special Civil Suit No.251 of 2007) on 18.04.2018.
2. The appellant is the original plaintiff and the respondents are the original defendants before the trial Court. For the brevity and convenience, the parties are referred to in this judgment as per the character assigned to them before the Trial Court i.e. as "Plaintiff" and "Defendants".
3. The brief facts of the case of the plaintiff is that the father of the defendant No.1 - deceased Bhagvanbhat Mathurbhai Patel was the owner of agricultural land bearing Revenue Survey No.113/1 ad-measuring 0-91-05 H.R.A.Sq. Mtr. of old tenure land situated at Village Atladara. That the deceased was cultivating the said land by and it was in the ownership and possession of the defendant Nos.1 to 4 after the death of the father of the defendant No.1. That out of this land, the defendant No.1 decided to sell her share of undivided land ad-measuring H.R.A. 0- 22-76 (Sq. Mtr) to the plaintiff on 17.05.2007 by an Agreement to Sell. That the plaintiff had paid a sum of Rs.2 lacs to the defendant No.1 by installments and also given a cheque bearing No.412422 dated 12.05.2007 for Rs.25,000/- drawn on Bank of Baroda, Raopura Branch and has also given another cheque No. 412423 dated 16.05.2007 for Rs.25,000/- drawn on the same Bank at the time of executing the Agreement to Sell.
3.1. It is the case of the plaintiff that thereafter, the plaintiff had inquired at the office of Sub Registrar about this land and he came to know that one Sanjay Chimanbhai Patel, who is the power of attorney holder of defendant Nos.2 to 4, had executed a sale deed on 10.09.2004 in favour of the defendant No.5 - Shri Bharatbhai Parsottambhai Patel and therefore the plaintiff had applied for copy of the said sale deed. That thereafter, the plaintiff also made inquiry to the Talati and he came to know that the defendant No.2 to 4 had prepared the Pedigree after the death of deceased Bhagvanbhai Mathurbhai Patel and inserted their names but the name of the defendant No.1 was not been shown in the said Pedigree. Though the defendant No.1 got some portion of the said land by hereditary. That the defendant Nos.2 to 4 and defendant No.5 joined together and completed the procedure of selling the disputed land.
3.2. It is the case of the plaintiff that the defendant Nos.2 to 4 have no right to sell the disputed land as the defendant No.1 has share in the disputed land and her share has been sold to the plaintiff by the defendant no.1. Therefore, the plaintiff has filed a suit to separate the share of the defendant No.1 from the shares of defendant No.2 to 4 and for execution of Agreement to Sell which was entered into between the plaintiff and defendant No.1 and for possession of the peace of land thereof to the plaintiff. He has also prayed to direct the office of the Sub Registrar to take a note of the Agreement to Sell executed between him and defendant No.1 with regard to the disputed land and also for permanent injunction. The plaintiff has also prayed to pass an order directing the defendants to accept the remaining amount of sell consideration of the disputed land from the plaintiff and to separate the disputed land between defendant no.1 and defendant nos.2 to 4 and to execute the sale deed in his favour and to handover the possession of a separate land to him. The plaintiff has also prayed to appoint a Commissioner for the said purpose. The plaintiff has also sought for declaration that the defendant nos.2 to 4 have no right or to do anything to deal with the said land throu
The question of whether a person is an agriculturist is a substantial question of law that should be referred to the Tenancy Court under Section 85(A) of the Bombay Tenancy and Agricultural Lands Act....
Relinquishment of one’s right in a family partition, does not require any registration under Section 17 of Registration Act, 1908.
An agreement to sell agricultural land without prior permission from the Collector is void and unenforceable under tenancy laws.
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