ORDER :

1. By way of this civil revision application, the applicant has prayed for quashing and setting aside the order dated 27.1.2023 passed in an application below Exh.33 in Special Civil Suit No. 2 of 2021.

2. Heard learned advocate Mr. Pritesh Shah appearing for the applicant.

3. The present applicant is the original defendant in Special Civil Suit No. 2 of 2021 preferred by one Patel Harshadbhai Valjibhai. The facts which would lead to the filing of present civil revision application are stated as under.

4. The original plaintiff preferred a suit for specific performance and declaration against the present applicant stating that the present applicants are joint owners and occupiers of an agricultural land admeasuring 5-79-72 Hec-are- Sq. mtr situated at Survey No. 377 at Mouje Talod, Taluka at Talod, District Sabarkantha. Out of the aforesaid land held by the present applicant a portion admeasuring 2-14-13 Hec-are-Sq.mtr was decided to be sold to the original plaintiffs by total lamb-sum compensation of Rs.52,22,000/- for which a registered agreement to sale without possession was executed by the present applicants with the original plaintiffs (present defendants). The aforesaid agreement to sale was executed on 29.9.2015 before the office of Sub Registrar Talod with Registration No. 984 and as per the aforesaid agreement to sale, an amount of Rs.27,91,000/- were paid towards part consideration of total sale consideration. Remaining amount of consideration being Rs.24,29,000/- were to be paid by the defendants (Original plaintiff) to the present applicants upon conversion of land into old tenure land from new tenure land.

5. As the land of the present applicants was a new tenure land, out of remaining sale consideration for conversion of land from new tenure to old tenure, the original plaintiff also paid an amount of Rs.19,70,325/- towards the premium and only an amount of Rs.4,60,675/- was remained to be paid. According to the original plaintiff, over and above the aforesaid amount as the paid of sum of Rs.3,12,906/- also in respect of another portion of land held by the applicant for which an agreement to sale was executed with one Chandrakant Maganbhai Patel and therefore, the plaintiffs were required to pay only a sum of Rs.1,47,769/- towards sale consideration. However, despite the fact that the plaintiffs were ready and wiling to pay the aforesaid amount of Rs, 1,47,769/- as the present applicants were not agreeable to accept the aforesaid amount and to execute a sale deed in favour of present applicants and therefore, the plaintiffs preferred an application for a suit for specific performance being Special Civil Suit No. 2 of 2021 in the Court of learned Principal Senior Civil Judge, at Prantij.

6. In that suit, the present applicants filed a reply and contended that the suit is barred as there are restrictions on transferring the land, as per Section 43 of the Bombay Tenancy and Agricultural Land, 1948 and therefore, the contract being void ab initio since beginning. Further, an application under Order 7 Rule 11(D) was also preferred by the present applicant below Exh.33 wherein it was stated that the agreement to sale was illegal as the same was executed by father of the defendant No. 4 Ranjitsinh i.e. the late father of the applicant No. 4/1 to 4/3 and also defendant No. 1, 2, 3 i.e. present applicant Nos. 1, 2 and 3 and therefore, they were legally not duty bound to execute the sale deed in favour of the original plaintiff as the agreement to sale will not bind them. In the application it was stated that the agreement to sale was void ab-initio as it was executed in contravention of provisions of Section 43 of Bombay Tenancy and Agricultural Lands Act, 1948 (for short 'Tenancy Act'), Section 8 of Hindu Succession Act, Section 9, 13, 17 and 20 of Specific Relief Act, Section 7, 8, 53(A) and 54 of Transfer of Property Act, 1882 and Section 10 and 23 of the Contract Act and therefore, the suit is required to be reject