The main legal principle established in the judgment is that a suit for specific performance based on an illegal or invalid agreement to sell, as per Section 43 of the Tenancy Act, is not maintainable.

JUDGMENT :

A.S. Supehia, J.

1. ADMIT. Learned advocates appear and waive service of notice of admission on behalf of the respective respondents.

2. The present appeal has been filed against the order dated 09.02.2022 passed by 2nd Additional Senior Civil Judge, Ahmedabad (Rural), Ahmedabad (Rural) at Mirzapur below application Exh.14 being Special Civil Suit No.122 of 2021, whereby the Trial Court has rejected the suit under Order 7, Rule 11(a) and (d) of the Code of Civil Procedure, 1908 (the CPC).

SUBMISSIONS :-

3. Learned advocate Mr.Dhruvik K. Patel, appearing for the appellant has submitted that by the order dated 13.12.2022 passed in Second Appeal No.208 of 2021, this Court has referred the issue raised in the present first appeal to the Larger Bench. He has submitted that the decision of the Division Bench in the case of Amarben Wd/o Ramjibhai Desai Vs. Udaji Kanaji and others (passed in First Appeal No.1845 of 2017 dated 15.11.2017) is not considered by the Division Bench in case of Ganpatlal Manjibhai Khatri Vs. Manguben Babaji Thakore reported in 2019 JX (Guj) 1122 (judgment dated 02.08.2019 passed in First Appeal No.4979 of 2018) and hence, since the issue is pending, the present first appeal may not be taken up.

3.1 So far as the merits of the matter is concerned, learned advocate Mr. Dhruvik Patel, has submitted that the impugned order dated 09.02.2022 passed under Exh.14 rejecting the suit is required to be set aside as per the observations made by the Division Bench in the order dated 15.11.2017 in the case of Amarben Wd/o Ramjibhai Desai (supra), since it is held that the question of applicability of Section 43 of the Bombay Tenancy and Agricultural Lands Act (the Tenancy Act) can be gone into by the Trial Court at the time of trying the suit. It is also submitted that the Court below has fallen in error, while rejecting the plaint on the ground of limitation since in an agreement to sell where the time is not the essence of the contract and the suit of the specific performance can be filed within a period of 12 years. Thus, it is submitted that the impugned order dated 09.02.2022 may be quashed and set aside.

4. Per contra, learned advocate Mr. Vimal Patel, appearing for the respondent No.1 has submitted that the reference made by the learned Single Judge of this Court referring the issue to the Larger Bench is uncalled for. It is submitted that the First Appeal No.1667 of 2021 between Laljibhai Jivarajbhai Aslaliya Vs. Musabhai Yusuf Isufbhai Miya which is referred in the order dated 13.12.2022 passed in Second Appeal No.208 of 2021 is still pending. It is further submitted that the in the case of Vijaybhai Shambhubhai Patel Vs. Sushilaben Dayalbhai and Others (passed in First Appeal No.1556 of 2021 dated 21.06.2021), the Division Bench has already considered the decision of Ganpatlal Manjibhai Khatri (supra) and has held that the suit is not maintainable, if it is hit by the bar of Section 43 of the Tenancy Act. It is submitted that the aforesaid order of the Division Bench has been confirmed by the Supreme Court vide order dated 10.11.2022 passed in Special Leave to Appeal (C) No.5124 of 2022. It is submitted that this order was not brought to the notice of the learned Single Judge while referring the matter to the Larger Bench and hence, the First appeal may be decided on merit.

4.1 Learned advocate Mr. Patel, while referring to the observations made by the Division Bench in the case of Vijaybhai Shambhubhai Patel (supra) has submitted that in the present case, the agreement to sell dated 30.01.2006 itself is contrary to the provisions of Section 43 of the Tenancy Act since the agreement to sell is for new tenure land, for which, no agreement to sell could have been entered into as the same is hit by the provisions of Section 43 of the Tenancy Act. It is thus submitted that the Court below has precisely rejected the suit while exercising the powers under Order 7 Rule 11(a) and (d) of the CPC.

5. We have heard the l