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2023 Supreme(Guj) 995
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
ASHUTOSH SHASTRI, DIVYESH A. JOSHI, JJ.
Ashvinbhai Ashabhai Patel – Appellant
Versus
Udesinh Bhailalbhai Padhiyar – Respondent
R/First Appeal No. 4905 of 2018 With Civil Application (For Stay) No. 1 of 2018
Decided on : 19-06-2023
Advocate Appeared:
For the Appellant : MR CHIRAG B PATEL
For the Respondent:MR MEHUL SURESH SHAH, MR JIGAR D DAVE, MR ANSHIN DESAI SR. ADVOCATE with VENU H NANAVATY
An unregistered Banakhat (sale agreement) that is hit by the provisions of Section 43 of the Tenancy Act is unenforceable, and a suit for specific performance of such an agreement is ex-facie barred by limitation.
Headnote:
FIRST APPEAL - REJECTION OF PLAINT - ORDER VII RULE 11 OF THE CODE OF CIVIL PROCEDURE - TENANCY ACT - SPECIFIC RELIEF ACT - LIMITATION ACT - CIVIL MANUAL - BOMBAY PUBLIC TRUSTS ACT - SALE OF PROPERTY - PRIOR SANCTION - UNREGISTERED SALE DEED - BANA AMOUNT - REFUND - RELIEF NOT CLAIMED - SPECIFIC PERFORMANCE OF CONTRACT - ILLEGAL AGREEMENT - INVALID TRANSACTION - PUBLIC INTEREST - BALANCE OF JUSTICE - VEXATIOUS PROCEEDINGS - DISCRETION OF THE COURT - POWER TO GRANT RELIEF - CONDITIONS PRECEDENT - JURISDICTION - DUTY OF THE COURT - CAUSES OF ACTION - AMENDMENT OF PLAINT - ADDITIONAL FACTS - RATIO DECIDENDI - PRECEDENT - ADMISSIBILITY OF EVIDENCE - TIME BARRED SUIT - SUBSTANTIVE FIRST APPEAL - FULL FLEDGED TRIAL - ADJUDICATION - DIVISION BENCH - STATUTE - INVALIDITY - UNENFORCEABILITY - CONJOINT READING - EXERCISE OF JURISDICTION - APPLICATION OF MIND - BASIC FACTS - PERVERSE ORDER - DISMISSAL OF APPEAL - CONNECTED CIVIL APPLICATION.
Fact of the Case:
The appellants, original plaintiffs, challenged the legality and validity of the order dated 06.09.2018 passed by the trial court, which rejected their plaint in a suit seeking specific performance of an unregistered Banakhat (sale agreement) dated 21.09.2007. The trial court held that the suit was beyond the period of limitation and that the question of limitation was a mixed question of law and fact, which could not be exercised under Order VII Rule 11 of the Code of Civil Procedure. The appellants argued that the suit was within the limitation period, as the 24-month period for obtaining permission for the sale of the land should be calculated from the date of the necessary permission, and that the cause of action arose when the registered sale document was executed in favor of the defendant in 2017. The defendants contended that the unregistered Banakhat was unenforceable and that the suit was barred by limitation.
Finding of the Court:
The court held that the unregistered Banakhat was hit by the provisions of Section 43 of the Tenancy Act and was, therefore, unenforceable. The court also noted that the suit was ex-facie barred by limitation, as the permission to sell the land had been refused by the competent authority in 2008 and 2011, and no appeal or proceedings against the refusal had been carried out. The court further held that the trial court had rightly exercised its discretion under Order VII Rule 11 of the Code of Civil Procedure in rejecting the plaint, as the suit was vexatious and bound to prove abortive.
Issues: 1. Whether the unregistered Banakhat was hit by the provisions of Section 43 of the Tenancy Act and was, therefore, unenforceable? 2. Whether the suit was ex-facie barred by limitation? 3. Whether the trial court had rightly exercised its discretion under Order VII Rule 11 of the Code of Civil Procedure in rejecting the plaint?
Ratio Decidendi: 1. An unregistered Banakhat (sale agreement) that is hit by the provisions of Section 43 of the Tenancy Act is unenforceable. 2. A suit for specific performance of an unregistered Banakhat that is hit by the provisions of Section 43 of the Tenancy Act is ex-facie barred by limitation. 3. The trial court has the discretion to reject a plaint under Order VII Rule 11 of the Code of Civil Procedure if the suit is vexatious and bound to prove abortive.
Final Decision: The appeal was dismissed, and the order of the trial court rejecting the plaint was upheld.
JUDGMENT :
ASHUTOSH SHASTRI, J.
1. By way of this First Appeal under Section 96 of the Code of Civil Procedure, the appellants – original plaintiffs have challenged the legality and validity of order dated 06.09.2018 passed by the learned Principal Civil Court, Savli in Special Civil Suit No. 198 of 2017 which was newly numbered as Special Civil Suit No. 268 of 2017.
2. The brief facts leading to rise of present appeal are that the appellants – plaintiffs are the agriculturists and there is a land situated in the sim of Village Shripor Timbi (Taluka & District : Vadodara) bearing land revenue survey no. 27 (new survey no. 36) admeasuring 068.80 sq.mtrs. This land was originally belonging to one Bai Chanchal, wife of Shri Mohan Parshottam and upon death, the land came to be mutated in the name of Shankerbhai Gopalbhai. There was a tenant in the land named as Somabhai Gokalbhai and as such, by virtue of provision contained under Section 32G of the Tenancy Act, the land came to be mutated in favour of Somabhai Gokalbhai and the said change of entry is dated 27.02.1965. After the death of said Somabhai Gokalbhai, on 11.07.1987, it came in the hands of Santokben widow of deceased Somabhai Gokalbhai and revenue entry no. 270 was also certified on 02.10.1972. Said Santokben executed a ‘Will’ and divested the property in favour of the Bhailalbhai Somabhai and then widow Santokben executed ‘Will’ on 25.02.1976 and after the death of said Santokben, the land was mutated in favour of Bhailalbhai Somabhai by way of entry No. 308 on 20.06.1980 and thereby, Bhailalbhai Somabhai became the sole owner of the said land. Though history regarding legal heirs is not that much necessary, but since it has been stated in the plaint, we may quote here the complete factual background. Aforementioned Bhailalbhai Somabhai Padhiyar died on 09.11.2012, leaving behind widow Gajaraben and two daughters, named Ramilaben and Savitaben and both were married. It is stated that both the daughters expired long back and the revenue entries have also been effected and certified on 14.07.2016. After the death of said Bhailalbhai Somabhai Padhiyar, legal heirs were mutated in the revenue records on 14.07.2016 and later on all the legal heirs of deceased Bhailalbhai Somabhai Padhiyar have relinquished their rights from the property in question in favour of defendant no. 1 i.e. Udesinh Bhailalbhai Padhiyar and revenue entry no. 659 was also effected to that effect and as such, son Udesinh Bhailalbhai is continued to be owner of the land in question in revenue records.
2.1. It is the case of the appellants - plaintiffs that at the relevant point of time, it was decided that since the appellants - plaintiffs were agriculturists and Bhailalbhai Somabhai Padhiyar was owner and occupier of the land in question, it was decided at that point of time to purchase the land in question for Rs.23 lakhs and all the legal heirs namely, wife as well as son and daughters were also agreeable for the same and since the said concession was prevailing, an agreement of sale (Banakhat) was executed on 21.09.2007 and at that point of time in the presence of all i.e. wife, son, as well as daughters, Bhailalbhai Somabhai had signed and executed the aforesaid Banakhat, which was a notarized sale and signatures were made after accepting an amount of Rs.6 lakhs by way of Bana amount. It is the case of the appellants – plaintiffs that after the death of Bhailalbhai Somabhai Padhiyar and in view of the subsequent change, though a request was made, but still defendant nos. 1 and 2 along with deceased father who had executed Banakhat as well as possession receipt, were refrained from performing though the appellants – plaintiff were ready and willing to pay the amount. However, it was noticed by the appellants that the registered sale document was executed by defendant no. 1 on 06.05.2017 in favour of defendant no. 3 and after ascertaining the facts from the office of the Sub-Registrar and the revenue re
