A contract for land sale is unenforceable if executed in violation of statutory provisions, particularly when involving multiple co-owners without their consent.

JUDGMENT :

SANGEETA K. VISHEN, J.

1. Captioned appeal, is filed against the judgment dated 01.04.2022 (hereinafter referred to as “the impugned judgment”) passed by the learned Additional Senior Civil Judge, Ahmedabad (Rural) in Special Civil Suit no.269 of 2018 (hereinafter referred to as “the suit”). Along with the captioned appeal, civil application (for stay) no.1 of 2023, was preferred and this Court, on 27.04.2023, has passed the following order:

“FIRST APPEAL No. 1731 OF 2023

ADMIT.

Mr. Ramesh D. Devnani, learned advocate waives service of notice of admission on behalf of the respondents. Record & Proceedings to be called from the Court of 4^th Additional Senior Civil Judge, Ahmedabad (Rural) on or before 12.06.2023.

CIVIL APPLICATION No. 1 OF 2023

Notice returnable on 16.06.2023.

It is noticed by us that the trial Court has extended the stay by order dated 15.02.2023 till the limitation of appeal. It is also not in dispute that the stay has been continued during pendency of the suit. The same shall continue till next date of hearing.”

Though served, defendant no.1 did not appear. Upon issuance of the notice and during the pendency of the appeal, the defendant nos.2 to 5 have preferred civil application (for vacating interim relief) no.1 of 2025. Hence, the captioned appeal is heard finally as hearing of civil application (for vacating interim relief) no.1 of 2025, is likely to consume equal amount of time. For the sake of convenience, the parties are referred to as per their original status in the suit.

2. Suit, had been filed by the plaintiffs seeking specific performance of the registered agreement to sell dated 30.11.2015 executed with regard to 1821 sq. mtrs. of the land (hereinafter referred to as “the land in question”), bearing survey / block no.311, final plot no.70 totally admeasuring 3642 sq. mtrs. before the trial Court. The case of the plaintiffs was that despite there being registered agreement to sell executed in favour of the plaintiffs, the defendant no.1 and others executed a registered sale deed dated 24.04.2018 in favour of the defendant nos.2 to 5. Being aggrieved, the plaintiffs have filed the suit which came to be dismissed.

3. Mr Sikander Saiyed, learned advocate appearing for the appellants, submitted that it was agreed vide registered agreement to sell; land admeasuring 1821 sq. mtrs. to be sold for the consideration of Rs.90,13,950/- of which the plaintiffs, have paid an amount which aspect, is undisputed. It is clear from the recitals in the agreement to sell that the plaintiffs have paid Rs.10 lakhs by way of cheque and Rs.31 lakhs by way of cash and that is how, total Rs.41 lakhs, had been paid to the defendant no.1. It is submitted that it is clear from the agreement to sell that out of 3642 sq. mtrs. of land only the share of defendant no.1 i.e. land admeasuring 1821 sq. mtrs. was agreed to be purchased and sold by the defendant no.1 and not entire parcel of the land of 3642 sq. mtrs. The agreement to sell was followed by registered Power of Attorney executed in favour of the plaintiffs for the land in question, which makes a reference of the payment made by the plaintiffs to the defendant no.1.

3.1 It is submitted that disregarding the two registered documents and the conditions contained therein, the learned Judge, insisted for the evidence which otherwise, could not have been placed by the plaintiffs. It is submitted that considering the receipt of the amount, nothing else, was required to be proved by leading evidence. It is further submitted that the learned Judge, without properly considering the documents, has concluded that the plaintiffs, have failed to prove the payment made to the defendant no.1. It is further submitted that had the agreement to sell and the recitals therein so also the registered Power of Attorney considered, the learned Judge, would not have given the erroneous findings. The learned Judge, without properly appreciating the evidence, oral and documentary and without consid