Agreements for new tenure land lacking collector permission are void under Section 23 of the Indian Contract Act, nullifying claims for specific performance and possession under Section 53(A) of the Transfer of Property Act.

JUDGMENT :

J.C.DOSHI, J.

1. The present Second Appeal filed under Section 100 of the Code of Civil Procedure, 1908 (‘CPC’, for short), challenges the concurrent findings of judgment and decree dated 01.10.2019 passed by the trial Court i.e. Additional Civil Judge, Deesa dismissing the suit filed by the ancestral of plaintiffs being Regular Civil Suit No.12 of 2008, which has been confirmed by the learned 6^th Additional District Judge, Banaskantha – Deesa dismissing the appeal filed by the plaintiff, vide judgment and decree dated 30.09.2025 passed in Regular Civil Appeal No.46 of 2019.

2. For the sake of brevity and convenience, the parties are referred to as per their original status before the trial Court.

3. The brief facts of the case are as under:-

3.1 Deceased Rabari Chelabhai Naranbhai and Rabari Versibhai Dannabhai, who died during the pendency of the suit proceedings, substituted by their heirs and legal representatives, filed suit against the defendants for a relief of specific performance and permanent injunction in regard to the agricultural lands of Survey No.307/P -1 / 1 bearing Khata No.238 and Survey No.321 – 322 P – 2 bearing Khata No.239 (‘parcels of land’, for short), having their particulars as mentioned in paras:1 and 2 of the plaint, on the averments that by the separate agreement to sale executed on 22.05.2000, the defendants agreed to sell these parcels of lands at total sale consideration of Rs.6,18,254/- to the plaintiff. While the said agreement to sale were executed the possession of the parcels of land was handed over to the plaintiff. The land in question was new tenure land and as per the terms and conditions of the agreement to sale, these parcels of lands were required to be converted into old tenure lands and thereafter the defendants were obliged to execute the sale deed in favour of the plaintiffs.

3.2 The plaintiffs were ready and willing to perform their part of contract but the defendants did not proceed to convert those parcels of lands into old tenure land and thereby were not ready and willing to perform their part of contract and rather were trying to disturb the possession of the plaintiff over the disputed property and, therefore, criminal complaint was also lodged between the parties.

3.3 With the aforesaid averments, plaintiff filed the suit for specific performance of contract and perpetual reliefs of injunction asking that plaintiffs’ premises for parcels of land should not be disturbed. The defendants being served, appeared and denied the contentions raised by the plaintiff and further contended that plaintiffs taking advantage of poor financial condition of the defendants has illegally possessed the parcels of land which is the subject matter of the suit. Therefore, they are not entitled to continue in possession. Defendant also denied execution of agreement to sale with intent to sale the parcel of land. Pursuant to such contentions, defendants filed counter claim under Order VI Rule 8(a) of the Code and asked for the relief. The learned trial Court, after framing issues and permitting both the parties to lead evidence, was pleased to dismiss the suit as well as the counter claim filed by the defendants.

3.4 Being aggrieved and dissatisfied with the judgment and decree dismissing the suit, the plaintiff preferred appeal being Regular Civil Appeal No.46 of 2019 before the first appellate Court which was also dismissed confirming the judgment and decree passed by the learned trial Court in the Regular Civil Suit No.12 of 2008.

3.5 Being aggrieved, the plaintiff is before this Court by way of filing the present Second Appeal posing following questions as substantial questions of law.

“(A) Whether the Ld. Trial Courts below have erred in law by holding the agreement void under section 23 of the Indian Contract Act where actually the it was conditional upon conversion of land from new tenure to old tenure ?

(B) Can a conditional agreement requiring statutory permission be treated as illega