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2024 Supreme(Online)(Guj) 27443
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
Biren Vaishnav, Nisha M. Thakore, JJ
Babubhai Kanjibhai Malaviya – Appellant
Versus
Bhagubhai Dahyabhai Vasava – Respondent
R/FIRST APPEAL NO. 2451 of 2024|CIVIL APPLICATION (FOR STAY) NO. 1 of 2024
For the Appellants/Petitioners: Shalin Mehta, Viral K Salot
For the Respondents: Mihir Joshi, Jamshed Kavina, SP Majmudar
An appellate court should grant interim protection to maintain existing possession of a subject property during appeal if there is a prima facie case involving complex legal issues, ensuring that the final adjudication is not rendered nugatory or practically impossible to enforce.
Headnote:(A) Code of Civil Procedure, 1908 - Order 39 Rules 1 and 2 - Specific Relief Act, 1963 - Section 16 - Gujarat Land Revenue Code - Section 73AA - Gujarat Tenancy and Agricultural Lands Act, 1948 - Section 63 - Specific performance - Grant of interim stay pending appeal - Injunction granted based on prima facie case, balance of convenience, and irreparable injury. (Paras 19-25)
(B) Civil Appeal - Limitation and Maintainability - Suit for specific performance of agreement to sell - Effect of alleged illegal agreement hit by restrictive tenure - Requirement of composite application for permissions under revenue and tenancy laws must be examined at trial stage rather than summarily dismissing suit. (Paras 16-18)
(C) Appellate Jurisdiction - Interim Protection - Possession of property - Where plaintiff has long-standing possession since initiation of transaction, appellate court should protect such possession during pendency of appeal to avoid irreparable loss and potential frustration of final decree. (Paras 22-23)
Facts of the case:
The appellants (plaintiffs) entered into an agreement to sell for agricultural land. Despite payment of consideration over several years, the original owners transferred the property to subsequent purchasers, leading to litigation. The trial court dismissed the suit and directed the plaintiffs to vacate the premises. The appellants challenged this order, asserting they had performed their obligations and that an application for necessary permissions was pending, rendering the agreement valid or at least enforceable via a conditional decree.
Findings of Court:
The Court held that multiple legal and factual questions exist that require deeper scrutiny beyond a summary dismissal. The trial court's reliance on minor inconsistencies in documentation to declare transaction documents as forged was deemed premature. The Court found the balance of convenience favoured preserving the status quo regarding possession to prevent the appeal from becoming infructuous.
Issues: Whether the agreement to sell land of restricted tenure is void ab initio or enforceable as a conditional decree, and whether the appellate court should grant interim stay on the trial court's direction to vacate possession pending final appeal.
Ratio Decidendi: An appellate court must protect existing possession of the plaintiff during the pendency of a suit or appeal if the case involves substantial questions of law and fact, ensuring that a potential final decree is not rendered unenforceable or futile due to changing physical circumstances. The court emphasized that complex legal issues concerning conditional performance in restricted land transactions require full trial adjudication.
Result: Appeal admitted; Civil application for stay allowed; implementation of the trial court's order stayed.
| Table of Content |
|---|
| 1. factual background involving agreement to sell restricted agricultural land. (Para 1 , 2) |
| 2. trial court's dismissal based on invalid agreement and lack of possession. (Para 3) |
| 3. appellants contend specific performance is maintainable due to implied obligations. (Para 4 , 5) |
| 4. respondents argue agreement is void ab initio under governing land statutes. (Para 6 , 7) |
| 5. court holds performance of agreements under section 63 is conditionally enforceable. (Para 8 , 9 , 10 , 11 , 12 , 13 , 14 , 15 , 16 , 17 , 18 , 19 , 20 , 21 , 22 , 23 , 24 , 25) |
CAV ORDER
(PER : HONOURABLE MS. JUSTICE NISHA M. THAKORE)
(I) THE INTRODUCTION:
1. The appellants are the original plaintiffs, who are aggrieved by the judgment and order dated 10.06.2024 passed by learned Principal Senior Civil Judge, Kathor in Special Civil Suit No.102 of 2017. By the said impugned judgment and order, the learned Judge has not only dismissed the suit preferred by the present appellants-original plaintiffs, but has also vacated the interim relief of temporary injunction granted, if any, and has further directed handing over of possession to the original defendant nos.10 and 11 by following due process of law under Section 145 of the Code of Criminal Procedure within a period of 60 days.
(II) THE FACTS OF THE CASE :
2. In nutshell, the case of the appellants-original plaintiffs before the trial court, can be summarized as under:
2.1 The appellants have approached the learned Civil Judge praying for specific performance of agreement to sell dated 11.03.2004 executed by the original owners- original defendant nos.1 to 4 in favour of the appellant-Trust in respect of an agricultural land bearing Survey No.290, Block No.375/B admeasuring 5 Acres 35 Gunthas i.e. 23,765 sq. mtrs. at Village-Kamrej, Sub-District-Kamrej, District-Surat (hereafter to be referred as, “suit land”).
2.2 The appellant no.1 claims to be a public registered Trust in terms of the provisions of Bombay Public Trust Act, 1950, having its registration No.E/5236/ Surat dated 02.08.2002. The appellant nos.2 to 13 and the respondent no.12 are the trustees of the appellant no.1-Trust.
2.3 It is submitted before us that since the respondent no.12 is abroad, he has been joined as respondent in the cause title. It is further clarified that one of the Trustees i.e. original plaintiff No.9-Dineshbhai Thakarshibhai Ramani had passed away on 19.12.2020 and in his place, no other trustee was appointed.
It is the case of the original plaintiffs that apart from the consideration reflected in the agreement to sell dated 11.03.2004, which was notarized on 17.03.2004, the appellant in furtherance of the aforesaid agreement, had paid additional consideration amount of Rs.28,00,010/- and thus total amount of Rs.1,50,19,152/- was paid to the original defendant nos.1 to 9 and their predecessor, either in cash or through cheque, as and when demanded. The appellants had, therefore, contended that apart from the aforesaid original agreement to sell dated 11.03.2004, the original owners had also executed a possession receipt produced at Exh.145 acknowledging the fact that the plaintiff-Trust were put in actual and physical possession of the suit land since 19.04.2004. Additionally, an irrevocable power of attorney, which was coupled with interest was executed in favour of the plaintiff no.4 on 06.07.2004, which has been admitted as evidence at Exh.146.
2.4 Since the suit land was a restricted tenure land in view of Section 73 AA of the Gujarat Land Revenue Code (henceforth, “the Code”), specific stipulation was incorporated in the agreement to sell putting obligation upon the land owners to obtain relevant permission from the competent authority before execution of the registered sale deed in favour of the plaintiff-Trust. Apart from the aforesaid condition, the suit land was also required to be converted into a non-agricultural land before executing the registered sale deed in favour of the appellant-Trust being a l
