ORAL ORDER

Heard learned advocate Mr.Rushi Barot for the applicant.

2. The present Civil Revision Application is directed against order dated 16th April, 2021 below Exh.10 passed in Special Civil Suit No.9 of 2020 by learned 2nd Additional Senior Civil Judge, Sanand, whereby the application of the applicant-original defendant No.5 under Order VII Rule 11 of the Code of Civil Procedure, 1908 for rejection of the plaint was refused to be entertained.

3. The suit was instituted by respondent No.1 – original plaintiff for specific performance etc. It was prayed to direct the defendant to execute the registered sale deed in connection with and pursuant to agreement to sell dated 07th May, 2019 executed by defendant No.1 in favour of the plaintiff. It was further prayed to restrain the defendants from transferring or assigning the suit land.

3.1 In the proceedings of the suit, application Exh.10 came to be filed by the applicant–defendant No.5. The contentions raised in the said application were inter alia that since the plaint did not disclose the cause of action, the same was liable to be rejected under sub-clause (a) of Rule 11 of Order VII, CPC. It was contended that the documents produced with the plaint did not support the case pleaded that defendant No.1 had one-fifth share in the suit property. It was contended that agreement to sell was a void document and thus the foundation of the suit did not survive.

3.2 It was the another contention seeking rejection of plaint that applicant–defendant No.5 had acquired the suit property in family partition dated 22nd December, 2000 and that the suit property was no more ancestral property. It was also contended that the suit was barred by the Indian Contract Act, 1872 and therefore, the plaint was liable to be rejected under sub-clause (d) also.

3.3 In order to appreciate the aforesaid contention and the legality or otherwise of the order impugned refusing to reject the plaint, the averments in the suit are required to be looked into. The prayer was for performance of the agreement to sell as noted in paragraph No.3 above, which was based on the premise of the case that the suit property bearing Block No.440, Khata No.430 in the Sim of Village Shela, Taluka Sanand, Ahmedabad was of the ownership and possession of the defendant No.1. As per the averments, said land was ancestral property and stood in the revenue record in the name of father – Kanubhai Haribhai–defendant No.2. It was stated that other defendants who are the co-parcners of the Hindu Undivided Family, are joined as party in the suit. It was however the case of the plaintiff that defendant No.1, stating that the suit property was ancestral, agreed to sell the same to the plaintiff for consideration of Rs.38.00 lakhs, out of which Rs.08.00 lakhs were paid through two different cheques as per the details mentioned in paragraph No.3 of the plaint and the agreement to sell dated

07th May, 2019 was got notarised.

3.4 The plaintiff averred in the plaint that as per the conditions of agreement to sell, the land Block No.440 was required to be divided amongst the co-parcners by getting it measured through District Inspector of Land Records and separate 7/12 forms would be obtained within three months. The other condition regarding execution of the sale deed, obtained necessary permission in relation to the land and about getting it converted into non-agriculture were also mentioned.

3.5 It was the case that despite repeated requests made by the plaintiff to defendant No.1 to abide by the conditions mentioned in the agreement to sell and to get the sale deed registered, defendant No.1 used to make excuses and avoided execution of the sale deed. It was averred that defendant No.1 in collusion with others, had been trying to create new rights and equities in respect of the suit land. It is averred that when the defendant No.1 was asked, he told the plaintiff that he has got another party who is ready to pay more consideration.

3.6 The plaint