Reserved On : 18/09/2024 Pronounced On : 10/02/2025 IN THE HIGH COURT OF GUJARAT AT AHMEDABAD R/FIRST APPEAL NO. 5420 of 2019 With CIVIL APPLICATION (FOR STAY) NO. 1 of 2019 In R/FIRST APPEAL NO. 5420 of 2019 With CIVIL APPLICATION (FOR AMENDMENT) NO. 3 of 2023 In R/FIRST APPEAL NO. 5420 of 2019 FOR APPROVAL AND SIGNATURE:

HONOURABLE MR. JUSTICE BIREN VAISHNAV and HONOURABLE MS. JUSTICE NISHA M. THAKORE =========================================

Approved for Reporting Yes No ========================================= DECEASED BECHARBHAI NATHUBHAI PATEL ALIAS ANDHAN &

ORS.

Versus CHIMANBHAI MAGANBHAI PATEL & ORS.

=========================================

Appearance:

DECEASED LITIGANT THROUGH LEGAL HEIRS/

REPRESTENTATIVES for the Appellant(s) No. 2 Mr. B.S. Patel, Senior Advocate with MR CHIRAG B PATEL(3679)

for the Appellant(s) No. 1,10,2.1,2.2,2.3,2.4,2.5,2.6,3,4,5,6,7,8,9 Mr.Dhaval D Vyas, Senior Advocate with MR APURVA R KAPADIA(5012) for the Defendant(s) No. 1,10,11,12,2,3,4,5,6,7,8,9 =========================================

CORAM:HONOURABLE MR. JUSTICE BIREN VAISHNAV and HONOURABLE MS. JUSTICE NISHA M. THAKORE

CAV JUDGMENT

(PER : HONOURABLE MS. JUSTICE NISHA M. THAKORE)

1. The present appeal is filed at the instance of original plaintiff under Section 96 of the Code of Civil Procedure, 1908 being aggrieved and dissatisfied with the judgement and order dated 19th September 2019, passed in Special Suit No.271 of 2016 by the learned 23rd Senior Civil Judge and Additional Chief Judicial Magistrate, Surat, allowing the application of the original defendant No.1, under Order VII Rule 11 of the Code of Civil Procedure, 1908 below Exh.15 and 19. Consequently, by the impugned judgement and order, the learned Judge has refused to entertain the suit preferred by the present appellant -original plaintiffs seeking specific performance of agreement to sell as well as the prayer for injunction pending the suit. Alternatively, the prayer sought for refund of earnest money has also been refused.

2. The facts as emerges from the plaint as pleaded by the original plaintiffs are as under :

2.1. On 20th January 2010, the original plaintiff nos. 1,2, 3 and 5 and one deceased Vasantbhai Maganbhai in his individual capacity, have entered into an agreement to sell with the defendant in respect of two parcels of agricultural lands, situated in village Kosad: Taluka, Choryasi , District: Surat. The details of the aforesaid lands are reproduced here under:

(i) Revenue Survey Number 144, Block number 208–A admeasuring 4654 sq mtrs of non irrigated ol tenure land:

(ii) Revenue Survey number 145/1 block number 208/B, admeasuring 6576 sq mtrs of new tenure land.

2.2. It is the case of the plaintiffs that since revenue survey no. 144( block number 208 –A) was old tenure land, upon marketable title being obtained and on payment of total sale consideration, the transfer of aforesaid parcel of land was affected by respondent by executing six different registered sale deeds. The details of the aforesaid sales are as under:

2.3. By referring to the aforesaid sale transactions, it is further pleaded that the plaintiffs have been put in actual possession of the land and have become absolute owners of said land. The effect of such sale transactions has also been given in revenue records. It is further pleaded that consideration of agreement to sell of revenue survey no. 208 – B has also bee