Reserved On : 09/09/2024 Pronounced On : 10/02/2025 IN THE HIGH COURT OF GUJARAT AT AHMEDABAD R/FIRST APPEAL NO. 690 of 2017 With CIVIL APPLICATION (FOR INTERIM RELIEF) NO. 2 of 2017 In R/FIRST APPEAL NO. 690 of 2017 FOR APPROVAL AND SIGNATURE:

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

Approved for Reporting Yes No =============================================

SHRINATH CO OPERATIVE HOUSING SOCIETY LTD., VILLAGE JAGATPUR & ANR.

Versus LEGAL HEIRS OF DECEASED MATHURJI JESANGJI THAKOR &

ORS.

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

Appearance:

MR, SALIL THAKORE, WITH MR NISARG N TRIVEDI(6144) for the Appellant(s) No. 1,2 KHUSHI P JADAV(7351) for the Defendant(s) No. 1.1,1.2,1.3,1.4 RULE SERVED for the Defendant(s) No. 1.5,2.1,2.2,2.3,2.4,2.5 RULE UNSERVED for the Defendant(s) No. 11 VIRAL K SHAH(5210) for the Defendant(s) No. 10,3,4,5,6,7,8,9 =============================================

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

CAV JUDGMENT

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

1. The appellants- original plaintiffs have preferred present appeal under Section 96 of the Code of Civil Procedure, 1908 (hereinafter referred to as the “Code”) being aggrieved and dissatisfied with the impugned judgment and order dated

17.11.2016 passed below Exh.13 in Special Civil Suit No.923 of 2011 by the learned 4th Additional Senior Civil Judge, Ahmedabad (Rural), Ahmedabad. By the said impugned order, the learned Judge has allowed the aforesaid application preferred by the original defendant nos. 3 to 10 under Order VII Rule 11 of the Code leading to rejection of the plaint and consequently dismissal of the suit.

2. The case of the appellants – original plaintiffs as pleaded in the plaint is summarized as under:

2.1. The dispute pertains to an agricultural land bearing survey Block No.63 old revenue survey no.68 admeasuring 2 acres 26 gunthas of mouje Jagatpur, Tauka : Dascroi, District : Ahmedabad (hereinafter referred to as the “suit land”). The aforesaid land was a new tenure land subject to restriction imposed under Section 43 of the Gujarat Tenancy and Agricultural Land Act, 1948 (hereinafter referred to as the “Tenancy Act, 1948”).

2.2. The suit land was originally owned by the forefathers of the defendant nos. 1.A to 1.E and 2.A to 2.E. On 09.08.1974 a notarized agreement to sell was executed by them in favour of proposed society viz. Shrinath Cooperative Housing Society Limited. The aforesaid agreement to sell was executed by the respondent nos. 1 and 2 in their individual capacity as well as Karta of the respective Hindu undivided family. The terms and conditions set out in the said agreement to sell as translated in English and relevant for the adjudication of the dispute raised are reproduced herein under:

"(1) That the vendors have decided to sell the said land at a price which may be arrived at by calculating it at the rate of Rs. 4,000/- per Bigha of

23 Gunthas.

(2). That out of the said sale consideration, the vendors have accepted an amount of Rs. 1,851/- towards earnest money and a further amount of Rs. 7,150/- towards sale consideration, aggregating to Rs. 9,001/- on the date of execution of the said agreement in cash.

(3). That vacant and physical possession of the said land has been handed over by the vendors to the purchaser on the date of execution of the said agreement.

(4). That the said new tenure land was required to be got converted into old tenure by the vendors.

(5). That the permission to sell the said land was required to be obtained by the vendors; and the title to the said land was required to be got made clear and marketable by the vendors.

(6). That the term of the said agreement was decided to be of 12 months from the date the title to the said land was made clear and marketable after the land was converted into old tenure and the permission to sell was received."

2.3. It is the case of