An agreement to sell restricted tenure land executed without the prior sanction of the Collector, as required by Section 43 of the Gujarat Tenancy and Agricultural Land Act, 1948, is void ab initio, and a suit for specific performance based on such agreement is not maintainable and liable for rejection.

JUDGMENT

1. Heard learned advocates for the parties.

2. Plea to reject plaint under Order 7 Rule 11 of Code of Civil Procedure, 1908 (for short ‘CPC’) in Regular Civil Suit No.51 of 2019 since warn off by learned Principal Senior Judge, Padra, Vadodara, the original defendant has preferred this Revision Application under section 115 of the CPC.

3. In aforesaid background, let refer facts of the case :-

3.1. The plaintiff filed Regular Civil Suit No. 51 of 2019 seeking relief of declaration, permanent injunction, and specific performance based on an Agreement to Sell dated 30.09.2004 executed by the defendants in respect of land bearing Survey No. 1000, Hec. Are-066-59 of TP Scheme No. 2, Final Plot No. 23, admeasuring 5,422 sq. mtrs. According to the plaintiff, the defendants had agreed to sell 1,662 sq. mtrs. out of 5422 sq.mtrs of the said land to the plaintiff.

3.2. In aforesaid proceedings, defendants came out with application at Exh.23 under Order 7 Rule 11 of CPC to reject plaint on the ground that Banakath / agreement to sell dated 30.09.2004 is in regards to new tenure land and same is prohibited under section 43 of the Gujarat Tenancy and Agricultural Land Act, 1948 (for short ‘the Tenancy Act’) and therefore, suit for specific performance in respect of agreement to sell relating to new tenure land is not maintainable. It is also stated that statement made in the plaint is barred by provision of section 43 of the Tenancy Act and thus, plaint deserves to be rejected.

4. Learned Trial Court did not accept plea for rejection of plaint mainly on the ground that agreement to sell is registered document, which it prima facie proves that defendant has accepted Rs.22,89,536/- through cheque and thus defendant having executed agreement to sale cannot turn away. Learned Trial Court also held that plea raised by defendant is suffered by principle of estoppel and grounds raised in the application for rejection of plaint, since involve mixed question of law and facts, it cannot be decided without leading evidence and plaint cannot be rejected at threshold. Rejection of such application, has given rise to present Revision Application.

5. Learned advocate Mr.Hardik Soni for the applicant referred to recent judgment of Full Bench of this Court in the case of (Decd) Shaikh Ismailbhai Hushainbhai v/s. Vankar Ambalal Dhanabhai [2024 (1) GLH 222] and submitted that Full Bench of this Court while referring to section 43 and section 63 of the Tenancy Act held that agreement to sell in respect of restricted tenure land is illegal and therefore, suit for specific performance of such agreement is not maintainable. It is submitted that in the present case, perusal of plaint as well as agreement to sell, in no uncertain terms, it is crystallized that land in respect of which suit for specific performance is filed is new tenure land or restricted tenure land. It is submitted that agreement to sell or plaint does not mention a word of such pleading that it is suit for specific performance of agreement to sell regarding new tenure land. It is submitted that in view of binding precedent of Full Bench of this Court, learned Trial Court has committed error much less understanding provision of law which attract root of the dispute.

5.1. In view of aforesaid premises, it is submitted to allow the present Revision Application by reversing finding of learned Trial Court impugned