Agreements contravening Section 43 of the Gujarat Tenancy and Agricultural Land Act, 1948, are void and unenforceable, preventing specific performance.

ORDER :

Sangeeta K. Vishen, J.

Order in First Appeal:

Heard Mr Mehul S. Shah, learned Senior Advocate with Mr Jenil M. Shah, learned advocate for the appellants and Mr Rustom R. Marshall, learned Senior Advocate with Mr Daifraz Havewalla, learned advocate for the respondents.

Admit. Mr Daifraz Havewalla, learned advocate waives service of notice of admission on behalf of the respondents.

Registry is directed to call for the record & proceedings together with the paper-book from the concerned Court, so as to reach this Court on or before 16.04.2025.

Order in Civil Application:

Captioned application is seeking direction to maintain status quo pending hearing and final disposal of the captioned First Appeal.

2. Mr Mehul S. Shah, learned Senior Advocate with Mr Henil M. Shah, learned advocate for the applicants, at the outset, submitted that the suit was filed in the year 2015 and vide order dated 09.09.2016, applications, Exh.5 as well as Exh.16, were partly allowed and the parties to the suit were directed to maintain status quo. Besides, suit has been dismissed vide judgment dated 01.01.2025 and the status quo granted by the Court below, was extended for the appeal period vide order dated 01.01.2025. It is urged that since parties, all throughout, were directed to maintain status quo, same be continued till the final disposal of the appeal.

3. Attention is invited to the issues raised in the suit proceedings. It is further submitted that all the issues have been decided in favour of the plaintiffs, except issue nos.1 and 9. It is further submitted that one of the issues was as to whether the plaintiffs prove that the defendants have agreed to sell the land for the consideration of Rs.3,79,80,000/- and has received an amount of Rs.1 crore was answered in favour of the plaintiffs. Even the issue whether the plaintiffs prove that the amount has been paid to the defendants in several installments, have also been answered in affirmative. Even the willingness and readiness of the plaintiffs to perform their part, has also been answered in affirmative. It is submitted that when relevant issues were answered in favour of the plaintiffs, except two, there was no reason available for the learned Judge to have dismissed the suit on the ground of the agreement to sell being in contravention of the provisions of section 43 of the Gujarat Tenancy and Agricultural Land Act , 1948 (hereinafter referred to as the ‘Act of 1948’), would be unenforceable. Reliance has been placed on the judgment of the full Bench in the case of Decd. Shaikh Ismailbhai Hushainbhai Through Lh. vs. Vankar Ambalal Dhanabhai reported in 2024 (0) AIJEL-HC 247772. Therefore, what weighed with the learned Judge, was the nature of the land being of restricted tenure. It is also submitted that section 43 restriction was for the limited purpose of impartibility and not for transfer, as for transfer of the land there was no restriction. Considering the nature of the restriction contained, it cannot be said that the agreement to sell was hit by the provisions of section 43 of the Act of 1948.

4. It is further submitted that the agreement to sell was executed on 10.09.2011 coupled with the execution of the possession receipt dated 17.04.2013. As per the possession receipt, the possession of the land in question was handed over to the plaintiffs. One of the conditions, clearly states about the receipt of the amount either by cheque and/or cash by the defendants. Therefore, receipt of the money is also not disputed, so also handing over of the possession.

5. It is next submitted that after the agreement to sell was executed, acting in furtherance of the conditions contained, an application was filed seeking conversion of the land from