RAMESHBHAI DAHYABHAI PATEL Vs. RAMESHBHAI CHHAGANBHAI DESAI

JUDGEMENT

(1.) Heard Mr.Parthiv B. Shah, learned advocate for the applicant, Mr.M.J. Parikh, learned advocate for opponent No.1, Ms.Pooja Ashar, learned advocate for opponent Nos.2 to 7 and Ms.Vrunda Shah, learned advocate for opponent No.9.

(2.) Learned advocate for the applicant mainly submitted that present opponent No.1 - original plaintiff has filed Special Civil Suit No.51 of 2011 for specific performance of contract for the property situated at Block No.58 (Old Survey No.40/3) of Village Ambli, Tal.: Dascroi, District and Sub District Ahmedabad. It is a specific case of the plaintiff that the name of original defendant No.7 came to be mutated in the revenue record on the basis of the Will of the original owner of the land in question. It is stated that original defendant No.7 executed Sale Deed in favour of original defendant No.8 i.e. the present applicant on 5/7/2003. Therefore, Entry No.2949 came to be mutated in the revenue record. Thereafter, defendant Nos.1 to 6 executed Agreement to Sell dtd. 7/10/2010 in favour of the original plaintiff. The plaintiff has, therefore, filed the aforesaid Suit wherein it has been prayed that defendant Nos.1 to 6 be directed to get necessary permission and, thereafter, execute Sale Deed in favour of the plaintiff. Thus, the Suit is filed for specific performance of contract i.e. Agreement to Sell dtd. 7/10/2010. It is also prayed that the illegal construction put by defendant Nos.7 and 8 be removed.

(3.) It is submitted by Mr.Shah, learned advocate, that the Agreement to Sell executed by the Power of Attorney of defendant Nos.1 to 6 is for new tenure land and admittedly, as per the settled proposition of law, no Agreement to Sell can be executed in respect of new tenure land in favour of any party without prior permission of the Collector. It is submitted that in the present case, the plaintiff is aware about the fact that the said land is a new tenure land, in spite of that, he has entered into Agreement to Sell without prior permission of the Collector. Learned advocate has referred the provisions contained in Sec. 43 of the Gujarat Tenancy and Agricultural Land Act, 1948 ("Tenancy Act" for short). Learned advocate has also placed reliance upon the decision rendered by this Court in the case of Rameshbhai Chaturbhai Prajapati Vs. Minaxiben Wd/o. Rasiklal Trikamlal Jaiswal reported in 2011(2) GLH 760.