MUKESH JASHVANTLAL PATEL Vs. ISHWARLAL BHAGWANDAS PATEL

JUDGEMENT

(1.) 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.

(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 dtd. 9/9/2016, 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 dtd. 1/1/2025 and the status quo granted by the Court below, was extended for the appeal period vide order dtd. 1/1/2025. 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.3,79,80,000.00 and has received an amount of Rs.1.00 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 Sec. 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 Sec. 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 Sec. 43 of the Act of 1948.