Holding

The appeal is dismissed because the agreements are illegal under Section 43 and the suit is barred by limitation, so the plaint must be rejected under Order VII Rule 11.

Summary

The appellant, a construction firm, claimed to have purchased agricultural land in 1985 and 1990 through agreements and irrevocable powers of attorney, and sought specific performance, declaration of a 2018 sale deed as void, and injunctions. The trial court dismissed the suit under Order VII Rule 11, holding it barred by Section 43 of the Bombay Tenancy and Agricultural Lands Act and by limitation. On appeal, the High Court examined whether the agreements were enforceable despite the land being restricted‑tenure and whether the suit was time‑barred under the Limitation Act. It reiterated that Section 43 prohibits transfer of restricted‑tenure land without Collector’s sanction, rendering the agreements illegal and unenforceable. The Court also applied the test for Order VII Rule 11, concluding that the plaint, read with its documents, disclosed no viable cause of action and was barred by law. Consequently, the appeal was dismissed and the related applications were vacated.

Issues considered

The suit is barred by Section 43 of the Bombay Tenancy and Agricultural Lands Act, 1948.
The suit is barred by limitation under the Limitation Act.
Whether Order VII Rule 11(a) and (d) CPC permits rejection of the plaint on the basis of the above bars.
Whether the agreements to sell and powers of attorney can be enforced despite the land being of restricted tenure.
Whether the plaint can be amended to include an alternative prayer for compensation under the Specific Relief Act.

Legislation cited

Bombay Tenancy and Agricultural Lands Act, 1948s. Section 43
Code of Civil Procedure, 1908s. Order VII Rule 11, s. Order VII Rule 14, s. Section 96
Limitation Acts. Article 54
Specific Relief Act, 1963s. Section 21
Transfer of Property Act, 1882s. Section 43

Subjects

Specific performanceOrder VII Rule 11LimitationSection 43 Bombay Tenancy ActRestricted tenure landSale deed fraudAmendment of plaintCompensation under Specific Relief Act

Judgment

C/FA/476/2025 JUDGMENT DATED: 06/08/2026

IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 476 of 2025
With
CIVIL APPLICATION (FOR ADDITIONAL EVIDENCE) NO. 1 of 2026
In R/FIRST APPEAL NO. 476 of 2025
With
CIVIL APPLICATION (FOR DIRECTION) NO. 2 of 2026
In R/FIRST APPEAL NO. 476 of 2025

FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE ILESH J. VORA
and
HONOURABLE MR. JUSTICE R. T. VACHHANI
==========================================================
Approved for Reporting Yes No

==========================================================
PRAFULBHAI JAGDISHNARAYAN AGRAWAL
Versus
GOVINDBHAI AMBARAM PATEL & ORS.
==========================================================
Appearance:
MR RAJ A TRIVEDI(7024) for the Appellant(s) No. 1
MR VIRAL K SHAH(5210) for the Appellant(s) No. 1
MR DHRUV R MAKWANA(11745) for the Defendant(s) No. 2
MR VIMAL A PUROHIT(5049) for the Defendant(s) No. 2
MR SUNIL S JOSHI(2925) for the Defendant(s) No. 6
RULE SERVED for the Defendant(s) No. 1,3
RULE UNSERVED for the Defendant(s) No. 4,5
==========================================================
CORAM:HONOURABLE MR. JUSTICE ILESH J. VORA
and
HONOURABLE MR. JUSTICE R. T. VACHHANI
Date : 06/08/2026
ORAL JUDGMENT
(PER : HONOURABLE MR. JUSTICE R. T. VACHHANI)
1. Being aggrieved and dissatisfied with the judgment and decree
dated 12.12.2024 passed by the learned Civil Court, Ahmedabad (Rural)
in Special Civil Suit No. 615 of 2019, whereby the application at Exh.-43
filed by the respondent No.2 under Order VII Rule 11(a) and (d) of the
Code of Civil Procedure, 1908 was allowed and the suit of the appellant-
plaintiff came to be rejected on the ground that it is hit by Section 43 of

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the Bombay Tenancy and Agricultural Lands Act, 1948, barred by
limitation and that no cause of action had arisen in favour of the plaintiff,
the appellant has preferred First Appeal No. 476 of 2025 under Section
96 of the Code of Civil Procedure, 1908 (“the Code” for short).

2. The brief facts leading to the filing of the present appeal are as
under:

2.1. Agricultural land bearing Survey/Block No. 286/1 admeasuring
2226 sq. mtrs. (0-22-26 H.A.R., of which 2032 sq. mtrs. old tenure
agricultural land) (now Final Plot No. 42 admeasuring 1462 sq. mtrs. of
Town Planning Scheme No. 1/B, Bodakdev) situated at Moje Bodakdev,
Taluka Ghatlodiya (old Daskroi/City), District Ahmedabad (hereinafter
“the suit property”) was owned by Amraji, who died intestate prior to
1956 leaving Budhaji Amraji, Kalaji Amraji and Shakraji Amraji as his
legal heirs.

2.2. By partition deed No. 11644 dated 05.08.1982 the suit property
came to the share of (i) Shakraji Amraji as Karta of his HUF consisting of
himself, his wife Kamlaben and minor sons Pravin, Mann, Ashok and
Mahesh, and (ii) Bai Shanta Wd/o Shanaji Varwaji (hereinafter “the
original owners”).

2.3. The appellant-plaintiff, engaged in the business of construction
under the name of M/s Ashish Builders Pvt. Ltd., entered into an
agreement to sell dated 17.02.1990 with the original owners for a total
consideration of Rs. 79,860/-. The appellant claimed to have paid Rs.

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40,000/- by cheque before execution and a further Rs. 10,000/- against
delivery of vacant possession, which was handed over along with a
possession receipt of the same date. The balance was payable on
execution of the registered sale deed after necessary permissions.

2.4. The plaintiff thereafter paid the balance Rs. 29,860/- by cheque
dated 16.02.1990 and an additional Rs. 25,000/- on account of delay,
aggregating Rs. 1,04,860/-. On 17.02.1990 the original owners executed a
fresh agreement to sell and two irrevocable powers of attorney in favour
of the plaintiff authorising him to execute all documents, accept
consideration and appear before revenue and other authorities. An
additional sum of Rs. 15,000/- was paid. The plaintiff acted under the
said powers before various authorities. Construction permissions could
not be obtained owing to the plaintiff’s prolonged illness, the death of his
wife and proceedings initiated by certain joint owners.

2.5. In or about April-May 2019 the plaintiff noticed a board of
defendant No. 3 on the suit property. Upon inquiry and obtaining certified
copies he discovered that defendant No. 1 had executed registered sale
deed No. 372 dated 15.02.2018 in favour of defendant No. 2. The said
deed rested on a forged unregistered Will of Laduben Wd/o Somaji
Varvaji (who died on 28.04.1994) in favour of defendant No. 1, a
stranger, pursuant to which the name of Dhanaji Somaji was deleted by
Mutation Entry No. 7116 dated 10.01.2003, a declaration and affidavit
dated 31.05.2003 of Shantaben relinquishing her rights leading to
Mutation Entry No. 7218 dated 31.05.2003, and a supporting declaration
of defendant No. 4. Mutation Entry No. 7685 dated 16.03.2005 recording

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the name of defendant No. 1 was cancelled on 18.06.2005. Defendant No.
4 had earlier filed Regular Civil Suit No. 714 of 2013 challenging the
relinquishment and obtained an interim injunction, but later settled, the
injunction came to be vacated by purshis dated 06.05.2017 (Mutation
Entry No. 11558 dated 01.06.2017) and withdrew the suit unconditionally
by purshis dated 10.02.2018, whereafter the sale deed was executed.

2.6. The plaintiff thereupon instituted Special Civil Suit No. 615 of
2019 on 24.12.2019 seeking specific performance of the agreements to
sell dated 02.04.1985 and 17.02.1990, declaration that the sale deed dated
15.02.2018 is illegal, null and void ab initio and liable to be cancelled,
and sought permanent injunction restraining creation of third-party rights,
and declaration that Mutation Entries Nos. 7116 and 7218 are illegal,
fraudulent and not binding on the plaintiff.

2.7. After service, defendant No. 2 filed written statement and reply to
the injunction application. Defendant No. 2 thereafter filed application at
Exh. 43 under Order VII Rule 11 of the Code seeking rejection of the
plaint on the grounds of bar under the Registration Act, the Transfer of
Property Act, Section 43 of the Bombay Tenancy and Agricultural Lands
Act, 1948 and limitation, etc. The plaintiff filed reply and written
arguments. By the impugned judgment and decree dated 12.12.2024 the
Learned Trial Court allowed the application and rejected the plaint.

3. We have heard the Learned Advocates for the respective parties
and carefully examined the material documentary evidence adduced
before the learned Civil Court.

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4. Submissions on behalf of Learned Advocates for the appellant:
4.1. The judgment and decree dated 12.12.2024 below Exh.43 in
Special Civil Suit No. 615 of 2019 by the learned 5th Additional Senior
Civil Judge, Ahmedabad (Rural) is contrary to law and evidence. The
learned Civil Judge erred in allowing defendant No.2’s application under
Order VII Rule 11(a) & (d) CPC and rejecting the plaint.

4.2. It is further submitted that the suit is not hit by Section 43 of the
Tenancy Act. Judgments relied upon by defendant No.2 apply only to
pure specific-performance suits of restricted-tenure land, as here the
reliefs are multiple: specific performance of agreements dated 02.04.1985
(Mark 3/3) and 17.02.1990 (Mark 3/4), and sought the declaration that
sale deed No. 372/2018 (Mark 3/27) is illegal, null and void ab initio,
also sought permanent injunction against third-party rights, declaration
that Mutation Entries 7116 (10.01.2003) and 7218 (31.05.2003) are
fraudulent and not binding, declaration that documents by defendants
No.4 & 5 are void, and permanent injunction protecting plaintiff’s rights.
Those judgments are therefore inapplicable.

4.3. It is further submitted that the plaintiff has been in settled
possession since 1985 with knowledge and consent of original owners,
evidenced by agreement to sell 02.04.1985 (Mark 3/3), possession receipt
02.04.1985 (Mark 3/2), agreement 17.02.1990 (Mark 3/4) and irrevocable
powers of attorney 17.02.1990 (Mark 3/5 & 3/6). Full consideration was
paid (Marks 3/1 to 3/6). The irrevocable POAs confer all powers
including execution of sale deeds. Hence the judgments cited by

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defendant No.2 have no application.

4.4. It is further submitted that the learned Civil Judge erred on
limitation. Plaintiff had initiated permission proceedings (Marks 3/12–
3/15). Delay was due to illness, wife’s death and rival proceedings. Cause
of action arose in April-May 2019 on discovery of defendant No.3’s
board and, after obtaining certified copies, knowledge of fraudulent sale
deed 15.02.2018 (Mark 3/27) executed by defendant No.1 on forged Will
of Laduben (died 28.04.1994), Mutation 7116, Shantaben’s affidavit
leading to Mutation 7218 and related entries. Suit filed December 2019 is
within time. Even from the aforesaid sale-deed date the suit is within
three years, as the limitation for specific performance runs from
knowledge of refusal by fraudulent transfer. Possession plus irrevocable
POAs further negate any limitation bar and fraud unravels everything,
thus defendant No.1 fraudulently created documents to transfer to
defendant No.2.

4.5. Since the issue of limitation interwoven with merits must be tried
with other issues. It is a mixed question of law and fact. Under Order VII
Rule 11 CPC only the entire plaint and plaintiff’s documents are to be
read as a whole, defence is irrelevant. The learned Civil Judge wrongly
considered defendant No.2’s defence. The plaint discloses a real cause of
action. The powers exercised under Order VII Rule 11 are drastic and
conditions must be strictly satisfied, which in case on hand lacked. Thus,
the cause of action requiring thorough trial, the plaint cannot be rejected
merely because the plaintiff may not ultimately succeed.

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4.6. It is therefore prayed that the present proceedings be quashed and
set aside and the suit of the plaintiff be restrained and proceedings thereof
be ordered to be confirmed in accordance with law.

4.7. Learned Advocate for the appellant to substantiate its claim has
placed reliance on the following judgments:
A) Rame Gowda v. M. Varadappa Naidu, (2004) 1 SCC 769
B) P.V. Guru Raj Reddy v. P. Neeradha Reddy, (2015) 8 SCC 331
C) Ramesh B. Desai v. Bipin Vadilal Mehta, AIR 2006 SC 3672
D) Shantibhai Somabhai Patel v. Ranchodbhai Pujabhai Padhiyar,
2019 JX(Guj) 196 : 2019 AIJEL_HC 240338
E) Srihari Hanumandas Totala v. Hemant Vithal Kamat, (2021) 9
SCC 99
F) T. Arivandandam v. T.V. Satyapal, (1977) 4 SCC 467
G) Mayar (H.K.) Ltd. v. Owners & Parties, Vessel M.V. Fortune
Express, (2006) 3 SCC 100
H) K.R. Suresh v. R. Poornima and Ors, 2025 SCCOnLine SC 1014

5. Submissions on behalf of Learned Advocates for the defendant
No.2:
5.1. It is submitted that the impugned judgment and decree dated
12.12.2024 passed below Exh.43 in Special Civil Suit No. 615 of 2019 by
the learned 5th Additional Senior Civil Judge, Ahmedabad (Rural) is just,
legal and in accordance with law. The learned Civil Judge has rightly
allowed the application of defendant No.2 under Order VII Rule 11(a) &
(d) of the CPC and rejected the plaint.

5.2. It is further submitted that from the plain reading of the plaint and

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the documents relied upon by the plaintiff, the suit is barred by limitation.
The agreements to sell are of the years 1985 and 1990. The suit filed in
2019 is hopelessly barred. The alleged knowledge in April-May 2019 is
an afterthought and cannot revive a stale claim.

5.3. It is submitted that the suit is also barred under Section 43 of the
Tenancy Act. The suit property being restricted-tenure land, specific
performance of any agreement to sell cannot be granted without prior
permission of the (Collector) competent authority. The multiple reliefs
claimed do not alter the character of the suit, the main relief being
specific performance.

5.4. The judgments relied upon by defendant No.2 before the Learned
Civil Judge squarely apply and were correctly followed.

5.5. It is submitted that the plaint does not disclose any cause of action.
The averments regarding possession, full payment and irrevocable
powers of attorney are self-serving and do not create any enforceable
right against defendant No.2 who is a subsequent purchaser under a
registered sale deed of 2018, hence the allegations of fraud are vague,
unsupported and cannot be examined beyond the four corners of the
plaint at the stage of Order VII Rule 11 CPC.

5.6. It is therefore submitted that while deciding an application under
Order VII Rule 11 CPC, the Court is required only to examine whether
the plaint discloses a cause of action or is barred by any law. Hence, it is
prayed that the learned Civil Judge has correctly done so and has not

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traveled into the defence on merits. The order suffers from no infirmity
and deserves to be upheld.

6. Submissions on behalf of Learned Advocate for the defendant
No.6:
6.1. It is submitted that the judgment and decree dated 12.12.2024
passed below Exh.43 in Special Civil Suit No. 615 of 2019 by the learned
5th Additional Senior Civil Judge, Ahmedabad (Rural) is just, legal and
proper. The learned Civil Judge has rightly allowed the application under
Order VII Rule 11(a) & (d) CPC and rejected the plaint. Defendant No.6
supports the said order in its entirety.

6.2. It is submitted that the plaint does not disclose any cause of action
against defendant No.6. The suit is barred by limitation as the agreements
relied upon by the plaintiff are of 1985 and 1990 and the suit was filed
only in 2019. The alleged knowledge of April-May 2019 is an
afterthought and cannot save the claim.

6.3. While adopting the arguments made by the Learned Advocate for
the defendant No.2, it is further submitted that the suit is further barred
under Section 43 of the Tenancy Act. The property being restricted-
tenure land, no decree for specific performance can be granted without
prior permission of the competent authority. The multiple reliefs claimed
do not change the essential character of the suit. The judgments relied
upon by the contesting defendants before the learned Civil Judge were
correctly applied.

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6.4. It is further submitted that allegations of fraud and claim of settled
possession are vague, self-serving and beyond the scope of inquiry under
Order VII Rule 11 CPC. Only the plaint averments and documents
produced with the plaint are to be examined. The learned Civil Judge has
correctly done so without travelling into disputed questions of fact.

6.5. It is therefore submitted that the defendant No.6, having been
joined later pursuant to the order dated 26.03.2025, is a subsequent party.
No independent cause of action is disclosed against it. Hence, it is prayed
that the impugned order suffers from no illegality or infirmity and
deserves to be confirmed.

6.6. In support of his contentions, Learned Advocate for the respondent
No.6 places reliance on the following judgments:
A) Dhulaji Somaji Thakor v. Gordhanbhai Hathibhai Patel, 2025
(0) AIJEL-HC 250791
B) Nagjibhai Kanjibhai Patel v. Mukesh @ Pappu Chandraprakash
Harivansh Shukla, 2022 (0) AIJEL-HC 244605
C) Hanubhai Ladhrabhai Bharwads Main Legal Heirs v.
Chimanbhai Jivabhai Patel Legal Heirs of Decd., 2018 (0) AIJEL-HC
240672
D) Harishbhai Chandrakant Madhu v. Ranchhodbhai Kalubhai
Hvarwad & 13, 2023 (0) AIJEL-HC 247278
E) Hemendra Ishwarbhai Patel Through Poa Piyush B Trivedi v.
Gokulbhai Shanabhai-decd. Through Legal Heirs, 2017 (0) AIJEL-HC
237338
F) Bharatbhai Devashibhai Ukani v. Vinaben Babaji & Ors., order
dated 26/02/2024 passed by Coordinate Bench of this Court in First
Appeal No.4023 of 2023
G) Bharatbhai Devashibhai Ukani v. Vinaben Babaji & Ors.,
Special Leave to Appeal (Civil) No.12845 of 2024

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H) Becharbhai Nathubhai Patel Alias Andhan v. Chimanbhai
Maganbhai Patel, 2025 (0) AIJEL-HC 250662
I) Decd Shaikh Ismailbhai Hushainbhai Through LH v. Vankar
Ambalal Dhanabhai, 2024 LawSuit(Guj.) 76
J) Pijush Kanti Chowdhury v. State of West Bengal and others,
2007 LawSuit(Cal) 633
K) Raajratna Ventures Limited v. Union of India, 2019 SCC Online
Guj 6617

7. Having heard the Learned Advocates appearing for the respective
parties and on perusal of the material placed for consideration, so also the
conclusions arrived at by the Learned Judge of the Trial Court, the entire
gamut of the case as narrated so also emerging from the averments made
in the plaint as well as from the material adduced thereon, followed by
the claim of the appellant, requires to be scrutinized judiciously.

8. Since the civil application seeking stay bearing Application No.1
of 2025 in the present First Appeal No.476 of 2025 came to be dismissed
and the appellant unsuccessfully assailed the said order before the
Hon’ble Apex Court by filing a Special Leave Petition (Civil) Diary
No.31557 of 2025, the Hon’ble Supreme Court, while disposing of the
said Special Leave Petition, reserved liberty to the appellant to seek
expeditious disposal of the present appeal. In view of the observations
made by the Hon’ble Apex Court directing that the appeal be disposed of
as expeditiously as possible, preferably within a period of six months, and
upon the joint request of the Learned Advocates appearing for the
respective parties, the matter has been taken up for final hearing and
disposal. The order of the Hon’ble Supreme Court has been placed on
record.

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9. It emerges from the record that the claim of the appellant rests on
an agreement to sell executed on 02.04.1985, followed by another
agreement to sell executed on 17.02.1990 with regard to the disputed
property, along with irrevocable powers of attorney. It further transpires
that since then no steps were initiated by the appellant to look after the
status of the matter or the issue of sanctions claimed to have been
incorporated in the alleged agreements to sell. Suddenly and
surreptitiously, as per the claim of the appellant, the disputed land came
to be converted from new tenure to old tenure in the month of January
2018 and a sale deed came to be executed in favour of defendant No.2.
Pending the suit, a further sale deed came to be executed on 24.03.2023
in favour of defendant No.6. It further transpires that due to differences
and family disputes amongst the original owners and their descendants,
civil proceedings came to be initiated and an injunction operated therein.
However, the said suit came to be disposed of on the basis of the
amicable settlement arrived at between the parties. Therefore, pending the
present suit, a fresh sale deed came to be executed in favour of defendant
No.6, who in turn started putting up constructions on the basis of the
rights vested under the sale deed executed by defendant No.1 in favour of
defendant No.2 and subsequently in favour of defendant No.6.

10. Thus, the entire claim of the appellant rests solely on the basis of
the different agreements to sell executed in its favour along with the
irrevocable powers of attorney referred to hereinabove.

11. Per contra, defendant No.2 claims to have been vested with rights,

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interest and title over the disputed property solely on the basis of the sale
deed executed by defendant No.1, after thorough investigations and
confirmations as to the title and ownership of the property in question.
Defendant No.2 purchased the property from defendant No.1 only after
satisfying all requirements and legal proceedings and thereby vested with
the rights of ownership. It also transpires that during the course of inquiry
and investigation, no existing rights of strangers, particularly of the
appellant, could be found in the revenue records or any other records
available. Thus, the said property appears to have been sold by registered
sale deed in favour of defendant No.6.

12. It also transpires from the material that at the time when the
agreements to sell as claimed by the appellant came to be executed, the
land admittedly appears to have been of restricted tenure. The agreements
to sell followed by the irrevocable powers of attorney appear to have been
executed in the years 1985 and 1990 respectively. The suit seeking
specific performance of the contract on the basis of the aforesaid
agreements to sell, so also ancillary reliefs, came to be filed in the year
2019 (Special Civil Suit No.615 of 2019). As the defendants moved an
application under Order VII Rule 11 and considering the aforesaid
aspects and after affording opportunity to the parties concerned, on the
basis of the applications moved by the respondents seeking rejection of
the plaint, the plaint came to be rejected. The following aspects are
required to be judicially appreciated:

IN CONTEXT TO THE ISSUE OF LIMITATION:
i. Whether the suit of the appellant is barred by the law of

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limitation since the claim of the appellant rests on the basis of two
different agreements to sell dated 02.04.1985 and 17.02.1990
respectively, followed by the irrevocable powers of attorney with
regard to the property in question which admittedly appears to be
of restricted tenure and consequently the same being invalid and
not enforceable in accordance with law.

13. It is pertinent to note that in context to the rights vested with
defendant No.1, it appears from the material that the legal heirs of the
original owner appear to have executed several deeds including a will in
favour of defendant No.1. Though civil litigations inter se and revenue
disputes were initiated, those proceedings were terminated on the basis of
the amicable settlement arrived at between the parties and the rights over
the property came to be vested in favour of defendant No.1. The
necessary entries in the revenue records came to be mutated accordingly
in the year 2003. Since then defendant No.1 has become the absolute
owner of the property in question and on the basis of the same, defendant
No.1 executed a sale deed in favour of defendant No.2 in the year 2018
after getting the restricted tenure of the land converted into old tenure in
the year 2018. Thus, when the sale deed was executed in favour of
defendant No.2, the land in question had already been converted from
new tenure to old tenure and thereafter the said property came to be sold
in the year 2023 in favour of defendant No.6.

14. The questions that arise for consideration with regard to the claim
agitated by the appellant which solely rests on the agreements to sell
executed in its favour in the years 1985 and 1990 when the land in

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question was of restricted tenure. It transpires that all throughout the
proceedings initiated between the parties inter se, the legal heirs of the
original owner, so also with regard to the mutations of the entries on the
basis of the will etc., nowhere the appellant seems to have appeared, nor
any such contention with regard to acknowledgment of the aforesaid
proceedings, claimed to have been initiated through/for and on behalf of
original owners by the appellant in his capacity as power of attorney.

15. On the basis of acquiescence and knowledge, the appellant seems
to have claimed any such status in the ongoing proceedings between the
heirs of the original owners, though not a single effort appears to have
been made by the appellant so as to get impleaded in the proceedings to
establish the factum of the appellant being conversant with the continuing
proceedings so as to show the nexus between the appellant and the
property in question.

16. Thus the appellant seems to have initiated the civil proceedings
seeking performance of the agreements to sell of 1985 and 1990 by filing
the suit in the year 2019, i.e., after about 34 years.

17. It appears that during the period of aforesaid civil proceedings, as
discussed in the foregoing paragraphs the non-participation in any
proceedings and the ignorance of the appellant speaks volumes as to the
rights claimed in the property in question. The present appellant seems to
have got up from slumber only after the land in question had been
converted from new tenure to old tenure by defendant No.1 followed by
the execution of the sale deed in favour of defendant No.2, and then

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approached the Court seeking execution of the aforesaid two agreements
to sell almost after three decades from the date of deeds claimed to have
been executed in favour of the appellant.

18. It further transpires, as claimed by the appellant, that in the two
different agreements to sell executed in its favour with different recitals
and conditions incorporated therein, condition No.6 pertains to obtaining
permissions by the original owners for the sale of the land for the benefit
of the minor as well as the permissions under the Act of 1948 or any
other statutory permission from the Collector within a period of three
months from the date of the agreement.

19. Condition No.7 pertains to the sale of the land being completed
within a period of 12 months from the date of the said agreement after
obtaining all necessary permissions/sanctions and orders required to be
obtained from the competent authority.

20. Thus the claim of the appellant is that since the agreements to sell
having been executed and the conditions incorporated therein subject to
fulfilment at the hands of the respondents which have not been fulfilled
and complied with, the rights of the appellant could not be put at peril on
account of inactions and default on the part of the respondents. Though
simultaneously the claim of the appellant of having been put in
possession on the basis of the aforesaid agreements has also been
claimed, however nothing of any such material seems to have been placed
on record except the bare averments made therein. Be that as it may.

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21. In context to the issue on limitation, the efforts seem to have been
made by the appellant to abridge the time period on account of pleading
ignorance on the basis of the ailment of his wife so also the inter se
litigations between the original owners and their descendants/legal heirs
followed by the initiation of civil proceedings, for example filing of
Regular Civil Suit No.714 of 2013 amongst the family members wherein
interim stay was granted which, according to the appellant, prevented it to
await the outcome of the said proceedings.

22. However, the said contentions have been totally negated by the
respondents stating and contending that the appellant was totally
disconnected and had no rights whatsoever over the property in question.
Had it been so, the appellant must have rushed to the civil Court seeking
impleadment of the parties. Instead thereof the appellant kept mum and
the very demeanour and conduct on the part of the appellant speaks
volumes as to the non-nexus with regard to the property in question.
Simply by putting forward the cause of the aforesaid litigations between
the family members of the original owners is no ground to cull out from
the issue of limitation as admittedly the claim of the appellant seems to
have been raised not only at a belated stage but also on the strength of the
documents, namely the invalid agreements to sell.

23. The original owners in their capacity as owner executed a sale
deed i.e. Will, etc. in favour of defendant No.1 followed by the mutations,
of the entries vesting the rights over the disputed property on defendant
No.1 and subsequent transfer having been so effected thereupon by
paying a huge amount towards the premium for conversion of the land

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from new tenure to old tenure to the extent of Rs.1,20,46,800/- followed
by the sanction as sought for came to be accorded by the Collector vide
order dated 12.02.2018. It is only thereafter the registered sale deed came
to be executed as detailed hereinabove.

24. Thus, in view of the aforesaid issue raised in the foregoing
paragraphs require to be determined, namely whether the plaint has been
rightly rejected under the provisions of Order VII Rule 11 of the Code of
Civil Procedure on the ground that the suit for specific performance of the
contract based on illegal or invalid agreement to sell is further hit by
Section 43 of the Tenancy Act, 1948.

25. Before dealing with the said issue, the purpose and object as
enshrined under Section 43 of the Tenancy Act, 1948 requires to to have
a glance. The relevant excerpts of the said provisions are required to be
reproduced. Section 43 imposes restrictions on transfer of land purchased
under the Act.

IN CONTEXT TO SECTION 43 OF THE TENANCY ACT, 1948:

26. Section 43 of the Tenancy Act, 1948 read as under:
“Section 43. Restriction on transfers of land purchased or sold under
this Act. - [(1) No land or any interest therein purchased by a tenant
under section 17B, 32, 32F, 32-I. [*], [32U, 43-1D or 88E] or sold to any
person under section 32P or 64 shall be transferred or shall be agreed by
an instrument in writing to be transferred, by sale, gift, exchange,
mortgage, lease or assignment, without the previous sanction of the
Collector and except in consideration of payment of such amount as the
State Government may by general or special order determine; and no
such land or any interest, therein shall be partitioned without the previous
sanction of the Collector]:

[Provided that no previous sanction of the Collector shall be required, if

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the partition of the land is among the members of the family who have
direct blood relation or among the legal heirs of the tenant:

Provided further that the partition of the land as aforesaid shall not be
valid if it is made in contravention of the provisions of any other law for
the time being in force:

Provided also that such members of the family or the legal heirs shall
hold the land, after the partition, on the same terms, conditions and
restrictions as were applicable to such land or interest therein purchased
by the tenant or the person.]

[(1A) The sanction under sub-section (1) shall be given by the Collector
in such circumstances and subject to such conditions, as may be
prescribed by the State Government.]

[(1AA )] Notwithstanding anything contained in sub- section (1), it shall
be lawful for such tenant] or a person to mortgage or create a charge on
his interests in the land in favour of the State Government in
consideration of a loan advanced to him by the State Government under
the Land Improvement Loans Act, 1983, the Agriculturists' Loans Act,
1984, or the Bombay Non-agriculturists' LoansAct, 1928, as in force in
the State of Gujarat, or in favour of a bank or co-operative society, and
without prejudice to any other remedy open to the State Government,
bank or co-operative society, as the case may be, in the event of his
making default in payment of such loan in accordance with the terms on
which such loan was granted, it shall be lawful for the State Government,
bank or co-operative society, as the case may be, to cause his interest in
the land to be attached and sold and proceeds to be applied in payment of
such loan.

Explanation.—For the purposes of this sub-section, "bank" means—

(a) the State Bank of India constituted under the State Bank of India Act,
1955;

(b) any subsidiary bank as defined in clause (k) of section 2 of the State
Bank of India (Subsidiary Bank) Act, 1959;

(c) any corresponding new bank as defined in clause (d) of section 2 of
the Banking Companies (Acquisition and Transfer of Undertakings) Act,
1970;

(d) the Agricultural Refinance and Development Corporation, established
under the Agricultural Refinance and Development Corporation Act,

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1963.]

(1B) Nothing in sub-section (1) 4 [or(1AA)]shall apply to land purchased
under section 32, 5 [32 F or 64] by a permanent tenant thereof, if prior to
the purchase, the permanent tenant, by usage custom, agreement or
decree or order of a court, held a tranferable right in the tenancy of the
land.]

[(1C)The land to which sub-section (1) applies and for which no
permission is required under sub-section (1) of section 65B of the Bombay
Land Revenue Code, 1879 for use of such land for a bonafide industrial
purpose may, notwithstanding anything contained in sub-section (1) of
this section, be sold without the previous sanction of the Collector under
sub-section (1) but subject to payment of such amount as may be
determined by the State Government under sub-section (1).]

(2) [Any transfer or partition, or any agreement of transfer, or any land
or any interest therein] in contravention of sub-section (1) 7 [or sub-
section (1C)] shall be invalid.]”

27. At this juncture, it would be apt to refer the relevant paragraphs of
Decd Shaikh Ismailbhai Hushainbhai Through LH v. Vankar Ambalal
Dhanabhai, (2024) 1 GLH 222, with reference to Section 43 of the
Tenancy Act, 1948
“75 (a) Essence of Section 43 of the Tenancy Act,1948:-

(i) Section 43 is couched in negative language, making an
express prohibition on execution of any instrument in writing to
transfer by sale, gift, exchange, mortgage, lease or assignment,
without the previous sanction of the Collector. The plain language
of Section 43 of the Tenancy Act makes it clear that even an
agreement in writing for transfer of the land governed by Section
43 is prohibited unless prior permission of the Collector is
obtained. Sub-section (1A) further clarifies that the sanction under
Sub-section (1) shall be given by the Collector, in such
circumstances and subject to such conditions, as may be prescribed
by the State Government. Sub-section (2) provides the consequence
of any transfer or any agreement for transfer of the land governed
by Section 43 in contravention of Sub- section (1), and makes it
Invalid.

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76. The essence of Section 43 has been discussed by the Division Bench
of this Court in the case of Shashikant Mohanlal Desai and others vs.
State of Gujarat, AIR 1970 GUJARAT 204. While deciding the
question of construction of Section 43 of the unamended Bombay
Tenancy and Agricultural Lands Act, 1948, it was noted therein that the
Tenancy Act, 1948, originally enacted, was intended to regulate the
relationship of landlord and tenant with a view to giving protection to
the tenant against exploitation by the landlords introducing a radical
measure of agrarian reform. The legislature later decided that the tiller
of the soil should be brought into direct contact with the State and the
intermediary landlord should be eliminated and introduced fasciculus
of Sections from Section 32 to Section 32-R and Section 43, which came
into force on 13.12.1956 and they provided for the tenant becoming
deemed purchaser of the land held by him as tenant. Since the tenant is
made deemed purchaser of the land in order to effectuate the policy of
agrarian reform to eliminate the intermediary landlord and to establish
direct relationship between the State and the tiller of the soil, so that
soils of his cultivation are not shared by an intermediary or middleman
who does not put in any labour, the legislature insisted that the tenant
must personally cultivate the land of which he is made the deemed
purchaser. The tenant would continue to remain owner of the land only
so long as he personally cultivated it. He must make use of the land for
the purpose for which it was given to him as the owner. If the tenant
fails to cultivate the land personally either by keeping it fallow or by
putting it to non-agricultural use, he would loose the land under
Section 32B and the land would be given for personal cultivation in
accordance with the provisions of Section 84C.

(ii) It was noted therein that for the same reason, the legislature,
by enacting Section 43, placed an embargo on the tenant
transferring the land deemed to be purchased by him. If the tenant
was free to transfer the land to any one he likes, the object and
purpose of making him the deemed purchaser of the land would be
frustrated. Section 43, therefore, provided that no land purchased
by a tenant, under Section 32 shall be transferred by sale, gift,
exchange, mortgage, lease, assignment or partition without the
previous sanction of the Collector and except the payment of such
amount, as the State Government may by general or special order
determine. General rule enacted in Section 43 was that the tenant

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shall not transfer the land by any of the above mode, for it is given
to him as owner for personal cultivation. It was noted that the
legislature, however, recognized that there may be cases where it
may be necessary or expedient to transfer the land to some other
person and, therefore, provided that the transfer may be made by
the tenant after obtaining the previous sanction of the Collector and
on payment of such amount, as the State Government may, by
general or special order, determine. These two conditions are
clearly and indubitably conditions of a valid transfer of the land by
the tenant and, if either of those two conditions are not fulfilled, the
transfer would be Invalid.

(iii) As far as the first condition is concerned, which requires
previous sanction of the Collector before the land can be
transferred by the tenant, it was observed that this requirement has
been introduced in order to ensure that the general rule inhibiting
transfer is not departed from, except under justifying
circumstances. When an application is made to the Collector for
sanction, the Collector will examine the facts and circumstances of
the case and decide whether consistently with the object of the Act
and the exigencies of the situation, the tenant should be permitted
to transfer the land. If the land is said to be transferred by the
tenant for non- agricultural purposes, the Collector will have to
consider whether the necessity or expediency of the transfer is so
great that despite the policy of the Statute that the land must be
personally cultivated by the tenant, it should be allowed to be
transferred by the tenant to another for non-agricultural purpose.

(iv) The Division Bench has emphasized that the power of the
Collector is not to be exercised lightly, rather it is a power, which
must be exercised with great care and circumspection having
regard to the policy of the statute and also bearing in mind the fact
that the landlord has been deprived of his ownership of the land for
the purpose of making the tiller of the soil the owner of it. The
Collector, will, therefore, take into account various circumstances
relating to the proposed transfer and decide whether he should
grant permission or not.

77. In view of the negative language of the Statute, there can be no
doubt that the two conditions of transfer in Sub-section (1) of Section

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43 are of mandatory character.

78. Section 43, as was originally enacted, did not contain any
prohibition about the agreement as an instrument in writing to be
entered for transfer by sale, gift, exchange, mortgage, lease or
assignment. By Gujarat Act No. 30 of 1977, the amendments were
brought in the Tenancy Act, 1948. From the Statement of object and
reasons of the Bill seeking to amend the Tenancy law enforced in the
State of Gujarat, it may be noted that Sub-section (1B) of Section 32 of
the Tenancy Act, 1948 was amended so as to provide that if the tenant
fails to give an undertaking within the prescribed period to cultivate the
land personally, the land whose possession is taken from the landlord,
shall vests in the State Government and shall be disposed of in the
manner prescribed in Sub-section (2) of Section 32P. The first proviso
to Sub-section (1B) of Section 32 was amended and second proviso was
inserted.

79. The object and reasons, as narrated in the Bill, to achieve two fold
purpose to amend Sections 43 and 63 of the Tenancy Act, 1948, is
relevant to be extracted hereinunder:-

Statement of Objects and Reasons
This Bill seeks to amend the tenancy laws in force in the State of
Gujarat fro certain purposes.
2. It seeks to amend sub-section (1B) of section 32 of the
Bombay Tenancy and Agricultural Lands Act, 1948 so as to provide
that if the tenant fails to give an undertaking within prescribed period
to cultivate the land personally, the land whose possession is taken
from the landlord, shall vest in the State Government and shall be
disposed of in the manner provided in sub- section (2) of section 32P.
3. This Bill also seeks to amend sections 43 and 63 of the
Bombay Tenancy and Agricultural Lands Act, 1948 and the
corresponding sections 57 and 89 of the Bombay Tenancy and
Agricultural Land (Vidarbha Region and Kutch Area) Act, 1958, for
achieving two fold purpose as under:
(1) to impose restrictions on the purchase of sites for dwelling houses
by the tenants of such sites similar to the restrictions imposed by the
Act on the purchase or sale of land under certain provisions of the
Act;
(2) to apply the restrictions imposed by the aforesaid sections on

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transfers of lands to agreements of transfer also, with a view to
preventing circumvention of the aforesaid provisions of law by
effecting agreements of transfer and then resorting to part
performance of such agreements under section 43A of the Transfer of
Property Act, 1882.
Sub-section (1) of Section 43 was substituted in the following
manner:-
“(1) for sub-section (1), the following shall be substituted, namely:-
“(1) No land or any interest there in purchased by a tenant under
section 17B, 32, 32F, 32I, 32O, 32U, or 43-1D or sold to any person
under section 32P or 64 shall be transferred or shall be agreed by an
instrument in writing to be transferred, by sale, gift, exchange,
mortgage, lease or assignment, without the previous sanction of the
Collector and except in consideration of payment of such amount as
the State Government may be general or special order determine; and
no such land or any interest, therein shall be partitioned without the
previous sanction of the Collector.”;”

“g) Enforceability of the agreement hit by Section 43 of the Tenancy
Act:-

140. In the end, on the issue of grant of decree of specific performance
of an agreement to sell which is contrary to the statutory provisions, we
may refer to the decision of the Apex Court in Narayanamma (supra)
wherein applying various tests, referring to the decision of the Apex
Court in Kedar Nath Motani it was held that if the decree is granted in
favour of the plaintiff on the basis of an illegal agreement which is hit
by a statute, it will be rendering active assistance of the Court in
enforcing an agreement which is contrary to law. A ticklish question
has also arisen in the situation of the said case where both the parties
were common participators in the illegality. Referring to the opinion of
Hidayatulla, J in Kedar Nath Motani (supra)and the opinion of
Gajendragadkar, J in Immani Appa Rao it was noted that where the
claim of the plaintiff is entirely based upon an agreement which is hit
by the statutory provisions, although illegality is not pleaded by the
defendant nor sought to be relied upon by him in defence, yet the Court
itself, upon the illegality appearing from the evidence will take notice of
it and will dismiss the action on the doctrine ex turpi causa non oritur
actio, i.e. no polluted hand shall touch the pure fountain of justice.”

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28. Thus sum and substance of the aforesaid provision makes it
abundantly clear that the land or the interest therein cannot be transferred
or even agreed to be transferred by executing any deed in writing in the
form of sale, gift, exchange, mortgage, lease or assignment without
obtaining previous sanction of the Collector.

29. As such there is a clear prohibition as enumerated in Section 43
against such transfer or execution of an agreement purporting to transfer
such land or interests therein as mentioned in the aforesaid provisions.
Therefore the moot question which requires to be looked into is that the
entire case of the appellant rests solely on the agreements to sell executed
in its favour of the land of restricted tenure and that too without obtaining
previous permissions. Therefore the question with regard to the
enforceability of such agreement by the Civil Court, particularly in a suit
for specific performance of the agreement filed by the appellant herein, is
whether the same is maintainable as the agreement in question is an
invalid agreement in view of the aforesaid provision.

30. The provision of Section 43 makes it clear that any transfer or any
agreement of transfer of the property in question which is of restricted
tenure or interest therein in contravention of Section 43(1) is invalid. The
unambiguous and clear language of the provision makes it abundantly
clear that the transfer or partition or an agreement to transfer any such
property or the interest therein shall ipso facto be invalid. As a
consequential effect the transactions between the parties in contravention
of sub-section (1) of Section 43 would be hit by sub-section (2) of
Section 43 of the Tenancy Act, 1948. Thus in view of the aforesaid, the

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essential ingredients of the aforesaid provision apparently appear to be
couched in negative language making an express prohibition on execution
of any instrument in writing to transfer by any mode including sale, gift,
exchange, mortgage, lease or assignment without previous sanction of the
Collector.

31. In the case on hand, admittedly the agreements to sell dated
02.04.1985 and 17.02.1990 pertaining to the property in question which
appears to be of restricted tenure, though the reference with regard to
putting a burden to obtain a sanction has been shifted on the original
owner subject to the stipulated times agreed upon between the parties,
nothing of any such progress seems to have surfaced. Therefore the
performance sought for by the appellant of the aforesaid agreements of
the property in question at the relevant time when the deeds of agreement
to sell were executed was of restricted tenure and in the absence of the
previous sanction of the Collector as enunciated under Section 43, the
agreements are apparently invalid and the performance and enforcement
cannot be sought for and is not enforceable. That too after the lapse of
about 34 years. Thus the conclusion arrived at by the Learned Judge
while rejecting the plaint on the aforesaid ground does not warrant any
interference.

IN THE CONTEXT TO ORDER VII RULE 11:

32. Order VII Rule 11 of Code of Civil Procedure, reads as under:
“11. Rejection of plaint.– The plaint shall be rejected in the following
cases:–
(a) where it does not disclose a cause of action;
(b) where the relief claimed in undervalued, and the plaintiff, on being

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required by the Court to correct the valuation within a time to be fixed by
the Court, fails to do so;
(c) where the relief claimed is properly valued but the plaint is written
upon paper insufficiently stamped, and the plaintiff, on being required by
the Court to supply the requisite stamp-paper within a time to be fixed by
the Court, fails to do so;
(d) where the suit appears from the statement in the plaint to be barred by
any law;
(e) where it is not filed in duplicate;
(f) where the plaintiff fails to comply with the provisions of rule 9
Provided that the time fixed by the Court for the correction
of the valuation or supplying of the requisite stamp-paper shall
not be extended unless the Court, for reasons to be recorded, is
satisfied that the plaintiff was prevent by any cause of exceptional
nature for correction the valuation or supplying the requisite
stamp-paper, as the case may be, within the time fixed by the
Court and that refusal to extend such time would cause grave
injustice to the plaintiff.”

33. Before considering the submissions on merits, it is necessary to
refer to the legal position governing the issue. The present issue arises
from an application filed under Order VII Rule 11 of the Code of Civil
Procedure, 1908, seeking rejection of the plaint. On this issue, it is apt to
discuss the judgment of the Hon'ble Supreme Court dated 09.07.2020 in
the case of Dahiben v. Arvindbhai Kalyanji Bhanusali (Gajra) (D)
through LRs & Ors., Civil Appeal No. 9519 of 2019, wherein the
Hon’ble Supreme Court has held from paragraph No.12.1 onwards as
under:

12.1 ...The remedy under Order VII Rule 11 is an independent and
special remedy, wherein the Court is empowered to summarily dismiss a
suit at the threshold, without proceeding to record evidence, and
conducting a trial, on the basis of the evidence adduced, if it is satisfied
that the action should be terminated on any of the grounds contained in

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this provision.

The underlying object of Order VII Rule 11 (a) is that if in a suit, no
cause of action is disclosed, or the suit is barred by limitation under Rule
11 (d), the Court would not permit the plaintiff to unnecessarily protract
the proceedings in the suit. In such a case, it would be necessary to put an
end to the sham litigation, so that further judicial time is not wasted.

In Azhar Hussain v. Rajiv Gandhi this Court held that the whole
purpose of conferment of powers under this provision is to ensure that a
litigation which is meaningless, and bound to prove abortive, should not
be permitted to waste judicial time of the court, in the following words :

“12. …The whole purpose of conferment of such power is to ensure
that a litigation which is meaningless, and bound to prove abortive
should not be permitted to occupy the time of the Court, and
exercise the mind of the respondent. The sword of Damocles need
not be kept hanging over his head unnecessarily without point or
purpose. Even if an ordinary civil litigation, the Court readily
exercises the power to reject a plaint, if it does not disclose any
cause of action.”

12.2 The power conferred on the court to terminate a civil action is,
however, a drastic one, and the conditions enumerated in Order VII Rule
11 are required to be strictly adhered to.

12.3 Under Order VII Rule 11, a duty is cast on the Court to determine
whether the plaint discloses a cause of action by scrutinizing the
averments in the plaint, read in conjunction with the documents relied
upon, or whether the suit is barred by any law.

12.4 Order VII Rule 14(1) provides for production of documents, on
which the plaintiff places reliance in his suit, which reads as under :

“Order 7 Rule 14: Production of document on which plaintiff sues
or relies.–
(1) Where a plaintiff sues upon a document or relies upon
document in his possession or power in support of his claim, he
shall enter such documents in a list, and shall produce it in Court
when the plaint is presented by him and shall, at the same time

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deliver the document and a copy thereof, to be filed with the plaint.
(2) Where any such document is not in the possession or power
of the plaintiff, he shall, wherever possible, state in whose
possession or power it is.
(3) A document which ought to be produced in Court by the
plaintiff when the plaint is presented, or to be entered in the list to
be added or annexed to the plaint but is not produced or entered
accordingly, shall not, without the leave of the Court, be received in
evidence on his behalf at the hearing of the suit.
(4) Nothing in this rule shall apply to document produced for the
cross examination of the plaintiff's witnesses, or, handed over to a
witness merely to refresh his memory.”

Having regard to Order VII Rule 14 CPC, the documents filed
alongwith the plaint, are required to be taken into consideration for
deciding the application under Order VII Rule 11 (a). When a document
referred to in the plaint, forms the basis of the plaint, it should be treated
as a part of the plaint.

12.5 In exercise of power under this provision, the Court would
determine if the assertions made in the plaint are contrary to statutory
law, or judicial dicta, for deciding whether a case for rejecting the plaint
at the threshold is made out.

12.6 At this stage, the pleas taken by the defendant in the written
statement and application for rejection of the plaint on the merits, would
be irrelevant, and cannot be adverted to, or taken into consideration.

12.7 The test for exercising the power under Order VII Rule 11 is that if
the averments made in the plaint are taken in entirety, in conjunction with
the documents relied upon, would the same result in a decree being
passed. This test was laid down in Liverpool & London S.P. & I Assn. Ltd.
v. M.V.Sea Success I & Anr., which reads as:

“139. Whether a plaint discloses a cause of action or not is
essentially a question of fact. But whether it does or does not must
be found out from reading the plaint itself. For the said purpose, the
averments made in the plaint in their entirety must be held to be
correct. The test is as to whether if the averments made in the plaint
are taken to be correct in their entirety, a decree would be passed.”

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In Hardesh Ores (P.) Ltd. v. Hede & Co. the Court further held that
it is not permissible to cull out a sentence or a passage, and to read it in
isolation. It is the substance, and not merely the form, which has to be
looked into. The plaint has to be construed as it stands, without addition
or subtraction of words. If the allegations in the plaint prima facie show a
cause of action, the court cannot embark upon an enquiry whether the
allegations are true in fact.

12.8 If on a meaningful reading of the plaint, it is found that the suit is
manifestly vexatious and without any merit, and does not disclose a right
to sue, the court would be justified in exercising the power under Order
VII Rule 11 CPC.

12.9 The power under Order VII Rule 11 CPC may be exercised by the
Court at any stage of the suit, either before registering the plaint, or after
issuing summons to the defendant, or before conclusion of the trial, as
held by this Court in the judgment of Saleem Bhai v. State of
Maharashtra. The plea that once issues are framed, the matter must
necessarily go to trial was repelled by this Court in Azhar Hussain
(supra).

12.10 The provision of Order VII Rule 11 is mandatory in nature. It states
that the plaint “shall” be rejected if any of the grounds specified in clause
(a) to (e) are made out. If the Court finds that the plaint does not disclose
a cause of action, or that the suit is barred by any law, the Court has no
option, but to reject the plaint.

34. Though the Learned Advocates for the respective parties have
placed reliance on several judgments of various High Courts as well as
the Hon’ble Apex Court, the core issue that falls for consideration
pertains to the invocation of powers under the provisions of Order VII
Rule 11 of the Code of Civil Procedure. Furthermore, regarding the
approach to be adopted, the Learned Advocate for the appellant has
referred to the aforesaid judgments which, in a nutshell, prescribe that
while exercising powers under Order VII Rule 11, the Court is required to

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consider only the averments made in the plaint and, at most, the
documents appended in support thereof. The Court is not permitted to
look into the defense raised by the defendant. Moreover, a plaint can
never be rejected in part, nor can it be rejected on account of the
principles of res judicata, except on the specific grounds enumerated
under the provisions of Order VII Rule 11. Thus, the sum, substance, and
the ratio laid down in the aforesaid decided cases, upon which reliance
has been placed by the Learned Advocates for the parties, cannot be
disputed. However, the application of these principles varies from case to
case. Therefore, the aforesaid judgments, which are nothing but a
repetition of settled legal propositions, are not being dealt with separately.

35. It becomes necessary to consider the powers of the Civil Court in
rejecting a suit summarily under Order VII Rule 11 of the Code of Civil
Procedure. The object and scope of the said provision have been clearly
explained by the Hon’ble Apex Court in Dahiben (Supra). In the said
case, the Civil Court had held the suit to be barred by limitation and
allowed the application under Order VII Rule 11(d). The High Court
affirmed the findings of the Trial Court rejecting the suit as barred by the
law of limitation.

36. While examining the law applicable for deciding an application
under Order VII Rule 11 of the Code of Civil Procedure, the Hon’ble
Apex Court observed that the remedy under the said provision is an
independent and special remedy. The Court is empowered to summarily
dismiss the suit at the threshold, without proceeding to record evidence
and conducting a full trial, if it is satisfied that the action should be

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terminated on any of the grounds contained in the provision. The
underlying object of Order VII Rule 11 is that if no cause of action is
disclosed in the plaint or the suit is barred by limitation under Order VII
Rule 11(a) and (d), the Court would not permit the plaintiff to
unnecessarily protract the proceedings. In such a case, it becomes
necessary to put an end to the sham litigation so that further judicial time
is not wasted.

37. The decision of the Hon’ble Apex Court in Azhar Hussain v.
Rajiv Gandhi, 1986 Supp SCC 315 was also considered, wherein it has
been held that the whole purpose of conferment of powers under Order
VII Rule 11 of the Code of Civil Procedure is to ensure that litigation
which is meaningless and bound to prove abortive should not be
permitted to waste the judicial time of the Court.

38. It was further noted that the power under Order VII Rule 11 of the
Code of Civil Procedure may be exercised by the Court at any stage of
the suit, either before registering the plaint, or after issuing summons to
the defendant, or before conclusion of the trial. The contention that once
issues are framed the Court must necessarily proceed to trial was
specifically repelled by the Hon’ble Apex Court in Azhar Hussain
(Supra).

39. It is held that if the transaction is in breach of the provisions, the
position of law is clear that such transfer is invalid.

40. In the context of the claim of the appellant being hit by or barred
by the law of limitation, and to avoid any repetition of the facts as

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discussed in the preceding paragraphs, the agreements to sell the
performance of which has been sought for by the appellant appear to be
of 1985 followed by the supplementary agreement in the year 1990 with
irrevocable powers of attorney. However, nothing of any material has
been placed on record so as to repose any confidence in the stance raised
by the appellant as to the claim of having acquiescence at the delayed
stage. On the contrary, from the averments made in the plaint it transpires
that the claim of the appellant rests on the aforesaid agreements to sell
and the suit in question seeking performance thereof has been filed in the
year 2019 without there being any plausible and substantial material.
Therefore the conclusion arrived at by the Learned Judge in paragraphs
11 and 12 is justified. While assigning the reasons which disentitle the
appellant to raise the stale claim at a belated stage, that too after a period
of about 29–34 years, the suit has rightly been rejected as barred by the
law of limitation in view of Article 54 of the Limitation Act, according to
which the claim or the suit is to be filed within a period of three years as
falling thereunder.

41. During the pendency of this appeal the appellant has sought
directions and permission that pending hearing of the appeal the appellant
needs to amend the plaint so as to add an alternative prayer seeking
compensation as claimed in lieu of specific performance under Section 21
of the Specific Relief Act, 1963. The said request has been strongly
opposed by the respondents stating and contending that since the entire
claim of the appellant rests on the invalid and time-barred agreements to
sell, the request seeking to alter and add the relief for alternative prayer of
compensation is otherwise hit by the law of limitation.

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42. In the context of the aforesaid, the Learned Advocate for the
appellant, while referring to decision of in the case of K.R. Suresh v. R.
Poornima and Ors, 2025 SCCOnLine SC 1014, where it is has held that
it is open to the Appellate Court, in appropriate circumstances, to permit
amendment of the plaint for incorporating an alternative prayer for
compensation under Section 21 of the Specific Relief Act, even if such a
prayer was not originally made before the Trial Court. It is further
observed that such an amendment does not amount to setting up a new
case but merely enables the Court to grant complete and equitable relief
based on the same cause of action and has relied upon relevant
paragraphs 56 and 58 of the said judgment and has submitted that the
appellate Court in appropriate circumstances may permit the amendment
of the plaint for incorporating an alternative prayer for compensation
under Section 21 of the Specific Relief Act even if such prayer was not
originally made before the Trial Court, and that such amendment would
not amount to setting up a new case but merely enables the Court to grant
complete and equitable relief based on the same cause of action.

43. Per contra, the learned advocate for the respondent has strongly
objected to the request as sought for to permit the appellant to carry out
the amendment at the belated stage, as the very conduct and the
demeanour on the part of the appellant cannot stretch the period of
limitation which otherwise may change the entire nature of the suit,
particularly when the relief sought for by the appellant wholly rests on an
invalid agreement and therefore also the request may not be entertained.
However, in the context of the aforesaid issue as raised during the

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pendency of the appeal, admittedly the claim raised by the appellant
appears to have been raised at a belated stage which otherwise is hit by
the law of limitation. Not only that, the entire claim as discussed in the
foregoing paragraphs solely rests on the agreements to sell with regard to
the restricted tenure of the land which otherwise is hit by the provision of
Section 43 of the Tenancy Act and therefore there was no cause of action
for the appellant even to institute a suit so as to seek the aforesaid
remedies.

44. It is submitted by the Learned Advocate for the appellant that the
reliance by the respondent on the case of Raajratna Ventures Limited v.
Union of India, 2019 SCC Online Guj 6617 and the same has been
challenged before the Hon’ble Apex Court and the same is awaiting its
fate; however, stay on the disputed property has been granted, but the
execution thereof has not been stayed and therefore, the same cannot be
laid and the ratio laid down therein does not come to the rescue of the
respondent. However, to meet with the aforesaid issue, the decision relied
upon by the Learned Advocate in Raajratna Ventures Limited (supra),
wherein, the relevant observations made by the Division Bench of this
Court are required to be reproduced as under:

“2. It was pointed out that vide order dated 23.9.2019 passed in Special
Leave Petition (C) No. 23356 of 2019 the Supreme Court has stayed the
operation and implementation of the said judgment. The attention of the
court was invited to the decision of the Calcutta High Court in the case of
Pijush Kanti Chowdhury v. State of West Bengal, 2007 SCC OnLine Cal
267, wherein the court has held that the effect of the order of stay in a
pending appeal before the Apex Court does not amount to 'any
declaration of law', but is only binding upon the parties to the said
proceedings and at the same time, such interim order does not destroy
the binding effect of the judgment of the High Court as a precedent
because while granting the interim order, the Apex Court had no

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occasion to lay down any proposition of law inconsistent with the one
declared by the High Court which is impugned.

3. Rellance was also placed upon the decision of the Delhi High Court in
Principal Commissioner of Central Excise, Delhi-1 v. Space Telelink
Ltd., (2017) 355 ELT 189 (Del.), wherein the court placed reliance upon
the decision of the Supreme Court in Shree Chamundi Mopeds Ltd. v.
Church of South India Trust Association, (1992) 3 SCC 1 and held that
an order keeping in abeyance the judgment of lower court or authority
does not deface the underlying basis of the judgment itself, i.e., its
reasoning. It was submitted that therefore, the principles enunciated in
the decision of this court in the case of Maxim Tubes Company Pvt. Ltd.
(supra) would not stand defaced.”

45. Thus, in view of the law and principles laid down in the aforesaid
decision, as held and observed therein, that the order of stay in the
pending appeal before the Hon’ble Apex Court does not amount to any
declaration of law, but is only binding upon the parties to the said
proceedings, and at the same time such interim order does not destroy the
binding effect of the judgment of the High Court as a precedent, because
while granting the interim stay the Hon’ble Supreme Court had no
occasion to lay down any proposition of law in consonance with the one
declared by the High Court which is impugned.

46. The Learned Advocate for the appellant has submitted that since
the decision of this Court in the case of Decd Shaikh Ismailbhai
Hushainbhai Through LH V. Vankar Ambalal Dhanabhai in Second
Appeal No.208 of 2021, has been assailed before the Hon’ble Apex Court
and the issue is pending and awaiting the final outcome. However, it is
made clear that reliance placed by the other side on the aforesaid decision
does not come to the rescue of the respondent. It is further submitted that
while considering the facts of the case on hand, the relief as sought for

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may be considered. Apart from the aforesaid, the factum as to the
decision of this Court in the case of Decd Shaikh Ismailbhai (supra)
having been assailed before the Hon’ble Supreme Court and the same
being pending and awaiting the final outcome, nothing short of any such
material has been placed on record by the appellant so as to constrain this
Court to consider the factum of the impugned decisions of the High Court
having been assailed before the Hon’ble Apex Court. In the absence
thereof, the contentions raised therein find no logical force and
consequently stands defaced.

47. Even otherwise, in view of the decisions of our own High Court in
the case of Raajratna Ventures Limited (supra), the same does not come
to the rescue and the contentions deserve to be negated and is hereby
rejected. While considering the observations made by this Court in the
case of Raajratna Ventures Limited (supra) wherein this Court, while
referring to the decision of the Delhi High Court in Principal
Commissioner of Central Excise, Delhi-1 v. Space Telelink Ltd., (2017)
355 ELT 189 (Del.) and the decision of the Hon’ble Supreme Court in the
case of Shree Chamundi Mopeds Ltd. v. Church of South India Trust
Association, (1992) 3 SCC 1, has been pleased to hold that an order
keeping in abeyance the judgment of the lower Court or the authority
does not deface the underlying basis of the judgment itself, i.e., its
reasoning. Thus, in view of the aforesaid, we do not find any substance in
the submissions advanced on the aforesaid issue.

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48. It is also pertinent to note that the suit seeking enforcement of the
agreement which is hit by Section 43 of the Tenancy Act being barred by
law, the plaint is bound to be rejected in view of the mandatory
provisions, and the Court will not lend its aid to a person who brings a
cause of action based on illegal and invalid acts. Therefore, even if a
decree were to be granted in favour of the appellant on the basis of an
illegal/invalid agreement which otherwise is hit by the statute, it would
rather amount to extending active assistance by the Court in enforcing
such agreement which is otherwise contrary to law.

49. While examining the issue, the objects and scope under the head
of the relevant decisions of this Court and the Hon’ble Supreme Court,
including the principles laid down in Dahiben and other authorities
dealing with the test for exercising power under Order VII Rule 11, have
been considered. The underlying object is that if the plaint does not
disclose a cause of action or the claim is barred by any law, the Court is
under a duty to reject the plaint at the threshold.

50. In view of the foregoing discussion, the present appeal stands
dismissed and is disposed of accordingly. Interim relief, if any, stands
vacated.

51. In view of the above, the connected Civil Application No.1 of
2026 and Civil Application No.2 of 2026, also stands disposed of
accordingly.

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52. Record and proceedings, if any, be remitted to the concerned
Court.

(ILESH J. VORA,J)

(R. T. VACHHANI, J)
MVP
Original copy of this order has been signed by the Hon'ble Judges.
Digitally signed by: MITESH VIJAYBHAI PANCHAL(HCD0065), ENGLISH STENOGRAPHER GRADE TWO CLASS TWO, at High Court of Gujarat on 06/08/2026 17:24:27

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