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Judgment
K.A. Puj, J.—The petitioners have filed this petition under Article 227 of the Constitution of India praying for quashing and setting aside the order passed by the learned 3rd Jt. Civil Judge (S.D.) at Surat dated 3.10.2003 below an application Ex.23 in the Regular Civil Suit No. 308 of 2003 whereby he refused to pass conditional decree in terms of the compromise purshis.
This Court has issued notice on 16.12.2003 and the petitioners were permitted to join State of Gujarat as party respondent No. 6 to be served through the Collector, Surat. The Court has issued notice for final disposal of the petition. The petition was thereafter admitted and Rule was issued on 22.3.2004. On behalf of the respondent Mr.Bipin P. Satapara has filed his appearance and on behalf of the newly joined respondent No. 6, Assistant Government Pleader has filed his appearance.
It is the case of the petitioners that the original plaintiff had filed suit being Regular Civil Suit No. 308 of 2003 seeking inter alia specific performance of the agreement to sell in relation to suit property. The case of the petitioners before the trial Court was that they are in possession of the property admeasuring 3509 sq.yards bearing the old revenue Survey No. 393/1 and having new revenue Survey No. 402 situated at Village: Vasue, Taluka: Choryasi, Dist. Surat. The said property was owned by one Haribhai Jelabhai Ahir, who was husband of the respondent No. 1 and father of the respondents No. 2 to 5. The said Haribhai Jelabhai Ahir executed one agreement to sell dated 12.11.1979 in favour of the petitioner No. 7 and deceased Shri Karmsihbhai Maijibhai, who was husband of the petitioner No. 1 and father of the petitioners No. 2 to 6. The consideration of the said property was valued at Rs. 39,999/-. The said amount was stated to have been paid to the original land owner in two installments and hence possession was given with irrevocable power of attorney in favour of the petitioner No. 7 and deceased Shri Karmsihbhai Maijibhai. Since then the petitioners are enjoying the possession of the suit premises and paying the government taxes regularly.
It is the case of the petitioners that Shri Karmsihbhai Maijibhai Desai expired on 19.4.1996. The original owner of the suit land also expired and hence name of legal heirs of deceased Haribhai were entered into the Village form No. 7/12.
Since the petitioners were apprehending that the legal heirs of the original owner of the suit property were trying to transfer the suit property to third parties and to interfere in the possession of the original plaintiff of the suit land the petitioners filed Regular Civil Suit No. 308 of 2003 in the Court of learned Civil Judge (S.D.) Surat for specific performance of the contract and for permanent injunction against the respondents. Upon serving of the summons of the Court the respondents approached their advocate.
It is also the case of the petitioner that because of efforts put up by the advocate appearing for the respective parties to the suit all the parties agreed for settlement and submitted written compromise below Ex.23 in the Court in consonance with Order 23 Rule 3 of the C.P.C. The learned trial Judge after considering the provisions contained in Bombay Tenancy And Agricultural Lands Act rejected the said compromise purshis vide his order dated 3.10.2003. It is this order, which is under challenge in the present petition.
Mr. N.V. Gandhi, learned advocate appearing for the petitioners, has submitted that on perusal of the impugned order it appears that the learned trial Judge has misread the provisions of Bombay Tenancy and Agricultural Lands Act especially provisions of Section 63 and 84(c) of the said Act. It is further submitted that Section 63 speaks for the permission to be obtained by the purchaser who is not agriculturist. The learned trial Judge has come to the conclusion that the petitioner No. 7 - Jivanbhai is a farmer whereas Karamsihbhai the predecessor of petitioners No. 1 to 6 was not a farmer on the basis of averments made in the agreement to sell. On the basis of this conclusion arrived at by the learned trial Judge he took the view that the petitioners could not purchase the land without permission of the competent authority u/s 63 of the Bombay Tenancy and Agricultural Lands Act. Mr.Gandhi has submitted that there is specific provisions in agreement to sell to the effect that the parties to the said agreement, if necessary, will take prior permission of the State Government before execution of the Sale Deed. He has, therefore, submitted that the learned trial Judge could have imposed condition which is permissible under the law.
In support of his submission Mr.Gandhi relied on the judgment of this Court in the case of Shah Jitendra Nanalal v. Patel Lallubhai Ishverbhai reported in 1985 GLH 53, wherein it is held that the passing of a conditional decree for specific performance of the obligation of the holder to transfer vacant land in excess of ceiling limit held by him subject to examination being obtained u/s 20 is permissible. The Court further held that so long as the provisions declaring the transfer of vacant land in excess of ceiling limit u/s 5(3) as void is subject to the right to move for exemption, obtain exemption and transfer the property, the power of an owner of vacant land in excess of the ceiling limit to ''alienate'' such land is dormant in him and such power could be exercised by him in case he seeks exemption, satisfies the Government that the grounds for exemption exist and obtains such exemption. That being the case, a decree cannot be defeated on the ground that ''transfer'' inter partes would not be possible. The possibility of obtaining exemption survives till the notification u/s 10(2) of the Act is issued. That being the situation, until then, a plaintiff seeking specific performances cannot be told that the terms of the contract cannot be fulfilled.
Mr. Gandhi has further submitted that while rejecting the application for passing conditional decree the trial Court has relied on the decision of Jarkhand High Court in the case of Smt. Usha Pandey and Anr. v. State of Bihar reported in 2002(1) C.C.C. 109. However, the said decision has no application to the facts of the present case. In the said case sale deed was executed in violation of the provisions of the Urban & Land Ceiling Act whereas in the present case there is no question of any excess land and also the specific performance is prayed for and conditional decree was passed subject to the condition that prior permission of the State Government would be obtained by the parties. He has, therefore, submitted that the petitioners'' case is squarely covered by the Full Bench decision of this Court. The impugned order passed by the trial Court is required to be quashed and set aside.
Mr. Bipin Satapara, learned advocate appearing for the respondent No. 1 has submitted that the impugned order is required to be set aside. The matter may be remanded to the trial Court to take fresh view in light of the Full Bench decision and after ascertaining the wishes of the parties a conditional decree would be passed as prayed for.
Despite service of notice of Rule no reply affidavit is filed on behalf of the State Government nor any objection is raised.
Having heard learned advocates appearing for the parties and having gone through the impugned order passed by the learned trial Judge and having considered the Full Bench decision of this Court, the Court is of the view that the view taken by the learned trial Judge is contrary to the Full Bench decision of this Court. The conditional decree can certainly be passed. It is specifically mentioned in the agreement to sell that before execution of the sale deed prior permission of the State Government would be obtained. If the State Government would not grant such permission there is no question of execution of the sale deed.
In light of the above factual and legal position, the Court is of the view that the impugned order passed by the trial Court is not sustainable at law and hence it is hereby quashed and set aside. The matter is remanded to the trial Court to examine the entire matter afresh and after ascertaining the wishes of the parties, conditional decree as prayed for may be passed. If necessary the State Government be also joined as party and whether the State Government is inclined to grant such permission that can be ascertained from the State Government and conditional decree as prayed for may be granted in the matter.
It is open for the parties to move to the learned trial Judge for early disposal of the suit in terms of the order. If such a request is made, the same shall be considered and the suit may be disposed of as expeditiously as possible.
Subject to the aforesaid directions and observations this petition is accordingly allowed. Rule is made absolute to the above extent without any order as to costs.