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. 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 new tenure to old tenure for which the plaintiffs have paid an amount of Rs.1,18,85,000/- towards premium. Upon payment of the said amount, that the land was converted from new tenure to old tenure. Sale consideration as indicated in the agreement to sell, has been received which would be to the tune of Rs.3,79,80,000/-, which aspect has been accepted by the Court below while deciding issue nos.2 to 5. 6. Upon payment of the said amount, that the land was converted from new tenure to old tenure. Sale consideration as indicated in the agreement to sell, has been received which would be to the tune of Rs.3,79,80,000/-, which aspect has been accepted by the Court below while deciding issue nos.2 to 5. 6. It is further submitted that when there was some resistance apprehended by the plaintiffs and hence, the suit was filed on 21.07.2015 and as referred earlier, all throughout parties were directed to maintain status quo. It is therefore, urged that same protection be extended while considering the prayer in the Civil Application. 7. On the other hand, Mr Rustom R. Marshall, learned Senior Advocate with Mr Daifraz Havewalla, learned advocate for the respondents submitted that there is nothing like restriction limited either to transfer or impartibility under section 43. Once there is a restriction, there cannot be a transfer and any agreement against the provisions of section 43, would be void and cannot be enforced. Discernibly, as per paragraph 2 of the plaint itself, the restriction of section 43 of the Act of 1948 is attached to the land. Further averments made in the plaint, also suggest that the land, was of a new tenure land and was subject to the provisions of the Bombay Prevention of Fragmentation and Consolidation of Land Holdings Act, 1947. Therefore, it is not in dispute that the land was of a restricted tenure and once the land is of a restricted tenure, any agreement, would be void and unenforceable. 8. It is further submitted that if one goes by the prayer prayed in the plaint, the plaintiffs are seeking specific performance; the refund of the amount which has been paid and permanent injunction. So far as the prayer for specific performance is concerned, the issue is no longer res integra inasmuch as, the full Bench has clearly held that any agreement in contravention of the provisions of section 43 of the Act of 1948, would be void and once the agreement is declared as void, specific performance, cannot be granted. It is further submitted that so far as the prayer for damage and refund is concerned, the said issue has also been settled by the full Bench. It is further submitted that so far as the prayer for damage and refund is concerned, the said issue has also been settled by the full Bench. The contention that the defendants since are benefitted to some extent by order of the Civil Court; and having pocketed the sale consideration cannot be permitted to raise the issue of dismissal of the suit on the principle that no act of Court can prejudice a party, was not accepted. The decision of the full Bench, has been followed by this Court in the case of Virmatiben D/o Kikubhai Bantiya W/o Parshottambhai Chibabhai & Ors. Versus vs. Amjad Fajal reported in 2024 (0) GUJHC 70909 . The learned single Judge, did not accept the contention that the plaintiff’s plaint cannot be rejected in part inasmuch as, the alternative relief of compensation arose itself out of a contract, which was held unenforceable. It is therefore, submitted that when the suit itself is not maintainable and the contract is unlawful, the aspect of the consideration, cannot be gone into. 9. It is submitted that the distinction drawn of seeking permission only at the time of partition, is also misplaced and erroneous. Section 43 of the Act of 1948, provides for an absolute restriction on the transfer of the land and therefore, when there is an absolute restriction, the agreement to sell was itself invalid. It is submitted that the case for N.A. was considered in terms of section 43 of the Act of 1948 read with rule 25C of the Gujarat Tenancy and Agricultural Lands Rules, 1956 (hereinafter referred to as “the Rules of 1956”). Even in the tabulated form indicated in the order, it says about the restriction of section 43. Besides, the aspect of possession, has been taken care of inasmuch as, it has been clearly stated that the applicants are in physical possession of the land since many years and the land, is an open land. 10. It is next submitted that in the whole suit, there is no submission or prayer expressing the apprehension that if the protection is not extended, the interest of the plaintiffs, would be frustrated. Hence, in absence of any apprehension or prayer prayed for in connection with any protection, same may not be granted. 11. Heard learned counsel appearing for the respective parties. 12. Issue rule, returnable forthwith. Hence, in absence of any apprehension or prayer prayed for in connection with any protection, same may not be granted. 11. Heard learned counsel appearing for the respective parties. 12. Issue rule, returnable forthwith. Mr Daifraz Havewalla, learned advocate waives service of notice of rule on behalf of the respondents. 13. Pertinently, the agreement to sell dated 10.09.2011, was executed by the defendants on one hand and the plaintiffs on the other. Bare reading of the agreement to sell suggests that the land, was of a new tenure inasmuch as, as per paragraph 4 of the agreement to sell, reference is made of seeking permission under the Act of 1948 for conversion and for payment of the premium thereof. It further emerges that the possession receipt dated 17.04.2013 has been executed and as per condition no.2, there is a reference of receipt of whole of the amount of sale consideration either by cash and/or cheque. The possession receipt, has been executed in lieu of the consideration received. Rest of the conditions, are consequential, which says about the execution of the sale deed after the land is converted from new tenure to old tenure. It appears that there was some resistance, which led to the filing of the suit by the plaintiffs, seeking specific performance together with application, Exh.5. Together with application, Exh.5, defendant no.2 had filed application, Exh.16. Both the applications, came to be partly allowed by the Court below by passing an order dated 09.09.2016 and the parties, were directed to maintain status quo, which continued all throughout. After the judgment was rendered, the Court below has passed an order dated 01.01.2025, extending the stay till the appeal period, which therefore, has continued. 14. Perceptibly, while deciding the suit, various issues have been formulated by the Court below. Issue no.2 in vernacular and free english translation would be whether the plaintiffs prove that it was agreed between the parties to sell the land for an amount of Rs.3,79,80,000/- and from which, Rs.1,00,00,000/- was received. Issue no.3 was to the effect that whether the plaintiffs prove that they have paid the amount in different installments to the defendants. Both the issues are answered in affirmative. Meaning thereby, the aspect of receipt of the consideration, has been decided against the defendants, which has remained unchallenged till date. 15. Issue no.3 was to the effect that whether the plaintiffs prove that they have paid the amount in different installments to the defendants. Both the issues are answered in affirmative. Meaning thereby, the aspect of receipt of the consideration, has been decided against the defendants, which has remained unchallenged till date. 15. It is no doubt true that the agreement to sell, is of the land of restricted tenure which issue, is no longer res integra. In the case of Decd. Shaikh Ismailbhai Hushainbhai Through Lh. vs. Vankar Ambalal Dhanabhai (supra), the full Bench has considered the question of the enforceability of the agreement hit by section 43 of the Act of 1948. It has been held and observed that any transfer in violation of the statutory provision being invalid or illegal in the eye of law, cannot be enforced by the Civil Court by granting a decree of specific performance on conditional basis even if the defendant is benefitted to some extent by the order of the Civil Court. It is sought to be argued that the agreement, was void, and hence, could not have been enforced; however, the fact remains that the agreement to sell is of the year 2011 when there were divergent views about the validity of the agreement executed in contravention of the provisions of section 43 of the Act of 1948. 16. Hence, with a view to striking a balance, this Court deems it appropriate that the parties, maintain status quo qua the land in question with a rider that in future, if the defendants are proposing to sell or transfer, it should be with the prior permission of the Court. Needless to clarify that the above observations, are prima facie and tentative in nature. 17. Civil Application accordingly, stands partly allowed. Rule is made absolute to the aforesaid extent. No order as to costs.