JUDGMENT : SANGEETA K. VISHEN, J. 1. Captioned appeal, is filed against the judgment dated 01.04.2022 (hereinafter referred to as “the impugned judgment”) passed by the learned Additional Senior Civil Judge, Ahmedabad (Rural) in Special Civil Suit no.269 of 2018 (hereinafter referred to as “the suit”). Along with the captioned appeal, civil application (for stay) no.1 of 2023, was preferred and this Court, on 27.04.2023, has passed the following order: “FIRST APPEAL No. 1731 OF 2023 ADMIT. Mr. Ramesh D. Devnani, learned advocate waives service of notice of admission on behalf of the respondents. Record & Proceedings to be called from the Court of 4 th Additional Senior Civil Judge, Ahmedabad (Rural) on or before 12.06.2023. CIVIL APPLICATION No. 1 OF 2023 Notice returnable on 16.06.2023. It is noticed by us that the trial Court has extended the stay by order dated 15.02.2023 till the limitation of appeal. It is also not in dispute that the stay has been continued during pendency of the suit. The same shall continue till next date of hearing.” Though served, defendant no.1 did not appear. Upon issuance of the notice and during the pendency of the appeal, the defendant nos.2 to 5 have preferred civil application (for vacating interim relief) no.1 of 2025. Hence, the captioned appeal is heard finally as hearing of civil application (for vacating interim relief) no.1 of 2025, is likely to consume equal amount of time. For the sake of convenience, the parties are referred to as per their original status in the suit. 2. Suit, had been filed by the plaintiffs seeking specific performance of the registered agreement to sell dated 30.11.2015 executed with regard to 1821 sq. mtrs. of the land (hereinafter referred to as “the land in question”), bearing survey / block no.311, final plot no.70 totally admeasuring 3642 sq. mtrs. before the trial Court. The case of the plaintiffs was that despite there being registered agreement to sell executed in favour of the plaintiffs, the defendant no.1 and others executed a registered sale deed dated 24.04.2018 in favour of the defendant nos.2 to 5. Being aggrieved, the plaintiffs have filed the suit which came to be dismissed. 3. Mr Sikander Saiyed, learned advocate appearing for the appellants, submitted that it was agreed vide registered agreement to sell; land admeasuring 1821 sq. mtrs. Being aggrieved, the plaintiffs have filed the suit which came to be dismissed. 3. Mr Sikander Saiyed, learned advocate appearing for the appellants, submitted that it was agreed vide registered agreement to sell; land admeasuring 1821 sq. mtrs. to be sold for the consideration of Rs.90,13,950/- of which the plaintiffs, have paid an amount which aspect, is undisputed. It is clear from the recitals in the agreement to sell that the plaintiffs have paid Rs.10 lakhs by way of cheque and Rs.31 lakhs by way of cash and that is how, total Rs.41 lakhs, had been paid to the defendant no.1. It is submitted that it is clear from the agreement to sell that out of 3642 sq. mtrs. of land only the share of defendant no.1 i.e. land admeasuring 1821 sq. mtrs. was agreed to be purchased and sold by the defendant no.1 and not entire parcel of the land of 3642 sq. mtrs. The agreement to sell was followed by registered Power of Attorney executed in favour of the plaintiffs for the land in question, which makes a reference of the payment made by the plaintiffs to the defendant no.1. 3.1 It is submitted that disregarding the two registered documents and the conditions contained therein, the learned Judge, insisted for the evidence which otherwise, could not have been placed by the plaintiffs. It is submitted that considering the receipt of the amount, nothing else, was required to be proved by leading evidence. It is further submitted that the learned Judge, without properly considering the documents, has concluded that the plaintiffs, have failed to prove the payment made to the defendant no.1. It is further submitted that had the agreement to sell and the recitals therein so also the registered Power of Attorney considered, the learned Judge, would not have given the erroneous findings. The learned Judge, without properly appreciating the evidence, oral and documentary and without considering the provisions contained in the Code of Civil Procedure, 1908 (hereinafter referred to as “the Code”), has decided the issues. The learned Judge, without properly appreciating the evidence, oral and documentary and without considering the provisions contained in the Code of Civil Procedure, 1908 (hereinafter referred to as “the Code”), has decided the issues. 3.2 It is further submitted that it was agreed between the parties that since the land in question was of a new tenure, it could not have been sold unless the same was converted into old tenure and as the defendant no.1 was not capable of paying the premium, the agreement to sell, was executed facilitating the payment of conversion charges and for which purpose, the amount was accepted by the defendant no.1. Moreover, the other co-owners, have also executed a release deed dated 15.07.2013. As per condition no.10, it was clearly stated that obligation was upon the defendant no.1 to get the land converted within the time schedule so also to pay the premium; however, the defendant no.1 instead of getting the land converted, disposed of the land in question in favour of the defendant nos.2 to 5. It is further submitted that the defendant no.1 had pocketed the money; and in a surreptitious manner, simultaneously sold the land in question to different parties. It appears that lastly, the land in question has now been sold in favour of the defendant nos.2 to 5. It is therefore urged that the impugned judgment, is not tenable and deserves to be quashed and set aside. 4. On the other hand, Mr Chinmay M. Gandhi, learned advocate, has submitted that the defendant nos. 2 to 5 are bona fide purchasers by executing a registered sale deed from all the owners and have paid the total consideration. The defendants therefore are clamouring for their right to utilize the land; however, owing to the stay which was operating during the pendency of the suit and the stay of the judgment extended from time to time, they are deprived of using the land in question, more so despite the decree passed in their favour. 4.1 While inviting attention of this Court to the impugned judgment, it is submitted that various issues were formulated, namely, whether the plaintiffs prove that plaintiffs have paid an amount of Rs.90,13,950/- pursuant to the agreement to sell to the defendant no.1. Another issue, was regarding readiness and willingness of the plaintiffs to perform their part of contract in connection with the agreement to sell. Another issue, was regarding readiness and willingness of the plaintiffs to perform their part of contract in connection with the agreement to sell. Issue, was also formulated regarding validity and legality of the sale deed dated 24.04.2018 executed in favour of defendant nos.2 to 5. The issue as regards non-joinder of necessary parties was formulated so also the issue, regarding the tenure of the land in question rendering the agreement to sell in favour of the plaintiffs illegal and unenforceable. Issue nos.1, 2, 4, 5 and 7 were decided in negative, against the plaintiffs whereas, issue nos.6 and 6A were decided in affirmative and in favour of the defendant nos.2 to 5. 4.2 It is submitted that the issue nos.1 and 6A were decided together and evidence was considered clearly observing that at the relevant point of time, other co-owners of the land in question were there as per entries in village form no.7/12; however, the defendant no.1, has neither taken the consent nor the signature of the other co-owners and hence, there cannot be specific performance of the agreement to sell. From the revenue record produced by way of evidence of the years 2014-2015 to 2016-2017, it is clear that when the agreement to sell was executed in the year 2015, the names of other co-owners, were appearing. It is further submitted that the learned Judge, has in detail, considered the joint ownership of the land in question and execution of the agreement to sell without their consent. It is only thereafter it is concluded that the agreement to sell could not have been executed. For the proposition that the agreement has no legal sanction, if vendor, at the time of execution of the agreement has no authority to sell the property, reliance is placed on the judgment in the case of S. Abdul Khader vs. Abdul Wajid , 2008 AIR SCW 6645 . 4.3 It is next submitted that so far as the aspect of payment is concerned, the plaintiff no.1 in his evidence has clearly stated that he is working as a Manager at the petrol pump owned by his father and is receiving a monthly salary of Rs.3,00,000/-. Moreover, the income tax return of the plaintiff shows the annual income of Rs.8,62,506/- only and in the returns, there is no reference of Rs.41 lakhs paid to the defendant no.1. Moreover, the income tax return of the plaintiff shows the annual income of Rs.8,62,506/- only and in the returns, there is no reference of Rs.41 lakhs paid to the defendant no.1. It is also not clear from where such a huge amount is received. 4.4 While adverting to the aspect of the tenure of the land in question, it is submitted that admittedly, the land, is of a restricted tenure and in absence of any permission, it could not have been agreed to be sold by way of agreement to sell. It is submitted that in paragraph 12 of the impugned judgment, oral evidence of the plaintiff no.1 has been discussed. He has admitted that when the land was agreed to be purchased, there were other co-owners; however, there is no writing executed on their behalf. It is submitted that when the plaintiffs have admitted about their knowledge; about the tenure of land in question and if the land in question is of a restricted tenure, there could not have been any agreement. 4.5 Reliance is placed on the judgment in the case of Decd Shaikh Ismailbhai Hushainbhai through Lh vs. Vankar Ambalal Dhanabhai , 2024 (1) GLH 222 . It is submitted that the Full Bench, has clearly held that section 43 of the TENANCY ACT not only prohibits transfer by sell, lease etc. but it expressly prohibits the execution of the agreement to sell in writing to transfer land without complying with the conditions as contained in section 43. The full bench has held and observed that cause of action for a suit for specific performance of the agreement of refusal by the vendor inspite of readiness and willingness of the vendee to execute the sale deed, will not be existing in a case where the agreement itself is invalid being hit by section 43(1) of the TENANCY ACT , inasmuch as, no cause of action can be said to have arisen asking the defendant to perform his part of the contract when there is no sanction and the agreement itself is illegal or invalid. 4.6 Reliance is also placed on the judgment in the case of Ganpatlal Manjibhai Khatri vs. Manguben Babaji Thakor , 2019 (0) AIJEL-HC-241533 wherein, the Division Bench, has held and observed that under section 43 of the TENANCY ACT , there is a total prohibition of even entering into an agreement in writing for the purpose of sale. The Division Bench, has further observed that section 43 of the TENANCY ACT makes it very clear that any transfer or partition or any agreement of transfer or any land or any interest therein in contravention of the provisions of section 43, shall be invalid. It has been held that the jurisdiction to order specific performance of contract is based on the existence of a valid and enforceable contract. Where a valid and enforceable contract has not been made, the Court will not make a contract for them. Specific performance will not be ordered if the contract itself suffers from some defect which makes the contract invalid or unenforceable. Reliance is also placed on the judgment of the co-ordinate Bench in the case of Naranbhai Kanjibhai Gajera vs. Vinodbhai Shankarbhai Patel , 2023 (2) GLH 265 . Reiterating the principle that if agreement is in contravention of section 43 of the TENANCY ACT , no enforcement can be sought for by filing the suit for specific performance. 4.7 While adverting to the agreement to sell, it is submitted that the agreement to sell, is only signed by the defendant no.1. Though there is a reference of consideration, no documents were produced substantiating the payment. Therefore, not only on the ground of bar of section 43 of the Gujarat Tenancy and Agricultural Lands Act, 1948 (hereinafter referred to as “the TENANCY ACT ”) but also on the ground of no evidence, that the learned Judge, has decided the issue nos.1 and 6A against the plaintiffs and in favour of the defendant no.1. 4.8 It is further submitted that the plaintiffs have failed to prove willingness to perform their part of contract and have not produced single evidence let alone averments in the plaint. It is further submitted that the learned Judge, therefore, has answered issue no.2 against the plaintiffs. 4.8 It is further submitted that the plaintiffs have failed to prove willingness to perform their part of contract and have not produced single evidence let alone averments in the plaint. It is further submitted that the learned Judge, therefore, has answered issue no.2 against the plaintiffs. The learned Judge, was also of the opinion that as the plaintiffs have not been able to prove the payment in cash to the defendant no.1, it cannot be accepted that all along the plaintiffs, were ready and willing to perform their part of contract. 4.9 It is further submitted that so far as the sale deed executed in favour of the defendant nos.2 to 5 is concerned, all the owners of the land in question, are party to the sale deed. Agreed amount of Rs. 3 crore and odd, has been paid to the respective co-owners as mentioned in the sale deed and the evidence supporting the payment, is also produced vide Exhibit 62 i.e. statement of the Dena Bank indicating the payment of Rs.91,80,000/- and the passbook, which substantiates the payment to the respective owners. Besides, detail was provided in a tabular form - Exhibit 71 indicating payment to the respective owners together with the details of the cheques and the amount contained therein. Therefore, there was sufficient evidence available on the record to prove that the land in question, has been purchased by the defendant nos.2 to 5 after making necessary payment. The learned Judge, accordingly, had decided the issue no.4 in favour of the defendant. 4.10 It is further submitted that the suit, is barred by non-joinder of necessary party; for, the agreement to sell was executed only with the defendant no.1 and despite the fact that there were other co- owners; in the suit seeking specific performance only the defendant no.1 has been joined as a party. Also, in absence of any partition by way of meats and bounds, it would be difficult to indicate the share of the defendant no.1 and therefore, the co-owners were definitely necessary parties. Also, the challenge is to the registered sale deed executed in favour of the defendant nos.2 to 5 by all the co-owners including the defendant no.1 of the land in question. Having challenged the sale deed, without joining other co-owners, the suit would suffer from the vice of non-joinder of necessary parties. Also, the challenge is to the registered sale deed executed in favour of the defendant nos.2 to 5 by all the co-owners including the defendant no.1 of the land in question. Having challenged the sale deed, without joining other co-owners, the suit would suffer from the vice of non-joinder of necessary parties. It is therefore urged that no error has been committed by the learned Judge. The learned Judge, has in detail discussed the evidence and has answered the issues accordingly. In absence of any illegality committed, the impugned judgment does not warrant interference and the appeal may kindly be dismissed. 5. Mr Sikander Saiyed, learned advocate, in a brief rejoinder, has submitted that Exhibit 31 - agreement to sell, clearly speaks about the payment including the payment of Rs.10 lakhs by way of cheque and remaining amount in cash. Also, as per condition no.8, it was agreed between the parties, to convert the land from new tenure to old tenure and before the defendant no.1 could do it, the sale deed has been executed. It is submitted that the court below, has neither considered the covenant of the Banakhat nor the Power of Attorney which were the registered documents and could not have been discarded. Also, it is not that the defendant no.1 has sold the whole of the land in question but only his share to an extent of 1821 sq. mtrs. out of total 3642 sq. mtrs. It is submitted that the Full Bench judgment, though is not challenged; the said judgment was substantially referred to in the case of Bharatbhai Devashibhai Ukani vs. Vinaben Babaji passed in First Appeal No. 4023 of 2023 which, is subject matter of challenge before the Apex Court. The Apex Court, although has not granted stay but directed maintenance of status quo with respect to the property involved. While concluding, it is submitted that the learned Judge, has committed an error in rejecting suit and hence, the appeal, be allowed accordingly. 6. Having heard the learned advocates appearing for the respective parties and having perused and considered the paper- book, additional paper-book and Record & Proceedings of the suit, the following points arise for the determination of this Court: (i) Whether the learned Judge has erred in deciding the aspect of payment by the plaintiffs. 6. Having heard the learned advocates appearing for the respective parties and having perused and considered the paper- book, additional paper-book and Record & Proceedings of the suit, the following points arise for the determination of this Court: (i) Whether the learned Judge has erred in deciding the aspect of payment by the plaintiffs. (ii) Whether the agreement to sell was hit by section 43 of the TENANCY ACT and can it be said that the agreement to sell was enforceable especially in view of the settled principle. (iii) Whether the issue of readiness and willingness was properly considered and decided by the learned Judge while answering in negative. (iv) Whether learned Judge erred in upholding the sale deed dated 24.04.2018 executed in favour of defendant nos.2 to 5. (v) Whether the suit has been rightly dismissed on the ground of non-joinder of necessary parties. 7. Before answering the abovereferred issues, brief facts would be necessary and are thus; the suit, revolves around the agreement to sell and the Power of Attorney executed in the year 2015 and 2016, respectively, so also the registered sale deed dated 24.04.2018. The plaintiffs agreed to purchase the land in question for the consideration of Rs.90,13,950/- and out of which, an amount of Rs.41 lakhs has been paid. Further case of the plaintiffs is that the Power of Attorney has been executed dated 17.10.2016 authorizing the plaintiffs to deal with the land in question as indicated therein. The case setup by the plaintiffs is that since the defendant no.1 was not having sufficient funds for getting the land converted, the defendant no.1 utilized the amount paid towards premium by the plaintiffs. But, surreptitiously and behind the back of the plaintiffs, together with the other co-owners had executed registered sale deed dated 24.04.2018 in favour of defendant nos.2 to 5. Placing reliance on the registered agreement to sell and the Power of Attorney and the factum of paying the amount of consideration, the plaintiffs have filed the suit. 8. The defendant nos.2 to 5 who happens to be the subsequent purchasers, have vehemently opposed the suit by filing their response. Suppression is alleged on the ground that the defendant no.1 is not the exclusive owner of the land in question. 8. The defendant nos.2 to 5 who happens to be the subsequent purchasers, have vehemently opposed the suit by filing their response. Suppression is alleged on the ground that the defendant no.1 is not the exclusive owner of the land in question. In absence of any partition by meats and bounds, the defendant no.1, had no authority to have disposed of the land in question by individually entering into any contract. Also, the agreement to sell does not contain signatures of other co-owners except the defendant no.1. Without obtaining any confirmation and consent of the other co- owners, the registered agreement to sell has been executed by the defendant no.1 and hence, it cannot be enforced. Stand is also taken that the suit for specific performance is barred by limitation. It is further stated that after the widow of Kantiji Thakor passed away, her legal heirs were brought on the record including defendant no.1. Necessary entries were posted in the revenue record and were certified and as on the date of execution of the agreement to sell, their names were reflected in the revenue record. Specific stand, is taken that the defendant nos.2 to 5 by virtue of the registered sale deed dated 24.04.2018, have acquired the exclusive ownership of the land in question and hence, the same may not be interfered with. 9. Following issues were framed in vernacular, free english translation would be thus: 1 Whether the plaintiffs prove that the plaintiffs have paid an amount of Rs.41 lakhs in connection with the registered agreement to sell for which, the consideration agreed, was Rs.90,13,950/- ? 2 Whether the plaintiffs prove that the plaintiffs were ready and willing to perform their part of contract ? 3 Issue no.3, since has been discarded, it is not referred to. 4. Whether the plaintiffs prove that the defendant no.1 has executed a registered sale deed dated 24.04.2018 in favour of defendant nos.2 to 5 which is illegal and unauthorized ? 5 Whether the defendant proves that the suit of the plaintiffs is barred by the limitation ? 6 Whether the defendant proves that the suit of the plaintiffs is barred by non-joinder and mis-joinder of necessary party ? 5 Whether the defendant proves that the suit of the plaintiffs is barred by the limitation ? 6 Whether the defendant proves that the suit of the plaintiffs is barred by non-joinder and mis-joinder of necessary party ? 6A Whether the defendant proves that the land in question, was of a new tenure and therefore, agreement to sell in favour of the plaintiffs, is illegal and is not capable of being enforced in law; 7 Whether the plaintiffs are entitled to the reliefs as prayed for. 10. In the cross-examination – Exhibit 29, the plaintiff no.1 has admitted that at the time of executing the agreement to sell, the land in question was of a new tenure. The plaintiff when was shown the agreement to sell – Exhibit 31 has admitted that the description and the boundaries of the land in question are absent. Further, the plaintiff admits that when the land in question was purchased, he was not aware as to how many owners were there as per 7/12 form but, in same breath, the plaintiff no.1 recognises existence of other co-owners. The plaintiff no.1, further admits that he has not taken consent of the other co-owners but voluntarily suggest that there is a reference in the agreement to sell about other co-owners releasing their rights. Statement is made that an amount of Rs.10 lakhs has been paid to the defendant no.1 expressing willingness to produce the bank statement. The plaintiff states that the day on which he has paid an amount of Rs.10 lakhs to the defendant no.1; on the very same day an amount of Rs.31 lakhs in cash was paid but, he does not remember as to whether the amount was paid by him or his mother and needs to confirm. The plaintiff was also not sure whether the amount has been shown in the income-tax returns or not and has expressed willingness to produce the same. While denying that it is not correct that the payment is not made, it is stated that he does not remember as to when and how the amount has been paid. It is the case of the plaintiff that approximately Rs.41 lakhs has been paid by way of cash but for substantiating it, confirmation would be required from his accountant of which, he had shown willingness to do. 11. It is the case of the plaintiff that approximately Rs.41 lakhs has been paid by way of cash but for substantiating it, confirmation would be required from his accountant of which, he had shown willingness to do. 11. Adverting to the evidence of defendant no.4, it is required to be noted that defendant no.4 has filed his evidence – examination- in-chief on affidavit raising objection that land in question was of a restricted tenure and in absence of any permission under section 43 of the TENANCY ACT , the agreement to sell could not have been executed; rendering the agreement to sell as illegal and unenforceable. The examination-in-chief further states that in the revenue record, there was an entry no.5234 posted and certified on 23.06.2015 and the names of the owners, that is, the heirs of Sitaben Wd/o. Kantiji Thakor were available on the record so also in the village form no.7/12. The plaintiffs, with a mala fide intent, have neither taken their signatures nor confirmation and when, the agreement does not contain the signatures or consent of all the co- owners, it is null, void and unenforceable. Stand is taken that the claim of amount having paid in cash, lacks bona fides as no such amount is reflected in the books of accounts and therefore, it is unbelievable that how such a huge amount has been paid. Clarifying the stance in respect to the sale deed dated 24.04.2018, it has been stated that the defendant nos.2 to 5 are the bona fide purchasers and valid sale deed has been executed by all the co-owners jointly for an amount of Rs.3,51,00,000/- paid by way of a cheque. Prior to the sale deed, the land was converted from the new tenure to old tenure, after taking necessary permission and payment of premium of Rs.91,80,000/- to the State Government and its authorities. The restrictions, were waived and hence, the sale in favour of the defendant nos.2 to 5 was legal. It is also stated that currently, in the village form no.7/12 and other revenue record, the names of defendant nos.2 to 5 are shown as owners including entries in village form no.6. 12. In the cross-examination of the defendant no.4, it is confirmed that the land in question is purchased in the year 2018 in his name and in the name of his family members. 12. In the cross-examination of the defendant no.4, it is confirmed that the land in question is purchased in the year 2018 in his name and in the name of his family members. It is stated that order has been passed on 16.03.2018 which, is for the purpose of paying the premium but not for the conversion of the land. It is agreed that the sale deed, has been executed on 24.04.2018, after the order of conversion was passed. It is also stated that amount has been paid on 23.02.2018 and while considering the evidence Exhibit 54, it is stated that in the year 2015, Shakraji Nanaji, Gomiben Kantibhai, Pujaji Kantibhai and Dipak Kantibhai were co-owners. In his further cross, he has confirmed the stand taken in paragraph 10 of the examination-in-chief. It is stated that in the sale deed executed in his favour, he does not remember as to whether it has been signed by all the co-owners and the same can be confirmed after seeing the document. He has denied that the amount of Rs.91,80,000/- which has been referred to in the document at Exhibit 57 is only qua 2550 sq. mtrs. of land. He has also stated that the document has been executed for whole of 3642 sq. mtrs. And it is not correct that it is restricted to 2550 sq. mtrs. 13. Exhibits 63 to 66, are the bank statements of the respective defendants indicating payment made to the defendant no.1 and other co-owners. Document Exhibit 63 substantiates the payment of Rs.21,92,250/- vide four entries. Bare perusal of the evidence of the defendant no.4, clearly suggest that sale deed has been executed in his favour and his family members and the payment has been made to the respective co-owners. Except this, nothing contrary has been pointed out in his deposition. Exhibit 71, is a tabulated form giving summary of the payments made by the defendant nos.2 to 5 in favour of the defendant no.1 and other four co-owners. Details, contain the cheque number, the date of the cheque and the amount. Income-tax returns of the year 2019-2020 of the defendant nos.2 to 5, are also placed on the record indicating the investment in land. 14. Details, contain the cheque number, the date of the cheque and the amount. Income-tax returns of the year 2019-2020 of the defendant nos.2 to 5, are also placed on the record indicating the investment in land. 14. Furthermore, the transaction of the sale deed dated 24.04.2018 was reflected in the revenue record vide entry no.5871 dated 26.04.2018 which was objected by the objectors including the plaintiffs pointing out the agreement to sell executed with respect to 1821 sq. mtrs. of land out of 3642 sq. mtrs. of land by the defendant no.1 in their favour. Objection is also raised about defendant no.1 executing the registered sale deed dated 24.04.2018 in collusion with defendant nos.2 to 5. It has also been stated that since the title of the land in question is not clear, the mutation of entry no.5871 dated 26.04.2018 be cancelled. The City Mamlatdar, rejected the objections in view of the registered sale deed executed in favour of defendant nos.2 to 5 and thereby, entry no.5871 dated 26.04.2018 came to be certified by passing order dated 29.09.2018 – Exhibit 68. The said order, was subject matter of challenge before the Deputy Collector; who has dismissed the appeal by passing an order – Exhibit 67 and thereby, the order of the Mamlatdar, stood confirmed. 15. Adverting to the impugned judgment, notably, the issue nos.1, 2, 4, 5 and 7, were decided against the plaintiffs and issue nos.6 and 6A were decided in affirmative and in favour of the defendant nos.2 to 5 while issue no.7, was decided in negative and against the plaintiffs. 16. Issue nos.1 and 6A were decided together by the learned Judge. After giving the factual narration, the learned Judge, considered the cross-examination of the plaintiff No.1 – Exhibit 29 and noted about plaintiff no.1 working as a manager on the petrol pump being managed by his father and receiving salary of Rs.3 lakhs. Admission of the plaintiff no.1 was considered that at the time of the agreement to sell, there were other co-owners; however, there is no document executed with them. Qua the cash payment, the learned Judge, was of the opinion that as per the income-tax return of the year 2016, the total income of the plaintiff shown is only Rs.8,62,506/-. Admission of the plaintiff no.1 was considered that at the time of the agreement to sell, there were other co-owners; however, there is no document executed with them. Qua the cash payment, the learned Judge, was of the opinion that as per the income-tax return of the year 2016, the total income of the plaintiff shown is only Rs.8,62,506/-. If the income is of Rs.3 lakh per month, it would be Rs.36 lakh p.a. Moreover, in the income-tax return, the plaintiff, has not shown the amount of Rs.49 lakh paid by way of cash. Therefore, it was not clear from where the plaintiffs have derived such a huge amount of Rs.49 lakh. While discussing the issue of co- ownership, the learned Judge has considered the evidence, Exhibits 51 and 53. It has been discussed that after the death of mother of the defendant no.1, the names of the heirs, namely, Thakor Punjabhai Kantibhai, Gomiben Kantibhai, Thakor Dipakbhai Kantibhai were posted in the revenue record during the years 2014- 2015, 2016-2017 for the land in question apart from the name of the defendant no.1. Therefore, when the agreement to sell was executed on 30.11.2015, only the defendant no.1 was party and not other co-owners. Although, in the Power of Attorney – Exhibit 32, reference is of entry no.5372 indicating Gomiben Kantibhai and Punjabhai Kantibhai releasing their right, but the said entry was certified on 03.06.2016 and hence, at the time of execution of agreement to sell, the names of other co-owners were existing in the revenue record, despite which, neither there is any confirmation nor consent taken of those co-owners. 17. In the case of S. Abdul Khader vs. Abdul Wajid (supra), the facts were almost identical. The High Court was of the opinion that agreement to sell between the respondent and the petitioner was not binding on the respondent no.3 as respondent no.1 did not possess marketable title to the suit property. It was also observed that the agreements entered into could not be enforced as respondent no.1 was not the owner of the property and lacked the authority to execute any agreement to sell. 18. With respect to the issue of tenure of the land, the learned Judge, has referred to various judgments and concluded that as on 30.11.2015, the land in question was of a restricted tenure as clearly stated in the agreement to sell. 18. With respect to the issue of tenure of the land, the learned Judge, has referred to various judgments and concluded that as on 30.11.2015, the land in question was of a restricted tenure as clearly stated in the agreement to sell. Even the plaintiff no.1, admitted in his evidence that the land, was subject to restrictions under section 43 of the TENANCY ACT . At this stage, it is pertinent to briefly refer to the agreement to sell and the relevant conditions therein. The agreement to sell pertained to 1821 sq. mtrs. of land out of 3642 sq. mtrs. The opening paragraph of the agreement, makes a specific reference to the fact that the land, is of a new tenure. Besides condition no.8 and condition no.10 suggest that the land is of a new and impartible tenure; unless converted into old tenure by making the payment of the premium. Therefore, the agreement to sell of the land in question of which the plaintiffs are seeking specific performance, is of a restricted tenure and it is a settled legal position that any such agreement which is not in terms of section 23 of the Indian CONTRACT ACT , 1872 (hereinafter referred to as “the Act of 1872”), being unlawful; is unenforceable in law. 19. Since the plaintiffs have failed to prove the source of amount paid in cash so also any evidence, the learned Judge, has concluded that the plaintiffs have failed to prove that an amount of Rs.49 lac was paid to the defendant no.1. Also, the land in question was of restricted tenure, the agreement to sell would be hit by section 43 of the TENANCY ACT . 20. In the case of Ganpatlal Manjibhai Khatri vs. Manguben Babaji Thakor (supra), the Division Bench, has held and observed that jurisdiction to order specific performance of contract is based on the existence of a valid and enforceable contract. Where a valid and enforceable contract has not been made, the Court will not make a contract for them. Specific performance will not be ordered if the contract itself suffers from some defect which makes the contract invalid or unenforceable. The discretion of the Court will not be there even though the contract is otherwise valid and enforceable. Relevant paragraphs 27 to 29, read thus: “27. Specific performance will not be ordered if the contract itself suffers from some defect which makes the contract invalid or unenforceable. The discretion of the Court will not be there even though the contract is otherwise valid and enforceable. Relevant paragraphs 27 to 29, read thus: “27. This decision, in our opinion, has no application to the facts of the instant case because in our opinion, under Section 43 of the Act, 1948 applicable to the Bombay area of the State of Gujarat, there is a total prohibition of even entering into an agreement in writing for the purpose of sale. Section 43 of the Act applicable for Bombay area of the State of Gujarat makes it very clear that any transfer or partition or any agreement of transfer or any land or any interest therein in contravention of sub-section (1) or subsection (1)(c) shall be invalid. Thus, the decision of the Supreme Court in the case of Nathulal (supra) has no application in the present case. If that be so, the decision in Hasvantbhai (supra) cannot be termed as per incurium. 28. It is not in dispute that the agreement to sell dated 27th January, 2010 could be termed as invalid or void as the same was entered into without the prior permission or sanction of the Collector. The suit for specific performance of contract based on an invalid agreement to sell hit by Section 43 of the TENANCY ACT , 1948 applicable for the Bombay area of the State of Gujarat is not maintainable in law. If the agreement is rendered invalid under Section 43 of the Act, 1948, such agreement is incapable of being specifically enforced. If the agreement to sell itself is invalid, no decree for specific performance can be passed by the Trial Court. 29. It is well settled that the jurisdiction to order specific performance of contract is based on the existence of a valid and enforceable contract. Where a valid and enforceable contract has not been made, the Court will not make a contract for them. Specific performance will not be ordered if the contract itself suffers from some defect which makes the contract invalid or unenforceable. The discretion of the Court will not be there even though the contract is otherwise valid and enforceable. Where a valid and enforceable contract has not been made, the Court will not make a contract for them. Specific performance will not be ordered if the contract itself suffers from some defect which makes the contract invalid or unenforceable. The discretion of the Court will not be there even though the contract is otherwise valid and enforceable. (See Satish Kumar vs. Karan Singh & Anr., Civil Application No. 7385 of 2013 decided on 21st January, 2016).” 21. In the case of Decd Shaikh Ismailbhai Hushainbhai through Lh vs. Vankar Ambalal Dhanabhai (supra), the following issues were raised before this Court. (See Satish Kumar vs. Karan Singh & Anr., Civil Application No. 7385 of 2013 decided on 21st January, 2016).” 21. In the case of Decd Shaikh Ismailbhai Hushainbhai through Lh vs. Vankar Ambalal Dhanabhai (supra), the following issues were raised before this Court. Paragraphs 11 and 12, read thus: “11 The issues raised before us are : - (i) Where an agreement contains a condition that prior to effecting the sale, the requisite permission of the competent authority under Section 43 or 63 of the TENANCY ACT , 1948 shall be sought, such an agreement whether can be specifically enforced strictly in accordance thereof ?; (ii) Where an agreement to sell contains condition that the restricted tenure shall first be converted to old tenure and, thereafter, such old tenure land shall be sold, be invalid under Section 43 of the TENANCY ACT , 1948 ?; (iii) Where an agreement contains condition that the agricultural land shall first be converted to non-agricultural land and, thereafter, such non-agricultural land shall be sold, be invalid under Section 63 of the TENANCY ACT , 1948; (iv) Whether invalidity of agreement under Section 43 or 63 of the TENANCY ACT , 1948 is limited to the said Act or does it absolves the parties from their reciprocal rights and obligations under the agreement and make the agreement unenforceable in Civil Court?; (v) Whether a plaint can be rejected on the ground of transaction being invalid under the TENANCY ACT , 1948 when the alternative remedy of refund of earnest money or compensation or other remedy like permanent injunction, protection of possession, damages etc, have also been sought in the suit ?; (vi) In absence of any order passed by the Competent Authority under The Gujarat Tenancy and Agricultural Land Act, 1948 (in short “the TENANCY ACT , 1948), invalidating the agreement to sell, whether plaint can be rejected under Order VII Rule 11 of CPC or the suit for specific performance can be dismissed by the Civil Court, on the ground that the said agreement is invalid under Section 43 or 63 of the TENANCY ACT , 1948; (vii) Whether the Civil Court has jurisdiction to adjudicate the issue as to whether such agreement is or not invalid in view of the bar under Section 85 of the TENANCY ACT , 1948?; 12 In essence, the first set of the learned Advocates for the vendees, seek to impress upon us to frame the question of reference as under:- “whether an agreement to sell in respect to agricultural land governed by Section 43 and / or Section 63 of the Gujarat Tenancy and Agricultural Land Act, 1948, is legally enforceable in the suit for specific performance of such agreement, which is executed without permission of the competent authority either under Section 43 or Section 63 or both, as the case may be, of the TENANCY ACT , 1948.” 22. Provisions of section 43 of the TENANCY ACT were discussed in detail. Following paragraphs 126, 137, 142 and 151 are reproduced hereinbelow for ready reference: “126 We have, thus, not been able to convince ourselves with the submissions of the learned Advocates placing reliance on various decisions noted hereinbefore that a conditional decree can be passed by the Civil Court, in case the agreement hit by Section 43 of the TENANCY ACT ’1948, contains a condition that permission of Collector would be obtained prior to the execution of the sale deed. It needs no emphasis that Section 43 not only prohibits transfer by sale, lease etc., but it expressly prohibits execution of an agreement in writing, to transfer a land by sale, lease etc., without complying with the conditions in Sub-section (1) of Section 43 . 137 From a bare reading of the above provisions, there is no doubt that any dispute relating to validity of an agreement executed in violation of Section 43 of the TENANCY ACT , 1948, if arises, shall have to be decided by the Mamlatdar and Civil Court will have no jurisdiction to decide the disputed questions relating to validity of such an agreement. 142 The position of law is, thus, clear 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 benefited to some extent by the order of the Civil Court. The arguments of the learned Advocates that the defendant-vendor having pocketed the sale consideration cannot be permitted to claim for dismissal of the suit on the principle that “No act of Court can prejudice a party”, does not merit consideration. 151 On a careful reading of the provision in Order VII, Rule 11 of the Code of Civil Procedure and the law laid down by the Apex Court in Dahiben (supra), in light of the dispute before us, we may note that in order to maintain the suit for specific performance of agreement, which is hit by Section 43 (1) of the TENANCY ACT , 1948, the plaintiff would be required to disclose the cause of action for seeking a decree of specific performance of such an agreement. The cause of action for a suit for specific performance of an agreement of refusal by the Vendor inspite of readiness and willingness of the vendee to execute the sale deed, will not be existing in a case where the agreement itself is invalid being hit by Section 43 (1), inasmuch as, no cause of action can be said to have arisen asking the defendant to perform his part of the contract when there is no sanction and the agreement itself is illegal or invalid. Further, on the averments made in the plaint, in conjunction with the documents relied upon by the plaintiff, the Civil Court will be in a position to ascertain the question of enforceability of the agreement. It will be in a position to ascertain that the agreement, which is the basis of the suit, whether is hit by Section 43 (1) or not, inasmuch as, to seek a decree of specific performance of agreement, the plaintiff is required to disclose and establish two circumstances: (i) firstly, that the documents, which is the basis of the suit is a valid document in the eye of law and (ii) secondly, that the cause of action has arisen prior to the presentation of the plaint. If the documents, i.e. the agreement is an illegal or invalid document in the eye of law, the Civil Court from the statement in the plaint itself will ascertain the suit being barred by law. In any case,a suit basis of which is an invalid document in the eye of law or where there exists no cause of action to institute the suit on the date of the presentation of the plaint, the Civil Court will have no option but to reject the plaint, at the threshold, under Order VII, Rule 11 of the Code of Civil Procedure. The arguments that the Civil court will be required to frame the issue as to the validity of the agreement, which is the basis of the suit and must necessarily proceed with the trial to arrive at the decision as to whether the decree of specific performance of an agreement hit by law, is to be granted or not, does not appeal to us.” 23. In paragraph 126, the full Bench, after discussing the provisions of section 43 of the TENANCY ACT ; section 23 of the Act of 1872, so also the judgments, held and observed that section 43 of the TENANCY ACT , provides complete prohibition in execution of even an agreement in writing to transfer a land of restricted tenure without the previous sanction of the Collector. The Full Bench, has further observed that the position of law is, thus, clear 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 benefited to some extent by order of the civil Court. Suit, basis of which is an invalid document in the eye of law or where there exists no cause of action to institute the suit on the date of the presentation of the plaint, the civil Court will have no option but to reject the plaint at the threshold under Order VII Rule 11 of the Code and the issue framed in this behalf, was answered in affirmative. 24. Therefore, if the agreement itself is invalid, it cannot be enforced through a suit and it shall be open to the court, to consider the plaint and exercise its powers under Order VII Rule 11 of the Code. In the case on hand, the issue is not the rejection of the plaint at the threshold. Rather the learned Judge, has comprehensively examined the covenants of the agreement to sell and rightly concluded on merits that the agreement to sell was not a valid agreement in the eye of law. Accordingly, answered the issue nos.1 and 6A in the affirmative. Therefore, no error can be attributed to the learned Judge in deciding the aspect of payment by the plaintiff. Moreover, the agreement to sell was hit by section 43 of the TENANCY ACT and was therefore unenforceable in law. 25. As regards the issue of readiness and willingness, the issue no.2 was formulated and answered against the plaintiffs. The finding was based on the conclusion drawn given while deciding the issue nos.1 and 6A. It was noted that the plaintiffs failed to establish that they had paid any consideration in cash to defendant no.1. 25. As regards the issue of readiness and willingness, the issue no.2 was formulated and answered against the plaintiffs. The finding was based on the conclusion drawn given while deciding the issue nos.1 and 6A. It was noted that the plaintiffs failed to establish that they had paid any consideration in cash to defendant no.1. Further, no documentary or oral evidence was produced by the plaintiffs substantiating their continuous readiness and willingness to perform their part of the contract, let alone averments in the plaint. It is now a settled proposition of law that readiness and willingness must be demonstrated continuously from the inception of the agreement until passing of the decree. The averments in the plaint, makes a reference of the agreement to sell, amount agreed, issue of getting the land converted from new tenure to old tenure; however, it falls short of evidencing the readiness and willingness as required by law. Hence, the issue no.2 of readiness and willingness was properly considered and decided by the learned Judge. 26. Issue no.4, was as regards execution of the registered sale deed in favour of the defendant nos.2 to 5. The learned Judge, has assessed and examined the evidence. It has been concluded that the order was passed of converting the land on 16.03.2018 and on 24.04.2018, registered sale deed has been executed and signed by the owners whose names were reflected in the 7/12 form. Although it is alleged by the plaintiff that the defendant no.1 has not been paid any amount, but the fact remains that the defendant no.1 has neither denied nor has taken any steps against the defendant nos.2 to 5 in this behalf. Evidence Exhibits 62, 63 to 66 were considered, so also the Exhibit 71 – the bank statement. Registered sale deed, has been executed on 24.04.2018 in favour of defendant nos.2 to 5 by the defendant no.1 and other co-owners, namely, Naniben Shakraji Thakor, Babubhai Shakraji Thakor, Kankuben Shakraji Thakor and Lalajibhai Shakraji Thakor. Registered sale deed, clearly indicates the amount of Rs.91,80,000/- paid towards the premium by way of Demand Draft no.131169 dated 19.02.2018 for conversion of land from new tenure to old tenure. The consideration paid towards the sale, was Rs.3,51,00,000/- and the respective owners have been paid as per their share. Registered sale deed, clearly indicates the amount of Rs.91,80,000/- paid towards the premium by way of Demand Draft no.131169 dated 19.02.2018 for conversion of land from new tenure to old tenure. The consideration paid towards the sale, was Rs.3,51,00,000/- and the respective owners have been paid as per their share. Substantiating the payment, the defendant nos.2 to 5 have placed on record the bank statement – Exhibit 62; the payment of premium of Rs.91,80,000/-, Exhibits 63 to 66 are the details of the bank statement of the defendant nos.2 to 5 respectively, wherein, the amount paid to the respective owners is clearly reflected. The details have been collated and provided in the tabulated form which was produced at Exhibit 71. The defendant nos.2 to 5 have also placed on record their income-tax return of the year 2019-2020 wherein, the details of the amount of premium paid and consideration paid to the respective owners have been reflected. Therefore, the issue no.4 regarding challenge to the sale deed, has been answered in negative and rightly so. 27. As regards issue no.6 i.e. whether the suit is barred due to non-joinder or mis-joinder of necessary parties, the learned Judge, was of the view that the agreement to sell was executed on 30.11.2015 and at that time besides the defendant no.1, there were other co-owners; however, the agreement to sell was executed solely by defendant no.1 and without obtaining the consent or confirmation of the other co-owners. The learned Judge, further opined that in addition to seeking specific performance, the plaintiffs had also challenged the registered sale deed executed in favour of defendant nos.2 to 5 which has been executed not only by the defendant no.1 but by other co-owners as well and have not been impleaded as parties to the suit. With this, the learned Judge, held that the suit, is barred by non-joinder and mis-joinder of necessary parties and this, conclusion was correctly arrived at. 28. As per the findings recorded in paragraph 14, Exhibit 51, being village Form no.6 entry no.5234, was considered, according to which, upon the demise of Sitaben Kantibhai, her heirs were brought on the record, namely, Thakor Punjabhai Kantibhai, Thakor Gomiben Kantibhai and Thakor Dipakji Kantibhai. Exhibit 53 which is a copy of village form no.7/12, also reflects the names of Punjabhai Kantibhai Thakor, Gomiben Kantibhai Thakor and Dipakji Kantibhai Thakor. Exhibit 53 which is a copy of village form no.7/12, also reflects the names of Punjabhai Kantibhai Thakor, Gomiben Kantibhai Thakor and Dipakji Kantibhai Thakor. Similarly, in the village form no.12, the names of Thakor Gomiben Kantibhai, Thakor Punjaji Kantibhai and Thakor Dipakji Kantibhai were recorded. The learned Judge, has noted that Exhibit 31 – being agreement to sell was dated 30.11.2015 and in the suit seeking specific performance, only the defendant no.1 was impleaded. The other co-owners have not been joined. The learned Judge, further observed that Thakor Gomiben Kantibhai and Thakor Punjaji Kantibhai had relinquished their rights as referred to in the agreement to sell. This fact is corroborated by the registered Power of Attorney – Exhibit 32, which makes a reference to entry no.5372 in village form no.6 and it reveal that Thakor Gomiben Kantibhai and Thakor Punjaji Kantibhai had relinquished their rights. The pencil entry of which, was posted on 10.11.2015 and was certified on 03.06.2016. In view of this, the learned Judge, was of the opinion that as on the date of execution of the agreement to sell, the names of Thakor Gomiben Kantibhai and Thakor Punjaji Kantibhai were running in the revenue record. Therefore, by impleading only defendant no.1, while omitting the other co-owners, the suit suffers from non-joinder of necessary parties. The learned Judge, has further observed that defendant nos.2 to 5 had purchased the land in question by way of registered sale deed and except defendant no.1, other co-owners have not been joined. As the plaintiffs had challenged the registered sale deed all the parties to that deed are necessary parties to the suit. In their absence, the suit is defective for non-joinder of necessary parties. Consequently, the issue no.6 has been rightly decided in the affirmative and against the plaintiffs. 29. In light of the above discussion, the points for determination are answered accordingly and this Court, does not find any perversity or illegality committed by the learned Judge in dismissing the suit. Consequently, the First Appeal lacks merits and does not warrant interference and is hereby dismissed. 30. The connected civil applications, hence, would not survive and stand disposed of accordingly. No order as to costs. 31. Consequently, the First Appeal lacks merits and does not warrant interference and is hereby dismissed. 30. The connected civil applications, hence, would not survive and stand disposed of accordingly. No order as to costs. 31. At this stage, Mr Sikander Saiyed, learned advocate for the appellants submitted a request seeking stay of the judgment taking into account that during the pendency of the suit, there was status quo granted and following the dismissal of the suit, the impugned judgment of the trial court, was stayed for the appeal period. A request is made to stay the impugned judgment for a period of eight weeks to enable the plaintiffs to approach the higher forum. This request, was opposed by Mr Chinmay M. Gandhi, learned advocate appearing for the defendant nos.2 to 5. 32. Considering the fact that the status quo was maintained throughout and was operating and thereafter, the impugned judgment, has been stayed for the appeal period and the relief was extended from time to time, this Court, with a view to facilitating the appellants to approach the higher forum, accedes to the request. Accordingly, the judgment shall remain stayed for a period of eight weeks from today. 33. Let the Record and Proceedings be transmitted back to the Court concerned.

Susheelsinh Udayveersinh Bhadoriya v. Dipakji Kantiji Thakore