JUDGMENT : J.C.DOSHI, J. 1. The present Second Appeal filed under Section 100 of the Code of Civil Procedure, 1908 (‘CPC’, for short), challenges the concurrent findings of judgment and decree dated 01.10.2019 passed by the trial Court i.e. Additional Civil Judge, Deesa dismissing the suit filed by the ancestral of plaintiffs being Regular Civil Suit No.12 of 2008, which has been confirmed by the learned 6 th Additional District Judge, Banaskantha – Deesa dismissing the appeal filed by the plaintiff, vide judgment and decree dated 30.09.2025 passed in Regular Civil Appeal No.46 of 2019. 2. For the sake of brevity and convenience, the parties are referred to as per their original status before the trial Court. 3. The brief facts of the case are as under:- 3.1 Deceased Rabari Chelabhai Naranbhai and Rabari Versibhai Dannabhai, who died during the pendency of the suit proceedings, substituted by their heirs and legal representatives, filed suit against the defendants for a relief of specific performance and permanent injunction in regard to the agricultural lands of Survey No.307/P -1 / 1 bearing Khata No.238 and Survey No.321 – 322 P – 2 bearing Khata No.239 (‘parcels of land’, for short), having their particulars as mentioned in paras:1 and 2 of the plaint, on the averments that by the separate agreement to sale executed on 22.05.2000, the defendants agreed to sell these parcels of lands at total sale consideration of Rs.6,18,254/- to the plaintiff. While the said agreement to sale were executed the possession of the parcels of land was handed over to the plaintiff. The land in question was new tenure land and as per the terms and conditions of the agreement to sale, these parcels of lands were required to be converted into old tenure lands and thereafter the defendants were obliged to execute the sale deed in favour of the plaintiffs. 3.2 The plaintiffs were ready and willing to perform their part of contract but the defendants did not proceed to convert those parcels of lands into old tenure land and thereby were not ready and willing to perform their part of contract and rather were trying to disturb the possession of the plaintiff over the disputed property and, therefore, criminal complaint was also lodged between the parties. 3.3 With the aforesaid averments, plaintiff filed the suit for specific performance of contract and perpetual reliefs of injunction asking that plaintiffs’ premises for parcels of land should not be disturbed. The defendants being served, appeared and denied the contentions raised by the plaintiff and further contended that plaintiffs taking advantage of poor financial condition of the defendants has illegally possessed the parcels of land which is the subject matter of the suit. Therefore, they are not entitled to continue in possession. Defendant also denied execution of agreement to sale with intent to sale the parcel of land. Pursuant to such contentions, defendants filed counter claim under Order VI Rule 8(a) of the Code and asked for the relief. The learned trial Court, after framing issues and permitting both the parties to lead evidence, was pleased to dismiss the suit as well as the counter claim filed by the defendants. 3.4 Being aggrieved and dissatisfied with the judgment and decree dismissing the suit, the plaintiff preferred appeal being Regular Civil Appeal No.46 of 2019 before the first appellate Court which was also dismissed confirming the judgment and decree passed by the learned trial Court in the Regular Civil Suit No.12 of 2008. 3.5 Being aggrieved, the plaintiff is before this Court by way of filing the present Second Appeal posing following questions as substantial questions of law. “(A) Whether the Ld. Trial Courts below have erred in law by holding the agreement void under section 23 of the Indian Contract Act where actually the it was conditional upon conversion of land from new tenure to old tenure ? (B) Can a conditional agreement requiring statutory permission be treated as illegal or void ab initio ? (C) Whether the Ld. Trial Court have failed to apply the mandatory procedure under sections 33-36 of the Stamp Act before rejecting the agreement for stamp insufficiency ? (D) Whether Ld. Trial Court have erred in law and fact in coming to a conclusion on the basis of the fact that parties in the revenue records of one of the survey nos.:- 321 + 322p-2 are not joined as party to the suit, the suit for specific performance of the said agreement to sale was premature and without any cause of action ? (E) Whether Ld. (E) Whether Ld. Trial Court have erred in law and fact in holding lack of readiness and willingness of the appellant in absence of any documentary evidence to support their claim ? (F) Whether Ld. Trial Court have erred in law and fact in rejecting the suit for specific performance as to register a sale deed in favour of the plaintiffs discarding the evidences of possession and consideration amount receipts produced by the appellant along with the unregistered document of sale towards the lands in question ? (G) Whether the trial court was right in not granting injunction to the plaintiff who is in settled possession of the land in dispute since year 2000, 2002 and 2004 respectively ? (H) When the counter suit of the defendant is rejected, the plaintiffs are entitled to retain the possession of the land in dispute until evicted or dispossessed by the due process of law ? ” 4.1 Learned senior advocate Mr.Asim Pandya assisted by learned advocate Ms.Kinjal Shukla appearing for the appellant seeking admission of the Second Appeal mainly argued that appellant is not pressing the relief of specific performance in view of the Full Bench judgment of this Court in the case of Deceased Shaikh Ismailbhai Hushainbhai Through His Legal Heirs vs. Vankar Ambalal Dhanabhai & Another reported in 2024 (1) GLH 222 as the subject land of agreement to sale are new tenure land and suit for specific performance of the agreement to sale for new tenure land, if executed without previous permission of Collector, is not maintainable, would press the questions of law framed at (G) and (H) and submitted that it is established on record that plaintiffs are in settled possession of parcels of land and the documents executed to that effect are of the year 2000, 2002 and 2004 respectively. The learned trial Court in regard to settled possession of the plaintiff over the parcel of the land answered issue no.5 in affirmative in favour of the plaintiff which is confirmed by the learned appellate Court and yet court below failed to consider that the plaintiffs’ possession cannot be taken away without following due process of law and thereby learned court below have committed serious error in not granting the relief of perpetual injunction. 4.2 Learned senior counsel would further submit that defendant filed the counter claim for seeking possession of the parcel of lands being subject matter, which is dismissed by the learned Court below. The counter claim was filed by the defendant to recover the possession over the parcel of land, the finding of the trial Court has been accepted by the defendant and no appeal has been filed against dismissal of counter claim. In view of the settled position of fact, it is submitted that the plaintiff may not be dispossessed from settled possession without following due process of law and under the law and to that extent plaintiff was deserving perpetual injunction. It is submitted that in the event of plaintiff possession found pursuant to agreement to sale hit by Section 43 of the Gujarat Tenancy and Agricultural Lands Act, 1948 (‘the tenancy Act’, for short). Possession can only be taken away by following process laid down in Section 86 of ‘the tenancy Act’ or under the provisions of Gujarat Land Revenue Code. However, this aspect has not been considered by learned trial Court as well as learned appellate Court and thus appeal deserves consideration on the question of law framed at question (G) and (H) and, therefore, it is submitted to admit the present Second Appeal for the limited purpose that whether plaintiff’s possession can be disturbed without following due process of law and to that extent whether permanent injunction can be granted. 5. Having heard learned senior counsel Mr. Pandya and having considered the concurrent findings, judgment and decree passed by the courts below, at the outset, let this Court take a notice of judgment of Apex Court in the case of Jaichand (Dead) through Lrs and Other v. Sahnulal and Another reported in 2024 SCC OnLine SC 3864 whereby the Hon’ble Supreme Court has explained the ambit and scope of the Second Appeal and also defined that what could be terms as substantial question of law. Relevant observation of Hon’ble Apex Court extracted as below. “Yet in another judgment rendered in the case of Gurbachan Singh (Dead) Through Lrs Versus Gurcharan Singh (Dead) Through Lrs And Others, 2023 (20) SCC 104 , the Hon’ble Supreme Court has reiterated the scope and ambit of Second Appeal, in paras:7, 14 and 15, which read thus: “7. Relevant observation of Hon’ble Apex Court extracted as below. “Yet in another judgment rendered in the case of Gurbachan Singh (Dead) Through Lrs Versus Gurcharan Singh (Dead) Through Lrs And Others, 2023 (20) SCC 104 , the Hon’ble Supreme Court has reiterated the scope and ambit of Second Appeal, in paras:7, 14 and 15, which read thus: “7. The parameters of an appeal under Section 100, CPC passing muster are well established. The section itself dictates that such an appeal shall only be maintainable when the case involves a substantial question of law or that the appellate decree has been passed ex parte. the latter, obviously is not the case. This court has, in a multitude of decisions, expounded on what may be termed as a substantial question of law to satisfy the requirements of section 100. 14. The principles of law cited herein may be undoubtedly good law, but, however, in the considered view of this court, they do not hold in the case put forward by the Appellant. A perusal of the witness statements of DW- as duly recorded by the High Court, (the court also relies on the cross examination portions of DW-4 although the same do not form part of the record before this court.) shows that father of the Appellant had indeed partitioned the property during his lifetime. In such situation selling a part of his share in an undivided property, is a question that does not arise. Reliance on Shyam Sunder (supra) does not support the case of the Appellant as there is nothing on record to reflect any effort having been made by him to substitute himself in place of the Respondents in buying the 4 marlas of land from Faqir Singh in order to keep a stranger, namely Gurcharan Singh from entering into family- owned property. Had the Appellant made any such effort and the same would be reflected from record, then it could have been argued that he has a right to exclude the Respondents. 15. As already noted above, another ground of objection taken by the Appellant is the fact of the impugned judgement entering into a reappreciation of evidence. While it is true that ordinarily, in second appeal, the court must not disturb facts established by the lower court or the first appellate court. 15. As already noted above, another ground of objection taken by the Appellant is the fact of the impugned judgement entering into a reappreciation of evidence. While it is true that ordinarily, in second appeal, the court must not disturb facts established by the lower court or the first appellate court. However, it is also equally well recognised that this rule is not an absolute one or in other words, it is not a rule set in stone.” 6. In light of the aforesaid law laid down by Hon’ble the Supreme Court, let examine the argument of learned senior counsel Mr.Asim Pandya for the appellant to see that whether question of law being (G) & (H) amongst the questions posed by the plaintiff emerge as ‘substantial question of law’. The learned trial Court after hearing the parties had framed the issues which read as under: “1. Whether the Plaintiff proves that the land bearing Survey No. 307 P. 1/1, 307/2, and Survey No. 321-322 P-2 situated at Moje Village Juna Deesa is under the ownership of the Defendants? 2. Whether the Plaintiff proves that they are entitled to get the Sale Deed executed from the Defendants as per the Agreement to Sell? 3. Whether the Plaintiff proves that they are entitled to the relief of injunction order as prayed for? 4. Whether the Plaintiff proves that they are entitled to the relief as prayed for? 5. Whether the Defendant proves that the Plaintiffs have made an illegal trespass into the disputed land of their ownership? 6. Whether the Defendant is entitled to the relief as prayed for in the Counter-Claim? 7. What Order and Decree?” 7. Except Issue No.1, all issues were answered in negative, whereas Issue No.1 was answered in partly affirmative. Admittedly, in agreement to sale executed pertaining to the parcels of the lands, all the persons whose names appearing in the revenue record, are not party to the said agreement as they had not signed the said document i.e. agreement to sale and many of them are also not joined as party to the suit proceedings. Learned senior counsel has argued to protect the possession of the parcel of lands conveniently did not refer to this important part of the suit proceedings, assert to protect possessions. Learned senior counsel has argued to protect the possession of the parcel of lands conveniently did not refer to this important part of the suit proceedings, assert to protect possessions. It is a clear finding of the learned trial Court that suit suffers from principle of absence of owner of the parcel of lands whose names appeared in the revenue record and plaintiff cannot even by stretch of imagination seek protection without joining them. Learned senior counsel did not answer on this issue that why the persons whose names in revenue records and who may suffer adversely, by suit proceedings, are not joined as party. An agreement to sale on record pertains to new tenure land which clearly depicts condition that sale deed to be executed after new tenure land is converted into old tenure land. Agreement to sale for new tenure land, without prior permission of the Collector, is prohibited under Section 43 of the Tenancy Act as is decided by the Full Bench of this Court in case of Deceased Shaikh Ismailbhai Hushainbhai Through His Legal Heirs vs. Vankar Ambalal Dhanabhai & Another (supra) . The Special Leave Petition (C) No.6812 of 2023 filed to challenge the said Full Bench judgment of this Court has been rejected by the Hon’ble Supreme Court as the Hon’ble Apex Court did not find a good ground to interfere with the said judgment. 8. In view of the above, fact remains that the plaintiff claiming that his possession be protected under Agreement of which the object or consideration is unlawful and is void. The plea to issue perpetual injunction is indirectly on the basis of agreement to sale executed for parcels of the lands being new tenure land. Thus, this is a plea essential under Section 53 (A) of the Transfer of Property Act, 1882 (‘the Act’, for short). Section 53(A) reads as under: “53A. Where any person contracts to transfer for consideration any immoveable property by writing signed by him or on his behalf from which the terms necessary to constitute the transfer can be ascertained with reasonable certainty, and the transferee has. Section 53(A) reads as under: “53A. Where any person contracts to transfer for consideration any immoveable property by writing signed by him or on his behalf from which the terms necessary to constitute the transfer can be ascertained with reasonable certainty, and the transferee has. in part performance of the contract, taken possession of the property or any part thereof, or the transferee, being already in possession, continues in possession in part performance of the contract and has done some act in furtherance of the contract, and the transferee has performed or is willing to perform his part of the contract, then, 3 notwithstanding that [***], or, where there is an instrument of transfer, that the transfer has not been completed in the manner prescribed there for by the law for the time being in force, the transferor or any person claiming under him shall be debarred from enforcing against the transferee and persons claiming under him any right in respect of the property of which the transferee has taken or continued in possession, other than a right expressly provided by the terms of the contract: Provided that nothing in this section shall affect the rights of a transferee for consideration who has no notice of the contract or of the part performance thereof.” 9. The provision of Section 53(A) of the Act thus recognises the right of transferee wherein transferor has given and transferee has taken possession of the property or any part thereof, however, Section 53(A) of the Act does not give title in favour of transferee qua the property in question but gives him limited rights to protect his possession that too subject to satisfaction of condition as stated in Section 53(A) of the Act itself. 10. In the present case, the plaintiff is seeking protection to his possession which impliedly is a pleading a relief under Section 53(A) of the Act regarding part performance. 11. Apt to note that four documents which are produced at Exhs.89 to 92 claiming to be an agreement to sale and being based document for suit for specific performance or documents by which plaintiff claims that he has been put to possession by the transferor are executed on 22.05.2000, 02.05.2002, 22.05.2000 and 16.04.2000. The suit is filed in the year 2008. The suit is filed in the year 2008. It is noticeable that Section 17 (1)(a) of the Registration Act, which has come into force w.e.f. 24.09.2001 by Act No.48 of 2001 did not recognize the agreement or contract for the purpose of Section 53 of the Transfer of Property Act if they have been executed on or after commencement of the Registration Act and other related Law (Amendment Act, 2001). 12. In view of the exposition of the above legal position, it disputably remains that out of four documents, the last one is inadmissible to protect the possession under Section 53(A) of the Transfer of Property Act. 13. It is trite to note that the agreement to sale which is purported by the plaintiff to seek relief regarding protection of his possession is not invalidate only on the ground of registration but the documents are found to be in hit of Section 43 of the Tenancy Act. In V.Narsimha Raju vs. V.Gurumurthy Raju and others , AIR 1963 SC 107 , the Apex Court drew the conclusion from Section 23 of the Contract Act and held that Section 23 provides that every agreement of which the object or consideration is unlawful is void and it is laid down that the consideration of an agreement is lawful unless inter alia it is opposed by public policy. In this case, the Hon’ble Supreme Court finds an agreement made by the party for stifling the criminal prosecution not enforceable by the Court on the ground that such consideration in argument is opposed to public policy. An agreement to sale for new tenure land, without prior permission of the Collector, prohibited under Section 43 of the Tenancy Act, thus attracts the operation of Section 23 of the Contract Act and the object or consideration of the agreement is found to be unlawful and is void. 14. The Division Bench of Andhra Pradesh High Court in case of C.Ramaiah vs. Mohmmadunnisha Begum reported in AIR 1981 AP 38 held that doctrine under Section 53 (A) of the Act can be pressed into service or invoked and applied to those agreement which are invalid for want of registration. It does not permit to invoke to validate other agreement which is otherwise falls outside the scope of doctrine or invalidate agreement. Paras:7 and 8 of the said judgment read as under: “7. It does not permit to invoke to validate other agreement which is otherwise falls outside the scope of doctrine or invalidate agreement. Paras:7 and 8 of the said judgment read as under: “7. Then, there remains for consideration the submission of the learned counsel that the plaintiff was precluded from seeking possession of the land by virtue of the protection bestowed by the provisions of Section 53-A of the Transfer of Property Act. But when the contract itself is illegal, the doctrine enunciated under Section 53-A of the Transfer of Property Act cannot be invoked. The doctrine can only be invoked and applied to agreements which are invalid for want of registration. The section cannot be invoked to validate other agreements. An agreement which is invalid under any other law falls outside the scope of the doctrine and neither the Section nor the doctrine of equity on which the Section is founded can validate an agreement which the law says is invalid. The Privy Council in Arseculeratne v. Perera (2) AIR 1928 PC 273 declined to apply the doctrine to an agreement which was not executed or decided as required by law-Subba Rao, J.. (as he then was) in Akram Mea v. Municipal Corporation of Secunderabad, AIR 1957 Andh Pradesh 859 observed: "If the contract is otherwise valid. Section 53-A protects the possession of the transferee, notwithstanding the fact that the contract is not registered. But if the contract is invalid under any other law, this section obviously cannot validate that which the law says is invalid." 8. Therefore, the defence available under Section 53-A of the Transfer of Property Act to protect the possession of the defendant is not available to him, since the contract itself is void under the provisions of Act 12 of 1972.” 15. In view of above the argument of learned senior counsel Mr.Pandya that the possession be protected and should not be disturbed otherwise without following due process of law further reminds the Court to refer the judgment of Hon’ble Supreme Court in case of Maria Margarida Sequeira Fernandes & Others vs. Erasmo Jack De Sequeira (Dead) through LRs. reported in (2012) 5 SCC 370 whereby the Hon’ble Apex Court defines the term ‘due process of law’. At this juncture, the reference of the CAV judgment of this Court is also required to be referred in the case of Rambyhai Madhubhai Rajput since Decd. reported in (2012) 5 SCC 370 whereby the Hon’ble Apex Court defines the term ‘due process of law’. At this juncture, the reference of the CAV judgment of this Court is also required to be referred in the case of Rambyhai Madhubhai Rajput since Decd. Thro’ His Heirs & Ors. vs. State of Gujarat & Others which is rendered in Second Appeal No.78 of 2004. In para:19 of the said judgment this Court has held as under: “19. Possession is important when there is no title documents and other records, but once the document and records of title lying with the party, it is the title which has to be looked at first and due weight-age be given to it. Possession cannot be considered in vacuum. In an action for recovery of possession of immovable property or for protecting possession thereof, upon the legal title to the property being established, the possession or occupation of the property by a person other than the holder of the legal title will be presumed to have been under and in subordination to the legal title and it will be for the person resisting a claim for recovery of possession or claiming a right to continue in possession, to establish that he has such right. In other words, if person is seeking protection to his possession under subordination of title lying with third party has to establish that he has right to continue possession. In present case, plaintiff failed to establish this aspects.” 16. In view of the above, the argument canvassed by learned senior Counsel Mr. Pandya that the plaintiff may not be dispossessed without following due process of law is found baseless and meritless. Having been in possession is one thing, but to continue the possession are has to establish that he has right to continue the possession. Plaintiff’s claim for possession based on agreement to sale, is found to be void and in violation of Section 23 of the Contract Act. Thus, plaintiff has no whatsoever right to remain in possession at the disputed property. The entry of the plaintiff through agreement to sell is found invalid and against purport of Section 23 of the Contract Act which renders the possession of the plaintiff illegal and does not permit the plaintiff to seek any relief. Thus, plaintiff has no whatsoever right to remain in possession at the disputed property. The entry of the plaintiff through agreement to sell is found invalid and against purport of Section 23 of the Contract Act which renders the possession of the plaintiff illegal and does not permit the plaintiff to seek any relief. In fact, this Second Appeal is found to be third attempt on the part of the plaintiff to convert the one more trial by throwing one more dice into the gamble. The Hon’ble Supreme Court in case of Gurudev Kaur & Others vs. Kaki & Others reported in (2007) 1 SCC 546 , while elucidating the legislative intent underlying Section 100 of the Code of Civil Procedure, has held in unequivocal terms that the Legislature, in its wisdom, never envisaged the second appeal to metamorphose into a “third trial on facts” or to afford the litigant “one more throw of the dice in the gable of litigation”. The object, inter alia, was to circumscribe the jurisdiction of the High Court to substantial questions of law of real and enduring significance, and not to permit a re-appreciation of evidence as if sitting in appeal over concurrent findings of fact. 17. The Hon’ble Supreme Court in the case of State Bank of India v. S.N. Goyal, (2008) 8, put a word of caution in entertaining the Second Appeal without having substantial question of law held as under: “It is a matter of concern that the scope of second appeals and as also the procedural aspects of second appeals are often ignored by the High Courts. Some of the oft-repeated errors are : (a) Admitting a second appeal when it does not give rise to a substantial question of law. (b) Admitting second appeals without formulating substantial question of law. (c) Admitting second appeals by formulating a standard or mechanical question such as "whether on the facts and circumstances the judgment of the first appellate court calls for interference" as the substantial question of law. (d) Failing to consider and formulate relevant and appropriate substantial question/s of law involved in the second appeal. (e) Rejecting second appeals on the ground that the case does not involve any substantial question of law, when the case in fact involves substantial questions of law. (d) Failing to consider and formulate relevant and appropriate substantial question/s of law involved in the second appeal. (e) Rejecting second appeals on the ground that the case does not involve any substantial question of law, when the case in fact involves substantial questions of law. (f) Reformulating the substantial question of law after the conclusion of the hearing, while preparing the judgment, thereby denying an opportunity to the parties to make submissions on the reformulated substantial question of law. (g) Deciding second appeals by re-appreciating evidence and interfering with findings of fact, ignoring the questions of law. These lapses or technical errors lead to injustice and also give rise to avoidable further appeals to this court and remands by this court, thereby prolonging the period of litigation. Care should be taken to ensure that the cases not involving substantial questions of law are not entertained, and at the same time ensure that cases involving substantial questions of law are not rejected, as not involving substantial questions of law.” 18. In view of the above, this Court is of the considered opinion that no question of law rather any substantial question of law does exist in the present Second Appeal. 19. For the foregoing reasons, the present Second Appeal requires to be dismissed and it is dismissed at the admission stage.