Date : 27/07/2012 1.00. Present Second Appeal under section 100 of the Code of Civil Procedure has been preferred by the original plaintiff Sugrabibi Haji Abndulkadar – now heirs and legal representatives of the original plaintiff to quash and set aside the impugned order passed by the learned trial court – learned 3rd Joint Civil Judge (J.D.), Narol in Regular Civil Suit No.806 of 1981 dtd.15/4/1985 as well as judgement and decree / order passed by the learned appellate court - learned 3rd Extra Assistant Judge, Ahmedabad Rural in Regular Civil Appeal No. 89 of 1985 dtd.27/7/1989, by which the learned appellate court has dismissed the appeal confirming the judgement and decree passed by the learned trial court dismissing the suit. 2.00. That the original plaintiff instituted Regular Civil Suit No.806 of 1981 in the court of learned Civil Judge (S.D.), Ahmedabad Rural against the original defendant for various reliefs more particularly for partition of the suit land and claiming one half share in the disputed land and to partition suit land by one half share and for accounts from the year 1973 and for the accounts from the year 1973. By way of amendment, it was also prayed that in case it is found that the decree for partition of the suit land in favour of the plaintiff is not possible, in that case, to pass a decree for an amount which the defendant earned from cultivation of the one half of the suit land and in the alternative to partition suit land in the ratio of 50:50 and to hand over one half share to her and in the alternative to determine the price of the suit land and out of the same to pay one half of the same to the plaintiff.
2.01. It was the case on behalf of the plaintiff that she is widow of one Haji Abdul-Kadar and the defendant Abdul Rehman Haji Abdukkarim and both of them jointly purchased the suit land and payment of the sale consideration was also paid jointly by the plaintiff and the defendant by equal share but on account the of circumstances, a sale deed of the land in question was executed in the name of he defendant only and the entry to that effect was also mutated in the revenue record. It was also the case on behalf of the plaintiff that at the time of execution of the sale deed, defendant had promised and he was ready to give a writing with respect to right, title and share of the deceased husband in the land in question but unfortunately, at the relevant time the deceased husband was sick on the day of execution of the sale deed on 6/2/1965 in favour of the defendant; the defendant executed an Agreement on stamp paper (suit agreement) to the effect that the deceased husband has one half in the suit land and therefore, the suit land is of the co-ownership of the plaintiff and therefore, the plaintiff is liable to give accounts of the produce obtained from the land. It was also the case on behalf of the plaintiff that under the Agreement, she became co-owner of the suit land having one half share in the suit land and it was agreed that in the suit land not only she is entitled to one half share of the produce obtained from the suit land but as and when it is sold, she would be entitled to one half sale consideration. It was the case on behalf of the plaintiff that till 1973 i.e. till her husband expired, the defendant was giving share from the agricultural produce however, thereafter after the death of her husband, he discontinued to pay one half share of the produce of the agricultural land and even the defendant declined to give accounts and therefore, the plaintiff instituted the suit for the aforesaid reliefs.
2.02. As stated above, initially the plaintiff asked for the following relief of partition only, however, by way of amendment application Ex.41, which was allowed, relief in terms of para 6(A1), 6(A2) and 6(A3) referred to hereinabove were prayed for.
2.03. The suit was resisted by the defendant by filing Written Statement at Ex.13(B) by submitting that agreement dtd.8/8/1963 upon which reliance has been placed by the plaintiff is hit by section 63 of the Bombay Tenancy and Agricultural Lands Act, 1948 (hereinafter referred to as “the Tenancy Act” for short) and therefore, the same is nullity and/or void ab-initio and therefore, the plaintiff cannot get any relief on the basis of said agreement. The defendant also denied other averments and allegations made in the plaint. The suit was also resisted by submitting that the suit is bad on account of non-joinder of necessary and property parties as the heirs of deceased Sugarabibi Haji Abdulkadar are not joined as plaintiffs. The suit was also resisted on the ground that the suit is barred by law of limitation.
2.04. The learned trial court framed the Issues at Ex.14.
2.05. Both the parties led evidence, documentary as well as oral and on appreciation of evidence, the learned trial court dismissed the suit by judgement and decree dtd.15/4/1985 on the ground that the suit is barred by law of limitation; the suit is bad for non-joinder of necessary parties as well as on the ground that Agreement dtd.8/8/1963 upon which reliance has been placed, is void ab-initio as the same is hit by section 63 of the Tenancy Act, as the plaintiff could not have purchased the suit property even as co-owner as at the relevant time she was not an agriculturist and the suit land in question was agricultural land.
2.06. Being aggrieved by and dissatisfied with the judgement and decree passed by the learned trial court in Regular Civil Suit No.806 of 1981 dtd.15/4/1985, the appellants – original plaintiff preferred preferred appeal before the District Court and the learned appellate court - - learned 3rd Extra Assistant Judge, Ahmedabad Rural by the judgement and decree / order dtd.27/7/1989 dismissed the said appeal, confirming the judgement and decree passed by the learned trial court dismissing the suit.
2.07. Being aggrieved by and dissatisfied with the judgement and decrees / orders passed by both the courts below in dismissing the suit, the original plaintiff has preferred present Second Appeal under section 100 of the Code of Civil Procedure. It appears that during the pendency of the present Second Appeal original plaintiff has died and therefore, her heirs are joined as appellants in the present Second Appeal. During the pendency of the appeal even the respondent herein has also died and hence his heirs are also brought on record as respondents being heirs and representatives of the original defendant.
2.08. Mr.Dastoor, learned advocate appearing on behalf of the appellant has made only one submission that both the courts below have materially erred in holding that the document / agreement Ex.26 is ab-initio void and in breach of Section 63 of the Bombay Tenancy and Agricultural Lands Act, 1948 and consequently both the courts below have materially erred in dismissing the suit. Mr.Dastoor, learned advocate appearing on behalf of the appellant has submitted that both the courts below have not properly appreciated and considered the reliefs sought by the plaintiff in the suit. It is submitted that as such the plaintiff claimed right in the suit land - 1/2 share in the suit property as and when the suit property is sold, as in fact she has invested and paid half of the sale consideration at the time when the defendant purchased the suit property. It is submitted that as such the plaintiff did not pray for specific performance of the agreement Ex.26 and therefore, both the courts below have materially erred in dismissing the suit. Therefore, it is requested to allow the present Second Appeal.
2.09. Present Second Appeal is opposed by Mr.Nirav Mishra, learned advocate appearing on behalf of the respondents herein – heirs and legal representatives of the original defendant by submitting that as the relief claimed by the original plaintiff was on the document / agreement Ex.26 which is found to be void ab-initio, both the courts below have rightly refused to grant any relief in favour of the plaintiff which was claimed on the basis of the void ab-inito agreement. It is submitted that as such the plaintiff has claimed share on the ground that she is co-owner and has invested and paid half of the sale consideration while purchasing the suit land. It is submitted that, however, admittedly at the time or purchasing the suit land, the plaintiff was not agriculturist and therefore she could not have purchased the land in her land and the sale deed for the suit land came to be executed in favour of the defendant. It is submitted that as such the sale deed in favour of the defendant was executed by the original land owner on the very day on which the agreement Ex.26 was executed between the plaintiff and the defendant. It is submitted that only with a view to get out of the provisions of sections 63 of the Bombay Tenancy Act, as she could not have purchased the agricultural land even as a co-owner and therefore, she got executed document Ex.26. It is submitted that under the circumstances, no illegality has been committed by the learned trial court in dismissing the suit which is rightly confirmed by the learned appellate court.
3.00. Heard the learned advocates appearing on behalf of the respective parties at length and considered the impugned judgement and decrees / orders passed by both the courts below and considered the evidence, oral as well as documentary from the record and proceedings received from the courts below. This court also considered the documents / agreement produced at Ex.26 entered into between the plaintiff and the defendant.
3.01. At the outset it is required to be noted that the plaintiff had instituted the suit claiming right / 1/2 share in the proceeds as and when the suit property is sold, as according to the plaintiff she has paid and invested half of the sale consideration at the time when the suit property was purchased. It is not in dispute and it cannot be disputed that as such the plaintiff claimed right / relief based upon unregistered document / agreement Ex.26. However, it is to be noted that the said agreement Ex.26 has been executed by and between the plaintiff and the defendant on the very day on which the sale deed was executed in favour of the defendant. It appears that in view of the provisions of section 63 of the Bombay Tenancy Act, agricultural land could not have been purchased by non-agriculturists and admittedly at the relevant time the plaintiff was not an agriculturist and therefore, she could not have purchased the suit land as owner and/or even as a co-owner. Under the circumstances, it appears that only with a view to get out of the provisions of section 63 of the Bombay Tenancy and Agricultural Lands Act, Agreement Ex.26 was got executed between the plaintiff and the defendant. Otherwise, sale deed with respect to the suit land was executed in favour of the defendant on the very day on which the document Ex.26 was executed, therefore, the plaintiff could have got sale deed executed in her favour also as a co-owner. However, in view of bar under section 63 of the Bombay Tenancy Act, no sale deed could have been executed in her favour and therefore, only with a view to get out of the provisions of section 63 of the Bombay Tenancy Act, document Ex.26 was got executed. Under the circumstances, both the courts below have rightly held that the document Ex.26 is void ab-initio void and in breach of section 63 of the Act on the basis of which no relief can be granted in favour of the plaintiff. Under the circumstances, as such no illegality has been committed by both the courts below in dismissing the suit and the same is rightly confirmed by the learned appellate court.
3.02. Now, so far as the contention on behalf of the appellant that the only relief sought in the plaint was to get share in the proceeds / 1/2 share in the suit property as and when the suit property is sold and not for specific performance of the Agreement Ex.26 and therefore, the suit was maintainable, is concerned, the aforesaid cannot be accepted. As stated above, the entire claim of the plaintiff is based upon the document / Agreement Ex.26 which is found to be void ab- initio and in breach of the provisions of section 63 of the Bombay Tenancy Act. By claver drafting, the plaintiff cannot get the relief for which she is otherwise not entitled to. Even otherwise, considering the reliefs which are sought in the plaint, it cannot be said that the suit was only for claiming share in the sale proceeds as and when the suit property is sold. As such the suit is for partition of the suit property on the basis of the Agreement Ex.26. Under the circumstances, and in the facts and circumstances of the case, no illegality has been committed by the courts below in dismissing the suit when the partition was sought on the basis of the agreement which is found to be void ab-initio void.
4.00. In view of the above and for the reasons stated above, present Second Appeals fails and the same deserves to be dismissed and is accordingly dismissed. Rule is discharged. In the facts and circumstances of the case, there shall be no order as to costs.
[M.R. SHAH, J.] rafik