Gita Gopi, J
1. Heard Mr. K.V. Shelat, learned advocate for the appellants - original plaintiffs and Mr. D.K. Puj, learned advocate for the respondents – original defendants. The matter is taken up for final hearing.
2. The challenge is given to the order dated 18.11.2022 passed by City Civil Court, Ahmedabad below notice of motion, Exh.6/7 in Civil Suit No.513 of 2020.
3. Advocate Mr. K.V. Shelat submitted that the prayer was made to restrain the defendants, their agents, servants, persons etc. from interfering with the settled legal possession of the plaintiffs till the final disposal of the suit and to restrain them from encroaching upon the suit land, and further to remove the encroachment made by the defendants in the suit property.
3.1 Advocate Mr. Shelat submitted that predecessor-in-title of the plaintiffs, late Shri Hariyant Shelat had received the interest in the suit property by way of Sale Deed No.8532 executed on 29.12.1988, which came to be registered on 29.04.1989. Mr. Shelat submitted that the purpose for purchase of the land was to start a petroleum business in the property and therefore, upon permission of the Ahmedabad Municipal Corporation, approximately 34 sq. yards construction was made. The conveyance deed was with regard to 1000 sq. Mtrs. of land at Block/Survey No.64 paiki, F.P.84 part of Village Ghodasar, Taluka-City Maninagar.
3.2 Referring to the documents, Mr. Shelat submitted that late Shri Hariyantbhai Champaklal Shelat had continued the petrol pump business till he died on 14.12.2019. The Petrol/HSD Pump Dealer Agreement was executed on 26.10.1989 with Indian Oil Corporation Limited. Form No.3CB in connection with audit report under section 44AB of the Income Tax Act, 1961, for the person carrying on the business in the name of M/s. Navgujarat Petroleum, has been referred to from 31.03.1991 till 1997-98. Necessary permission under the Essential Commodities Act, and order under Form-B of Gujarat Essential Articles (Licensing, Control and Stock Declaration) Order 1981, has been referred to. The documents regarding sale of petroleum and electricity connection bills have been referred to by learned advocate Mr. Shelat.
3.3 Referring to the impugned order, Mr. Shelat submitted that learned Judge while rejecting the application had observed that registered Sale Deed No.8532, in the year 1989, was executed, and, thereafter plaintiffs had not obtained any N.A. Permission from the competent authority, which is mentioned in the order of Deputy Collector passed on 02.06.2018, and now after a long passage of time from 1989 to 2022, the plaintiffs have not obtained any Permission under section 65 of the Bombay Land Revenue Code, and without obtaining N.A. Permission, plaintiffs’ predecessor or the plaintiffs do not acquire any right title or have any settled legal possession by virtue of sale deed, hence, observed that the defendants have better title and better possession rather than the plaintiffs, and have observed that the claim of the plaintiffs that they are in settled legal possession by virtue of sale deed of 1989, was not prima facie established.
3.4 Thus, Mr. Shelat submitted that this observation now would require further reconsideration, since the order of the District Collector, Ahmedabad against the Deputy Collector dated 02.06.2018 came to be passed on 24.02.2023, and the Revision Application No.595 of 2018 came to be allowed.
3.5 Advocate Mr. Shelat further stated that the registered sale deed reflects the fact that the process of N.A. Permission was pending, and it was agreed upon that the vendor would seek the permission, and if at all, in any case, there would be a legal hindrance, then that was required to be removed by the vendor himself.
3.6 Referring to Entry No.4644 dated 01.02.1989, Mr. Shelat submitted that permission so granted was to Kanabhai Sukhabhai Bharwad and he was required to fulfill the conditions, and it was his responsibility to have received the permission under section 65 of the Land Revenue Code, and the sale deed executed had laid down the responsibility on the seller. He further stated that the Court Commission also indicates the construction on the land. Thus, in view of the submissions, prays that prayer below notice of motion is required to be granted.
4. Per contra Advocate Mr. D.K. Puj referring to the judgment of this Court in the case of Hardik Harshadbhai Patel Vs. Amarsang Nathaji and Ors., decided on 13.04.2016 in Appeal From Order No.489 of 2013, submitted that the agreement in execution of the violation of the Tenancy Act, is always required to be considered as invalid and not legally enforceable since the transfer of the land would be in violation of the conditions laid down, such sale cannot be considered as valid unless and until the condition is fulfilled.
4.1 Relying on the judgment of Lotan Ramchandra Shimpi And Ors. Vs. Shankar Ganpat Kayasth and Ors. decided in Second Appeal No.202 of 1983 on 04.08.1994, Advocate Mr. Puj submitted that if the sanction required under section 44 of the Tenancy Act is not obtained, then possession given to the purchaser would not be valid and same even cannot be protected under section 53-A of the T.P. Act, and possession, therefore has to be considered as of the real owner.
4.2 Advocate Mr. Puj relied on the judgment of Sukumabai Vs. Chandgonda Kalgonda Patil, decided in Second Appeal No.249 of 1987 on 25.02.2002, to submit that when the sale deed is ex facie illegal and invalid and when no previous sanction has been obtained for using it as a non-agricultural land, then the sale deed would be hit under the Tenancy Act and, therefore, stated that the learned Judge has rightly observed that the defendants have better title than the plaintiff.
4.3 Advocate Mr. Puj has relied upon the provision of Bombay Tenancy and Agricultural Land Rules, 1956 by specifically laying reference to sub-Rule (3) of Rule 25-C to state that, in case, where the land is being sold, bonafide for any non-agricultural purpose, then person in whose favour the transfer is made, is mandated to apply for N.A. Permission before the competent authority under the Bombay Land Revenue Code, 1879 to put the land for use of non-agriculture purpose; thus, stated that, even if, any agreement is made by the vendor, such would not be binding since law itself lays down the responsibility on the head of the purchaser.
4.4 Advocate Mr. Puj further stated that earlier Regular Civil Suit No.1239 of 2019 was filed, which came to be withdrawn on 10.02.2021, and, thus the suit would also be hit by order 2 Rule (2) of Code of Civil Procedure (for short ‘CPC’), when no specific permission has been granted to the plaintiffs for filing of the suit. Mr. Puj submitted that the conditions as laid down in Order 23 Rule (1) sub-Rule (3) and (4) CPC, has not been satisfied, and therefore since the permission has not been granted, the plaintiff would be precluded from filing the suit.
5. Countering the said argument, Advocate Mr. Shelat submitted that the present suit had been filed even prior to withdrawal of the Civil Suit No.1239 of 2019 filed on 06.07.2020, and, thus the provisions as referred by learned advocate Mr. Puj would not be applicable.
6. The District Collector in his order dated 24.02.2023 in Revision Application No.595 of 2018 observed the fact of permission for construction of petrol pump in Survey No.64 of the restricted tenure land sought by the occupant Kanabhai Sukhabhai on 1000 sq. Mtrs., and thereafter considering Rs.95 per sq. mtrs. aggregating to Rs.95,000/-, out of which 70% i.e. Rs.66,500/- premium was ordered to be paid, and on the sanction being granted by an order of City Deputy Collector in CTC/TNC/Dt.17/12/88, the necessary change in the record by Entry No.4644 on 01.02.1989, had been mutated, and thereafter 1000 sq. Mtrs. land had been sold on 29.04.1989 by registered sale deed No.8532 to Hariyantbhai Champaklal Shelat, and the same had been noted in the record on 13.07.2017 by Entry No.8581, and against that entry, objections were raised by the heirs of the vendor, but the objections were waived with further observation that as per Talati report, there was a construction of the petrol pump on the place. The order, further has found that the observation made by the Mamlatdar in the order dated 02.06.2018, to set aside the order of the Mamlatdar on 08.11.2017, was found not to be proper by giving the reasons that disputed land of 1000 sq. Mtrs. was sold for construction of petrol pump, and, as per relevant Rules, on premium of Rs.66,500/- the sale was sanctioned, and reference had been made of sections 66 and 67 of the Gujarat Land Revenue Code for an independent proceeding for non-agricultural construction.
7. The admitted fact in the matter would be that the disputed land of Final Plot No.84, encompassing of 1000 sq. yard had been sold by way of registered sale deed dated 29.04.1989. The agreement of the dealership of Petrol/HSD was executed. The business was conducted in the name of M/s. Navgujarat Petroleum. Necessary documents to fortify the said claim has been referred to. The District Collector’s order dated 24.02.2023 refers to the Talati report, which shows the construction of the petrol pump. The Court Commissioner’s report also reflects the construction on the land in question. The premium of Rs.66,500/- was paid. The land at present, by way of sale deed, is in possession of the plaintiffs. The District Collector, Ahmedabad has made necessary orders for the proceedings to be initiated.
7.1 Thus, to the fact of the sale deed and the business undertaken of the sale of petroleum, the plaintiffs can be considered to be in the settled possession. There is no denial of the registered sale deed. The question regarding N.A. permission is to be dealt with by the competent authority.
8. In the result, the present Appeal From Order is allowed. The order dated 18.11.2022 passed by City Civil Court, Ahmedabad below notice of motion Exh.6/7 in Civil Suit No.513 of 2020 is quashed and set aside. Thus, prayers of Exhibit-6/7 in Civil Suit No.513 of 2020 is hereby allowed.
9. In view of the same, Civil Applications stands disposed of.
Direct service is permitted.
