Samim Sultana Daughter Of ... vs Muljibhai Ravabhai Thakor-Decd. ...

1. The appellant - original plaintiff has filed the present appeal from order being aggrieved by the order dated 11.03.2016, passed by the learned 2nd Additional Senior Civil Judge and Additional Chief Judicial Magistrate, Anand (hereinafter referred to as 'the trial court'), below Exh.5 in Special Civil Suit No. 91 of 2015, whereby the trial court has rejected the application of the appellant - plaintiff seeking temporary injunction in respect of the land in question.

2. It is sought to be submitted by learned advocate Mr. Parikh for the appellant that the appellant was handed over the possession of the suit land by the deceased Muljibhai Ravabhai Thakor, the predecessor of the respondents - defendants by virtue of the Page 1 of 3 HC-NIC Page 1 of 3 Created On Thu May 05 03:17:55 IST 2016 C/AO/137/2016 ORDER agreement dated 04.08.2008, and since then, he is in possession till the date. According to him, though the land was new tenure land, the respondents - defendants had failed to obtain necessary permission to convert the land into old tenure, and in any case, there being no condition imposed by the Collector at the time of purchase of the land by the said Muljibhai under Section 32 of the Bombay Tenancy Act (hereinafter referred to as 'the said Act'), the restriction contained in Section 43(1) of the said Act, would not apply to the present case. He also submitted that the respondents - defendants though were duly served, they had not filed their appearance before the trial court, and therefore, the case of the appellant has remained unchallenged.

3. Having regard to the submissions made by learned advocate for the appellant, it appears that the appellant has filed the suit seeking specific performance of the agreement dated 04.08.2008 against the respondents - defendants, the heirs of the original tenant Muljibhai, who had purchased the land in question under Section 32 of the Tenancy Act. It cannot be gainsaid that the land in question being of new tenure, the same could not be sold or agreed to be sold without the previous sanction of the Collector in view of Section 43(1) of the said Act. The contention of learned advocate Mr. Parikh that no such condition was imposed on the said Muljibhai when he purchased the land, could not be accepted for the simple reason that when the alleged agreement was entered into in Page 2 of 3 HC-NIC Page 2 of 3 Created On Thu May 05 03:17:55 IST 2016 C/AO/137/2016 ORDER the year 2008, the restriction contained in Section 43(1) of the said Act was very much in force. Such agreement being invalid and void, the trial court has rightly rejected the application of the appellant by holding that the appellant had failed to establish any prima facie case in his favour. Merely because the respondent have not appeared in the suit, that would not entitle the appellant to get the interim injunction. It is also pertinent to note that the appellant - plaintiff has filed the suit after about seven years of the execution of alleged agreement, and has also not produced any document to show that he is in possession of the land in question.

4. In that view of the matter, the Court does not find any illegality or infirmity in the impugned order passed by the trial court. The appeal being devoid of merits deserves to be dismissed, and is accordingly dismissed. It is needless to say that the trial court shall decide the suit on merits without being influenced by the observations made in the present order.

(BELA M. TRIVEDI, J.) Amar Page 3 of 3 HC-NIC Page 3 of 3 Created On Thu May 05 03:17:55 IST 2016