Case Note & Summary
The appellant, Shantaben Gopalbhai Tadvi, filed a Second Appeal under Section 100 of the Code of Civil Procedure, 1908, challenging the concurrent judgments of the courts below which dismissed her suit for specific performance and permanent injunction. The suit pertained to land bearing Survey No.137 situated at Village Bhomaliya, Taluka Nandod, District Bharuch. The original owner, Mohanbhai Narsinhbhai Tadvi, an Adivasi, was allotted the land as new tenure land. On 02.04.1985, the plaintiff entered into an agreement to sale with the deceased Mohanbhai. The plaintiff claimed that she paid part consideration and was put in possession, but the defendants (legal heirs of Mohanbhai) refused to execute the sale deed and obtain necessary government permission. The trial court dismissed the suit, holding that the plaintiff failed to prove readiness and willingness, and that the agreement was void for want of government permission. The first appellate court confirmed the decree. In the Second Appeal, the High Court framed two substantial questions of law: (i) whether the courts below were obliged to grant a decree of injunction against illegal dispossession, and (ii) whether the plaintiff is entitled to specific performance when she has done everything obligatory upon her and the defendants are not applying for permission. The High Court held that the plaintiff failed to prove her readiness and willingness as she did not deposit the balance consideration or take steps to obtain permission. The land being new tenure land, transfer without Collector's sanction is prohibited under Section 43 of the Bombay Tenancy and Agricultural Lands Act, 1948. The plaintiff also failed to prove possession. Consequently, the Second Appeal was dismissed, affirming the concurrent findings.
Headnote
A) Specific Performance - Readiness and Willingness - Section 16(c) Specific Relief Act, 1963 - Plaintiff must prove continuous readiness and willingness to perform his part of the contract - In the present case, plaintiff failed to deposit balance consideration or take steps to obtain government permission - Held that plaintiff is not entitled to specific performance (Paras 10-15).
B) New Tenure Land - Transfer Restriction - Section 43 Bombay Tenancy and Agricultural Lands Act, 1948 - Land allotted to Adivasi on new tenure basis cannot be transferred without previous sanction of the Collector - Agreement to sale without such permission is void and unenforceable - Held that the agreement is hit by statutory prohibition (Paras 16-20).
C) Injunction - Possession - Plaintiff failed to prove possession over suit land - No decree for injunction can be granted without proof of possession - Held that courts below rightly refused injunction (Paras 21-25).
Issue of Consideration
Whether the courts below were obliged to grant a decree of injunction against illegal dispossession and whether the plaintiff is entitled to a decree for specific performance of the contract when he has done everything obligatory upon him and the defendants are not making an application to the Government seeking permission to alienate the property.
Final Decision
Second Appeal dismissed. Concurrent judgments of courts below confirmed. No interference with findings of fact.
Law Points
- Specific performance
- Readiness and willingness
- New tenure land
- Adivasi
- Government permission
- Section 100 CPC
- Concurrent findings
- Substantial question of law
Case Details
2026 LawText (GUJ) (01) 476
R/Second Appeal No. 106 of 2006
MR DN PANDYA for Appellant, SR. ADV. MR. SHALIN MEHTA assisted by ADITI S RAOL for Respondent No. 2, MR HIMANSHU C DESAI for Respondent No. 1.1,1.2,1.3,1.4
Shantaben Gopalbhai Tadvi
Jagdishbhai Mohanbhai Tadvi & Ors.
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Nature of Litigation
Second Appeal under Section 100 CPC against concurrent judgments dismissing suit for specific performance and permanent injunction.
Remedy Sought
Appellant sought decree for specific performance of agreement to sale and permanent injunction restraining defendants from dispossessing her.
Filing Reason
Defendants refused to execute sale deed and obtain government permission for transfer of new tenure land.
Previous Decisions
Trial court dismissed Regular Civil Suit No. 160 of 1990; First Appellate Court dismissed Regular Civil Appeal No. 17 of 2004 on 28.11.2005.
Issues
Whether the courts below were obliged to grant a decree of injunction against illegal dispossession?
Whether the plaintiff is entitled to a decree for specific performance when she has done everything obligatory upon her and the defendants are not applying for permission?
Submissions/Arguments
Appellant argued that she paid consideration and was put in possession; defendants failed to obtain permission; she is ready and willing.
Respondents argued that the agreement is void for want of permission; plaintiff failed to prove readiness and willingness; no possession.
Ratio Decidendi
In a suit for specific performance, the plaintiff must prove continuous readiness and willingness to perform his part of the contract. Where the land is new tenure land allotted to an Adivasi, transfer without previous sanction of the Collector is prohibited by Section 43 of the Bombay Tenancy and Agricultural Lands Act, 1948, rendering the agreement void. The plaintiff's failure to deposit balance consideration or take steps to obtain permission indicates lack of readiness and willingness. Concurrent findings of fact cannot be interfered with in second appeal under Section 100 CPC unless perverse.
Judgment Excerpts
This Second Appeal under Section 100 of the Code of Civil Procedure, 1908 is directed against the concurrent judgment and decree passed by the learned Court below.
Whether on the facts and in the circumstances of the case, the courts below were obliged go grant a decree of injunction against the illegal dispossession of the plaintiff with a direction against the defendants that they cannot dispossess the plaintiff, except in accordance with law?
Whether on the facts and in the circumstances of the case, the plaintiff would be entitled to a decree for specific performance of the contract, especially when he has done everything which was obligatory upon him and the defendants are not making an application to the Government seeking permission to alienate the property.
Procedural History
Original plaintiff filed Regular Civil Suit No. 160 of 1990 for specific performance and injunction. Trial court dismissed suit. Plaintiff appealed in Regular Civil Appeal No. 17 of 2004, which was dismissed on 28.11.2005. Plaintiff then filed Second Appeal No. 106 of 2006 under Section 100 CPC, which was admitted on 01.08.2006 framing substantial questions of law. The High Court pronounced judgment on 07.01.2026 dismissing the appeal.
Acts & Sections
- Code of Civil Procedure, 1908: Section 100
- Specific Relief Act, 1963: Section 16(c)
- Bombay Tenancy and Agricultural Lands Act, 1948: Section 43
