Gujarat High Court
Shantilal Bhulabhai Patel vs Bhulabhai Khemabhai Patel on 28 April, 2025
NEUTRAL CITATION
C/SA/142/2022 JUDGMENT DATED: 28/04/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SECOND APPEAL NO. 142 of 2022
With
CIVIL APPLICATION (FOR STAY) NO. 1 of 2022
In R/SECOND APPEAL NO. 142 of 2022
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE SANJEEV J.THAKER
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Approved for Reporting Yes No
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SHANTILAL BHULABHAI PATEL & ORS.
Versus
BHULABHAI KHEMABHAI PATEL & ANR.
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Appearance:
MR PK PANCHOLI(532) for the Appellant(s) No. 1,2,3,4
MR SUNIL S JOSHI(2925) for the Respondent(s) No. 1,2
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CORAM:HONOURABLE MR.JUSTICE SANJEEV J.THAKER
Date : 28/04/2025
ORAL JUDGMENT
1. The present Second Appeal has been filed under Section 100 of the Code of Civil Procedure, 1908. By way of the present Second Appeal, the appellant has challenged the judgment and decree passed by the Principal District Judge, Mahisagar at Lunawada in Regular Civil Appeal Page 1 of 14 Uploaded by Vikramsinh Amarsinh(HCW0055) on Mon Apr 28 2025 Downloaded on : Tue Apr 29 12:40:30 IST 2025 NEUTRAL CITATION C/SA/142/2022 JUDGMENT DATED: 28/04/2025 undefined No.22 of 2021 dated 03.01.2022, whereby the Principal District Judge has confirmed the order and judgment dated 12.11.2021 passed by Senior Civil Judge, Lunawada in Regular Civil Suit No.7 of 2020.
2. For the sake of convenience, the parties are referred to as their original status in the suit i.e. the appellants are referred to as the original plaintiffs and the respondents are referred to as the original defendants.
3. The plaintiffs filed Regular Civil Suit No.7 of 2020 on the ground that the plaintiffs are the owner of the suit property and by way of the registered sale deed dated 03.03.2011, the suit property has been sold by the plaintiffs to the defendants and it has been stated in the plaint that by committing fraud the defendants instead of 2 acres, the defendants have mentioned hectare 2.22.58 in Page 2 of 14 Uploaded by Vikramsinh Amarsinh(HCW0055) on Mon Apr 28 2025 Downloaded on : Tue Apr 29 12:40:30 IST 2025 NEUTRAL CITATION C/SA/142/2022 JUDGMENT DATED: 28/04/2025 undefined the sale deed and therefore, it is alleged in the plaint that by fraud the defendants have mentioned hectare 2.22.58 instead of 2 acres. It has been alleged in the plaint that thereafter the plaintiffs and the defendants met and the defendants informed the plaintiffs that the defendants will not claim any right arising from the sale deed dated 03.03.2011 and it is the case of the plaintiffs that the plaintiffs refunded the entire sale consideration and therefore, it is alleged that the defendants do not have any right, title or interest in the suit property and the plaintiffs sought relief for declaration, that by virtue of registered sale deed No.321 of 2011 dated 03.03.2011, the defendants do not have any right, title and interest in the suit property and the plaintiffs also sought for injunction with respect to the suit property.
4. The defendants appeared in the said suit and filed Page 3 of 14 Uploaded by Vikramsinh Amarsinh(HCW0055) on Mon Apr 28 2025 Downloaded on : Tue Apr 29 12:40:30 IST 2025 NEUTRAL CITATION C/SA/142/2022 JUDGMENT DATED: 28/04/2025 undefined application vide Exh.12, that as per the provisions of Order VII Rule 11(a), (b) and (d) of the Code of the Civil Procedure, on the ground that looking at the pleadings stated in the plaint, the plaint is required to be rejected and after going through the plaint and the documentary evidence produced with the plaint, the trial Court, by an order dated 12.11.2021, rejected the plaint and being aggrieved by the said order, the plaintiffs filed Regular Civil Appeal No.22 of 2021 which was also dismissed on 03/01/2022 and the decree passed by Principal Senior Civil Judge, Lunawada in Regular Civil suit No.7 of 2020 was confirmed. Aggrieved by the said order, the plaintiffs have filed the present Second Appeal.
5. Learned advocate for the plaintiffs have mainly contended that the Court could not have rejected the plaint being barred by law, it has also been argued that Page 4 of 14 Uploaded by Vikramsinh Amarsinh(HCW0055) on Mon Apr 28 2025 Downloaded on : Tue Apr 29 12:40:30 IST 2025 NEUTRAL CITATION C/SA/142/2022 JUDGMENT DATED: 28/04/2025 undefined the trial Court has not appreciated the evidence produced by the plaintiffs in its true spirit and the trial Court has not considered revenue records and issue regarding fragmented land and provisions regarding the same and therefore, it has been argued that there are substantial questions of law involved in the present Second Appeal and therefore, the present Second Appeal is required to be admitted as the substantial questions suggested in the Second Appeal required to be considered.
6. Per Contra, learned advocate for the respondents has argued that the plaintiffs are claiming right in the property and are trying to seek a declaration that by virtue of the sale deed which has been executed by the plaintiffs themselves the sale deed should not be acted upon by the present defendants.
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NEUTRAL CITATION C/SA/142/2022 JUDGMENT DATED: 28/04/2025 undefined
7. Having heard learned advocates for the parties, the fact remains that the plaintiffs have not challenged the sale deed, moreover, the said sale deed executed on 03.03.2011 specifically states that the possession of the property is already handed over to the defendants and therefore, the question of plaintiffs being in possession of the property does not arise. Learned advocate for the defendants have also submitted that unless a suit is filed for cancellation of the sale deed, the seller cannot execute a cancellation deed unilaterally. In the present case, though there is no cancellation deed but the fact is that even in the plaint the plaintiffs state that by oral understanding the said sale deed was not to be acted upon, the fact remains that the said sale deed which is registered document and the said sale deed can only be cancelled by a registered document and by virtue of the sale deed, as the defendants have become the owner of Page 6 of 14 Uploaded by Vikramsinh Amarsinh(HCW0055) on Mon Apr 28 2025 Downloaded on : Tue Apr 29 12:40:30 IST 2025 NEUTRAL CITATION C/SA/142/2022 JUDGMENT DATED: 28/04/2025 undefined the property, no reliefs can be granted against the true owner who has purchased the property after paying sale consideration and acquiring the property by said registered document.
8. Undisputed fact in the present case is that the plaintiffs themselves have executed the sale deed being registered sale deed No.321 of 2011 dated 03.03.2011 and the said fact has been admitted by the plaintiffs in the plaint, the only case of the plaintiffs is that the measurement of the land has been shown more than the plaintiffs intended to sell it and there is no challenge to the sale deed which has been executed on 03.03.2011, the plaintiffs have filed the suit in the year 2020 and in the said suit the plaintiffs have not sought any relief to cancel the said sale deed. Therefore, it can be clearly seen that by clever drafting the plaintiffs are trying to bring the suit Page 7 of 14 Uploaded by Vikramsinh Amarsinh(HCW0055) on Mon Apr 28 2025 Downloaded on : Tue Apr 29 12:40:30 IST 2025 NEUTRAL CITATION C/SA/142/2022 JUDGMENT DATED: 28/04/2025 undefined within a period of limitation. The fact remains that the suit is filed in the year 2022 and the sale deed is of the 2011. The plaintiffs have also not come forward with a case that only recently they have come to know about the said fraud of excess measurement of land in the said sale deed, the provisions of Code of the Civil Procedure are very clear. As per the provisions of Order VI Rule 4, which reads as under:
"4. Particulars to be given where necessary.--In all cases in which the party pleading relies on any misrepresentation, fraud, breach of trust, wilful default, or undue influence, and in all other cases in which particulars may be necessary beyond such as are exemplified in the forms aforesaid, particulars (with dates and items if necessary) shall be stated in the pleading.
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9. Therefore, when the plaintiffs are alleging that fraud has been committed, the plaintiffs have to give particulars regarding dates that on which date the said Page 8 of 14 Uploaded by Vikramsinh Amarsinh(HCW0055) on Mon Apr 28 2025 Downloaded on : Tue Apr 29 12:40:30 IST 2025 NEUTRAL CITATION C/SA/142/2022 JUDGMENT DATED: 28/04/2025 undefined fraud had come to the knowledge of the plaintiffs. In the present case, the plaintiffs have not challenged the said sale deed and has only alleged that as the measurement of the land in the said sale deed was never agreed the defendants, do not have any right, title and interest by virtue of the sale deed, but no specific date that has been mentioned by the plaintiffs so as to show that the cause of action has arisen from particular date and the suit is filed on a particular date that is to say, the said suit has been filed within a period of limitation, in fact the plaintiffs have not disclosed any date as to when actually the plaintiffs came to know that the measurement mentioned in the sale deed dated 03.03.2011 were wrongly mentioned.
10. In view of the said fact, it has rightly been decided by the trial Court and the Appellate Court that the Page 9 of 14 Uploaded by Vikramsinh Amarsinh(HCW0055) on Mon Apr 28 2025 Downloaded on : Tue Apr 29 12:40:30 IST 2025 NEUTRAL CITATION C/SA/142/2022 JUDGMENT DATED: 28/04/2025 undefined suit that has been filed by the plaintiffs, was barred by law and therefore, also the plaint was rightly rejected by the trial Court.
11. Moreover, the findings of the fact by both the Courts below were not wrong. Moreover, under Section 100 of the Code of Civil Procedure, the Court cannot interfere with the findings of the fact arrived at by the lower Appellate Court as the same are well reasoned and in the Second appeal, the High Court cannot substitute its own finding on re-appreciation of evidence merely on the ground that another view was possible. In the present case, looking to the facts of the case, more particularly, when the sale deed in dispute has not even been challenged by the plaintiffs. The suit was rightly rejected under the provisions of Order VII Rule 11 of the Code of Civil Procedure. Moreover, when there are concurrent Page 10 of 14 Uploaded by Vikramsinh Amarsinh(HCW0055) on Mon Apr 28 2025 Downloaded on : Tue Apr 29 12:40:30 IST 2025 NEUTRAL CITATION C/SA/142/2022 JUDGMENT DATED: 28/04/2025 undefined findings of the fact, the High Court cannot interfere with the said concurrent findings of the fact.
12. In the present case, the conclusion which has been reached by both the Trial Court and the Appellate Court cannot be interfered as the judgment and decree of the Court below are not perverse, arbitrary so as to warrant interference.
13. Moreover, as per the well settled decisions of this Court as well as the Hon'ble Apex Court, the Court ordinarily will not interfere with concurrent findings of fact except in exceptional cases where the findings are such that it shocks the conscious of the Court or may disrespect to the forms of legal process or some violation or some principle of natural justice or otherwise substantial and great injustice has been done. Page 11 of 14 Uploaded by Vikramsinh Amarsinh(HCW0055) on Mon Apr 28 2025 Downloaded on : Tue Apr 29 12:40:30 IST 2025
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14. It is required to be noted that in Second Appeal, the scope is very limited and the Court cannot re- appreciate the evidence. In the case of Navaneethammal v. Arjuna Chetty reported in 1996 (6) SCC 177, the Hon'ble Apex Court has observed as under:-
"11. This Court, time without number, pointed out that interference with the concurrent findings of the courts below by the High Court under Section 100 CPC must be avoided unless warranted by compelling reasons. In any case, the High Court is not expected to reappreciate the evidence just to replace the findings of the lower courts."
15. In the case of Jaichand (Dead) through Lrs and Other v. Sahnulal and Another reported in 2024 SCC OnLine SC 3864, the Hon'ble Apex Court has observed as under:-
"28. It is thus clear that under Section 100 CPC, the High Court cannot interfere with the Page 12 of 14 Uploaded by Vikramsinh Amarsinh(HCW0055) on Mon Apr 28 2025 Downloaded on : Tue Apr 29 12:40:30 IST 2025 NEUTRAL CITATION C/SA/142/2022 JUDGMENT DATED: 28/04/2025 undefined findings of fact arrived at by the first Appellate Court which is the final Court of facts except in such cases where such findings were erroneous being contrary to the mandatory provisions of law, or its settled position on the basis of the pronouncement made by the Apex Court or based upon inadmissible evidence or without evidence."
16. Under the circumstances, this Second Appeal is devoid of any substantial question of law. Both the learned Trial Court and first appellate Court have rightly decided the issue between the parties in the right perspective and as stated above no substantial question of law arises in the present appeal. The appellants have failed to prove their case before the learned trial Court as well as before the first appellate Court. This Court does not find any substance in the present Second Appeal as the same is devoid of any merit both on facts and law and the same is dismissed at admission stage.
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NEUTRAL CITATION C/SA/142/2022 JUDGMENT DATED: 28/04/2025 undefined ORDER IN CIVIL APPLICATION (FOR STAY) NO. 1 of 2022 In view of the order passed in the main matter, the connected civil application does not survive and the same stands disposed of accordingly.
(SANJEEV J.THAKER,J) Vikramsinh Amarsinh Page 14 of 14 Uploaded by Vikramsinh Amarsinh(HCW0055) on Mon Apr 28 2025 Downloaded on : Tue Apr 29 12:40:30 IST 2025