Gujarat High Court
Mohanbhai Khumabhai Talar vs Hemabhai Nathabhai Talar (Abated) on 10 December, 2025
NEUTRAL CITATION
C/SA/31/2025 JUDGMENT DATED: 10/12/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SECOND APPEAL NO. 31 of 2025
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE SANJEEV J.THAKER
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Approved for Reporting Yes No
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MOHANBHAI KHUMABHAI TALAR & ANR.
Versus
HEMABHAI NATHABHAI TALAR (ABATED) & ORS.
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Appearance:
MR SUNIL K SHAH(803) for the Appellant(s) No. 1,2
MS SUSHMA S SHAH(806) for the Appellant(s) No. 1,2
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CORAM:HONOURABLE MR.JUSTICE SANJEEV J.THAKER
Date : 10/12/2025
ORAL JUDGMENT
1. The present Second Appeal has been filed under section 100 of the Code of Civil Procedure, 1908 ('CPC', for short), challenging the judgment and decree, dated 01.07.2024 passed by Principal District Judge, Mahisagar at Lunawada in Regular Civil Appeal No.27 of 2023 whereby the judgment and decree dated 30.01.2023, passed by the Additional Civil Judge, Lunawada dismissing Regular Civil Suit No.12 of 2014 has been confirmed.
2. For the sake of brevity the parties are referred to as Page 1 of 13 Uploaded by U. SRILATHA(HC00185) on Wed Dec 10 2025 Downloaded on : Wed Dec 17 21:17:02 IST 2025 NEUTRAL CITATION C/SA/31/2025 JUDGMENT DATED: 10/12/2025 undefined per the their original status as that of in the suit. 2.1. The plaintiffs had filed a suit claiming that the suit property was jointly owned by the defendants and the partition was effected amongst the defendant Nos.1 to 4 along with co-sharers, prior to the year 1993, resulting in 54 gunthas of land coming into the possession of the defendants. Subsequently, the defendants had mortgaged their respective shares of 54 gunthas to the father of the plaintiffs and the said 54 gunthas of land is the disputed suit land. 2.2 The plaintiffs has put forward the case that, an additional amount of Rs.2,301/- and Rs.1,962.50 was given to the defendant No.2 and defendant No.4, respectively, on 18.06.1994; and that in the year 2002, further amount of Rs.20,800/- was taken by the defendants; and that in the year 2002 also, further amount of Rs.27,225/- was taken by the defendant Nos.1 to 4, who have mortgaged the suit land with the plaintiffs. On 18.04.2006, the defendants have further received an amount of Rs.32,876/- from the plaintiffs. 2.3 It was the plaintiffs's case that the defendant Nos.1 to 4 had assured the plaintiffs that they will not transfer the suit property to anybody as total Rs.1,24,287/- have been paid to the defendant Nos.1 to 4 by the plaintiffs and his father for the suit land, as it was mortgaged with the plaintiffs. Page 2 of 13 Uploaded by U. SRILATHA(HC00185) on Wed Dec 10 2025 Downloaded on : Wed Dec 17 21:17:02 IST 2025
NEUTRAL CITATION C/SA/31/2025 JUDGMENT DATED: 10/12/2025 undefined 2.4 Since defendant Nos.1 to 4 threatened to transfer the suit land, the plaintiffs filed a suit seeking declaration that since the suit land has been transferred to the plaintiffs by way of mortgage, defendant Nos.1 to 4 have no right to transfer the suit land in any manner. Further relief has been sought by the plaintiffs to direct defendant Nos.1 to 4 not to sell the suit land. An additional prayer for permanent injunction has been sought to restrain defendant Nos.1 to 4 from transferring the suit land.
2.5 The defendant No.1 had filed a reply in the said suit denying the facts and the said defendant also has pleaded that no partition has taken place between the defendant Nos.1 to 4 and other co-sharers of the suit land. 2.6 The defendant Nos.3 to 4 and 6 to 8 appeared, but have not filed any written statement.
2.7 The plaintiffs examined himself vide Exh.39 and witness for the plaintiffs was examined vide Exh.91. The defendants have not adduced any oral or documentary evidence. 2.8 The issues were framed vide Exh.28 and after considering the oral and documentary evidence, the trial Court dismissed the said suit.
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NEUTRAL CITATION C/SA/31/2025 JUDGMENT DATED: 10/12/2025 undefined 2.9 Aggrieved by the said judgment and decree of the trial Court, the plaintiffs filed an appeal being Regular Civil Appeal No.27 of 2023 and after reappreciating the evidence, the Principal District Judge, Mahisagar at Lunawada dismissed the said appeal and confirmed the judgment and decree passed by the Additional Civil Judge, Lunawada vide a judgment and order dated 01.07.2024.
3. It is this judgment and decree impugned which is challenged by the appellant - original plaintiffs - appellant before this Court in this second appeal. 3.1 Learned advocate for the plaintiff has mainly argued that the trial Court and first appellate Court have not taken into consideration the oral and documentary evidence produced on record.
3.2 Learned advocate for the plaintiff has also argued that the trial Court and first appellate Court have not taken into consideration the fact that necessary consideration was also received by defendant nos.1 to 4 from the father of the plaintiff.
3.3 Learned advocate for the plaintiff has also argued that though the plaintiff had established that the suit land came Page 4 of 13 Uploaded by U. SRILATHA(HC00185) on Wed Dec 10 2025 Downloaded on : Wed Dec 17 21:17:02 IST 2025 NEUTRAL CITATION C/SA/31/2025 JUDGMENT DATED: 10/12/2025 undefined into possession of defendant nos.1 to 4, they have subsequently mortgaged the land to plaintiff's father and plaintiff father has been put in possession of the property. 3.4 Learned advocate for the plaintiff has also argued that trial Court and the first appellate Court have also failed in taking into consideration the fact that defendants have not challenged documents on record which clearly shows that suit property had been mortgaged. It has also been argued that both the courts below have failed to consider that the mortgage-deed which was executed in favour of plaintiff and the possession was handed over to the suit land was pursuant to the said mortgage deed. He has submitted that, therefore, the present second appeal is required to be admitted on the following substantial questions of law as suggested in the memo of appeal.
"(A) The Learned Advocate for the plaintiffs has submitted oral arguments vide Exh.18, wherein it has been argued that the plaintiff have prove the fact by producing various agreements that the suit land has been mortgaged in favour of the father of the plaintiffs and thereafter in favour of the plaintiffs, furthermore, it has been asserted that the plaintiffs have proved that the necessary Page 5 of 13 Uploaded by U. SRILATHA(HC00185) on Wed Dec 10 2025 Downloaded on : Wed Dec 17 21:17:02 IST 2025 NEUTRAL CITATION C/SA/31/2025 JUDGMENT DATED: 10/12/2025 undefined consideration was received by defendant Nos.1 to 4 from the father of the plaintiffs as well as from the plaintiffs. However, the trial Court has not considered such documentary evidence.
(B) Furthermore, it has been argued that by examining the witnesses, the plaintiffs have proven the execution of the said documents. Therefore, the plaintiffs have established that the suit land came into the possession of defendant Nos.1 to 4 who subsequently mortgaged the suit land, Consequently, the plaintiff's father was put into possession.
However the trial court has failed to appreciate such documentary as well as oral evidence of the plaintiffs, rendering the judgment and decree of the trial court legally flawed.
(C) Furthermore, he has argued that the defendants have not adduced any evidence, and at the same time, they have not challenged the documentary as well as oral evidence presented by the plaintiffs, Therefore, the suit ought to have been granted in favour of the plaintiffs, consequently, the judgment and decree are incorrect in both fact and law.
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NEUTRAL CITATION C/SA/31/2025 JUDGMENT DATED: 10/12/2025 undefined (D) Both the courts have failed to considered the mortgage deed which were executed in favour of the plaintiffs, and the possession of the suit land was also with the father of the plaintiff therefore the courts have to considered the mortgage deed produced by wide exhibit 98, 99, 100, 101, 102, 103 and 104, in the favour of the plaintiffs. (E) The exhibit 98 took place between dependents No.1 to 4 and the father of the plaintiff, specifically stated that the suit land was mortgaged by giving possession to the father of the plaintiff both the courts have erred in considering the said exhibits. (F) The appellants crave leave to add, alter, amend or rescind any ground or grounds at the time of hearing of this appeal, in the interest of justice." 4.1 Having heard learned advocate for the plaintiff and having gone through the judgment and decree passed by the trial Court which is confirmed by the first appellate Court, the fact remains that the entire case of the plaintiff is based on the mortgage deed executed by defendant nos.1 to 4 dated 06.06.1993, which was produced vide Exh.98 and the Page 7 of 13 Uploaded by U. SRILATHA(HC00185) on Wed Dec 10 2025 Downloaded on : Wed Dec 17 21:17:02 IST 2025 NEUTRAL CITATION C/SA/31/2025 JUDGMENT DATED: 10/12/2025 undefined mortgage deed executed by defendant no.4 dated 06.01.2007, which is produced vide Exh.99. On considering the said evidence, it has come on record that the defendant had borrowed money from the father of the plaintiff and thereafter pursuant to the same amount was borrowed and by virtue of the same, the suit property was handed over to the plaintiff.
4.2 On perusal of the revenue record produced vide Exhs.95, 96 and 97 for the year 2016 is taken into consideration, the suit property was in the name of all the defendants and there is nothing on record which shows that the suit property only belongs to defendant nos.1 to 4. Moreover, since the year 1981, the plaintiff has not produced any document to show and suggest that the plaintiff no.1 is in possession of the suit property. The fact remains that in view of the said revenue record produced at Exhs. 95 to 97, it can be clearly established that all the defendants were joint owners of the suit property and, therefore, the defendant nos.1 to 4 were not competent to execute any documents in favour of the plaintiff no.1's father.
5. I have considered the rival submissions made by the learned advocates for the respective parties. I have also considered the documents available on record. I have perused Page 8 of 13 Uploaded by U. SRILATHA(HC00185) on Wed Dec 10 2025 Downloaded on : Wed Dec 17 21:17:02 IST 2025 NEUTRAL CITATION C/SA/31/2025 JUDGMENT DATED: 10/12/2025 undefined the record and proceedings of the trial Court as well as of the lower Appellate Court.
5.1 From the record, it transpires that the plaintiffs has not produced any evidence to demonstrate that partition has taken place between the parties as mentioned at Exhs.95 and 96 and the suit property exclusively belongs to defendant Nos.1 to 4. Therefore, the fact that the defendants were exclusive owners of the suit property and had a right to execute the mortgage deed having not been proved by the plaintiffs, the learned trial Court has rightly dismissed the said suit.
5.2 Moreover, the document produced at Exh.98 indicates that the defendant Nos.1 to 4 have mortgaged their share to father of the plaintiffs; the document produced at Exh.99 indicates that the defendant No.2 has mortgaged their share to plaintiffs No.2; the document produced at Exh.100 indicates that the defendant No.2 has mortgaged his share to plaintiff No.2 by granting the possession. The document produced at Exh.101 indicates that the defendant No.3 has mortgaged his share to plaintiffs No.2 by granting possession, the document produced at Exh.102 indicates that the defendant No.4 has mortgaged his share to plaintiff No.2; the document produced at Exh.103 indicates that the defendant Nos.1 to 4 have mortgaged their share to the plaintiffs; the Page 9 of 13 Uploaded by U. SRILATHA(HC00185) on Wed Dec 10 2025 Downloaded on : Wed Dec 17 21:17:02 IST 2025 NEUTRAL CITATION C/SA/31/2025 JUDGMENT DATED: 10/12/2025 undefined document produced at Exh.104 indicates that the defendant No.1 has mortgaged his share to plaintiff No.2. 5.3 The fact remains that though the plaintiffs have relied on the said documents, none of the said documents is a registered document. In view of the fact that the said documents, on which the plaintiffs relied, are required to be absolutely registered and the same having not been registered, the plaintiffs have failed to prove that the defendants have mortgaged the suit land. 5.4 Moreover, it is required to be taken into consideration that though there are other co-sharers other than defendant nos.1 to 4 who have alleged to have mortgaged the suit property, they are neither the signatory to the said mortgage deed nor is it the case of the plaintiffs that they have mortgaged the suit property to the plaintiffs. 5.5 By virtue of Section 17 (1) (c) of the Registration act, the said document on which the plaintiff is placing reliance i.e. Exhs. 98 and 99 are compulsorily required to be registered and in view of the said fact that the said document is also not registered, it cannot be taken into consideration.
6.1 The conclusion which has been reached by both the Page 10 of 13 Uploaded by U. SRILATHA(HC00185) on Wed Dec 10 2025 Downloaded on : Wed Dec 17 21:17:02 IST 2025 NEUTRAL CITATION C/SA/31/2025 JUDGMENT DATED: 10/12/2025 undefined Trial Court and the Appellate Court cannot be interfered as the judgment and decree of the Courts below are not perverse, arbitrary so as to warrant interference. 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. 6.2 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 Page 11 of 13 Uploaded by U. SRILATHA(HC00185) on Wed Dec 10 2025 Downloaded on : Wed Dec 17 21:17:02 IST 2025 NEUTRAL CITATION C/SA/31/2025 JUDGMENT DATED: 10/12/2025 undefined reappreciate the evidence just to replace the findings of the lower courts."
6.3 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 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."
6.4 Therefore, also the plaintiff has miserably failed to show that there is any substantial question of law involved in the present appeal and the substantial question of law which has been suggested in the memo of appeal are also not Page 12 of 13 Uploaded by U. SRILATHA(HC00185) on Wed Dec 10 2025 Downloaded on : Wed Dec 17 21:17:02 IST 2025 NEUTRAL CITATION C/SA/31/2025 JUDGMENT DATED: 10/12/2025 undefined substantial question of law and on facts and the said factual aspect have well been considered by the Trial Court and the First Appellate Court and, therefore, the present appeal requires to be dismissed.
7. 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.
(SANJEEV J.THAKER,J) SRILATHA Page 13 of 13 Uploaded by U. SRILATHA(HC00185) on Wed Dec 10 2025 Downloaded on : Wed Dec 17 21:17:02 IST 2025