Gujarat High Court
Khalifa Tanveerahmed Fajleahmed vs Jakirhusain Mohammadhusain Meman on 10 December, 2025
NEUTRAL CITATION
C/SA/391/2025 JUDGMENT DATED: 10/12/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SECOND APPEAL NO. 391 of 2025
With
CIVIL APPLICATION (FOR STAY) NO. 1 of 2025
In R/SECOND APPEAL NO. 391 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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KHALIFA TANVEERAHMED FAJLEAHMED
Versus
JAKIRHUSAIN MOHAMMADHUSAIN MEMAN & ORS.
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Appearance:
MR PY DIVYESHVAR(2482) for the Appellant(s) No. 1
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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 14.07.2025, passed by Additional District Judge, Banaskantha in Regular Civil Appeal No.3 of 2024, whereby the judgment and decree dated 02.03.2024, passed by the Additional Senior Civil Judge, Radhanpur, dismissing Regular Civil Suit No.47 of 2023, has been confirmed.
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NEUTRAL CITATION C/SA/391/2025 JUDGMENT DATED: 10/12/2025 undefined
2. For the sake of brevity the parties are referred to as per the their original status as that of in the suit. 3.1 The brief facts arising in the present appeal are that plaintiff filed the suit for cancellation of the sale-deed and for declaration that the title of the suit property belongs to the plaintiff. It is the case of the plaintiff that sale-deed was executed by the plaintiff on 31.3.2008, where the value of the land was determined Rs.16,00,000/- and according to the said agreement, the defendants were obliged to pay the full amount and consequently on the same day, defendants issued a cheque of Rs.3/- Lakhs as partial payment with a commitment that the remaining sum would be paid on a specified date. However, when the plaintiff approached the defendants, the defendants provided three cheques totalling to Rs.13/- lakhs and assured that the remaining amount will be paid through said cheques before production of the cheques before concerned banks.
3.2 In the meantime, since the father of the plaintiff had won in different revenue proceedings and civil proceedings filed by the power of attorney of the father of the plaintiff, the defendants had never intended to pay the remaining amount of Rs.13/- Lakhs and, therefore, the suit has been filed being Regular Civil Suit No.47 of 2003. Page 2 of 13 Uploaded by U. SRILATHA(HC00185) on Wed Dec 10 2025 Downloaded on : Wed Dec 17 21:17:32 IST 2025
NEUTRAL CITATION C/SA/391/2025 JUDGMENT DATED: 10/12/2025 undefined 3.3 The defendants appeared in the said suit and filed application vide Exhibit 10 under the provisions of Order VII Rule 11 of the Code of Civil Procedure, 1908 and stated that the plaintiff's claim is barred by law more particularly on the point of limitation and that there was no cause of action that arises in the plaint. The trial Court allowed the said application filed vide Exh.10 and rejected the plaint. Aggrieved by the said order, plaintiff filed Regular Civil Appeal No.3 of 2024 and after re-appreciating the evidence, the first appellate Court rejected the appeal and confirmed the judgment decree passed by the trial Court in Regular Civil Suit No.47 of 2023. Hence the present Second Appeal. 4.1 Learned advocate for the plaintiff has mainly argued that trial Court and the first appellate Court have erred in holding that plaint is required to be rejected on the ground of limitation, as the issue of limitation is mixed question of fact and, therefore, the courts below could not have rejected the said plaint.
4.2 Learned advocate for the plaintiff has also argued that trial Court and the first appellate Court have failed in considering the fact that under Section 17 of the Limitation Act that the said suit was filed on the ground of fraud, the Page 3 of 13 Uploaded by U. SRILATHA(HC00185) on Wed Dec 10 2025 Downloaded on : Wed Dec 17 21:17:32 IST 2025 NEUTRAL CITATION C/SA/391/2025 JUDGMENT DATED: 10/12/2025 undefined details of which is stated in the plaint and the trial Court has not taken into consideration the said fact. 4.3 Learned advocate for the plaintiff has also argued that trial Court and first appellate Court have not taken into consideration that the cheques were given in lieu of sale consideration and the fact that the said cheques have never been honoured was a ground on which the plaintiff could have filed the present suit and said suit could not have been rejected by the trial Court and, therefore, present second appeal is required to be admitted on the substantial question of law which have been stated in memo of second appeal. 5.1 Having heard learned advocate for the plaintiff and having considered the plaint and documents annexed with the plaint and the judgment and decree passed by the trial Court, the fact remains that if the sale-deed dated 31.03.2008 is taken into consideration, the said sale deed states that sale consideration is of Rs.40,000/- and the said amount as per the sale-deed has been received by the plaintiff and the possession of the suit property is handed over to defendants. Pursuant to the said sale-deed and after receiving the said sale consideration of Rs.40,000/-, there is not even a whisper about the fact that further amount of Rs.13/- lakhs was to be paid by the defendants to the Page 4 of 13 Uploaded by U. SRILATHA(HC00185) on Wed Dec 10 2025 Downloaded on : Wed Dec 17 21:17:32 IST 2025 NEUTRAL CITATION C/SA/391/2025 JUDGMENT DATED: 10/12/2025 undefined plaintiff with respect to the sale consideration and also the said sale-deed also does not state that same shall come in operation subject to the payment of further amount of Rs.13,00,000/-
5.2 The admitted position of facts, in the present case, are as under:
1. The plaintiff was the owner of the property.
2. The plaintiff has admitted that the sale-deed dated 31.03.2008 has been executed by the plaintiff.
3. In the sale-deed sale consideration amount is mentioned.
4. in the sale-deed there is no whisper about the fact of further amount of Rs.13 lakhs to be paid by the defendant to the plaintiff and that the sale deed executed on 31.3.2008 is subject to further payment of said Rs.13 lakhs.
5.3 The plaintiff's case before the Trial Court and the Appellate Court is that the further amount of Rs.13/- Lakhs is not received by the plaintiff but the fact remains that Page 5 of 13 Uploaded by U. SRILATHA(HC00185) on Wed Dec 10 2025 Downloaded on : Wed Dec 17 21:17:32 IST 2025 NEUTRAL CITATION C/SA/391/2025 JUDGMENT DATED: 10/12/2025 undefined even if the averments of the plaintiff are taken to be true in the present case that the entire sale consideration is not in fact being paid, the same could not be a ground for cancellation of the sale-deed, moreover the fact remains that the sale-deed in question is a registered document and written document and as per the Section 92 of the Evidence Act, 1872 which reads as under:
"92. Exclusion of evidence of oral agreement. -- When the terms of any such contract, grant or other disposition of property, or any matter required by law to be reduced to the form of a document, have been proved according to the last section, no evidence of any oral agreement or statement shall be admitted, as between the parties to any such instrument or their representatives in interest, for the purpose of contradicting, varying, adding to, or subtracting from, its terms.
Therefore, the said version of the plaintiff that the actual sale consideration was further amount of Rs.13/- Lakhs cannot be believed. As per the provisions of Section 92 of the Evidence Act, 1872, when the terms of any contract has been reduced to the form of a document and when the said document specifically mentions of payment of sale Page 6 of 13 Uploaded by U. SRILATHA(HC00185) on Wed Dec 10 2025 Downloaded on : Wed Dec 17 21:17:32 IST 2025 NEUTRAL CITATION C/SA/391/2025 JUDGMENT DATED: 10/12/2025 undefined consideration, no evidence of any oral agreement or statement shall be admitted as between the parties to any such instrument for the purpose of contradicting, varying, adding to or subtracting from its terms. The Courts have recorded concurrent findings rejecting the stand of the plaintiff that the actual sale price was as per the agreement to sale and the said finding is well in accordance with Section 92 of the Evidence Act, 1872 and therefore the same does not warrant interference in the said concurrent findings of the Trial Court as well as the Appellate Court.
5.4 Moreover, Section 54 of the Transfer of Property Act, 1882 provides as under:
"54. 'Sale' defined.--'Sale' is a transfer of ownership in exchange for a price paid or promised or part-paid and part- promised." The definition of "sale" indicates that there must be a transfer of ownership from one person to another i.e. transfer of all rights and interest in the property, which was possessed by the transferor to the transferee. The transferor cannot retain any part of the interest or right in the property, or else it would not be a sale. The definition further indicates that the transfer of ownership has to be made for a "price paid or promised or part paid and part promised". Price Page 7 of 13 Uploaded by U. SRILATHA(HC00185) on Wed Dec 10 2025 Downloaded on : Wed Dec 17 21:17:32 IST 2025 NEUTRAL CITATION C/SA/391/2025 JUDGMENT DATED: 10/12/2025 undefined thus constitutes an essential ingredient of the transaction of sale."
5.5 On bare perusal of the said sale-deed produced on record, the said sale-deed does not mention further payment of Rs.13/- Lakhs and also does not mention that the said sale-deed is subject to the further payment of Rs.13/- Lakhs that is to be paid to the plaintiff.
5.6 Looking to the contents of the sale-deed, the said sale-deed also mentions that an amount of the sale-deed has been paid by the purchasers to the seller, in this case the present plaintiffs have given receipt of the said consideration in the sale-deed.
5.7 In view of the said fact, the sale-deed cannot be declared cancelled and or null and void on the ground mentioned in the paint.
5.8 Moreover, as per the provisions of law, there is a presumption that a registered document is validly executed and therefore the said registered document prima facie would be valid in law and the onus of proof would be on a person who leads evidence to rebut the presumption. In the present case the plaintiff is not been able to rebut the said Page 8 of 13 Uploaded by U. SRILATHA(HC00185) on Wed Dec 10 2025 Downloaded on : Wed Dec 17 21:17:32 IST 2025 NEUTRAL CITATION C/SA/391/2025 JUDGMENT DATED: 10/12/2025 undefined presumption.
5.9 In the facts of the present case, there is no substantial questions of law involved and the fact that plaintiff is claiming declaration to cancel the sale-deed on the ground that the sale consideration as mentioned in the agreement to sale is not paid to the plaintiff cannot be entertained and on the factual aspect also there is a concurrent finding of the Trial Court and the Appellate Court and even as per the settled law the sale-deed cannot be cancelled on the grounds mentioned in the plaint. 5.10 The law is well settled that the plaintiff cannot claim that even if the entire sale consideration has not in fact been paid, the same could not be a ground for cancellation of the sale-deed. The law is also very clear that the definition of sale indicates that there must be a transfer of ownership from one person to another, which includes transfer of all rights and interest in the property which was possessed by the transferor to the transferee and that the transferor cannot retain any part of interest or right in the property and the definition of sale as per provisions of Section 54 of the Transfer of Property Act, 1882 indicates that the transfer of the ownership has to be made for a price paid or premised or part paid and part promised, Page 9 of 13 Uploaded by U. SRILATHA(HC00185) on Wed Dec 10 2025 Downloaded on : Wed Dec 17 21:17:32 IST 2025 NEUTRAL CITATION C/SA/391/2025 JUDGMENT DATED: 10/12/2025 undefined therefore the price thus constitutes an essential ingredient of transaction of sale and therefore the actual payment of the whole of the price at the time of execution of sale-deed is not a sine qua non for completion of sale. In the present case, the sale consideration as mentioned in the sale-deed has been stated to have been received by the plaintiff and in the sale-deed itself the plaintiff has given acknowledgment of the receipt of the said amount but even otherwise, even if the whole of the price is not paid but the sale-deed is executed, the sale would be complete and the title would pass on the defendant under the transaction, and even if the version of the plaintiff is to believed, the non-payment of a part of the sale price would not affect the validity of the sale as the title in the property having already been passed and even if the balance sale consideration is not paid, the said sale-deed could not be invalidated on this ground. In order to constitute a sale the plaintiff must intent to transfer the ownership of the property on the agreement to pay the price either in the present time or in future and from the recital of the sale-deed, it is very clear that the plaintiff has transferred all his right title interest in the suit property by executing registered sale deed.
6.1 The conclusion which has been reached by both the Trial Court and the Appellate Court cannot be interfered Page 10 of 13 Uploaded by U. SRILATHA(HC00185) on Wed Dec 10 2025 Downloaded on : Wed Dec 17 21:17:32 IST 2025 NEUTRAL CITATION C/SA/391/2025 JUDGMENT DATED: 10/12/2025 undefined 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 reappreciate the evidence just to Page 11 of 13 Uploaded by U. SRILATHA(HC00185) on Wed Dec 10 2025 Downloaded on : Wed Dec 17 21:17:32 IST 2025 NEUTRAL CITATION C/SA/391/2025 JUDGMENT DATED: 10/12/2025 undefined 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 substantial question of law and on facts and the said Page 12 of 13 Uploaded by U. SRILATHA(HC00185) on Wed Dec 10 2025 Downloaded on : Wed Dec 17 21:17:32 IST 2025 NEUTRAL CITATION C/SA/391/2025 JUDGMENT DATED: 10/12/2025 undefined 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.
8. Consequently, Civil Application stands disposed of.
(SANJEEV J.THAKER,J) SRILATHA Page 13 of 13 Uploaded by U. SRILATHA(HC00185) on Wed Dec 10 2025 Downloaded on : Wed Dec 17 21:17:32 IST 2025