Gujarat High Court
Lalitbhai Mavjibhai Pansuria vs Smitaben Manharlal Kotecha on 17 July, 2025
NEUTRAL CITATION
C/SA/260/2025 ORDER DATED: 17/07/2025
undefined
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SECOND APPEAL NO. 260 of 2025
==========================================================
LALITBHAI MAVJIBHAI PANSURIA
Versus
SMITABEN MANHARLAL KOTECHA
==========================================================
Appearance:
H P BAXI(9459) for the Appellant(s) No. 1
SHIVANI R MODI(9280) for the Appellant(s) No. 1
==========================================================
CORAM:HONOURABLE MR.JUSTICE SANJEEV J.THAKER
Date : 17/07/2025
ORAL ORDER
1. The present Second Appeal has been filed under Section 100 of the Code of Civil Procedure, 1908 (for short "the Code") challenging the judgement and decree passed by the 10 th Additional District Judge, Rajkot, in Regular Civil Appeal No.12 of 2024, dated 27.02.2025 confirming the judgement and decree, passed by the 8th Additional Senior Civil Judge, Rajkot, in Regular Civil Suit No.126 of 2014, dated 08.02.2024.
2. For the sake of brevity and convenience, the parties are referred to as per their original status as that in the suit.
3. The brief facts arising in the present second appeal are that the plaintiff had filed the suit claiming that the defendant no.1 is the wife of defendant no.2, and the defendant no.2 had forged Page 1 of 9 Uploaded by URIL KRISHNAKUMAR RANA(HC01406) on Fri Jul 18 2025 Downloaded on : Sat Jul 19 00:15:22 IST 2025 NEUTRAL CITATION C/SA/260/2025 ORDER DATED: 17/07/2025 undefined the power of attorney in the name of original owner, Deviben Natwarlal Chandrana and transferred the suit property in the name of defendant no.1 by registered sale deed dated 29.07.2008 and in spite of forged power of attorney and bogus sale deed dated 29.07.2008, defendant no.1 has created mortgage for the loan of ₹32 lakhs on 15.11.2011 and that defendant no.2 is trying to grab the possession of the suit land through the Police influence since last one year and the defendants have got the site plan approved from the Municipal Corporation and started construction work with a view to illegally claim possession of the suit property. The defendant appeared in the suit and filed written statement vide Exhibit 13 and the original owner Deviben Natwarlal Chandrana or her legal heirs have never raised any objection with regard to the sale deed and possession and the defendant has concocted power of attorney on 10.10.1988 and on the strength of the said fraudulent power of attorney executed a sale deed in his favour. Therefore, the relief that has been sought in the plaint was for a declaration that the defendant do not have any right title, authority in the suit property and ancillary relief of injunction to the effect. The Trial Court framed issues at page 132 as under:
"1.Whether the plaintiff proves that the plaintiff is the sole independent owner and occupier of the suit property ?Page 2 of 9 Uploaded by URIL KRISHNAKUMAR RANA(HC01406) on Fri Jul 18 2025 Downloaded on : Sat Jul 19 00:15:22 IST 2025
NEUTRAL CITATION C/SA/260/2025 ORDER DATED: 17/07/2025 undefined
2. Whether the plaintiff proves that the defendant is illegally constructing the property in the suit property ?
3. Whether the defendant proves that the defendant is the sole independent owner and occupier of the suit property ?
4. Whether the plaintiff is entitled to get the relief as prayed for ?
5. What order and decree ?"
4. The plaintiff examined himself vide exhibit 21, the defendant no.1 examined herself vide exhibit 41 and after taking into consideration the oral evidence and documentary evidence and giving findings on all the issues, the Trial Court dismissed the suit filed by the plaintiff by the judgment dated 08.02.2024. The said judgement has been challenged by the plaintiff by filing Regular Civil Appeal No.12 of 2024 and after re- appreciating the evidence, the First Appellate Court dismissed the said First Appeal and confirmed the judgement and decree passed by the Trial Court, hence the present Second Appeal.
5. Learned advocate for the plaintiff has mainly argued that the Trial Court could not have come to the conclusion that the plaintiff has not proved that he is the owner and in possession of the suit property. It has also been argued that the Trial Court could not have come to the conclusion that the plaintiff has not proved that the defendant is trying to take illegal possession of Page 3 of 9 Uploaded by URIL KRISHNAKUMAR RANA(HC01406) on Fri Jul 18 2025 Downloaded on : Sat Jul 19 00:15:22 IST 2025 NEUTRAL CITATION C/SA/260/2025 ORDER DATED: 17/07/2025 undefined the property.
6. Learned advocate for the plaintiff has argued that if the evidence of the plaintiff is taken into consideration, the Court could not have relied on the the unregistered power of attorney upon which the defendant no.1 has got executed the registered sale deed. The defendant could not be considered as the owner by virtue of the said sale deed which has been executed by a power of attorney holder and in view of the same, it has been argued that there are substantial questions of law involved in the present second appeal, which have been formulated in the second appeal which are as under and therefore, the present second appeal is required to be allowed.
"1. Whether Appellant proves that husband can not sale immovable property by power of attorney to his wife ?
2. Whether Appellant proves that agreement without consideration is Void ?
3. Whether Appellant proves that stray admission of either party is not a conclusive proof?
4. Whether appellant proves that Xerox document which is marked only can not be read and relied on ?Page 4 of 9 Uploaded by URIL KRISHNAKUMAR RANA(HC01406) on Fri Jul 18 2025 Downloaded on : Sat Jul 19 00:15:22 IST 2025
NEUTRAL CITATION C/SA/260/2025 ORDER DATED: 17/07/2025 undefined
5. Whether appellant proves that When fraud is specifically pleaded burden is on defendant to prove that transaction is genuine ?
6. Whether Appellant proves that Court cannot travel beyond pleading and based its judgment out side the pleading ?
7. Whether Appellant proves that Court cannot delete the facts deposed by witness on oath and read few line of pursis filed by advocate and based the Judgment on pursis ?
8. Whether appellant proves that relief of possession is not required to be prayed for in every suit ?
9. Whether Appellant proves that mere marking of document as an exhibit does not dispense with its proof?
10. Whether Appellant proves that the transfer of immovable property during pendency of suit is illegal ?"
7. Having heard learned advocate for the plaintiff and having considered the judgment and decree passed by the Trial Court and the First Appellate Court, the plaintiff has come forward with the case that the sale deed executed on 29.07.2008 is Page 5 of 9 Uploaded by URIL KRISHNAKUMAR RANA(HC01406) on Fri Jul 18 2025 Downloaded on : Sat Jul 19 00:15:22 IST 2025 NEUTRAL CITATION C/SA/260/2025 ORDER DATED: 17/07/2025 undefined without consideration and therefore, is illegal and void and that a husband can not sell immovable property to his wife by power of attorney, if the affidavit of examination in chief produced vide exhibit 48 is taken into consideration, it has been stated that defendant no.2 has executed registered sale deed dated 29.07.2008 as a power of attorney holder of Deviben Natvarlal Chandarana and it reveals from the said sale deed that, a cheque of ₹4,90,000/-, dated 31.03.2008, bearing cheque no.709982, was paid, though the defendants have not produced the cheque, but the fact remains that the seller and the owner of the suit property at that point of time was Deviben Chandarana and neither Deviben Chandarana, nor her heirs have raised any objection with regard to the payment not made to them. Moreover, vide Exhibit 72, the defendant has also produced the affidavit given by original owner Deviben Chandarana, before Notary Public dated 06.09.2014, and in the said affidavit vide exhibit 72, the original owner has categorically stated and admitted the fact that she has received Rs.1,08, 880/- at the time of execution of the power of attorney and after that, she has received ₹2,81,150/- and therefore the total sale consideration has been paid to the original owner of the suit property. Therefore, there is no merit in the arguments of the plaintiff that no sale consideration has been paid by the defendants at the time of execution of the sale deed. With respect to the forgery of the Page 6 of 9 Uploaded by URIL KRISHNAKUMAR RANA(HC01406) on Fri Jul 18 2025 Downloaded on : Sat Jul 19 00:15:22 IST 2025 NEUTRAL CITATION C/SA/260/2025 ORDER DATED: 17/07/2025 undefined power of attorney dated 10.10.1988, by virtue of which the sale deed dated 29.07.2008 and as the plaintiff has alleged the same fact, the burden to prove the said fact was on the plaintiff as the plaintiff had pleaded the same fact in the plaint and affidavit filed exhibit 21, the plaintiff has not given any details as to why the power of attorney and the sale deed are forged. The plaintiff has also not examined Deviben Chandarana, who is the original owner, to prove the said fact, moreover, considering the affidavit filed by Deviben Chandarana, vide exhibit 72, where she has categorically stated that she has received full consideration and executed power of attorney. On factual aspect, the plaintiff has miserably failed in proving the fact that the plaintiff is in possession of the property and the Trial Court has after appreciating the evidence come to the conclusion that the defendant no.1 is able to prove her possession of the suit property, the defendant no.1 has purchased the suit property by registered sale deed on 29.07.2008 and from the said date, the plaintiff has become the owner of the property. The real owner of the property have not challenged the said sale deed dated 29.07.2008, and therefore, there was no occasion that the plaintiff could have purchased the suit property, after three years from the date of registered sale deed i.e. on 10.12.2011. Moreover, looking to the relief that have been sought in the plaint, the plaintiff has not sought any relief to cancel the sale deed dated 29.07.2008, which is Page 7 of 9 Uploaded by URIL KRISHNAKUMAR RANA(HC01406) on Fri Jul 18 2025 Downloaded on : Sat Jul 19 00:15:22 IST 2025 NEUTRAL CITATION C/SA/260/2025 ORDER DATED: 17/07/2025 undefined prior in point of time to the registered sale deed of the plaintiff and therefore the present Second Appeal is required to be dismissed.
8. 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:-
9. "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."
10. 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 Page 8 of 9 Uploaded by URIL KRISHNAKUMAR RANA(HC01406) on Fri Jul 18 2025 Downloaded on : Sat Jul 19 00:15:22 IST 2025 NEUTRAL CITATION C/SA/260/2025 ORDER DATED: 17/07/2025 undefined 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."
11. Under the circumstances, this Second Appeal is devoid of any substantial question of law. The learned Court has 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) URIL RANA Page 9 of 9 Uploaded by URIL KRISHNAKUMAR RANA(HC01406) on Fri Jul 18 2025 Downloaded on : Sat Jul 19 00:15:22 IST 2025