Gujarat High Court
L H Of Amriben Savabhai Mevada vs L H Of Bachubha Jalamsinh Jadeja on 5 May, 2025
NEUTRAL CITATION
C/SA/94/2025 ORDER DATED: 05/05/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SECOND APPEAL NO. 94 of 2025
With
CIVIL APPLICATION (FOR STAY) NO. 1 of 2025
In
R/SECOND APPEAL NO. 94 of 2025
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L H OF AMRIBEN SAVABHAI MEVADA & ORS.
Versus
L H OF BACHUBHA JALAMSINH JADEJA & ORS.
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Appearance:
MR PARESH H VAGHELA(3580) for the Appellant(s) No.
1,1.1,1.2,1.3,1.4,1.5,2,2.1,2.2,2.3,2.4,3,4
MR SANDIP M PATEL(5649) for the Appellant(s) No.
1,1.1,1.2,1.3,1.4,1.5,2,2.1,2.2,2.3,2.4,3,4
MR HARDIK S SONI(5124) for the Respondent(s) No. 1.1,1.2.1,1.3,2
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CORAM:HONOURABLE MR.JUSTICE SANJEEV J.THAKER
Date : 05/05/2025
ORAL ORDER
1. The present Second Appeal has been filed under the provisions of section 100 of the Code of Civil Procedure challenging the judgment and decree passed in Regular Civil Appeal No.9 of 2013 dated 07.12.2024 passed by the 3 rd Additional District Judge, Gondal whereby the judgment and decree passed by Principal Senior Civil Judge, Gondal in Special Civil Suit No.78 of 2008 has been confirmed.
2. For the sake of brevity, the parties are referred to as their original status in the suit.
3. The brief facts arising in the present Second Appeal are that it is the case of the plaintiffs that they are the joint holder and in possession and occupation of the land bearing survey No.194 paiki 4 which was registered in the revenue record in the Page 1 of 12 Uploaded by MANOJ KR. RAI(HC01072) on Fri May 09 2025 Downloaded on : Sat May 10 14:41:25 IST 2025 NEUTRAL CITATION C/SA/94/2025 ORDER DATED: 05/05/2025 undefined name of late Jalamsinh Jadeja i.e. the father of plaintiff Nos.1 & 2 while the land bearing revenue survey No.195 is registered in revenue record in the name of plaintiff Nos.3, 4 & 6 and late Digvijaysinh Jadeja and that plaintiff No.5 is Class-I heir of late Digvijaysinh Jadeja. It is the case of the plaintiffs that the suit land bearing survey No.194 was partitioned and came in the share of late Jalamsinh Jadeja and revenue survey No.195 was registered in the name of heir of late Karansinh Jadeja i.e. plaintiff No.4 & 6 and Parakramsinh Karansinh and then after name of plaintiff Nos.3 & 5 have been mutated. It is the case of the plaintiffs that being in possession of the property and neither the plaintiffs nor their predecessor have sold the suit lands i.e. revenue survey No.194 and 195 to any one nor they have given any power of attorney to anyone and defendants have given an application on 07.10.2007 to enter their names on the basis that power of attorney holder of late Jalamsinh Shivsinh Jadeja and plaintiff No.6 have sold the land bearing A.4 out of land survey No.194 paiki 1, A.4/16 and land A.7/08G out of the land bearing survey No.195 admeasuring A.11/18G but the guardian of defendants Vashrambhai Mevada while registering sale deed No.52, dated 26.02.1959 and to enter the name of defendants and deleting the name of the plaintiffs, and therefore, as the Mamlatdar had issued notice to plaintiff No.6 under the provisions of Bombay Land Revenue Code, the plaintiff No.6 had submitted his objection. It is the case of the plaintiff that the registered sale deed dated 26.02.1959 does not contain the Page 2 of 12 Uploaded by MANOJ KR. RAI(HC01072) on Fri May 09 2025 Downloaded on : Sat May 10 14:41:25 IST 2025 NEUTRAL CITATION C/SA/94/2025 ORDER DATED: 05/05/2025 undefined signature of Jagatsinh Karansinh Jadeja and Parakramsinh Jadeja and on 18.08.2008, the plaintiffs have started making fencing on the land of the defendants and persons claiming through defendant have threatened the workers and not allowed them to make fencing. Hence, the plaintiffs had filed suit for declaration and permanent injunction and cancellation of registered sale deed dated 26.02.1959. The defendant Nos.1 to 4 filed written statement vide Exhibit-13. The defendant No.2A to 2D have filed their written statement vide Exhibit-104 and denied the fact that the plaintiffs are in possession of the property and that the suit property has been purchased by registered sale deed dated 26.02.1959 and that as the entries were not effected in the revenue record, they are trying to take disadvantage of the said fact. The trial Court had framed following issues vide Exhibit-37:-
(i) Whether the plaintiffs prove that the property in question is an ancestral property and they are in possession and in occupation of the suit land?
(ii) Whether the plaintiffs prove that the disputed registered sale deed No.52 dated 26/02/1959 is false, bogus and not binding to the plaintiffs?
(iii) Whether the plaintiffs prove that defendants have no right, title or interest in the suit property and they have no right to create any obstruction or disturbance in the possession of the Page 3 of 12 Uploaded by MANOJ KR. RAI(HC01072) on Fri May 09 2025 Downloaded on : Sat May 10 14:41:25 IST 2025 NEUTRAL CITATION C/SA/94/2025 ORDER DATED: 05/05/2025 undefined plaintiff?
(iv) Whether the defendants prove that their forefathers have legally purchased the suit land from the forefather of the plaintiffs by way of registered sale deed No.52 dated 26/02/1959 and since then they are owner and possessor of the suit land?
(v) Whether the defendants prove that plaintiffs have no any right to take possession of the suit land from them?
(vi) Whether the plaintiffs are entitled to get relief as prayed for?
(vii) What order and decree?
4. After taking into consideration the oral evidence, documentary evidence and giving findings on all the issues the trial Court allowed the said suit and declared the registered sale deed dated 26.02.1959 void ab initio and cancelled the same and permanently restrained the defendants from dispossessing the plaintiff and from obstructing and causing hindrance to the plaintiff's occupation to the suit premises. Having aggrieved by the said judgment and decree, the defendants filed Regular Civil Appeal No.9 of 2013 and the said appeal has been dismissed on merits qua defendant Nos.1 & 2 of the said appeal and disposed of as settled by virtue of settlement arrived at between the appellant of Regular Civil Suit No.9 of 2013 and the Appellate Court confirmed the judgment and decree passed by the trial Page 4 of 12 Uploaded by MANOJ KR. RAI(HC01072) on Fri May 09 2025 Downloaded on : Sat May 10 14:41:25 IST 2025 NEUTRAL CITATION C/SA/94/2025 ORDER DATED: 05/05/2025 undefined Court in respect of the land bearing survey No.194 paiki 1 village: Khambha, Taluka: Lodhika, District: Rajkot. Hence, the present Second Appeal.
5. Learned advocate for the defendant has mainly argued that both the courts below have not appreciated the evidence on record and have failed to appreciate the basic principle of law that the plaintiff did not approach the trial Court with clean hands and suppressed material facts. It has also been argued that there is inordinate and unexplained delay on the part of plaintiff in approaching the Court for cancellation of sale deed executed in the year 1959 by preferring the suit in the year 2008. It has also been argued that the plaintiffs could not prove that they were in possession of the property on the date of filing of the suit. Moreover, it has been argued that the sole ground that has been taken by the plaintiff is that executor of the said sale deed dated 26.02.1959 had not given any power of attorney. The fact remains that the plaintiffs have not examined any party to prove the said facts. It has been argued that once the registered sale deed is executed in the year 1959, limitation started from the date of registration of the said sale deed, and therefore, as the said sale deed is registered then it cannot be challenged on the ground of illegality and as the said document of the year 1959 is a registered document then prima facie it would be valid in law and the interest of transfer would be on the person who leads the evidence to rebut presumption and the Court has not taken into consideration that since the year 1959, the possession of the Page 5 of 12 Uploaded by MANOJ KR. RAI(HC01072) on Fri May 09 2025 Downloaded on : Sat May 10 14:41:25 IST 2025 NEUTRAL CITATION C/SA/94/2025 ORDER DATED: 05/05/2025 undefined property is with the defendant. Learned advocate for the defendant has relied on the decision in the case of Prem Singh v. Birbal reported in 2006 (0) AIJEL-SC 37185, Dilboo (Dead) By Lrs. v. Dhanraj (Dead) reported in 2000 (0) AIJEL-SC 8018 and Vishwanath Bapurao Sabale v. Shalinibai Nagappa Sabale reported in 2009 (0) AIJEL-SC 43463 and has argued that substantial questions of law are involved in the present Second Appeal. Hence, the present Second Appeal is required to be admitted on the substantial question of law formulated in the memorandum of appeal.
6. Per contra, learned advocate for the plaintiff has mainly argued that there are no substantial question of law involved in the present Second Appeal and the substantial question of law which have been formulated in the memorandum of appeal are on facts, and therefore, the Second Appeal cannot be admitted.
7. Learned advocate for the plaintiff has also argued that during the pendency of the appeal, there was a settlement between the parties and the plaintiff Nos.3 to 6 possess revenue survey No.195 and a decree has been arrived at qua the original plaintiff Nos.3 to 6 due to the said settlement and the learned advocate for the plaintiff has also argued that in view of the oral and documentary evidence, the trial Court and the appellate Court have rightly decided the matter looking to the factual aspect and the evidence which has been led by the parties, and therefore, the present Second Appeal is required to be rejected.
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Learned advocate for the plaintiff has relied on documentary evidence produced by the parties and it is the case of the plaintiffs that by the said documents the plaintiffs have proved that the property in question is an ancestral property and they are in possession and in occupation of the suit property and the sale deed executed on 26.02.1959 is void ab initio and required to be cancelled and that the suit that has been filed by the plaintiff is within the period of limitation.
8. Having heard learned advocates for the parties and having considered the oral and documentary evidence, the fact remains that vide Exhibit-120 after death of Parakramsinh, name of Narendrasinh Karansinh Jadeja and Karansinh Jadeja, heirs of late Parakaramsinh Jadeja have been mutated in the revenue record for survey No.195 and vide Exhibit-121 by way of entry No.102 dated 13.07.1998, there is a family partition for the suit land bearing survey No.195. The plaintiffs have became the owner of the suit land. The plaintiffs have also relied on the deposition of witness at Exhibit-115 who is Talati-cum-Mantri, who has stated that the plaintiffs are in possession and have paid the revenue for disputed land before the Panchayat. The defendants have claimed that they are owner and in possession of the suit land since 1959, but they have not mutated their name in mutation entry till 2007. Moreover, the fact remains that there is no signatures of the owner of the suit land in the said sale deed executed in the year 1959 and the entire case of the defendant is based on the power of attorney that has been executed by owners Page 7 of 12 Uploaded by MANOJ KR. RAI(HC01072) on Fri May 09 2025 Downloaded on : Sat May 10 14:41:25 IST 2025 NEUTRAL CITATION C/SA/94/2025 ORDER DATED: 05/05/2025 undefined with respect to execution of registered sale deed on 26.02.1959, but the said power of attorney has not been produced. The fact remains that the trial Court has on facts given findings that the property in question is ancestral property and is in possession and occupation of the plaintiffs and the fact that when no power of attorney has been produced with respect to execution of sale deed dated 26.02.1959 and it is only upon the application of the defendant dated 07.10.2007 that the plaintiffs came to know about the registered sale deed and challenged the said sale deed in the year 2008, therefore, the trial Court has held that the suit cannot be said to be barred on the ground of limitation.
9. The judgment that has been relied on by the defendant in the case of Prem Singh v. Birbal, paragraph No.28 reads as under:-
"28. There is a presumption that a registered document is validly executed. A registered document, therefore, prima facie would be valid in law. The onus of proof, thus, would be on a person who leads evidence to rebut the presumption. In the instance case, respondent No.1 has not been able to rebut the said presumption."
10. In the case of Dilboo (Dead) By Lrs. v. Dhanraj (Dead), in which it has been held that date of knowledge would be the date of registration and in the present case the suit that has been filed challenging the registered sale deed of the year 1959 the trial Court and the appellate Court could not have came to the findings that the suit is within the period of limitation.
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11. In the case of Vishwanath Bapurao Sabale, the said judgment will not apply to the facts of the present case. Paragraph No.22 reads as under:-
"22. In Prem Singh and Ors. V/s. Birbal and Ors. [JT 2006 (9) SC 404 ; 2006 (5) SCC 353], this Court held :
"20. If the plaintiff is in possession of a property, he may file a suit for declaration that the deed is not binding upon him but if he is not in possession thereof, even under a void transaction, the right by way of adverse possession may be claimed. Thus, it is not correct to contend that the provisions of the Limitation Act would have no application at all in the event the transaction is held to be void.
21. Respondent 1 has not alleged that fraudulent misrepresentation was made to him as regards the character of the document. According to him, there had been a fraudulent misrepresentation as regards its contents.
22. In Ningawwa V/s. Byrappa this Court held that the fraudulent misrepresentation as regards character of a document is void but fraudulent misrepresentation as regards contents of a document is voidable stating:
"The legal position will be different if there is a fraudulent misrepresentation not merely as to the contents of the document but as to its character. The authorities make a clear distinction between fraudulent misrepresentation as to the character of the document and fraudulent misrepresentation as to the contents thereof. With reference to the former, it has been held that the transaction is void, while in the case of the latter, it is merely voidable."
In that case, a fraud was found to have been played, and it was held that as the suit was instituted within a few days after the appellant therein came to know of Page 9 of 12 Uploaded by MANOJ KR. RAI(HC01072) on Fri May 09 2025 Downloaded on : Sat May 10 14:41:25 IST 2025 NEUTRAL CITATION C/SA/94/2025 ORDER DATED: 05/05/2025 undefined the fraud practised on her, the same was void. It was, however, held:
"Article 91 of the Limitation Act provides that a suit to set aside an instrument not otherwise provided for (and no other provision of the Act applies to the circumstances of the case) shall be subject to a three years' limitation which begins to run when the facts entitling the plaintiff to have the instrument cancelled or set aside are known to him. In the present case, the trial court has found, upon examination of the evidence, that at the very time of the execution of the gift deed, Exhibit 45 the appellant knew that her husband prevailed upon her to convey Surveys Plots Nos. 407/1 and 409/1 of Tadavalga village to him by undue influence. The finding of the trial court is based upon the admission of the appellant herself in the course of her evidence. In view of this finding of the trial court it is manifest that the suit of the appellant is barred under Article 91 of the Limitation Act so far as Plots Nos. 407/1 and 409/1 of Tadavalga village are concerned."
27. There is a presumption that a registered document is validly executed. A registered document, therefore, prima facie would be valid in law. The onus of proof, thus, would be on a person who leads evidence to rebut the presumption. In the instant case, Respondent 1 has not been able to rebut the said presumption.
28. If a deed was executed by the plaintiff when he was a minor and it was void, he had two options to file a suit to get the property purportedly conveyed thereunder. He could either file the suit within 12 years of the deed or within 3 years of attaining majority. Here, the plaintiff did not either sue within 12 years of the deed or within 3 years of attaining majority. Therefore, the suit was rightly held to be barred by limitation by the trial court."
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12. The above referred judgments relied on by the defendant will be of no assistance to defendant as the plaintiff has proved that plaintiff came to know about registered sale deed only when the defendant applied to enter their names in the revenue record on 07.10.2007 and after the Mamlatdar, Lodhika issued notice under the provision of section 135(D) of Bombay Land Revenue Code, that the plaintiff came to know about the same and filed the objection, and therefore, has rightly held that the suit was rightly held to be within the period of limitation.
13. 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."
14. 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 Page 11 of 12 Uploaded by MANOJ KR. RAI(HC01072) on Fri May 09 2025 Downloaded on : Sat May 10 14:41:25 IST 2025 NEUTRAL CITATION C/SA/94/2025 ORDER DATED: 05/05/2025 undefined present Second Appeal as the same is devoid of any merit both on facts and law and the same is dismissed at admission stage.
15. In view of the order passed in the main matter, Civil Application does not survive and stands disposed of accordingly.
(SANJEEV J.THAKER,J) Manoj Kumar Rai Page 12 of 12 Uploaded by MANOJ KR. RAI(HC01072) on Fri May 09 2025 Downloaded on : Sat May 10 14:41:25 IST 2025