Gujarat High Court
Jignesh Bhalabhai Solanki vs Premilaben Bhalabhai Solanki on 1 May, 2025
NEUTRAL CITATION
C/SA/129/2025 ORDER DATED: 01/05/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SECOND APPEAL NO. 129 of 2025
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JIGNESH BHALABHAI SOLANKI & ANR.
Versus
PREMILABEN BHALABHAI SOLANKI & ORS.
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Appearance:
MR M P SHAH(11274) for the Appellant(s) No. 1,2
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CORAM:HONOURABLE MR.JUSTICE SANJEEV J.THAKER
Date : 01/05/2025
ORAL ORDER
1. The present Second Appeal has been filed under Section 100 of the Code of Civil Procedure, 1908 (for short "the Code") 1908 challenging the Judgement and Decree passed in Civil appeal no 52 of 2022 by the District Court Gandhinagar which confirmed the Judgement and Degree passed by Principal Senior Civil Judge at Gandhinagar in Regular Civil Suit no 292 of 2015.
2. For the sake of brevity and convenience the parties are referred to as their original status in the Civil Suit. Page 1 of 9 Uploaded by URIL KRISHNAKUMAR RANA(HC01406) on Thu May 01 2025 Downloaded on : Fri May 02 06:09:31 IST 2025
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3. The brief facts arising in the present second appeal are that the original plaintiff No.1 is the son of original defendant nos.1 and 2 and plaintiff no.2 is wife of the plaintiff no.1.
4. The plaintiff filed Civil Suit against the defendants and in the said suit the plaintiff claimed declaration that the defendants are not entitled to sell, transfer assign or sub-let the suit property to anybody in any manner and for an injunction restraining the defendant from taking away the possession of the suit property without following due process of law and restraining the defendants from transferring, assigning, sub- letting the suit property. It is the case of the plaintiff that plaintiff no.1 and defendant no.1 have obtained joint loan from the Bank for purchasing the suit property and that the plaintiff no.1 has paid Rs.1 lakh to defendant no.1 by way of cheque and it is the case of the plaintiff that defendants have gone to reside at some other place and the possession of the entire property is with the plaintiffs.
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5. In the said suit, the defendants filed reply and also filed counter claim and it is the case of the defendant no.1 i.e. the father of the plaintiff no.1 i.e. defendant no.1 has purchased the suit property by virtue of registered sale deed on 28.02.2005 and plaintiff being the son of the defendant nos.1 and 2 and plaintiff no.2 being the daughter-in-law of defendant nos.1 and 2, have treated the defendants with cruelty and removed defendants from the suit property and Police Cases have been filed by defendants against the plaintiff and defendant nos.1 and 2 have filed counter claim for actual possession of the suit property and restraining the plaintiffs from obstructing the defendants from using the property.
6. The Trial Court has framed issues as under:
"(i) Whether the plaintiffs prove the suit claim against the defendant?
(ii) Whether the defendants prove their defence?
(iii) Whether the plaintiffs are entitled for the relief as prayed for?
(iv) What order and decree?"Page 3 of 9 Uploaded by URIL KRISHNAKUMAR RANA(HC01406) on Thu May 01 2025 Downloaded on : Fri May 02 06:09:31 IST 2025
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7. The plaintiff did not enter the witness box nor produced any documentary evidence. The defendant no.1 examined himself vide exhibit 60 and after going through documentary evidence and oral evidence and giving finding on all the issues the Trial Court decreed the said suit against the plaintiffs and the plaintiffs challenged the said order by way of filing Special Civil Appeal no.52 of 2022 which is also dismissed, hence the present Second Appeal.
8. Learned advocate for the plaintiff has mainly contended that after the suit was dismissed and during the pendency of the appeal, the defendant no.1 expired and the plaintiff no.1 being son of the defendant no.1 will have right by way of succession with respect to the suit property and therefore also, the Judgment and Decree passed by the Trial Court and confirmed by the Appellate Court is required to be quashed and set aside. It has also been argued by learned advocate for the plaintiff that the Trial Court could not have come to the conclusion that the defendant nos.1 and 2 are both owners of the property Page 4 of 9 Uploaded by URIL KRISHNAKUMAR RANA(HC01406) on Thu May 01 2025 Downloaded on : Fri May 02 06:09:31 IST 2025 NEUTRAL CITATION C/SA/129/2025 ORDER DATED: 01/05/2025 undefined despite the fact that the defendant no.1 was lawful owner of the property by virtue of sale deed and revenue records. It has also been argued that the decree becomes infructuous due to death of defendant no.1 who has died during the pendency of the First Appeal.
9. It has also been argued that the plaintiff no.1 having established his legal heirship right has a right to inherit the property and therefore, the Appellate Court could not have confirmed the Judgment and Decree and in view of the said fact, it has been argue, that the present Second Appeal is required to be admitted.
10. Having heard learned advocate for the plaintiff, the fact remains that neither the plaintiff has entered the witness box nor any documents have been produced by the plaintiff to claim right in the suit property. The fact remains that sale deed has been executed is in favour of the original defendant no 1. The original defendant no.1 was the father of the plaintiff no.1. Page 5 of 9 Uploaded by URIL KRISHNAKUMAR RANA(HC01406) on Thu May 01 2025 Downloaded on : Fri May 02 06:09:31 IST 2025
NEUTRAL CITATION C/SA/129/2025 ORDER DATED: 01/05/2025 undefined Though, the plaintiff no.1 has claimed that, plaintiff no.1 has given amount of Rs.1 lakh for the purchase of the suit property, the said fact has not been proved by the plaintiffs by leading any evidence to that effect. It is also required to be seen that defendants have filed counter claim and after taking into consideration oral evidence of the defendant the Trial Court has allowed the said counter claim and dismissed the suit of the plaintiff. Though ample opportunity was given to the plaintiff to prove his case, the fact that the plaintiffs have not entered the witness box, adverse inference is required to be drawn against the plaintiffs.
11. Moreover, as per Section 100 of the Code of Civil Procedure 1908, more particularly Section 100(3) which reads as under:
"100(3) In an appeal under this section, the memorandum of appeal shall precisely state the substantial question of law involved in the appeal."
12. In the present memo of Second Appeal, there are no Page 6 of 9 Uploaded by URIL KRISHNAKUMAR RANA(HC01406) on Thu May 01 2025 Downloaded on : Fri May 02 06:09:31 IST 2025 NEUTRAL CITATION C/SA/129/2025 ORDER DATED: 01/05/2025 undefined substantial question of law which have been suggested and formulated by the appellant. Moreover, there are concurrent findings of facts which has been arrived at by the Trial Court and the Appellate Court and the plaintiffs have not been able to prove the claim against defendants and sale deed with respect to the suit property is also only in the name of original defendant no.1.
13. In view of the fact, there are no substantial questions of law involved in the present Second Appeal and the fact that the Trial Court and the Appellate Court have given concurrent finding therefore, the appeal is required to be dismissed.
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 Page 7 of 9 Uploaded by URIL KRISHNAKUMAR RANA(HC01406) on Thu May 01 2025 Downloaded on : Fri May 02 06:09:31 IST 2025 NEUTRAL CITATION C/SA/129/2025 ORDER DATED: 01/05/2025 undefined 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 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."Page 8 of 9 Uploaded by URIL KRISHNAKUMAR RANA(HC01406) on Thu May 01 2025 Downloaded on : Fri May 02 06:09:31 IST 2025
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16. Therefore, also the plaintiff has miserably failed to show that there is any substantial question of law involved in the present appeal and even othervise no substantial questions of law have been formulated in the memo of appeal.
17. 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 plaintiffs 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.
(SANJEEV J.THAKER,J) URIL RANA Page 9 of 9 Uploaded by URIL KRISHNAKUMAR RANA(HC01406) on Thu May 01 2025 Downloaded on : Fri May 02 06:09:31 IST 2025