Gujarat High Court
Mahebubbhai Shabanbhai Lakhani vs Nishaben Firozbhai Budhwani on 10 November, 2025
NEUTRAL CITATION
C/SA/202/2024 JUDGMENT DATED: 10/11/2025
undefined
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SECOND APPEAL NO. 202 of 2024
With
CIVIL APPLICATION (FOR STAY) NO. 1 of 2023
In R/SECOND APPEAL NO. 202 of 2024
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE J. C. DOSHI Sd/-
=====================================================
Approved for ReportingYes No
Yes
=====================================================
MAHEBUBBHAI SHABANBHAI LAKHANI
Versus
NISHABEN FIROZBHAI BUDHWANI
=====================================================
Appearance:
MR TULSHI R SAVANI(3070) for the Appellant(s) No. 1
=====================================================
CORAM:HONOURABLE MR. JUSTICE J. C. DOSHI
Date : 10/11/2025
ORAL JUDGMENT
1. This Second Appeal under Section 100 of the Code of Civil Procedure, 1908 (hereinafter referred to as "the Code") challenges the judgment and decree passed by the learned 3 rd Additional District & Sessions Judge, Bhavnagar at Talaja in RCA No.2 of 2023, which in turn confirms the order passed by the learned 2nd Additional Civil Judge, Talaja, District:
Bhavnagar, below Exhibit-18 and consequently below Exhibit-1 in RCS No.223 of 2021, by which the plaint of the appellant came to be rejected under Order VII Rule 11(d) of "the Code" on the ground that the suit challenging the execution of the gift deed is hopelessly barred by the law of limitation.
2. For convenience, the parties are referred to their original status i.e. plaintiff and defendant.
Page 1 of 20 Uploaded by Raj Subhash Dhobi(HC01779) on Wed Nov 12 2025 Downloaded on : Wed Nov 12 21:39:01 IST 2025NEUTRAL CITATION C/SA/202/2024 JUDGMENT DATED: 10/11/2025 undefined
3. The brief facts of the case leading to filing of Second Appeal are as under:-
3.1 The plaintiff and defendant are real brother and sister. The plaintiff is residing at Talaja, Dist: Bhavnagar and respondent is residing with her family at Rajkot. The plaintiff is a Insurance Agent by profession.
3.2 That the Karimabad Co Opp. Housing Society, Talaja launched a residential scheme in the year of 1995 on the land bearing revenue survey No.46 paikee of Village: Talaja, Dist:
Bhavnagar for the purpose of allotment of plots to the members of Islamic Khoja Community. It is stated that Plot No. 55 was allotted to the plaintiff in the year of 1995 Thereafter, lay out plan of the above stated society was revised and 67 plots were sanctioned and all the plots were renumbered. The plot No.55, which was allotted to plaintiff came to be renumbered as Plot No.63 and with respect to that, allotment latter has been issued to plaintiff by the society. Thus, present plaintiff is owner and occupier of the plot No. 63 (old No. 55) since 1995 and in possession even today.
3.3 The daughter of defendant-real sister got admission in Deakin University, Melbourne in Australia for her higher study and to show financially sound condition, property was required to be in the name of defendant and her husband to get the visa and other process of admission of her daughter. Therefore, defendant and her husband requested plaintiff to transfer the above stated plot to her name for certain period. Hence, as defendant is the real sister of plaintiff and for the higher study of Page 2 of 20 Uploaded by Raj Subhash Dhobi(HC01779) on Wed Nov 12 2025 Downloaded on : Wed Nov 12 21:39:01 IST 2025 NEUTRAL CITATION C/SA/202/2024 JUDGMENT DATED: 10/11/2025 undefined his niece, the plaintiff executed a Gift Deed dated 18.05.2020 in favour of defendant with an oral mutual understanding that it will be revert back to plaintiff in future. Thus, the gift deed is only showy gift deed and was executed only with a view to help the real sister for her daughter's higher study at Australia.
3.4 Thereafter, the daughter of respondent fell in love with a youth other than her religion and there was tense in the family and in the year of 2013, the husband of respondent detected cancer and he passed away. Thereafter, mother of plaintiff and respondent was detected with cancer in the year of 2014 and her treatment was running at Ahmedabad and Bombay. However, she passed away. Thus, the both the families of plaintiff as well as defendant were in sorrow due to demise of family members.
Thereafter, in the year of 2017, the son of defendant wanted to go for higher study in other country and for that also, the property was required to be shown in the name of defendant with a view to show the financially sound condition and as per the request of defendant, gift deed was reverted in the name of plaintiff. Thus, in such a situation of sorrow and necessity, and in feeling of love and faith, no one can say real sister to revert back the transaction. The relation between plaintiff and defendant were cordial and plaintiff was in faith over his defendant sister and therefore, there was no hurry on the part of plaintiff to revert the cancellation of gift deed.
3.5 However, the plaintiff received a legal notice dated 28.09.2021 issued by defendant with regard to vacating the possession of the suit plot. At that point of time, plaintiff came to know the intension of defendant sister. The plaintiff replied to Page 3 of 20 Uploaded by Raj Subhash Dhobi(HC01779) on Wed Nov 12 2025 Downloaded on : Wed Nov 12 21:39:01 IST 2025 NEUTRAL CITATION C/SA/202/2024 JUDGMENT DATED: 10/11/2025 undefined the notice on 06.10.2021. As the defendant was having the intention to grab the plot and it came to the knowledge of the plaintiff by her notice 28.09.2021, the plaintiff herein had filed a Civil Suit before the Ld. Principal Civil Judge, Talaja, which was registered as RCS No. 223 of 2021. The said suit was filed for the cancelation of gift deed, for declaration and for permanent injunction.
3.6 In response to the receipt of the summons, defendant has filed an application at Exhibit-18 under Order VII Rule 11(d) of "the Code". The said application was heard by the learned trial Court and the same was allowed and accordingly, the learned trial Court vide order dated 04.02.2023 has rejected the plaint under the provisions of under Order VII Rule 11(d) of "the Code". 3.7 Being aggrieved and dissatisfied with the order dated 04.02.2023, present plaintiff preferred appeal being Regular Civil Appeal No 2 of 2023 under the provisions of Section 96 of "the Code" before the learned Additional District Judge at Talaja, which came to be rejected by the judgment and decree dated 31.07.2023 passed by the learned 3 rd Additional District & Sessions Judge, Bhavnagar at Talaja.
3.8 Thus, being aggrieved and dissatisfied with the order dated 31.07.2023 passed by the appellate Court confirming the order dated 04.02.2023 passed by the learned trial Court, present Second Appeal has been preferred by the plaintiff.
4. Seeking admission of this Second Appeal, learned advocate Mr. Tulshi R. Savani appearing for the appellant - original plaintiff submitted that the learned Courts below have committed serious legal error in rejecting the plaint.
Page 4 of 20 Uploaded by Raj Subhash Dhobi(HC01779) on Wed Nov 12 2025 Downloaded on : Wed Nov 12 21:39:01 IST 2025NEUTRAL CITATION C/SA/202/2024 JUDGMENT DATED: 10/11/2025 undefined 4.1 He would further submit that in a RCS No.223 of 2021, appellant - plaintiff has specifically pleaded in para 4 that, the gift deed was executed by the plaintiff in the favor of the defendant in the year 2010 so as to help the defendant to show that certain immovable properties are standing in her name, which may ultimately help the daughter of the defendant to obtain the study visa.
4.2 He would further submit that in a notice dated 28.09.2021 given by the defendant to the plaintiff, the possession of the plaintiff has been accepted, which essentially establishes that the gift deed executed in the year 2010 is a sham document and does not confer any title upon the defendant. The gift deed was executed in the year 2010 for the limited purpose of showing title in favor of the defendant as to obtain the study visa for the higher studies of the daughter of the defendant.
4.3 He would further submit that there are three essential ingredients of 'Gift' recognized by the Mohammedan Law, as parties are belonging to Islamic Khoja Community and one of them is the actual handing over the possession of the property. Learned advocate Mr. Tulshi R. Savani referred to the judgment of the Supreme Court in the case of Mahboob Sahab v. Syed Ismail, reported in 1995 (0) AIR(SC) 1205 and submitted that since one of the essential ingredient of handing over of the possession to actuate and complete the transaction of the gift since is not found in this matter, itself establishes that the gift deed is sham, ineffective and nullity.
Page 5 of 20 Uploaded by Raj Subhash Dhobi(HC01779) on Wed Nov 12 2025 Downloaded on : Wed Nov 12 21:39:01 IST 2025NEUTRAL CITATION C/SA/202/2024 JUDGMENT DATED: 10/11/2025 undefined 4.4 Taking this Court to the concurrent finding arrived at by the learned Courts below, it is submitted that both the Courts below have committed serious error in not reading the plaint in its entirety.
4.5 He would further submit that plaint cannot be rejected in reading few lines and passages, ignoring other relevant part of the plaint, where it is specifically pleaded by the plaintiff that possession is lying with him. In support, he referred to the judgment in case of Sri Biswanath Banik v. Sulanga Bose, reported in 2022 (7) SCC 731.
4.6 In the premise of the aforesaid arguments, learned advocate Mr. Tulshi R. Savani has submitted to admit this Second Appeal.
5. The Second Appeal is filed on the following substantial question of law:-
"(i) Whether a perusal of the plaint and relief claimed in the plaint reveals that the same is bared by law of limitation?
(ii) Whether the pleadings of the plaint and the reliefs claimed does not establish the fact that the its a mix question of law and facts so far limitation is concerned and if yes, whether the both the courts below were right in accepting the application under 0-7 Rule-11-D of Civil Procedure Code?
(iii) Whether the other reliefs, namely the relief with respect to declaration and permanent injunction could be said to be time barred. looking to the pleadings with respect to cause of action?
(iv) Whether both the courts below were right in into passing the order without taking consideration the facts stated in the plaint while passing order under 0.7 Rule 11D of the Code of Page 6 of 20 Uploaded by Raj Subhash Dhobi(HC01779) on Wed Nov 12 2025 Downloaded on : Wed Nov 12 21:39:01 IST 2025 NEUTRAL CITATION C/SA/202/2024 JUDGMENT DATED: 10/11/2025 undefined Civil Procedure?
(v) Whether both the Id. Courts below were right in allowing application under 0.7 Rule 11D more particularly when defendant has filed a counter claim in suit filed by the plaintiff?
(vi) Whether looking to the orders passed by the Id. Courts below, would it be said that both the Id. Courts have considered the cause of action stated in the plaint, properly?"
6. In background of the aforesaid facts, if I examine the order delivered by the learned trial Court below Exhibit-18 and confirmed by the learned appellate Court, certain uncontroverted facts are emerging that, the gift deed was executed by the plaintiff in favor of Nishaben Firozbhai Budhvani, who is his real sister, by registered gift deed No.602/2010 dated 18.05.2010. The gift deed has transferred the ownership and title as well as possession of Plot No.63 of Karimabad Cooperative Housing Society Ltd.. Learned advocate Mr. Tulshi R. Savani could not controvert existance of covenant in gift deed to that extent. The suit was filed after more than 10 years for cancellation of the gift deed on the ground that the defendant of the suit has admitted that plaintiff is in possession. The cause of action was slated on the premises of the one notice issued by the defendant dated 28.09.2021. However, in the notice, according to the material on record, defendant claims that in recent past, the plaintiff has snatched away the possession of the Plot No. 63, which was gifted by way of registered instrument. Apposite to note that, the learned trial Court referred to Article 59 of the Limitation Act, 1963 (hereinafter referred to as "the Act") as well as Section 123 Page 7 of 20 Uploaded by Raj Subhash Dhobi(HC01779) on Wed Nov 12 2025 Downloaded on : Wed Nov 12 21:39:01 IST 2025 NEUTRAL CITATION C/SA/202/2024 JUDGMENT DATED: 10/11/2025 undefined of the Transfer of Property Act, 1882 (hereinafter referred to as "the TP Act"). Both the legal provisions are reproduced as under:-
"Article 59 of the Limitation Act, 1963 Description of suit Period of Time from which limitation period begins to run
59. To cancel or set aside Three years When the facts entitling an instrument or decree or the plaintiff to have for the rescission of the instrument or decree a contract." cancelled or set aside or the contract rescinded first become known to him.
Section 123 of the Transfer of Property Act, 1882
123. Transfer how effected.--For the purpose of making a gift of immoveable property, the transfer must be effected by a registered instrument signed by or on behalf of the donor, and attested by at least two witnesses.
For the purpose of making a gift of moveable property, the transfer may be effected either by a registered instrument signed as aforesaid or by delivery.
Such delivery may be made in the same way as goods sold may be delivered"
7. The limitation to file the cancellation of the gift deed is Three years from its execution. The registered gift deed is executed by the plaintiff himself on 18.05.2010, it is not a case of plaintiff that registered gift deed did not meet with the essential requirement of Section 123 of "the TP Act". Noticeably, plaintiff has filed the Civil Suit for cancellation of the said gift deed after 11 years. It was on face barred by the Law of Limitation, as stated in Article 59 of "the Act".
Page 8 of 20 Uploaded by Raj Subhash Dhobi(HC01779) on Wed Nov 12 2025 Downloaded on : Wed Nov 12 21:39:01 IST 2025NEUTRAL CITATION C/SA/202/2024 JUDGMENT DATED: 10/11/2025 undefined
8. At this juncture, I may refer to certain observations of the learned trial Court as under:-
"11. In para no.10 of the plaint the plaintiff has claimed the relief for cancellation of the Registered Gift Deed no 602 dated 18/05/2010 and also to declare that the possession of the suit property is also of the plaintiff and to restrain the defendants from transferring the suit property by sale, mortgage gift or any other means.
12. Here it is important to look into the legal provisions dealing with Gift of Immovable Property. Section 123 of the transfer of Property Act deals with how the transfer of gift effected. It states as under-
"For the purpose of making a gift of immovable property, the transfer must be effected by a registered instrument signed by or on behalf of the donor, and attested by at least two witnesses"
13. In the present case the plaintiff has given the suit property as gift to the defendant by executing a registered document no 602 dated 18/05/2010 in presence of two witnesses. In the opinion of this court the gift deed no 602 has made the transfer effected on the date the registered document no 602 has been executed.
14. Now coming to the limitation period to file a suit for cancellation of the gift deed as the execution of the gift deed has never been disputed in its plaint and now the plaintiff is seeking relief of cancellation of the said gift deed, the present suit is clearly barred by Article 59 of the Limitation Act, 1963 which states that the limitation period to file suit for cancellation of gift deed is Three years from its execution. The plaintiff was well aware about the registered gift deed executed on 18/05/2010 whereas he has filled the present suit after 11 years.
15. In the landmark Judgment of Raghavendra Sharan Singh vs Ram Prasanna Singh (Dead) by Lrs the Honble Superem Court has held as under-
Page 9 of 20 Uploaded by Raj Subhash Dhobi(HC01779) on Wed Nov 12 2025 Downloaded on : Wed Nov 12 21:39:01 IST 2025NEUTRAL CITATION C/SA/202/2024 JUDGMENT DATED: 10/11/2025 undefined
7. Applying the law laid down by this Court in the aforesaid decisions on exercise of powers under Order 7 Rule 11 of the CPC to the facts of the case in hand and the averments in the plaint, we are of the opinion that both the Courts below have materially erred in not rejecting the plaint in exercise of powers under Order 7 Rule 11 of the CPC. It is required to be noted that it is not in dispute that the gift deed was executed by the original plaintiff himself along with his brother. The deed of gift was a registered gift deed. The execution of the gift deed is not disputed by the plaintiff. It is the case of the plaintiff that the gift deed was a showy deed of gift and therefore the same is not binding on him. However, it is required to be noted that for approximately 22 years, neither the plaintiff nor his brother (who died on 15.12.2002) claimed at any point of time that the gift deed was showy deed of gift. One of the executants of the gift deed brother of the plaintiff during his lifetime never claimed that the gift deed was a showy deed of gift. It was the appellant herein- original defendant who filed the suit in the year 2001 for partition and the said suit was filed against his brothers to which the plaintiff was joined as defendant No.10. It appears that the summon of the suit filed by the defendant being T.S. (Partition) Suit No 3 of 2001 was served upon the defendant No.10- plaintiff herein in the year 2001 itself. Despite the same, he instituted the present suit in the year 2003. Even from the averments in the plaint, it appears that during these 22 years i.e. the period from 1981 till 2001/2003, the suit property was mortgaged by the appellant herein- original defendant and the mortgage deed was executed by the defendant. Therefore, considering the averments in the plaint and the bundle of facts stated in the plaint, we are of the opinion that by clever drafting the plaintiff has tried to bring the suit within the period of limitation which, otherwise, is barred by law of limitation. Therefore, considering the decisions of this Court in the case of T. Arivandandam (supra) and others, as stated above, and as the suit is clearly barred by law of limitation, the plaint is required to be rejected in exercise of powers under Order 7 Rule 11 of the CPC."
Page 10 of 20 Uploaded by Raj Subhash Dhobi(HC01779) on Wed Nov 12 2025 Downloaded on : Wed Nov 12 21:39:01 IST 2025NEUTRAL CITATION C/SA/202/2024 JUDGMENT DATED: 10/11/2025 undefined
16. Now looking to the provisions of Order 7 Rule 11 of Civil Procedure Code, 1908- '11. Rejection of plaint- The plaint shall be rejected in the following cases.-
(a) where it does not disclose a cause of action,
(b) where the relief claimed is undervalued, and the plaintiff, on being required by the Court to correct the valuation within a time to be fixed by the Court, fails to do so,
(c) where the relief claimed is properly valued, but the plaint is returned upon paper insufficiently stamped, and the plaintiff, on being required by the Court to supply the requisite stamp-paper within a time to be fixed by the Court, fails to do so,
(d) where the suit appears from the statement in the plaint to be barred by any law:' "
9. Learned appellate Court in first appeal framed the 'Points for determination' to decide the First Appeal as under:-
"Points for determination :-
1. Whether the Id. Trial Court has failed to appreciate the pleadings of the plaintiff in its proper prospective ?
2. Whether the order passed by the ld. Trial Court below application Ex 18, in Regular Civil Suit no. 223 of 2021, is illegal, arbitrary capricious and erroneous ?
3. What order?
8. That, my findings to the aforesaid issues are as follows."
9.1 Appellate Court, after discussing the reasons, answered the Point No.1 & 2 in the negative, has thoroughly reinterpreted the facts of the case and after referring to the judgments on the subject matter, was pleased to confirm the order passed by the learned trial Court. On perusal of the judgment and decree in Page 11 of 20 Uploaded by Raj Subhash Dhobi(HC01779) on Wed Nov 12 2025 Downloaded on : Wed Nov 12 21:39:01 IST 2025 NEUTRAL CITATION C/SA/202/2024 JUDGMENT DATED: 10/11/2025 undefined first appeal, what could be seen that appellate Court has passed the well-reasoned order by holding that the plaintiff - appellant has executed the gift deed voluntarily on 18.5.2010 and was executed in presence of witnesses and registered before the concerned authority. The registered instrument carried the presumption of its genuineness and further the averments made there in the gift deed indicates that the defendant was put in possession by way of the gift deed. There is no pleading on the part of the plaintiff that the gift deed was executed by playing fraud upon him by exercising illegal modes. In absence thereof, challenge made to the gift deed after passing of 11 years was apparently time barred suit.
10. In the case of T. Arivandandam v. T.V. Satyapal & Anr., reported in (1977) 4 SCC 467, the relevant paragraphs 5 and 6 thereof are reproduced as under:-
"5. We have not the slightest hesitation in condemning the petitioner for the gross abuse of the process of the court repeatedly and unrepentantly resorted to. From the statement of the facts found in the judgment of the High Court, it is perfectly plain that the suit now, pending before the First Munsif's Court, Bangalore, is a flagrant misuse of the mercies of the law in receiving plaints. The learned Munsif must remember that if on a meaningful-not formal- reading of the plaint it is manifestly vexatious, and meritless, in the sense of not disclosing a clear right to sue, be should exercise his power under Or. VII r. 1 1 C.P.C. taking care to see that the ground mentioned therein is fulfilled. And, if clever, drafting has created the illusion of a cause of action, nip it in the bud at the first hearing by examining the party searchingly under Order X C.P.C. An activist Judge is the answer to irresponsible law suits. The trial court should insist imperatively on examining the party at the first bearing so that bogus litigation can be shot down at the earliest stage. The Penal Code (Ch. XI) is also Page 12 of 20 Uploaded by Raj Subhash Dhobi(HC01779) on Wed Nov 12 2025 Downloaded on : Wed Nov 12 21:39:01 IST 2025 NEUTRAL CITATION C/SA/202/2024 JUDGMENT DATED: 10/11/2025 undefined resourceful enough to meet such men, and must be triggered against them. In this case, the learned Judge to his cost realised what George Bernard Shaw remarked on the assassination of Mahatma Gandhi: 'It is dangerous to be too good.'
6. The trial court in this case will remind itself of s. 35-A C.P.C. and take deterrent action if it is satisfied that the litigation was inspired by vexatious motives and altogether groundless. In any view, that suit has no survival value and should be disposed of forthwith after giving an immediate hearing to the parties concerned."
In view of above, according to this Court, the learned trial Court as well as the learned appellate Court has not committed any error, which permits the Court to admit the Second Appeal.
11. The scope of Second Appeal has been discussed by the Supreme Court in the case of Nazir Mohamed v. J. Kamala & Ors., reported in AIR 2020 SC 4321. The relevant para 37 thereof reads as under:-
"37. The principles relating to Section 100 CPC relevant for this case may be summarised thus :
(i) An inference of fact from the recitals or contents of a document is a question of fact, but the legal effect of the terms of a document is a question of law. Construction of a document, involving the application of any principle of law, is also a question of law. Therefore, when there is misconstruction of a document or wrong application of a principle of law in construing a document, it gives rise to a question of law.
(ii) The High Court should be satisfied that the case involves a substantial question of law, and not a mere question of law. A question of law having a material bearing on the decision of the case (that is, a question, answer to which affects the rights of parties to the suit) will be a substantial question of law, if it is not covered Page 13 of 20 Uploaded by Raj Subhash Dhobi(HC01779) on Wed Nov 12 2025 Downloaded on : Wed Nov 12 21:39:01 IST 2025 NEUTRAL CITATION C/SA/202/2024 JUDGMENT DATED: 10/11/2025 undefined by any specific provisions of law or settled legal principle emerging from binding precedents, and, involves a debatable legal issue.
(iii) A substantial question of law will also arise in a contrary situation, where the legal position is clear, either on account of express provisions of law or binding precedents, but the Court below has decided the matter, either ignoring or acting contrary to such legal principle.
In the second type of cases, the substantial question of law arises not because the law is still debatable, but because the decision rendered on a material question, violates the settled position of law.
(iv) The general rule is, that High Court will not interfere with the concurrent findings of the Courts below. But it is not an absolute rule. Some of the well-recognised exceptions are where (i) the courts below have ignored material evidence or acted on no evidence; (ii) the courts have drawn wrong inferences from proved facts by applying the law erroneously; or (iii) the courts have wrongly cast the burden of proof. A decision based on no evidence, does not refer only to cases where there is a total dearth of evidence, but also refers to case, where the evidence, taken as a whole, is not reasonably capable of supporting the finding."
12. In Hero Vinoth v. Seshammal, reported in (2006) 5 SCC 545, the Apex Court set out phrase 'substantial question of law' as occurring in the amended Section 100 of "the Code", as under:-
"21. The phrase 'substantial question of law', as occurring in the amended Section 100 CPC is not defined in the Code. The word substantial, as qualifying 'question of law', means of having substance, essential, real, of sound worth, important or considerable. It is to be understood as something in contradistinction with-technical, of no substance or consequence, or academic merely. However, it is clear that the legislature has chosen not to qualify the scope of 'substantial question of law' by suffixing the words Page 14 of 20 Uploaded by Raj Subhash Dhobi(HC01779) on Wed Nov 12 2025 Downloaded on : Wed Nov 12 21:39:01 IST 2025 NEUTRAL CITATION C/SA/202/2024 JUDGMENT DATED: 10/11/2025 undefined 'of general importance' as has been done in many other provisions such as Section 109 of the Code or Article 133(1)
(a) of the Constitution. The substantial question of law on which a second appeal shall be heard need not necessarily be a substantial question of law of general importance. In Guran Ditta v. Ram Ditta [(1927-28) 5I5 IA 235 : AIR 1928 PC 172] the phrase substantial question of law as it was employed in the last clause of the then existing Section 100 CPC (since omitted by the Amendment Act, 1973) came up for consideration and their Lordships held that it did not mean a substantial question of general importance but a substantial question of law which was involved in the case.
In Sir Chunilal case [1962 Supp (3) SCR 549 : AIR 1962 SC 1314] the Constitution Bench expressed agreement with the following view taken by a Full Bench of the Madras High Court in Rimmalapudi Subba Rao v. Noony Veeraju [AIR 1951 Mad 969 : (1951) 2 MLJ 222 (FB)] : (Sir Chunilal case [1962 Supp (3) SCR 549 : AIR 1962 SC 1314] , SCR p. 557) 'When a question of law is fairly arguable, where there is room for difference of opinion on it or where the Court thought it necessary to deal with that question at some length and discuss alternative views, then the question would be a substantial question of law. On the other hand if the question was practically covered by the decision of the highest court or if the general principles to be applied in determining the question are well settled and the only question was of applying those principles to the particular fact of the case it would not be a substantial question of law.' "
13. In Narayanan Rajendran and Anr. v. Lekshmy Sarojini and Ors., reported in (2009) 5 SCC 284, the Apex Court has examined the scope of Second Appeal prior to amendment and post amendment of Section 100 of "the Code", after referring to a catena of judgments. The relevant paras 38 to 42 are reproduced as under:-
"38. "66.The primary cause of the accumulation of arrears of second appeal in the High Court is the laxity with which second appeals are admitted without serious scrutiny of the Page 15 of 20 Uploaded by Raj Subhash Dhobi(HC01779) on Wed Nov 12 2025 Downloaded on : Wed Nov 12 21:39:01 IST 2025 NEUTRAL CITATION C/SA/202/2024 JUDGMENT DATED: 10/11/2025 undefined provisions of Section 100 C.P.C. It is the bounden duty of the High Court to entertain second appeal within the ambit and scope of Section 100 C.P.C.
67. The question which is often asked is why should a litigant have the right of two appeals even on questions of law? The answer to this query is that in every State there are number of District Courts and courts in the District cannot be final arbiters on questions of law. If the law is to be uniformly interpreted and applied, questions of law must be decided by the highest Court in the State whose decisions are binding on all subordinate courts."
Rationale behind permitting second appeal on question of law:
39. '68. The rationale behind allowing a second appeal on a question of law is, that there ought to be some tribunal having a jurisdiction that will enable it to maintain, and, where necessary, re-establish, uniformity throughout the State on important legal issues, so that within the area of the State, the law, in so far as it is not enacted law, should be laid down, or capable of being laid down, by one court whose rulings will be binding on all courts, tribunals and authorities within the area over which it has jurisdiction.
This is implicit in any legal system where the higher courts have authority to make binding decisions on question of law.
69. The analysis of cases decided by the Privy Council and this court prior to 1976 clearly indicated the scope of interference under Section 100 C.P.C. by this Court. Even prior to amendment, the consistent position has been that the courts should not interfere with the concurrent findings of facts.
70. Now, after 1976 Amendment, the scope of Section 100 has been drastically curtailed and narrowed down. The High Courts would have jurisdiction of interfering under Section 100 C.P.C. only in a case where substantial questions of law are involved and those questions have been clearly formulated in the memorandum of appeal. At the time of admission of the second appeal, it is the bounden duty and obligation of the High Court to formulate substantial Page 16 of 20 Uploaded by Raj Subhash Dhobi(HC01779) on Wed Nov 12 2025 Downloaded on : Wed Nov 12 21:39:01 IST 2025 NEUTRAL CITATION C/SA/202/2024 JUDGMENT DATED: 10/11/2025 undefined questions of law and then only the High Court is permitted to proceed with the case to decide those questions of law. The language used in the amended section specifically incorporates the words as "substantial question of law"
which is indicative of the legislative intention. It must be clearly understood that the legislative intention was very clear that legislature never wanted second appeal to become "third trial on facts" or "one more dice in the gamble". The effect of the amendment mainly, according to the amended section, was:
(i) The High Court would be justified in admitting the second appeal only when a substantial question of law is involved;
(ii) The substantial question of law to precisely state such question;
(iii) A duty has been cast on the High Court to formulate substantial question of law before hearing the appeal;
(iv) Another part of the Section is that the appeal shall be heard only on that question.
71. The fact that, in a series of cases, this court was compelled to interfere was because the true legislative intendment and scope of Section 100 C.P.C. have neither been appreciated nor applied. A class of judges while administering law honestly believe that, if they are satisfied that, in any second appeal brought before them evidence has been grossly misappreciated either by the lower appellate court or by both the courts below, it is their duty to interfere, because they seem to feel that a decree following upon a gross misappreciation of evidence involves injustice and it is the duty of the High Court to redress such injustice. We would like to reiterate that the justice has to be administered in accordance with law.
72. When Section 100 C.P.C. is critically examined then, according to the legislative mandate, the interference by the High Court is permissible only in cases involving substantial questions of law.
Page 17 of 20 Uploaded by Raj Subhash Dhobi(HC01779) on Wed Nov 12 2025 Downloaded on : Wed Nov 12 21:39:01 IST 2025NEUTRAL CITATION C/SA/202/2024 JUDGMENT DATED: 10/11/2025 undefined
73. The Judicial Committee of the Privy Council as early as in 1890 stated that there is no jurisdiction to entertain a second appeal on the ground of an erroneous finding of fact, however, gross or inexcusable the error may seem to be and they added a note of warning that no Court in India has power to add to, or enlarge, the grounds specified in Section 100.
74. The High Court seriously erred in interfering with the findings of facts arrived at by the trial court and affirmed by the first appellate court.
40. The scope of interference by the High Court in second appeal under section 100 CPC after 1976 Amendment is strictly confined to cases involving substantial questions of law. The High Court would not be justified in dealing with any second appeal without first formulating substantial question of law. The High Court would not be justified in dealing with any second appeal without first formulating substantial question of law. The legislative intention has been clearly spelt out in a series of cases of this court.'
41. In Gurdev Kaur (supra), this court exhaustively dealt with the cases before and after 1976 Amendment of CPC. This court clearly observed that the scope and ambit of section 100 CPC has been drastically changed after the amendment.
42. It is a matter of common experience in this court that despite clear enunciation of law in a catena of cases of this court, a large number of cases are brought to our notice where the High Court under section 100 CPC are disturbing the concurrent findings of fact without formulating the substantial question of law."
14. Considering the aforesaid scope of Second Appeal, which is confined only to substantial question of law, the finding of fact is not open to challenge the Second Appeal, even if the appreciation of evidence is palpably erroneous and finding of fact incorrect, as Page 18 of 20 Uploaded by Raj Subhash Dhobi(HC01779) on Wed Nov 12 2025 Downloaded on : Wed Nov 12 21:39:01 IST 2025 NEUTRAL CITATION C/SA/202/2024 JUDGMENT DATED: 10/11/2025 undefined held by the Apex Court in the case of R. Ramachandran Ayyar v. Ramalingam Chettiar, reported in AIR 1963 SC 302.
15. In the aforesaid circumstances, the appeal fails to bring any substantial question of law. It is found to be 'third trial' on facts and 'one more dice in the gamble', as held by the Apex Court in the case of Gurdev Kaur & Ors. v. Kaki & Ors., reported in (2007) 1 SCC 546 of the Supreme Court, wherein it is observed that:-
"The legislative intention was very clear that legislature never wanted second appeal to become 'third trial on facts' or 'one more dice in the gamble'."
16. In the aforesaid circumstances, the Second Appeal, sans the substantial question of law or merit. Hence, deserves to be dismissed at admission stage.
17. Before parting with the order, the two judgments on which learned advocate Mr. Tulshi R. Savani relied upon, in the facts of the present case, registered gift deed is executed and it also contained the averment that the possession has been handed over to the defendant. Hence, the judgment in the case of Mahboob Sahab (Supra) would be of no help to the appellant. As far as the judgment in the case Sri Biswanath Banik (Supra) is concerned, it is under Section 53A of the "TP Act", where pursuant to the execution of the agreement to sale, the plaintiff was put in possession under the principle of part- performance and later on, suit was dismissed on the ground that it is barred by limitation. However, the Court did not dealt with the issue of Section 53A, which propelled the Honourable Page 19 of 20 Uploaded by Raj Subhash Dhobi(HC01779) on Wed Nov 12 2025 Downloaded on : Wed Nov 12 21:39:01 IST 2025 NEUTRAL CITATION C/SA/202/2024 JUDGMENT DATED: 10/11/2025 undefined Supreme Court to pass the judgment in this case. The factual aspects of the case are not bearing with the factual aspects of this case.
18. Let me refer to the case of Hemavathi & Ors. v. Hombegowda & Anr., reported in 2025 (5) SCC 442 of the Supreme Court, it was held that, "If no substantial question of law arose in the case then the appeal could not have been entertained and ought to have been dismissed at the stage of admission."
19. Following the aforesaid dictum, the Second Appeal stands dismissed at admission stage.
19.1 In view of the disposal of the main appeal, Civil Application does not survive and is accordingly, disposed of.
19.2 Record and Proceedings, if any, be sent back to the concerned Court forthwith.
Sd/-
(J. C. DOSHI, J.) Raj Page 20 of 20 Uploaded by Raj Subhash Dhobi(HC01779) on Wed Nov 12 2025 Downloaded on : Wed Nov 12 21:39:01 IST 2025