Gujarat High Court
Vaghela Dhulubha Narayanji vs Kankuben Bhojabhai Kod on 20 November, 2025
NEUTRAL CITATION
C/SA/488/2025 JUDGMENT DATED: 20/11/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SECOND APPEAL NO. 488 of 2025
With
CIVIL APPLICATION (FOR STAY) NO. 1 of 2025
In R/SECOND APPEAL NO. 488 of 2025
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE J. C. DOSHI
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Approved for Reporting Yes No
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VAGHELA DHULUBHA NARAYANJI
Versus
KANKUBEN BHOJABHAI KOD & ORS.
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Appearance:
MR J G VAGHELA(3971) for the Appellant(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE J. C. DOSHI
Date : 20/11/2025
ORAL JUDGMENT
1. This second appeal under Section 100 of the Code of Civil Procedure, 1908 (for short 'the Code') challenges the judgment and decree passed in Regular Civil Appeal No.9 of 2023 by the 3rd Additional District Judge, Kachchh at Bhachau, by which, the learned Additional District Judge dismissed the first appeal and confirmed the judgment and decree passed in Regular Civil Suit No.18 of 2011 by the Additional Civil Judge, Rapar Page 1 of 24 Uploaded by NEHA PRAJAPATI(HC01404) on Thu Nov 27 2025 Downloaded on : Fri Nov 28 23:17:40 IST 2025 NEUTRAL CITATION C/SA/488/2025 JUDGMENT DATED: 20/11/2025 undefined (Kachchh) whereby, suit of the plaintiff was partly allowed and the counter claim preferred by the defendant under Order 8, Rule 6(A) of the Code was rejected. By the judgment and decree, learned Trial Court ordered that the defendants were restrained by issuing a permanent injunction from interfering with the plaintiff's possession over the land of Survey No.165/1 and Survey No.166 of Mouje : Momaymora, Taluka : Rapar, District : Kachchh ('suit property') without following due process of law. Further, the permanent injunction was issued to the effect that the defendants have no right whatsoever to sell or transfer the suit property without following due process of law.
2. The factual aspects leading to filing of the present second appeal are as under:
2.1 The suit property, particulars of which are stated in the plaint, is in independent possession of the plaintiffs. By Promulgation Entry No.93 (19.09.1971), the father of the plaintiff obtained the possession of the suit property on execution of usufructuary mortgage from the grandfather of the defendants. The father of the plaintiff died 12 years back.
Upon inheritance, the plaintiff received possession of the suit Page 2 of 24 Uploaded by NEHA PRAJAPATI(HC01404) on Thu Nov 27 2025 Downloaded on : Fri Nov 28 23:17:40 IST 2025 NEUTRAL CITATION C/SA/488/2025 JUDGMENT DATED: 20/11/2025 undefined property. The plaintiff apprehend that since he is in legal and peaceful possession of the suit property, the defendants have no right whatsoever to seek possession of the suit property without following due process of law. The plaintiff further apprehends that the defendants, in connivance with one Mr. P.N. Sureva, an employee of E-dhara, may nullify the plaintiff's possession over the disputed property, without redeeming usufructuary mortgage. Some revenue proceedings took place between the parties which ultimately led the plaintiff to file the Civil Suit seeking the relief of permanent injunction restraining the defendants from interfering with the plaintiff's possession over the suit property and further restrain the defendants from selling the suit property to any third party. 2.2 The process was served upon the defendants. By Exh.10, the defendants have filed the written statement. The facts pleaded by the plaintiff have been denied in the written statement. It is further claimed that the grandfather of the defendants had given the suit property under usufructuary mortgage to the father of the plaintiff therefore, the defendants are the owners of the suit property and the plaintiff is only a tenant. No sale deed was ever executed. In the year Page 3 of 24 Uploaded by NEHA PRAJAPATI(HC01404) on Thu Nov 27 2025 Downloaded on : Fri Nov 28 23:17:40 IST 2025 NEUTRAL CITATION C/SA/488/2025 JUDGMENT DATED: 20/11/2025 undefined 1988, part redemption took place and some of the land was resumed from the deceased - Nathabhai Panchabhai and since then, the defendants are in possession of the land bearing Survey No.165/1 admeasuring 1 Acre 2-10 Guntha. 2.3 The counter claim under Order 8 Rule 6A of the CPC was preferred for the redemption of usufructuary mortgage qua the land of Survey No.166. Reply to the counter-claim has been filed at Exh.14 by the plaintiff denying that the defendants are not the legal heirs of Ratansangji Ramsangji. The defendants were put to strict proof of the said facts. It is further stated that the defendants are required to prove that the land of Survey No.166 admeasuring Acre 4-30 Gunthas has been handed over to the ancestor of the plaintiff by way of usufructuary mortgage.
2.4 In the background of the rival claim, the learned Trial Court framed the issues at Exh.24. Both the side led evidence which ultimately resulted as plaintiff's suit was decreed, defendants' counter claim was rejected on the ground of limitation.
2.5 Being aggrieved, Regular Civil Appeal No.9 of 2023 was
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preferred before the 3rd Additional District Judge, Kachchh at Bhachau, by the defendants. Despite there being two decrees, the appellant chose to prefer a single appeal, which was dismissed by the learned Appellate Court.
2.6 Hence, this Second Appeal under Section 100 of the Code inter alia treating the following questions of law as substantial questions of law:
"(A) Whether the mortgagor's right to redeem mortgaged property gets extinguished after a period of thirty years (30) years, in case of an Usufructuary mortgage. The learned trial Court and the first appellate Court has committed substantial error of law in interpreting the judgment of the Hon'ble Supreme Court in the case of Singh Ram (D) Thr, L. Rs V. Sheo Ram and Ors. (2014 AIR SCW 4854).
(B) Whether a Civil Suit for permanent injunction simpliciter, without a prayer for a declaration, is maintainable when there are disputed questions of facts and the possession and title of the plaintiff are disputed. The learned first appellate Court has committed a substantial error of law in interpreting the judgement in case of Anathula Sudhakar V. P.Buchi Reddy (2008) 4 SCC 594."
3. Mr. J.G. Vaghela, learned advocate appearing for the appellant in order to admit this second appeal, referred to the aforesaid substantial questions of law and submitted that the learned Trial Court though believed transaction between the party be a usufructuary mortgage but declined to grant the decree in the counter claim on the ground that the counter claim of the defendants is barred by principles of limitation. He Page 5 of 24 Uploaded by NEHA PRAJAPATI(HC01404) on Thu Nov 27 2025 Downloaded on : Fri Nov 28 23:17:40 IST 2025 NEUTRAL CITATION C/SA/488/2025 JUDGMENT DATED: 20/11/2025 undefined would further submit that the learned Trial Court believed Article 61(A) of the Limitation Act to be the limitation provision for filing the redemption suit. However, the finding of the learned Trial Court is contrary to the provisions of Section 60 and Section 62 of the Transfer of Property Act, 1882 ('TP Act'). He would further submit that for redemption of usufructuary mortgage, there is no limitation. As per Section 62 of TP Act, the usufructuary mortgage will continue till mortgage money is paid. He would further submit that mere expiry of 30 years from the date of mortgage does not extinguishes the right of mortgagor under Section 62 of the Limitation Act. To buttress the contention, he referred to the judgment in case of Singh Ram (D) Through. L.Rs. V. Sheo Ram and Ors., reported in 2014 AIR SCW 4854. He would further submit that the learned Trial Court committed serious error in reading the provision of law, which is erroneously confirmed by the learned Appellate Court, and in that facts and circumstances, the judgment rendered by the learned Trial Court and confirmed by the learned Appellate Court suffers from serious illegality. Thus, he submitted that the substantial questions of law framed by the appellant exist in the matter. He would further submit that the plaintiff without seeking any declaration, filed Page 6 of 24 Uploaded by NEHA PRAJAPATI(HC01404) on Thu Nov 27 2025 Downloaded on : Fri Nov 28 23:17:40 IST 2025 NEUTRAL CITATION C/SA/488/2025 JUDGMENT DATED: 20/11/2025 undefined the suit for permanent injunction simplicitor. The title of the plaintiff was seriously disputed and therefore, the plaintiff was required to seek the relief of declaration. He would further submit that without seeking the relief of declaration, the suit for permanent injunction simplicitor is not maintainable. However, learned Court below erred in appreciating this aspects.
In view of the above submissions, he would submit that the second appeal be admitted on aforesaid substantial question of law.
4. The plaintiff in Suit claims that he is in possession of the suit property and the defendants have no right to disturb his possession over the suit property without following due process of law as plaintiff's ancestor in capacity of mortgagee holds possession of the suit property. As against that, the defendants filed the counter claim under Order 8, Rule 6(A) of the Code claiming that since the land of survey No.166 is given under usufructuary mortgage, defendants being mortgagor is entitled to redeem by paying mortgage money. It was further a case of the defendants that the expiry of period of 30 years from the date of mortgage would not apply.
Page 7 of 24 Uploaded by NEHA PRAJAPATI(HC01404) on Thu Nov 27 2025 Downloaded on : Fri Nov 28 23:17:40 IST 2025 NEUTRAL CITATION C/SA/488/2025 JUDGMENT DATED: 20/11/2025 undefined 4.1 In reply to counter claim, the plaintiff put the issue raised
by the defendants subject to strict proof as to whether the forefather of the defendants have entered into usufructuary mortgage and mortgaged the land of survey No.166 to the ancestor of the plaintiff.
5. The learned Trial Court framed the following issues at Exh.24: (true translation)
-:: Issues ::-
1. Whether the Plaintiff proves that, as per Revenue Entry No. 93 of Promulgation Entry No. 93 of the record, the Plaintiff's father held occupancy rights with the right to redeem by paying the amount to the Defendants' grandfather?
2. Whether the Plaintiff proves that the Defendants intend to forcefully snatch away the possession of the suit property without following the due process of law?
3. Whether the Defendant proves that the Plaintiff's suit is barred by the provisions of the Limitation Act?
3(A). Whether the Defendant proves that they are entitled to obtain possession of the land bearing Survey No. 166, admeasuring 4 Acres and 36 Gunthas, from the Plaintiff by paying the usufractuary mortgage amount?
4. Whether the Plaintiff is entitled to get the relief as prayed for?
5. What Order and Decree?"
6. Issue Nos.1, 2 and 4 are answered in "Affirmative". Issue No.3 and 3A are answered in "Negative". Ultimately, the plaintiff's Suit is decreed in his favour issuing permanent injunction as prayed however, defendants' counter claim was Page 8 of 24 Uploaded by NEHA PRAJAPATI(HC01404) on Thu Nov 27 2025 Downloaded on : Fri Nov 28 23:17:40 IST 2025 NEUTRAL CITATION C/SA/488/2025 JUDGMENT DATED: 20/11/2025 undefined dismissed on the ground of limitation. While decreeing the plaintiff's suit, the learned Trial Court believed that the usufructuary mortgage at Exh.69 is a registered document and it establish plaintiff's possession over suit property under mortgage deed being legal and cannot be disturbed without due process of law, however, redemption of usufructuary mortgage qua land of survey No.165/1 was not believed as it is claimed upon unregistered document. The defendants in order to prove the Exh.93, the document produced to prove redemption of mortgage examined witness at this document, however, the defendants failed to prove the content thereof. According to the learned Trial Court, witness deposed in regard of only making signature on the document, except that, they have not deposed anything more. Therefore, learned Trial Court believed that no redemption for land of Survey No.165/1 took place. Plaintiffs are even in possession of the land bearing Survey No.165/1, as mortgagee. Plaintiff's possession over land of Survey No.166 is admitted by defendant as he has asked for redemption of usufructuary mortgage by way of counter claim.
7. Apposite to note that, the plaintiff's suit was limited to Page 9 of 24 Uploaded by NEHA PRAJAPATI(HC01404) on Thu Nov 27 2025 Downloaded on : Fri Nov 28 23:17:40 IST 2025 NEUTRAL CITATION C/SA/488/2025 JUDGMENT DATED: 20/11/2025 undefined seeking permanent injunction on the basis of his possession over the suit property. Plaintiff did not claim that he is a title holder but, claim that he is in possession of the suit property pursuant to the document namely, the usufructuary mortgage executed in favour of the forefather of the plaintiff. It was the suit for the injunction. The defendants filed the counter claim under Order 8, Rule 6(A) of the Code claiming the redemption of usufructuary mortgage only qua the land of Survey No.166. The learned Trial Court dismissed the counter claim on the ground that it is barred by law of limitation.
8. At this juncture, I may refer to Order 8, Rule 6(A) of the Code, which reads as under:
"[6A. Counter-claim by defendant.-(1) A defendant in a suit may, in addition to his right of pleading a set-off under rule 6, set up, by way of counter-claim against the claim of the plaintiff, any right or claim in respect of a cause of action accruing to the defendant against the plaintiff either before or after the filing of the suit but before the defendant has delivered his defence or before the time limited for delivering his defence has expired, whether such counter-claim is in the nature of a claim for damages or not:
Provided that such counter-claim shall not exceed the pecuniary limits of the jurisdiction of the Court.
(2) Such counter-claim shall have the same effect as a cross-suit so as to enable the Court to pronounce a final judgment in the same suit, both on the original claim and on the counter-claim.
(3) The plaintiff shall be at liberty to file a written statement in answer to the counter-claim of the defendant within such period as may be fixed by the Court.
(4) The counter-claim shall be treated as a plaint and governed by the Page 10 of 24 Uploaded by NEHA PRAJAPATI(HC01404) on Thu Nov 27 2025 Downloaded on : Fri Nov 28 23:17:40 IST 2025 NEUTRAL CITATION C/SA/488/2025 JUDGMENT DATED: 20/11/2025 undefined rules applicable to plaints.]"
9. The counter claim is maintainable against the plaintiff, any right or claim in respect of the cause of action accruing to the defendants against the plaintiff either before or after the filing of the suit but before the time limited for delivery of defence has expired. The counter-claim however, as such has certain limits. The counter claim shall not exceed the pecuniary limits of the jurisdiction of the Court. Ordinarily, it should arise from the cause of action pleaded by the plaintiff.
10. At the cost of repetition, it is to be noticed that the counter claim has been rejected by the learned Trial Court by answering the issue No.3A in negative. Plaintiff's Suit is allowed. Thus, two separate decrees comes into existence. The defendants carries the judgment and decree passed by the learned Trial Court to First Appeal under Order 41 Rule 1 of the Code. The defendants have filed single appeal challenging two separate decrees. The learned Appellate Court also decided the First Appeal on the basis of judgment in case of Anathula Sudhakar Vs. P.Buchi Reddy, (2008) 4 SCC 594 whereby, the Hon'ble Supreme Court held that if the plaintiff is in lawful or peaceful possession of the property and such possession is Page 11 of 24 Uploaded by NEHA PRAJAPATI(HC01404) on Thu Nov 27 2025 Downloaded on : Fri Nov 28 23:17:40 IST 2025 NEUTRAL CITATION C/SA/488/2025 JUDGMENT DATED: 20/11/2025 undefined interfered or threatened by the defendants, a suit for permanent injunction simpliciter will lie. A person has a right to protect his possession against any person who does not prove a better title by seeking a prohibitory injunction. The learned Appellate Court re-evaluate the entire issue based upon the possession of the plaintiff and decided the same accordingly, which indicates that the argument of counter claim and redemption of usufructuary mortgage was not advanced before the learned Appellate Court and the learned Appellate Court had no occasion to decide this issue. The learned Appellate Court in paragraph 18 of the judgment referred that since original mortgage deed is registered, the deed of redemption must also to be registered. Thus, the defendants cannot claim any right, title and interest until a proper redemption of the usufructuary mortgage is proved.
11. In a Civil Suit, the learned Additional Civil Judge, Rapar, passed two different and distinct decrees; (i) partly allowing the suit of the plaintiff and (ii) denying the counter claim of the defendants. Only singular appeal has been preferred by the appellant - defendants. The Appeal memo does not specify that which decree is challenged, whether a decree passed by Page 12 of 24 Uploaded by NEHA PRAJAPATI(HC01404) on Thu Nov 27 2025 Downloaded on : Fri Nov 28 23:17:40 IST 2025 NEUTRAL CITATION C/SA/488/2025 JUDGMENT DATED: 20/11/2025 undefined the learned Trial Court in favour of the plaintiff or against the dismissal of the defendants' counter claim. But, from the body and reasoning of the judgment and decree passed by the learned Appellate Court, it appears that the issue of possession of the plaintiff was raised and discussed by the learned Appellate Court.
12. In case of Darayas Bamanshah Medhora Vs. Nariman Bamansha Medhora, reported in 2002 (1) GLR 474, the Hon'ble Division Bench of this Court addressed the issue that where two counter suits in respect of the same subject matter are filed and decided by a common judgment and the appeal is filed only against one decree and no appeal is filed in the other matter, whether a bar of res-judicata would apply and whether the appeal would be incompetent. Relevant paragraphs extracted as under:
"7. Apart from the question as to whether one appeal can lie from two decrees or not, which question being the centre of the controversy will be considered hereinafter, certain factual aspects in the context of this submission require to be noted and dealt with. The fact that the memo of appeal contains grounds arising from the common judgement and findings from the common issues in the two suits is irrelevant. Whether the appellant has paid court fees on a composite valuation, as if they were two appeals, and/or on a composite valuation of the two suits, is again irrelevant. The fact remains that ground (vv) as contained in the memo of appeal refers to only one decree as being the subject matter of challenge. Similarly, the decree which forms the basis of challenge in the appeal is only one, as can be seen from the decree which is annexed to the memo of appeal. This decree is at Exh.146 in Special Civil Suit No.700/2000. No other decree is annexed to the Page 13 of 24 Uploaded by NEHA PRAJAPATI(HC01404) on Thu Nov 27 2025 Downloaded on : Fri Nov 28 23:17:40 IST 2025 NEUTRAL CITATION C/SA/488/2025 JUDGMENT DATED: 20/11/2025 undefined memo of appeal. Therefore, no matter what grounds may be urged in support of the appeal, whether it is treated as an appeal from one decree or an appeal from both the decrees, the fact remains that this appeal cannot be treated factually to be an appeal challenging both the decrees. This is irrespective of the question of law as to whether one appeal could lie and/or be maintainable when the appeal challenges only one of the decrees arising from the common judgement.
8. Learned counsel for the appellant has sought to place reliance upon numerous decisions, including decisions of various High Courts, in support of his contention.
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9. In our opinion, it is not necessary to examine seriatim each of these decisions inasmuch as they have been considered, evaluated, discussed, noted, distinguished, approved or dissented from, by several subsequent decisions of the Supreme Court which we shall discuss hereinafter.
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10. However, we may note only in brief the distinction, and the departure from the earlier point of view, created by subsequent decisions of the Supreme Court, from the aforesaid decisions. The controversy considered by the aforesaid decisions has been examined mainly on whether the principles of res judicata as enshrined in section 11 of CPC would be applicable in such cases. It appears to us that the line of reasoning first enunciated by the Full Bench in the case of Mt. Lachhmi (AIR 1927 Lahore 289) and adopted by different High Courts in India subsequently, appear to flow from a generalised principle laid down by the Full Bench to the effect that the principle of res judicata which created a bar to subsequent agitation of the same issue, is created by the judgement and not by the decree.
10.1 In our opinion, it would be a loose generalisation to hold that the bar of res judicata is created only by the judgement and not by the decree. This generalisation would hold the field only if the question under consideration was in respect of only, or merely, "issue estoppel", and not in respect of a common judgement resulting in two decrees.
10.2 In this context we cannot overlook the fact that an appeal under section 96, CPC lies only from a decree and not from a judgement. It cannot be overlooked that these are not merely loose concepts, but have a very specific meaning and connotation inasmuch as each of these has been independantly defined under the CPC.
10.3 Section 2(9) defines a "judgement" as the statement given by the Judge on the grounds of a decree or order. As against this, a "decree" is defined by section 2(2) of CPC as the formal expression of an adjudication which, so far as regards the Court expressing it, conclusively determines the rights of the parties with regard to all or any of the matters in controversy in the suit and may be either preliminary or final. It is not necessary, in our opinion, to refer to numerous authorities on the distinction between these two phrases and Page 14 of 24 Uploaded by NEHA PRAJAPATI(HC01404) on Thu Nov 27 2025 Downloaded on : Fri Nov 28 23:17:40 IST 2025 NEUTRAL CITATION C/SA/488/2025 JUDGMENT DATED: 20/11/2025 undefined concepts, as used in law. The short substance of the distinction is that the judgement constitutes the opinion of the Court, wherein it encompasses the pleadings of the parties, the issues, the evidence led by the respective parties, the interplay of different pieces of evidence upon each other, the conclusions drawn and the findings of fact recorded by the Court. In short, the judgement reflects merely the justification of the court for passing the decree in question. On the other hand, the decree is the crystallisation of the rights in controversy between the parties, as declared by the court, on the basis of the judgement. Consequently, in our opinion, a judgement and a decree are not phrases or concepts which can be used in the alternative to each other, neither do the two concepts overlap each other. In our opinion, it is precisely for this reason that section 96 of CPC contemplates an appeal only from a decree, and by necessary implication, not from a judgement. Furthermore, when the rights of a party crystallised in a decree are sought to be enforced by due process of law, by execution proceedings under Order 21, CPC, such proceeding would lie only on the basis of a decree, and not on the basis of a judgement.
10.4 The entire controversy in law as to whether a single appeal would lie from one of the decrees arising from a common judgement has been considered in the various decisions aforesaid, only by testing against and applying the principle of res judicata. In the context of these decisions it is necessary to bear in mind that a reference to the common judgement, and consequently a reference to a supposed judgement resulting in one of the decrees, is only necessary to ascertain whether "the question substantially in issue" was common in both the suits.
11. While considering the aforesaid decisions, which, as aforesaid, have also been considered by the subsequent decisions of the Supreme Court, it also requires to be kept in mind that the principle of res judicata is not the only principle upon which this legal controversy can be reflected upon. Another principle which, in our opinion, would have a bearing on this controversy is the principle of acquiescence and/or estoppel. This principle would also apply to the controversy in issue, inasmuch as it could be urged that when only one decree is challenged in the singular appeal, the other decree which is not the subject matter in appeal, is a decree which is acquiesced to. Ultimately it makes no difference whether the same set of reasons and the same set of findings justify both the decrees. This may perhaps appear to be similar to calling a glass half full or also calling it half empty. It may be that such a description carries different concepts, although the factual result is the same. The distinction in law lies in the real and substantive distinction between an appeal from a judgement and an appeal from a decree. Once this distinction is established and kept in mind, it becomes a simpler exercise to appreciate the view expressed by the Supreme Court in the decisions hereinafter discussed.
12. In the case of Sheodan Singh Vs. Daryao Kunwar, reported in AIR 1966 SC 1332, the Supreme Court specifically found that where there were two suits having common issues, and the suits were decided by the trial court on merits which resulted in two appeals Page 15 of 24 Uploaded by NEHA PRAJAPATI(HC01404) on Thu Nov 27 2025 Downloaded on : Fri Nov 28 23:17:40 IST 2025 NEUTRAL CITATION C/SA/488/2025 JUDGMENT DATED: 20/11/2025 undefined therefrom, and one of the appeals was dismissed (although not on merits), the decision of the appeal court will be res judicata. It is pertinent to note that in the said decision, the Full Bench decision in the case of Mt. Lachhmi (supra) has been specifically considered, as also the supreme Court decision in the case of Narhari Vs. Shanker, reported in AIR 1953 SC 419.
12.1 The aforesaid decision of the Supreme Court viz. Sheodan Singh, has been referred to, considered and relied upon by the Supreme Court in its subsequent decision in the case of Premier Tyres Limited V. The Kerala State Road Transport Corporation, reported in AIR 1993 SC 1201. This decision also takes into consideration the earlier decision of the Supreme Court in the case of Ramagya Prasad Vs. Murli Prasad, reported in AIR 1974 SC 1320, and distinguishes the earlier decision of the Supreme Court in the case of Narhari Vs. Shanker, reported in AIR 1953 SC 419.
12.2 In the said decision (viz. Premier Tyres Ltd. (supra) there were two suits which were connected and tried together inasmuch as the nature of the dispute in both the suits were same. The issues framed were also common. In this case, the appellant did not file any appeal against the dismissal of the suit for part of its claim, but an appeal was filed against the decree granted in favour of the respondent in the appeal in the suit filed by it. The High Court of Kerala in its decision dismissed the appeal of the appellant as barred by res judicata since the finding recorded in the connected suit had become final inasmuch as the same was not challenged in the appeal. In the appeal before the Supreme Court it was urged, as is urged in the appeal before us, that both the suits were connected and decided by common order, and therefore the issues in neither suit can be said to have been decided in a former suit, and consequently the basic ingredient of section 11 of CPC would not be satisfied. This submission was sought to be supported by the earlier decision of the Supreme Court in the case of Narhari Vs. Shanker (supra). However, the Supreme Court observed that the decision in the case of Narhari Vs. Shanker (supra) has been distinguished in the case of Sheodan Singh (supra), inasmuch as it related to only one suit and therefore the observations extracted therefrom were not relevant in a case where more than one suit was decided by a common order. The Supreme Court then observed that in the present case before it, there were different suits from which different appeals had to be filed. (emphasis supplied). In paragraph 4 of the said decision the Supreme Court therefore concluded that where an appeal arising out of connected suits is dismissed on merits, the other cannot be heard and has to be dismissed.
12.3 The question which was also considered by the Supreme Court was as to what happens where no appeal is filed, as in the case before the Supreme Court from the decree in the connected suit. The Supreme Court specifically found that the effect of non-filing of an appeal against a judgement or decree is that it becomes final. This finality can be taken away only in accordance with law. The same consequences follow when a judgement or decree in a connected suit is not appealed from. These observations of the Supreme Court, which were further fortified by the findings recorded by it in para 6 of the said Page 16 of 24 Uploaded by NEHA PRAJAPATI(HC01404) on Thu Nov 27 2025 Downloaded on : Fri Nov 28 23:17:40 IST 2025 NEUTRAL CITATION C/SA/488/2025 JUDGMENT DATED: 20/11/2025 undefined decision, are as under:
"Thus, the finality of finding recorded in the connected suit, due to non filing appeal, precluded the Court from proceeding with appeal in other suit."
12.4 In the context of the observations made by the Supreme Court in the said decision, and particularly the observations in paras 4 and 6 of the said decision, we are also of the view that the Supreme Court has, to some extent, departed from the earlier principles of relying and referring to only the principles of res judicata, by also considering and incorporating the principles of acquiescence and issue estoppel. As discussed hereinabove, the principle of acquiescence and issue estoppel are also relevant and can be applied to the consideration of examining the legality and validity of the contentions raised for and against the maintainability of such an appeal.
13. The decision of the Supreme Court in the case of Ram Prakash Vs. Charan Kaur, reported in AIR 1997 SC 3760 is also relevant and pertinent.
13.1 This decision is based on facts which are identical to the facts before us. The Supreme Court specifically held that where the findings in one suit had been allowed to become final in the absence of an appeal, an appeal filed against the findings in another suit would be barred by principles of res judicata.
13.2 In para 2 of the said decision the Supreme Court observed as under:
"2. It would be obvious that since the claims of the petitioner and the respondents have arisen from the same cause of action and the finding of the appellate Court that damages had accrued to the respondents due to misfeasance or malfeasance having been allowed to become final, the decree which is subject matter of the special leave petition cannot be assailed. The self-same question was directly in issue and was the subject matter of both the suits. The same having been allowed to become final, it cannot be gone into since the same had attained finality, the petitioner having not filed any appeal against the appeal dismissing the suit. In view of this situation, the High Court was right in concluding that the decree of dismissal of the suit against the petitioner would operate as res judicata under section 11, CPC in the appeal against which the petitioner has filed the second appeal."
13.3 We may also observe in passing that in the present decision the Supreme Court has applied not only the principles of res judicata, but has also decided the facts from the alternate perspective, by applying the principles of acquiescence and issue estoppel.
13. In view of the above and applying the ratio to the case on Page 17 of 24 Uploaded by NEHA PRAJAPATI(HC01404) on Thu Nov 27 2025 Downloaded on : Fri Nov 28 23:17:40 IST 2025 NEUTRAL CITATION C/SA/488/2025 JUDGMENT DATED: 20/11/2025 undefined hand, the Second Appeal is not maintainable. In the first appeal challenge is made to one decree leaving other decree to be perfected. First appeal can be filed against the decree and not against multiple decrees. As observed herein above, the appellant has filed only one appeal against one of the two decrees passed in Civil Suit, one in favour of the plaintiff and one against defendants on dismissal of counter claim, hence, one decree became perfect and attained finality, on such the decree which became final operates as res-judicata against the other decree. Thus this legal impediment expanses inadmissibility of second appeal.
13.1 The scope of second appeal under Section 100 of the CPC against concurrent finding of facts is limited. This Court in second appeal cannot address and evaluate evidence again as sitting in third trial. The appellant to demonstrate substantial questions of law.
14. In Narayananan Rajendran v/s. Lekshmy Sarojini [(2009) 5 SCC 264], the Hon'ble Apex Court has examined scope of Second Appeal prior to amendment and post amendment in Section 100. After referring catena of judgments, in para 38 to 42, the Hon'ble Apex Court has held Page 18 of 24 Uploaded by NEHA PRAJAPATI(HC01404) on Thu Nov 27 2025 Downloaded on : Fri Nov 28 23:17:40 IST 2025 NEUTRAL CITATION C/SA/488/2025 JUDGMENT DATED: 20/11/2025 undefined 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 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 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: Page 19 of 24 Uploaded by NEHA PRAJAPATI(HC01404) on Thu Nov 27 2025 Downloaded on : Fri Nov 28 23:17:40 IST 2025
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(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.
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 Page 20 of 24 Uploaded by NEHA PRAJAPATI(HC01404) on Thu Nov 27 2025 Downloaded on : Fri Nov 28 23:17:40 IST 2025 NEUTRAL CITATION C/SA/488/2025 JUDGMENT DATED: 20/11/2025 undefined 100 of CPC are disturbing the concurrent findings of fact without formulating the substantial question of law. "
15. Useful reference is also made to the case of Hero Vinoth v/s. Seshammal [(2006) 5 SCC 545], wherein, the Hon'ble Apex Court explained phrase "substantial question of law" as occurring in Section 100, 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 4 AIR 1962 SC 1314 5 AIR 1951 Mad 969 6 (2006) 5 SCC 545 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 "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 [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) "[W]hen 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."
16. At this juncture, it is to be noticed that Section 62 of the Page 21 of 24 Uploaded by NEHA PRAJAPATI(HC01404) on Thu Nov 27 2025 Downloaded on : Fri Nov 28 23:17:40 IST 2025 NEUTRAL CITATION C/SA/488/2025 JUDGMENT DATED: 20/11/2025 undefined TP Act gives a usufructuary mortgagor right to redeem the mortgage till the mortgage money is paid. Mere expiry of period of 30 years from the date of mortgage, does not extinguish the right of the mortgagor under Section 62 of the Act as held by the Hon'ble Supreme Court in case of Singh Ram (D) Thr. Lrs. (Supra). If we go through the present case, it is the case of the defendants that under the usufructuary mortgage two parcels of land have been given to the ancestor of the plaintiff. It was pleaded that the redemption in regards to the one parcel of land was made, further the defendant - appellant by way of a counter claim intends to redeem the usufructuary mortgage in regards to the other parcels of land. The learned Trial Court believed that no legal redemption in regards to Survey No.165/1 ever took place.
16.1 In the aforesaid circumstances, the right of the appellant/defendants survives to file appropriate proceedings/suit to redeem the usufructuary mortgage as recognized under Section 62 of the TP Act for both the parcel of land i.e. land of survey Nos.165/1 and 166. Mere expiry of period of 30 years from the date of mortgage, would not Page 22 of 24 Uploaded by NEHA PRAJAPATI(HC01404) on Thu Nov 27 2025 Downloaded on : Fri Nov 28 23:17:40 IST 2025 NEUTRAL CITATION C/SA/488/2025 JUDGMENT DATED: 20/11/2025 undefined extinguish the right of the mortgagor under Section 62 of the TP Act. Defective counter claim of the defendant would not take away his statutory right to redeem usufructuary mortgage. Further, judgment and decree of learned Trial Court confirmed up to this Court establish that plaintiff's possession over both the parcel of land is in capacity of mortgagee. The right under Section 62 of the TP Act gives a continuous cause of action to the mortgagor of usufructuary mortgage provided that he is ready to pay mortgage money recited in the mortgage deed and therefore, he can file a suit for redemption of the both the parcel of land of Survey Nos.165/1 and 166, which is mortgaged to the ancestor of the plaintiff.
17. With the aforesaid observations, this Second Appeal stands dismissed at the admission stage as no substantial question of law arise. It is made clear that if the mortgagor files the suit for redemption of the usufructuary mortgage against the plaintiff, the findings arrived at by the learned Trial Court as well as the learned Appellate Court in the present matter, shall not come in the way and shall not be operated as res-judicata.
Since the Second Appeal is dismissed, the connected Civil Page 23 of 24 Uploaded by NEHA PRAJAPATI(HC01404) on Thu Nov 27 2025 Downloaded on : Fri Nov 28 23:17:40 IST 2025 NEUTRAL CITATION C/SA/488/2025 JUDGMENT DATED: 20/11/2025 undefined Application (For Stay) No.1 of 2025 does not survive and stands disposed of accordingly.
(J. C. DOSHI,J) NEHA Page 24 of 24 Uploaded by NEHA PRAJAPATI(HC01404) on Thu Nov 27 2025 Downloaded on : Fri Nov 28 23:17:40 IST 2025