Gujarat High Court
Khatri Aamad Ilias Rickshawala vs Khatri Aamad Sumar on 25 November, 2025
NEUTRAL CITATION
C/SA/259/2023 ORDER DATED: 25/11/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SECOND APPEAL NO. 259 of 2023
With
CIVIL APPLICATION (FOR STAY) NO. 1 of 2023
In R/SECOND APPEAL NO. 259 of 2023
With
CIVIL APPLICATION (FOR BRINGING HEIRS) NO. 1 of 2025
In R/SECOND APPEAL NO. 259 of 2023
With
CIVIL APPLICATION (FOR CONDONATION OF DELAY) NO. 2 of 2025
In CIVIL APPLICATION (FOR BRINGING HEIRS) NO. 1 of 2025
In R/SECOND APPEAL NO. 259 of 2023
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KHATRI AAMAD ILIAS RICKSHAWALA
Versus
KHATRI AAMAD SUMAR
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Appearance:
MR Y J PATEL(3985) for the Appellant(s) No. 1
MR AR THACKER(888) for the Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE J. C. DOSHI
Date : 25/11/2025
ORAL ORDER
ORDER IN CIVIL APPLICATIONS NO.1 OF 2025 AND 2 OF 2025
1. Civil Applications Nos. 1 of 2025 and 2 of 2025 stand allowed. The applicants are hereby substituted in place of the deceased appellant, the delay in preferring the said applications being duly condoned upon a satisfactory exposition of cause.
2. The applicants are further granted leave to carry out consequential amendments in the memo of appeal. Such amendments shall be effectuated in the ordinary course of practice and in accordance with law.
ORDER IN SECOND APPEAL NO. 259 of 2023
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NEUTRAL CITATION
C/SA/259/2023 ORDER DATED: 25/11/2025
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3. Khatri Aamad Sumar, the original plaintiff, instituted Regular Civil Suit No. 248 of 2012 before the learned Additional Civil Judge, Bhuj-Kachchh seeking recovery of possession of the immovable property situated at Khatki Faliya, behind Khatki Masjid, Bhuj City Survey Ward No. 1, bearing Registered Nos. 3285-3286- 3287 (hereinafter referred to as "the suit property"). The foundation of the suit was that the suit property, admittedly owned by the plaintiff, had been entrusted to his sister, Kulsumben, wife of Khatri Aamad Illias (popularly known as "Rickshawala"), on a permissive possession purely out of familial benevolence, as she lacked independent means of sustenance. Kulsumben expired on 21.12.2009, and upon her demise, the plaintiff asserted his right to resume possession of the suit property, the permissive occupation having extinguished with her death.
3.1. The learned Second Additional Civil Judge, Bhuj-Kachchh, by judgment and decree dated 17.10.2019, decreed the suit, directing the present appellant to hand over peaceful and vacant possession of the suit property to the plaintiff. Aggrieved thereby, the deceased appellant preferred Regular Civil Appeal No. 142 of 2019 before the learned 6th Additional District Judge, Kachchh at Bhuj. Upon hearing both sides, the learned Appellate Court dismissed the appeal and affirmed the decree by its judgment dated 27.04.2023.
3.2. Still crestfallen and dissatisfied, the appellant--now represented by his legal heirs--has invoked the jurisdiction of this Court by filing the present Second Appeal, laying challenge to the concurrent findings of both courts below on multiple grounds articulated in the memorandum of appeal, purportedly raising substantial questions of law warranting consideration under Section Page 2 of 8 Uploaded by MANISH MISHRA(HC01776) on Fri Nov 28 2025 Downloaded on : Fri Nov 28 23:47:46 IST 2025 NEUTRAL CITATION C/SA/259/2023 ORDER DATED: 25/11/2025 undefined 100 of the Code of Civil Procedure:-
"a) Whether learned both the courts have committed substantial error of law by misreading the evidence on record of the case?
b) Whether learned both the courts have committed substantial error of law not appreciated that suit property is belong to mother of the plaintiff and wife of the defendant?
c)Whether learned both the courts have committed substantial error of law not appreciated that as per the Muslim law, wife of the defendant having right title and interest in suit property?
d) Whether learned both the courts have committed substantial error of law not appreciated that POA dated;
04.09.2004 executed by plaintiff in favour of wife of the defendant with possession of the suit property?
e) Whether learned both the courts have committed substantial error of law not appreciated that Kulsumben who is wife of the defendant and sister of the plaintiff, and Mark 3/1 property card is reflected in the name of Aaisabai Fakirmamad Khatri?
f) Whether learned both the courts have committed substantial error of law not appreciated that document produced below exh. 42 to 47 in the name of Kulsumben i.e wife of the defendant?
g) Whether learned both the courts have committed substantial error of law not appreciated that construction permission is also in the name of Kulsumben i.e wife of the defendant and government charge has been paid by the Kulsumben ie wife of the defendant?
h) Whether learned both the courts have committed substantial error of law not appreciated that suit for vacating possession is not maintainable without joint necessary party?
Page 3 of 8 Uploaded by MANISH MISHRA(HC01776) on Fri Nov 28 2025 Downloaded on : Fri Nov 28 23:47:46 IST 2025 NEUTRAL CITATION C/SA/259/2023 ORDER DATED: 25/11/2025 undefined i) Whether learned both the courts have committed
substantial error of law not appreciated that during the suit proceeding none of the documents are proved by the opponent (original plaintiff) but impugned judgment and orders passed by the both the Hon'ble courts on the basic of mark document?
j) Whether learned first appellant court, Bhuj-Kutch has committed substantial error of law has not framed the particular issued as per the provision order-41 rule-31 of the Code of Civil Procedure?"
4. Learned advocate for the appellant has made a solitary submission in support of the plea for admission of the present Second Appeal. It is urged that the wife of the appellant, Kulsumben, had an inheritable share in the suit property, the same allegedly having devolved from the mother of the respondent- plaintiff, who is stated to have died leaving behind only two heirs:
the plaintiff and the said Kulsumben. Ergo, it is contended that the Court below committed a serious error in ratiocination in holding the plaintiff to be the exclusive title-holder of the suit property and, consequently, in recognising his entitlement to recover possession therefrom. On this singular foundation, the learned advocate for the appellant entreated the Court to admit the present Second Appeal.
5. Per contra, learned advocate for the respondent has tendered a certified copy of the order passed by the learned Executing Court, demonstrating that on 19.06.2025, without demur, protest, or reservation, the heirs of deceased Khatri Aamad Illias (Rickshawala) voluntarily handed over peaceful and vacant possession of the suit property to the original plaintiff. It is further submitted that Page 4 of 8 Uploaded by MANISH MISHRA(HC01776) on Fri Nov 28 2025 Downloaded on : Fri Nov 28 23:47:46 IST 2025 NEUTRAL CITATION C/SA/259/2023 ORDER DATED: 25/11/2025 undefined following the demise of Kulsumben, the said Khatri Aamad Illias contracted a second marriage with Sabinaben, who thereby attained the status of his legally wedded wife. It is further pointed out that a child was born from the said wedlock. However, neither Sabinaben nor her minor son can, in law, be regarded as heirs of the deceased Kulsumben. This factual milieu, according to the respondent, demolishes the very substratum of the appellant's contention.
5.1. In view of the aforesaid submissions, learned advocate for the respondent has urged that the present Second Appeal be dismissed in limine.
6. I have heard the learned advocates appearing for both sides with anxious consideration. At this juncture, it is apposite to advert to Section 100 of the Code of Civil Procedure, which reads thus:--
"(1) [Save as otherwise expressly provided in the body of this Code or by any other law for the time being in force, an appeal shall lie to the High Court from every decree passed in appeal by any Court subordinate to the High Court, if the High Court is satisfied that the case involves a substantial question of law.
(2) An appeal may lie under this section from an appellate decree passed ex parte .
(3) In an appeal under this section, the memorandum of appeal shall precisely state the substantial question of law involved in the appeal.
(4) Where the High Court is satisfied that a substantial question of law is involved in any case, it shall formulate that question.
(5) The appeal shall be heard on the question so
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NEUTRAL CITATION
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formulated and the respondent shall, at the hearing of the appeal, be allowed to argue that the case does not involve such question:Provided that nothing in this sub-section shall be deemed to take away or abridge the power of the Court to hear, for reasons to be recorded, the appeal on any other substantial question of law, not formulated by it, if it is satisfied that the case involves such question.]"
7. Recently, in Gurbachan Singh (Dead) through Legal Representatives v. Gurcharan Singh (Dead) through Legal Representatives and Others, (2023) 20 SCC 104, the Hon'ble Supreme Court has held as under:--
"7. The parameters of an appeal under Section 100, CPC passing muster are well established. The section itself dictates that such an appeal shall only be maintainable when the case involves a substantial question of law or that the appellate decree has been passed ex parte. the latter, obviously is not the case. This court has, in a multitude of decisions, expounded on what may be termed as a substantial question of law to satisfy the requirements of section 100.
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14. The principles of law cited herein may be undoubtedly good law, but, however, in the considered view of this court, they do not hold in the case put forward by the Appellant. A perusal of the witness statements of DW3 as duly recorded by the High Court, (the court also relies on the cross examination portions of DW4 although the same do not form part of the record before this court.) shows that father of the Appellant had indeed partitioned the property during his lifetime. In such situation selling a part of his share in an undivided property, is a question that does not arise. Reliance on Shyam Sunder (supra) does not support the case of the Appellant as there is nothing on record to reflect any effort having been made by him to substitute Page 6 of 8 Uploaded by MANISH MISHRA(HC01776) on Fri Nov 28 2025 Downloaded on : Fri Nov 28 23:47:46 IST 2025 NEUTRAL CITATION C/SA/259/2023 ORDER DATED: 25/11/2025 undefined himself in place of the Respondents in buying the 4 marlas of land from Faqir Singh in order to keep a stranger, namely Gurcharan Singh from entering into familyowned property. Had the Appellant made any such effort and the same would be reflected from record, then it could have been argued that he has a right to exclude the Respondents.
15. As already noted above, another ground of objection taken by the Appellant is the fact of the impugned judgement entering into a reappreciation of evidence. While it is true that ordinarily, in second appeal, the court must not disturb facts established by the lower court or the first appellate court. However, it is also equally well recognised that this rule is not an absolute one or in other words, it is not a rule set in stone."
8. Bearing in mind the circumscribed scope of a Second Appeal under Section 100 of the Code of Civil Procedure, and having regard to the undisputed factual position that peaceful and vacant possession of the suit property has already been handed over to the original plaintiff pursuant to the execution proceedings, I find no warrant or justification to entertain the present Second Appeal. It stands admitted on record that Kulsumben and her husband Khatri Aamad Illias (Rickshawala) have both predeceased the execution proceedings. At the relevant time, the persons residing in the suit property were Sabinaben, the second wife of the said Khatri Aamad Illias, and a minor son born from that subsequent wedlock. Ex facie, neither Sabinaben nor her minor son can claim any vestige of legal right, title, or interest in the suit property, which indubitably belongs to the plaintiff.
9. In the aforesaid factual milieu, and in the absence of any substantial question of law, I see no reason to exercise the appellate jurisdiction vested in this Court. The second appeal is, accordingly, Page 7 of 8 Uploaded by MANISH MISHRA(HC01776) on Fri Nov 28 2025 Downloaded on : Fri Nov 28 23:47:46 IST 2025 NEUTRAL CITATION C/SA/259/2023 ORDER DATED: 25/11/2025 undefined DISMISSED in limine. Consequent upon the dismissal of the Second Appeal, Civil Application No.1 of 2023 stands rendered infructuous and is disposed of accordingly.
9.1. The Registry is directed to transmit the Record and Proceedings (R & P), if any, to the concerned Court below forthwith.
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