Gujarat High Court
Ballubhai Nagarbhai Patel vs Nanakbhai Budhiyabhai Ahir on 9 October, 2025
NEUTRAL CITATION
C/SA/18/2023 JUDGMENT DATED: 09/10/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SECOND APPEAL NO. 18 of 2023
With
CIVIL APPLICATION (FOR STAY) NO. 1 of 2022
In R/SECOND APPEAL NO. 18 of 2023
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE SANJEEV J.THAKER Sd/-
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Approved for Reporting Yes No
✔
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BALLUBHAI NAGARBHAI PATEL & ANR.
Versus
NANAKBHAI BUDHIYABHAI AHIR & ORS.
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Appearance:
CORIN M CHRISTIE(7323) for the Appellant(s) No. 1,2
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CORAM:HONOURABLE MR.JUSTICE SANJEEV J.THAKER
Date : 09/10/2025
ORAL JUDGMENT
1. The present Second Appeal is filed under Section 100 of the Code of Civil Procedure, 1908, challenging the judgment and decree dated 02.09.2022, passed by the Second Additional District Judge, Navsari in Regular Civil Appeal No. 18 of 2014, whereby the Appellate Court has confirmed the judgment and decree passed in Regular Civil Suit No. 12 of 2004, by the Principal Civil Judge, Chikhli, dated 24.06.2014.
2. For the sake of brevity, the parties are referred to as per their original status in the suit.
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3. The brief facts arising in the Second Appeal are that the plaintiff filed Civil Suit for specific performance of the agreement and permanent injunction. It was the plaintiff's case that the suit property was in the possession of the plaintiff and defendants Nos.1 to 3, and that late Bhangiyabhai Budhiyabhai had executed an agreement to sell with the plaintiff on 01.08.1983. The defendants decided to sell the suit property for a consideration of Rs.14,000/- and executed an agreement to sell on 01.08.1983, it was plaintiff's case that the plaintiff had paid the amount of the sale consideration and was ready and willing to pay the remaining outstanding amount of Rs.1,543/-. It was the case of the defendant that the defendants had agreed to execute sale-deed, after the names of owners were entered in the revenue record, due to the death of the elder brother of defendants No. 1 to 3. As the defendants did not execute the sale deed in favour of the plaintiff, the plaintiff filed the suit for specific performance and a permanent injunction. The defendants appeared in the said suit and filed a written statement, vide Exhibit 46. The Trial Court framed issues, vide Exhibit 36, which read as under:
"1. Whether the Plaintiffs prove that they had purchased the suit properties from Respondent No. 1 to 3 and deceased Bhangiyabhai Budhiyabhai as per the Sale Deed dated 1-8-1983?
2. Whether the Respondents prove that the Suit of the Plaintiffs is barred by non-joinder of parties?
3. Whether the Respondents prove that the suit Page 2 of 9 Uploaded by URIL KRISHNAKUMAR RANA(HC01406) on Thu Oct 09 2025 Downloaded on : Fri Oct 10 02:58:11 IST 2025 NEUTRAL CITATION C/SA/18/2023 JUDGMENT DATED: 09/10/2025 undefined property is being occupied and possessed by the Respondents?
4. Whether the Respondents prove that the Plaintiffs have statedfalse facts regarding the sale deed?
5. Whether the Plaintiffs are entitled to the reliefs as sought for?
6. What order and decree?"
4. The plaintiff examined himself, vide Exhibit 142. After considering the oral and documentary evidence and giving findings on all issues, the Trial Court dismissed the plaintiff's suit. Aggrieved by the said judgment and decree passed by the Trial Court, the Plaintiff filed RCA No. 18 of 2014, and after re- appreciating the evidence, the Appellate Court dismissed the plaintiff's appeal. Hence, the present Second Appeal.
5. The learned advocate for the plaintiff has mainly argued that the Trial Court and the Appellate Court have not properly considered the evidence on record and the possession of the property as per the sale agreement dated 01.08.1983.
6. It has been argued by the learned advocate for the plaintiff that the Trial Court and the Appellate Court have also not taken into consideration the fact that out of the total sale consideration of Rs.14,000/-, an amount of Rs.6,000/- was paid on the same date when the agreement to sell dated 01.08.1983, had been executed, and thereafter an amount of Rs.6,540/- has been paid on different installments on different dates. The plaintiff had agreed to pay the remaining amount of Rs.1,543/- at the time of the execution of the Page 3 of 9 Uploaded by URIL KRISHNAKUMAR RANA(HC01406) on Thu Oct 09 2025 Downloaded on : Fri Oct 10 02:58:11 IST 2025 NEUTRAL CITATION C/SA/18/2023 JUDGMENT DATED: 09/10/2025 undefined sale deed. It has also been argued that the Trial Court and the first Appellate Court have also not considered the fact that the possession of the suit property was handed over to the plaintiff. The Trial Court and the Appellate Court have also not taken into consideration the agreement to sell executed between the plaintiff and the defendants. Therefore, there are substantial questions of law involved in the present Second Appeal, and it has been argued that the Second Appeal be admitted on the following substantial questions of law:
"(a) Whether on the facts and circumstances of the case, the First Appellate Court has erred in law in framing cryptic, vague, and absolutely general issues instead of framing specific and particular issues on every point of determination for adjudication, as required under the Specific Performance Act.
(b) Whether on the facts and circumstances of the case, the Trial Court and the First Appellate Court have committed an error of law and also misinterpreted the provisions of the Transfer of Property Act, Section 53.
(c) Whether on the facts and circumstances of the case, both the learned courts have erred in law regarding the question of the possession of the suit property premises with the appellant, and whether the appellant cultivated the said land since 1983 as per the agreement.
(d) Whether on the facts and circumstances of the case, both the learned courts have committed an error in passing the judgment and decree in favour of the original defendants without considering Page 4 of 9 Uploaded by URIL KRISHNAKUMAR RANA(HC01406) on Thu Oct 09 2025 Downloaded on : Fri Oct 10 02:58:11 IST 2025 NEUTRAL CITATION C/SA/18/2023 JUDGMENT DATED: 09/10/2025 undefined the right of the appellant under specific performance."
7. Having heard the learned Advocate for the plaintiff and having considered the judgment and decree passed by the Trial Court and confirmed by the first Appellate Court, the fact remains that the suit that has been filed by the plaintiff is for specific performance. If the defence of the defendants is taken into consideration, it is the case of the defendants that the agreement to sell on which the plaintiff is relying is a fraudulent document and that the defendants are educated and used to sign, whereas the agreement to sell, bears a thumb impression and that is also not identified by any person.
8. Moreover, it is also the case of the defendants that the plaintiff is not a Khedut Khatedar and that the suit property is a new tenure restricted land. If the cross-examination of the Plaintiff No.1, produced vide Exhibit 142, is taken into consideration, he has admitted that the agreement- to-sell does not mention who will bear the expenses of converting the property from new tenure land to old tenure land.
9. The plaintiff has admitted that the agreement-to-sell does not bear any signature of the person to whom payment of Rs.4,000/- was made on 02.12.1983. Moreover,no signature or thumb- impression has been taken with respect to the payment of Rs.4,000/- on 25.06.1984. Moreover, the said document, purported to be an agreement to sell produced by Exh:163, also does not state that the possession has been handed over to the plaintiff. Moreover, Page 5 of 9 Uploaded by URIL KRISHNAKUMAR RANA(HC01406) on Thu Oct 09 2025 Downloaded on : Fri Oct 10 02:58:11 IST 2025 NEUTRAL CITATION C/SA/18/2023 JUDGMENT DATED: 09/10/2025 undefined vide Exhibits 146 to 148, it has come on record that the suit property is a new tenure land and the owners of the same, as per the record, are Bhangiyabhai Budhiyabhai and Jyoti Ben Bhangiyabhai. The entire record clearly states that the plaintiff has neither proved the execution of the Agreement to Sell produced by Exhibit 153, which bears the thumb-impression of the original owners, nor have any of the witnesses to the agreement been examined to prove the thumb impression of the original owners. Moreover, the payment as stated in the agreement to sale, produced vide Exhibit 153, has not been proved by the plaintiff. There is also nothing on record to prove that the plaintiff was ready and willing to abide by the terms and conditions of the alleged agreement to sell dated 01.08.1983.
10. In the present case, the plaintiff has failed to prove the execution of the agreement to sell (Exhibit 153), the authenticity of the thumb impressions on the agreement, as no witnesses were examined, the payments of Rs. 4,000/- made on December 2, 1983, and another Rs.4,000/- on June 25, 1984, as no signatures or thumb impressions were taken for these payments. The plaintiff has also not proved that the plaintiff was ready and willing to fulfill their part of the agreement and that possession was handed over to the plaintiff, as the agreement itself (Exhibit 153) did not state this, the conclusion which has been reached by both the Trial Court and the Appellate Court cannot be interfered as the judgment and decree of the Court below are not perverse, arbitrary so as to warrant interference.
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11. Moreover, as per the well settled decisions of this Court as well as the Hon'ble Apex Court, the Court ordinarily will not interfere with concurrent findings of fact except in exceptional cases where the findings are such that it shocks the conscious of the Court or may disrespect to the forms of legal process or some violation or some principle of natural justice or otherwise substantial and great injustice has been done.
12. It is required to be noted that in Second Appeal, the scope is very limited and the Court cannot re-appreciate the evidence. In the case of Navaneethammal v. Arjuna Chetty reported in 1996 (6) SCC 177, the Hon'ble Apex Court has observed as under:-
"11. This Court, time without number, pointed out that interference with the concurrent findings of the courts below by the High Court under Section 100 CPC must be avoided unless warranted by compelling reasons. In any case, the High Court is not expected to reappreciate the evidence just to replace the findings of the lower courts."
13. In the case of Jaichand (Dead) through Lrs and Other v. Sahnulal and Another reported in 2024 SCC OnLine SC 3864, the Hon'ble Apex Court has observed as under:-
"28. It is thus clear that under Section 100 Page 7 of 9 Uploaded by URIL KRISHNAKUMAR RANA(HC01406) on Thu Oct 09 2025 Downloaded on : Fri Oct 10 02:58:11 IST 2025 NEUTRAL CITATION C/SA/18/2023 JUDGMENT DATED: 09/10/2025 undefined CPC, the High Court cannot interfere with the findings of fact arrived at by the first Appellate Court which is the final Court of facts except in such cases where such findings were erroneous being contrary to the mandatory provisions of law, or its settled position on the basis of the pronouncement made by the Apex Court or based upon inadmissible evidence or without evidence."
14. Therefore, also the plaintiff has miserably failed to show that there is any substantial question of law involved in the present appeal and the substantial question of law which has been suggested in the memo of appeal are also not substantial question of law and on facts and the said factual aspect have well been considered by the Trial Court and the First Appellate Court and, therefore, the present appeal requires to be dismissed.
15. Under the circumstances, this Second Appeal is devoid of any substantial question of law. Both the learned Trial Court and first appellate Court have rightly decided the issue between the parties in the right perspective and as stated above no substantial question of law arises in the present appeal. The appellants have failed to prove their case before the learned trial Court as well as before the first appellate Court. This Court does not find any substance in the present Second Appeal as the same is devoid of any merit both on facts and law and the same is dismissed at Page 8 of 9 Uploaded by URIL KRISHNAKUMAR RANA(HC01406) on Thu Oct 09 2025 Downloaded on : Fri Oct 10 02:58:11 IST 2025 NEUTRAL CITATION C/SA/18/2023 JUDGMENT DATED: 09/10/2025 undefined admission stage. In view of the disposal of the second appeal the civil application is accordingly disposed of.
Sd/-
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