Gujarat High Court
Ashaben Navinbhai Patel vs Mahesh Yashvantrao Chitte on 15 October, 2025
NEUTRAL CITATION
C/SA/383/2025 JUDGMENT DATED: 15/10/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SECOND APPEAL NO. 383 of 2025
With
CIVIL APPLICATION (FOR STAY) NO. 1 of 2025
In R/SECOND APPEAL NO. 383 of 2025
With
R/SECOND APPEAL NO. 337 of 2025
With
CIVIL APPLICATION (FOR STAY) NO. 1 of 2025
In R/SECOND APPEAL NO. 337 of 2025
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE SANJEEV J.THAKER Sd/-
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Approved for Reporting Yes No
✔
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ASHABEN NAVINBHAI PATEL
Versus
MAHESH YASHVANTRAO CHITTE
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Appearance:
MALAY S PATEL(8901) for the Appellant(s) No. 1
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CORAM:HONOURABLE MR.JUSTICE SANJEEV J.THAKER
Date : 15/10/2025
ORAL JUDGMENT
1. The present Second Appeal is file under Section 100 of the Code of Civil Procedure, 1908 (for short "the Code") challenging the judgement and decree passed by 8 th Additional District Judge, Vadodara dated 25.02.2025, in Regular Civil Appeal no.128 of 2024, whereby the said appeal has been dismissed and the judgment and decree dated 31.03.2022, passed by 10th Additional Senior Civil Judge, Vadodara in Page 1 of 9 Uploaded by URIL KRISHNAKUMAR RANA(HC01406) on Thu Oct 16 2025 Downloaded on : Fri Oct 17 02:29:41 IST 2025 NEUTRAL CITATION C/SA/383/2025 JUDGMENT DATED: 15/10/2025 undefined Special Civil Suit No.583 of 2013 has been confirmed, whereby the suit of the original plaintiff was rejected and the counter suit filed by the defendant vide Exhibit 17 was allowed.
2. The present Second Appeal No.383 of 2025 and Second Appeal No.337 of 2025 are filed challenging the judgment and decree passed by the 8th Additional District Judge, Vadodara in Regular Civil Appeal No.83 of 2022 and Regular Civil No. 128 of 2024 arising out of Special Civil Suit No.583 of 2013.
3. For the sake of brevity and convenience, the parties are referred to as per their original status as that in the suit.
4. The brief facts arising in the present Second Appeals are that the plaintiff filed civil suit for specific performance being Civil Suit No.583 of 2013, with respect to shop nos.C2 and C3 of Shivam Complex and also to restrain the defendants from disturbing the plaintiff from the peaceful possession of the suit property and to restrain the defendants from entering the suit property and also sought for an injunction restraining the defendants from transferring, assigning or selling the suit property. The defendant appeared in the said suit and filed counterclaim vide Exhibit-17, with relief to direct the defendants to hand over the possession of the premises to the Page 2 of 9 Uploaded by URIL KRISHNAKUMAR RANA(HC01406) on Thu Oct 16 2025 Downloaded on : Fri Oct 17 02:29:41 IST 2025 NEUTRAL CITATION C/SA/383/2025 JUDGMENT DATED: 15/10/2025 undefined defendant. In the said counterclaim, the defendant also sought for mesne profit and for declaration to restrain the plaintiffs from creating any hindrance to the defenmdant's occupation in the suit premises and ancilliary relief with respect to the injunction was also sought by the defendant.
5. The Trial Court framed issues vide Exhibit 44 as under:
"1. Whether the Plaintiff proves that he is in lawful possession and enjoyment of the suit property?
2. Whether the Plaintiff proves that a lawful deal/sale agreement regarding the suit property has been executed with the Defendant?
3. Whether the Plaintiff proves that despite paying the full amount of consideration for the suit property to the Defendant, the Defendant does not execute the Sale Deed for the suit property and refuses to do so?
4. Whether the Defendant proves that the Plaintiff has illegally and forcibly taken possession of the suit property?
5. Whether the Defendant proves that since the Plaintiff is in illegal possession of the suit property, he is entitled to receive Mesne Profits from them?
6. Whether the Defendant is entitled to the relief sought in their Counter Claim?
7. Whether the Plaintiff is entitled to the relief sought in their Suit?Page 3 of 9 Uploaded by URIL KRISHNAKUMAR RANA(HC01406) on Thu Oct 16 2025 Downloaded on : Fri Oct 17 02:29:41 IST 2025
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8. What Order and Decree?"
6. The plaintiff examined himself vide Exhibit 53 and the witnesses of the plaintiff were examined vide Exhibits 93, 95 and 99. The defendant examined himself vide Exhibit 106 and after considering the oral evidence, documentary evidence and giving findings on all the issues, the Trial Court dismissed the suit of the plaintiff and allowed the counterclaim and directed the plaintiff to handover the possession of shop nos.C2 and C3 to the defendant within a period of 60 days and also declared that the plaintiff do not have any right to occupy the suit premises and a permanent injunction was granted in favour of the defendant and against the plaintiff.
7. Aggrieved by the said order, the plaintiff filed Regular Civil Appeal No.83 of 2022, challenging the judgment and decree passed by the Trial Court and Regular Civil Appeal No.128 of 2024, challenging the judgment and decree passed on the counterclaim filed vide Exhibit-17.
8. The learned advocate for the plaintiff has mainly argued that, the Trial Court has not taken into consideration the fact that the sale consideration to the tune of Rs.1,35,000/- has been paid by the plaintiff with respect to shop no.C2 and with Page 4 of 9 Uploaded by URIL KRISHNAKUMAR RANA(HC01406) on Thu Oct 16 2025 Downloaded on : Fri Oct 17 02:29:41 IST 2025 NEUTRAL CITATION C/SA/383/2025 JUDGMENT DATED: 15/10/2025 undefined respect to shop no.C3, the entire sale consideration has been paid in installments by the plaintiff. It has been argued by the learned advocate for the plaintiff that though there was no written agreement, the Trial Court has come to the conclusion that there were transactions between the plaintiff and the defendant for purchase of the shop nos.C2 and C3 and that the plaintiff had proved that the plaintiff is in possession of the property and that there was a transaction of purchase of the suit property between the plaintiff and the defendant and the Trial Court and the First Appellate Court have not taken into consideration the fact that the cash transaction between the plaintiff and the defendant which has been proved by the plaintiff, through oral evidence of the witnesses of the plaintiff.
9. The learned advocate for the plaintiff has also argued that the Trial Court and the First Appellate Court have failed to appreciate the evidence adduced by the parties properly and the Trial Court and the First Appellate Court though have taken into consideration that the plaintiff is in possession of the property, the Trial Court could not have dismissed the suit on the ground that the plaintiff has not proved that the entire sale consideration as stated in plaint has been paid by the plaintiff. It has also been argued by the learned advocate for the plaintiff that the Trial Court and the First Appellate Court Page 5 of 9 Uploaded by URIL KRISHNAKUMAR RANA(HC01406) on Thu Oct 16 2025 Downloaded on : Fri Oct 17 02:29:41 IST 2025 NEUTRAL CITATION C/SA/383/2025 JUDGMENT DATED: 15/10/2025 undefined could not have allowed the counterclaim, in view of the fact that when the Trial Court has held while deciding issue no.1 that the plaintiff is in legal possession of the suit property and therefore, the question of allowing the counterclaim would not have arisen.
10. Moreover, it has been argued that the findings recorded by the Trial Court are contrary to the facts of the present case, in view of the fact that the Trial Court had come to the conclusion that the forcible possession of the suit property has not been taken by the plaintiff from the defendant and therefore, the present Second Appeal is required to be admitted on the following substantial question of law:
"1. Whether the rejection of the suit without framing appropriate issues evidence relating to possession, or analyzing the amounts to denial of a fair trial and causes substantial injustice?
2. Whether, the Both Ld. Court has failed conduct the appeal as per the provision of CPC. Whether the both Ld. Court has failed to discharge his duty as per the provisions of CPC?
3. Whether, both the Ld. court below failed properly appreciate the settled position of law relating to burden of proof & onus to prove as provided in sec-101 & 102 of the Evidence Act?Page 6 of 9 Uploaded by URIL KRISHNAKUMAR RANA(HC01406) on Thu Oct 16 2025 Downloaded on : Fri Oct 17 02:29:41 IST 2025
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4. Whether the Ld. Appellant Judge has failed appreciate the averments made by the Appellant as well as citations submitted at the Bar?
5. Whether the findings made by the Ld. Judge are contradictory to issues framed in the suit?
6. Whether the Ld. Appellant Judge has failed to appreciate scope of dispute of the suit?"
11. Having heard learned advocates for the plaintiff and having considered the judgement and decree passed by the Trial Court and confirmed by the First Appellate Court the fact remains that, though the plaintiff has stated in the plaint that there was oral transaction for purchase of shop nos.C2 and C3 and that the possession of property i.e. shop no.C2 was handed over to the plaintiff in the year 2010 and that possession of shop no.C3 was handed over to the plaintiff on 30.03.2011 and though, it has been proved that the plaintiff is in possession of the property but the fact remains that the present is a suit for specific performance in which the plaintiff has come forward with the case that plaintiff has paid substantial amount for purchase of the suit property and that for shop no.C2, the plaintiff states in the plaint that he has paid an amount Rs.1,35,000/- by way of cheques of Rs.60,000/- on 14.08.2008, Rs.35,000/- on 18.10.2008, Rs.10,000/- on 27.11.2010, Rs.30,000/- on 03.11.2010 and that the remaining amount was handed over in cash and for shop no.C3, it is a Page 7 of 9 Uploaded by URIL KRISHNAKUMAR RANA(HC01406) on Thu Oct 16 2025 Downloaded on : Fri Oct 17 02:29:41 IST 2025 NEUTRAL CITATION C/SA/383/2025 JUDGMENT DATED: 15/10/2025 undefined case of the plaintiff that he has purchased the suit property for an amount Rs.4 lakhs and there is no documentary evidence to prove the said fact that the plaintiff has paid an amount of Rs.4 lakhs to the defendant by cash.
12. The witness of the plaintiff, examined vide Exhibit 93, has tried to support the case of the plaintiff, the fact remains that defendant denied the receipt of payment of sale consideration that is stated to have been paid by the plaintiff by cash and therefore, the burden was on the plaintiff to prove the fact that the plaintiff has paid the said amount.
13. The defendant has denied the fact that the defendant has received an amount of Rs.1,35,000/- for shop no.C2 and an amount of Rs.4 lakhs for shop no.C3. If the entire evidence of the parties are taken into consideration, the plaintiff has failed to prove that the said amount of cash has been paid by the plaintiff. The said observation and decision being on facts, while deciding the second appeal, this Court cannot re- appreciate the factual aspect in view of the fact that the First Appellate Court is the last Court for appreciating the facts.
14. Under the circumstances, both the learned Trial Court and First Appellate Court have rightly decided the issue between the parties in the right perspective. The appellants have failed to prove their case before the learned Trial Court Page 8 of 9 Uploaded by URIL KRISHNAKUMAR RANA(HC01406) on Thu Oct 16 2025 Downloaded on : Fri Oct 17 02:29:41 IST 2025 NEUTRAL CITATION C/SA/383/2025 JUDGMENT DATED: 15/10/2025 undefined as well as before the First Appellate Court and therefore the present Second Appeals are required to be dismissed and the same are hereby dismissed.
15. In view of the disposal of the second appeals, the connected civil applications do not survive and the same are accordingly disposed of.
Sd/-
(SANJEEV J.THAKER,J) URIL RANA Page 9 of 9 Uploaded by URIL KRISHNAKUMAR RANA(HC01406) on Thu Oct 16 2025 Downloaded on : Fri Oct 17 02:29:41 IST 2025