Gujarat High Court
Haribhai Arjanbhai Sanskiya vs Dahyabhai Arjanbhai Sanskiya on 15 October, 2025
NEUTRAL CITATION
C/SA/390/2025 JUDGMENT DATED: 15/10/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SECOND APPEAL NO. 390 of 2025
With
CIVIL APPLICATION (FOR STAY) NO. 1 of 2025
In R/SECOND APPEAL NO. 390 of 2025
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE SANJEEV J.THAKER
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Approved for Reporting Yes No
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HARIBHAI ARJANBHAI SANSKIYA
Versus
DAHYABHAI ARJANBHAI SANSKIYA & ORS.
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Appearance:
MR ASHISH M DAGLI(2203) 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 filed under Section 100 of the Code of Civil Procedure, 1908, challenging the judgment and decree dated 18.06.2025, in Regular Civil Appeal No. 66 of 2023, passed by the 11th District Judge, Rajkot, confirming the original judgment and decree passed in Regular Civil Suit No. 30 of 2006, dated 10.05.2003, by the 8th Additional Senior Civil Judge, Rajkot.
2. For the sake of brevity, the parties shall be referred to according to their original status as in the suit.
3. The plaintiff filed the suit asserting that the plaintiff and defendant no. 1 are brothers and that their father, Ajranbhai Saskiya, expired on 31.01.1984. Following the father's death, the plaintiff contended that defendant no. 1, being the elder brother, fraudulently Page 1 of 9 Uploaded by MANOJ KR. RAI(HC01072) on Thu Oct 16 2025 Downloaded on : Sat Oct 18 09:02:41 IST 2025 NEUTRAL CITATION C/SA/390/2025 JUDGMENT DATED: 15/10/2025 undefined inserted his name as the exclusive owner of the suit property. This fact allegedly came to the plaintiff's knowledge upon searching the revenue records, which revealed Revenue Entry No. 348 dated 18.01.1984, was made based on a fraudulent document. Subsequently, on 03.04.2004, defendant no. 1, during his lifetime, entered the names of defendant no. 2 and defendant no. 3 into the revenue record under Revenue Entry No. 1203.
4. The plaintiff's case was that, he held a 50% share in the suit property. Thereafter, defendant no. 2 executed a Sale Deed in favour of defendant no. 4 on 24.01.2006, and another Sale Deed was executed in favour of defendant no. 5, which was recorded under Revenue Entry No. 577. The plaintiff sought a declaration that defendant nos. 4 and 5 are not bona fide purchasers of the suit property, and that the Sale Deeds recorded under entries No. 577 and No. 578 were executed by the defendants in collusion with each other. The primary relief sought was a declaration of the said Sale Deeds as illegal and a declaration that the plaintiff is the 50% owner of the suit property.
5. The defendants appeared and filed a Written Statement (Exh.
11) and an Amended Written Statement (Exh. 116) subsequent to the relief sought against defendant nos. 4 and 5.
6. The Trial Court framed issues vide Exh. 49, which are as Page 2 of 9 Uploaded by MANOJ KR. RAI(HC01072) on Thu Oct 16 2025 Downloaded on : Sat Oct 18 09:02:41 IST 2025 NEUTRAL CITATION C/SA/390/2025 JUDGMENT DATED: 15/10/2025 undefined under:
(1) Whether the Plaintiff proves that he is the son of Late Arjanbhhai Kachrabhai and therefore he is entitled to 50% share in the suit property on the basis of succession?
(2) Whether the Defendant proves that the Defendant is not a successor as a son of Late Arjanbhai Kacharbahi but as a son of Late Merambhai Kukadiya ?
(3) Whether the Defendant proves that as the Plaintiff's mother Valiben had dissolved her marriage with Late Arjanbhai Kachrabhai and married someone else, the Plaintiff is not entitled to succession in the property of his mother's previous husband ?
(3-A) Whether the Defendant No. 4, 5 prove that, as they have purchased the property out of the suit properties through a Sale Deed, they are the bonafide purchasers ?
(3-B) Whether the present suit is barred by limitation ?
(4) Whether the Defendant proves that this Court is not vested with the jurisdiction to try the suit instituted by the Plaintiff ?
(5) Whether the Defendant proves that the Plaint of the Plaintiff is not on court-fee stamp of sufficient amount?
(6) Whether the Plaintiff is entitled to all or any of the relieves as prayed for?
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7. The plaintiff examined himself vide Exhs. 57 and 138, and witnesses for the plaintiff were examined vide Exhs. 95, 96, and 145. The defendant examined himself vide Exh. 200, and the defendant's witnesses were examined vide Exh. 205.
8. The Trial Court held that the plaintiff is not the son of Ajranbhai Kachrabhai, but is the son of the deceased Mehrambhai Kukadia, and was therefore, not entitled to a 50% share in the property. The defence was also able to prove that the plaintiff's mother, Valiben, had remarried after obtaining a divorce, and thus the plaintiff could not claim any right of succession in the property of her former husband. After considering the oral and documentary evidence, the Trial Court dismissed the suit.
9. Aggrieved by this decision, the plaintiff filed R.C.A. No. 66 of 2023. After re-appreciating the evidence, the First Appellate Court rejected the appeal, thereby confirming the decree of the Trial Court. Hence, the present Second Appeal has been filed.
10. The learned advocate for the plaintiff/appellant has primarily argued that the Trial Court and the First Appellate Court failed to consider the plaintiff's possession of the suit property. The Courts below erred seriously in law by failing to appreciate the evidentiary value of documents such as the School Leaving Certificate, PAN Card, Aadhaar Card, and Birth Certificate in their true perspective.
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11. The learned advocate for the plaintiff has also argued that the suit was filed for partition of ancestral property and not for a paternity test of any family member. The deposition of Hakabhai Bhagwan Saskiya (Exh. 95), who admitted that the plaintiff is the child of Ajranbhai Kachrabhai, was not duly considered. The Courts below erred in applying the Law of Limitation, as a suit for partition of joint property the period of limitation will commence from the death of the original owner (31.01.1984) or from the date of denial of the plaintiff's claim, and not from an earlier date. The Courts committed a serious error of law in appreciating the correct legal propositions.
12. Therefore, the present Second Appeal is required to be admitted on the following substantial questions of law:
a) Whether the Courts below committed a serious error of law in holding that a suit for partition over joint property is barred by limitation, and whether the period of limitation commences from the death of the original owner (father) or from the date of denial of the claim?
b) Whether the revenue record can create any title in the land?
c) Whether the claim of the plaintiff can be jeopardized on account of inter-se disposal of the land by the defendants due to collusion, and whether the period of limitation is affected by such transfers?Page 5 of 9 Uploaded by MANOJ KR. RAI(HC01072) on Thu Oct 16 2025 Downloaded on : Sat Oct 18 09:02:41 IST 2025
NEUTRAL CITATION C/SA/390/2025 JUDGMENT DATED: 15/10/2025 undefined
d) Whether the Appellate Court committed a serious error of law in denying the consequential relief of partition and the claim of the appellant, even if it had held that the appellant was entitled to a 50% share as a legal heir of the deceased?
e) Whether the Sale Deeds, executed in connivance with each other to deny the plaintiff's prayer, can be declared illegal and whether the Appellate Court could have granted the relief of partition, in the event the appellant is held to be a legal heir entitled to a 50% share?
f) Whether the period of limitation for a suit for partition would commence from the death of the deceased (owner) or from the date of knowledge about the denial of the claim?
g) Whether the Courts below committed a serious error of law in considering Section 74 of the Evidence Act read with Section 109 of the Limitation Act?
h) Whether defendant nos. 4 and 5, who purchased the property in collusion, can still maintain the claim of being a bona fide purchaser, especially when the Appellate Court has held that the appellant is a legal heir entitled to 50% of the property of the deceased Ajranbhai, and can the appellant's claim be denied on account of this collusive transfer?
i) Whether the Appellate Court committed a serious error of law in interpreting Sections 90, 110, and 112 of the Indian Evidence Act?
j) Whether the Appellate Court committed a serious error of law in not accepting the plaintiff's prayer that the suit is not for seeking cancellation of the sale deed but is only for partition?
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k) Whether, in a suit for partition, the prayer for cancellation of the sale deed is a must?
l) Whether the entitlement of the appellant as a legal heir and his entitlement to 50% of the property can be affected by any sale, and can the sale deed still survive?
m) Whether the Appellate Court committed a serious error of law in not appreciating the provision of Section 101 of the Indian Evidence Act and the requirement of rebuttal evidence?
13. 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, and that the evidence on record to prove that the plaintiff is the son of Ajranbhai Kachrabhai, the plaintiff relied on oral evidence (Exh. 57) and documents marked as tentative Exhs. 71, 75, and 76. However, these documents were not duly proved and were, therefore, rightly not considered by the Courts below.
14. The plaintiff also attempted to prove his paternity by producing a wedding invitation card of his son, marked as tentative Exh. 85. Furthermore, the plaintiff produced documents marked as tentative Exh. No. 222 to 231 vide Exh. 193 on 10.03.2017. Since these documents were filed after the cross-examination, they also could not be proved by the plaintiff. The certificate issued by Alfred High School, marked as tentative Exh. No. 222, which mentioned the plaintiff's name as Haribhai Arjanbhai, was not proved by the plaintiff. Similarly, the mark sheet of the 10th standard, marked as Page 7 of 9 Uploaded by MANOJ KR. RAI(HC01072) on Thu Oct 16 2025 Downloaded on : Sat Oct 18 09:02:41 IST 2025 NEUTRAL CITATION C/SA/390/2025 JUDGMENT DATED: 15/10/2025 undefined tentative Exh. 223, was also not proved.
15. Therefore, the plaintiff has not been able to prove the fact that he is the son of Ajranbhai Saskya. The essential facts relied upon by the plaintiff, such as his paternity, are factual aspects, and this Court, in a Second Appeal under Section 100 CPC, cannot reappreciate facts.
16. In the present case, 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. 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.
17. 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 Page 8 of 9 Uploaded by MANOJ KR. RAI(HC01072) on Thu Oct 16 2025 Downloaded on : Sat Oct 18 09:02:41 IST 2025 NEUTRAL CITATION C/SA/390/2025 JUDGMENT DATED: 15/10/2025 undefined Court is not expected to reappreciate the evidence just to replace the findings of the lower courts."
18. 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 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."
19. 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.
20. In view of the order passed in main matter, Civil Application does not survive and stands disposed of accordingly.
(SANJEEV J.THAKER,J) Manoj Kumar Rai Page 9 of 9 Uploaded by MANOJ KR. RAI(HC01072) on Thu Oct 16 2025 Downloaded on : Sat Oct 18 09:02:41 IST 2025