Thakor Saajanben D/O Thakor Ganeshji ... vs Thakor Kirtikumar Chanduji

Gujarat High Court

Thakor Saajanben D/O Thakor Ganeshji ... vs Thakor Kirtikumar Chanduji on 30 September, 2025

                                                                                                                NEUTRAL CITATION




                            C/SA/426/2024                                      JUDGMENT DATED: 30/09/2025

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                                   IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                                             R/SECOND APPEAL NO. 426 of 2024

                                                          With
                                       CIVIL APPLICATION (FOR STAY) NO. 1 of 2024
                                           In R/SECOND APPEAL NO. 426 of 2024

                      FOR APPROVAL AND SIGNATURE:


                      HONOURABLE MR.JUSTICE SANJEEV J.THAKER                                       sd/-
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                                  Approved for Reporting                       Yes           No
                                                                                             ✔
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                           THAKOR SAAJANBEN D/O THAKOR GANESHJI HALAJI AND WD/O
                                          THAKOR JAVANJI SOMAJI
                                                  Versus
                                    THAKOR KIRTIKUMAR CHANDUJI & ORS.
                      ==========================================================
                      Appearance:
                      MS SONAL D VYAS(999) for the Appellant(s) No. 1
                      ==========================================================

                        CORAM:HONOURABLE MR.JUSTICE SANJEEV J.THAKER

                                                          Date : 30/09/2025

                                                         ORAL JUDGMENT

1. The present Second Appeal has been filed challenging the judgment and decree passed by the Principal District Judge, Mahesana, in Regular Civil Appeal No.162 of 2023, dated 05.07.2024, whereby the First Appellate Court has confirmed the judgment and decree passed by the 10 th Additional Civil Judge, Mahesana, below Exhibit 7, under the provisions of Order VII Rule 11(d) of the Code of Civil Procedure, 1908 (for short "the Code"), whereby the Regular Civil Suit No.108 of 2022 has been rejected by an order dated 05.10.2023.

NEUTRAL CITATION C/SA/426/2024 JUDGMENT DATED: 30/09/2025 undefined

2. For the sake of brevity and convenience, the parties are referred to as per their original status as that in the suit.

3. The brief facts arising in the present Second Appeal are that the Plaintiff filed a Civil Suit claiming that the suit property belonged to her grandfather, Halaji Thakor, and that the suit property was an ancestral property and that the plaintiff has right, title, interest in the suit property. It is a case of the Plaintiff that after the death of Halaji Thakor, a forged pedigree has been submitted before the Revenue Department by Defendant Nos.1 and 2. Defendant No.2 is the real brother of the plaintiff and by way of Revenue Entry No.771, the name of the plaintiff was not mutated in the Revenue Records and Defendant Nos.1 and 2 have entered their names in the Revenue Records and thereafter the sale deed has been executed in favour of defendant nos14 to 19 and the names of defendant nos.14 to 19 are stated in the Revenue Records. It is also stated in the plaint that it is only on 10.07.2022, when the plaintiff met defendant nos.14 to 19 and informed them about their rights in the suit property, the defendant nos.14 to 19 objected to the same, and therefore, according to the plaintiff, the cause of action to file the suit had arisen on 10.07.2022, therefore, the suit that has been filed by the plaintiff is claiming right by way of inheritance in the suit property, and Page 2 of 8 Uploaded by URIL KRISHNAKUMAR RANA(HC01406) on Wed Oct 01 2025 Downloaded on : Wed Oct 01 22:38:40 IST 2025 NEUTRAL CITATION C/SA/426/2024 JUDGMENT DATED: 30/09/2025 undefined ancillary relief with respect to injunction has been sought in the plaint.

4. Defendant nos.14 to 19, appeared in the said suit and filed an application vide Exhibit 7, under the provisions of Order VII Rule 11 of the Code, on the ground that the suit that has been filed by the plaintiff is hopelessly time-barred. The Trial Court, after considering the plaint and the documents annexed with the plaint, rejected the plaint. Being aggrieved by the said order, the plaintiff filed Regular Civil Appeal No.162 of 2023 and after re-appreciating the judgment and decree passed by the Trial Court, the First Appellate Court dismissed the said appeal. Hence, the present Second Appeal.

5. Learned advocate for the plaintiff has mainly argued that, the issue of limitation is a mixed question of law and fact, and the Trial Court could not have rejected the plaint, in view of the fact that it was the plaintiff's case that it is only in the year 2022, when the plaintiff was threatened by defendant nos.14 to 19, and therefore, the cause of action has arisen only in the year 2022; and therefore, the suit is within the period of limitation.

6. The learned advocate for the plaintiff has also argued that the entire suit is based on the fact that a fraud has been committed Page 3 of 8 Uploaded by URIL KRISHNAKUMAR RANA(HC01406) on Wed Oct 01 2025 Downloaded on : Wed Oct 01 22:38:40 IST 2025 NEUTRAL CITATION C/SA/426/2024 JUDGMENT DATED: 30/09/2025 undefined on the plaintiff, and therefore, the fact that the said fraud came to the knowledge of the plaintiff only in the year 2022, the plaintiff has filed a suit and therefore, it cannot be said that the suit is beyond the period of limitation. In view of the said fact, it has been argued that the present second appeal is required to be admitted on the following substantial questions of law:

"(a) Whether the plaint is required to be rejected on the ground that the suit is barred by the limitation when the question of limitation can only be determined by way of leading evidence as the question of limitation is a mixed question of law and fact?

(b) Whether in view of the provisions of Section 17 of Limitation Act, 1963, the plaint can be rejected without giving the plaintiff an opportunity to prove the fact of the discovery of fraud by him?

(c) Whether the plaint ought to have been rejected under the provisions of Order 7 Rule 11 (d) of the Civil Procedure Code, when there is a specific allegation of fraud committed by the defendants in posting the revenue entry as well as in transferring the suit land?"

NEUTRAL CITATION C/SA/426/2024 JUDGMENT DATED: 30/09/2025 undefined

7. Having heard the learned advocate for the plaintiff, the following facts will have to be taken into consideration:

(a) The plaintiff has stated about mutation entry number 771.

(b) The plaintiff has also stated that sale deeds have been executed in favor of defendant nos.14 to 19.

(c) It is also the case of the plaintiff in the plaint, that the plaintiff had filed a Revision Application challenging Entry no.2771.

8. Therefore, as the said facts have been referred to in the plaint, the documents pertaining to the same will have to be taken into consideration.

9. In view of the said fact, the fact remains that, admittedly, there was no entry number 2771; but the said entry is, entry no.771. If the said entry is taken into consideration, the said entry is dated 05.10.1980. Thereafter, the first sale deed that has been executed is on 26.12.1997, and the sale deed executed in favor of defendant nos.14 to 19 is dated 29.03.2011.

10. Moreover, if the revision application which has been referred to at paragraph no.2 of the plaint is taken into consideration, the said revision application had been rejected by the Collector on 17.07.2017. Therefore, the fact remains that the first cause of action to file the present suit had arisen Page 5 of 8 Uploaded by URIL KRISHNAKUMAR RANA(HC01406) on Wed Oct 01 2025 Downloaded on : Wed Oct 01 22:38:40 IST 2025 NEUTRAL CITATION C/SA/426/2024 JUDGMENT DATED: 30/09/2025 undefined for the plaintiff on 05.10.1980; i.e., when revenue entry no.771 was mutated in the revenue record, and the name of the plaintiff was not entered, pursuant to the death of Halaji Thakor.

11. Thereafter, on 26.12.1997, when the first sale deed was executed, the plaintiff has neither challenged the said sale deed, nor has the plaintiff challenged the sale deed dated 29.03.2011. The other fact which will also have to be taken into consideration is that, at least, when the plaintiff challenged the revenue entry no.771, and when the order was passed on 17.07.2017, the plaintiff had knowledge of the fact that their names have been removed from the revenue record, and the fact remains that the present suit has been filed in the year 2022. Therefore, the suit that has been filed by the plaintiff is hopelessly time-barred. The Trial Court and the Appellate Court have rightly decided the same.

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:-

NEUTRAL CITATION C/SA/426/2024 JUDGMENT DATED: 30/09/2025 undefined "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 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. Under the circumstances, 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 Page 7 of 8 Uploaded by URIL KRISHNAKUMAR RANA(HC01406) on Wed Oct 01 2025 Downloaded on : Wed Oct 01 22:38:40 IST 2025 NEUTRAL CITATION C/SA/426/2024 JUDGMENT DATED: 30/09/2025 undefined the same is devoid of any merit both on facts and law and the same is dismissed.

15. In view of the disposal of the main Second Appeal, the connected Civil Application does not survive and the same is accordingly disposed of.

(SANJEEV J.THAKER,J) URIL RANA Page 8 of 8 Uploaded by URIL KRISHNAKUMAR RANA(HC01406) on Wed Oct 01 2025 Downloaded on : Wed Oct 01 22:38:40 IST 2025