Narsinhbhai Naranbhai Gohel vs Suvasben Jayeshbhai Patel
2023 Latest Caselaw 2897 Guj

     C/SA/262/2021                                   ORDER DATED: 12/04/2023




          IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                   R/SECOND APPEAL NO. 262 of 2021
                                 With
              CIVIL APPLICATION (FOR STAY) NO. 1 of 2019
                  In R/SECOND APPEAL NO. 262 of 2021
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                     NARSINHBHAI NARANBHAI GOHEL
                                Versus
                      SUVASBEN JAYESHBHAI PATEL
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Appearance:
MR BHUNESH C RUPERA(3896) for the Appellant(s) No.
1,2.1,2.2,2.3,2.4,2.5,2.6,2.7,3,4
MR. JAY M THAKKAR(6677) for the Respondent(s) No. 1
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 CORAM:HONOURABLE MR. JUSTICE RAJENDRA M. SAREEN

                              Date : 12/04/2023

                               ORAL ORDER

1. Present Second Appeal has been preferred by the appellants - original plaintiffs against the concurrent findings of the learned courts below arising out of the suit for declaration and permanent injunction.

2. Factual matrix of the case is as under:

2.1. As per the case of the plaintiffs, the suit land was received by sale under Tenancy Act by the plaintiffs and their deceased uncle. Out of total land, land admeasuring HRA 00896 was in the share of the appellants and other land held had admeasuring HRA 00903 was in the share of the appellants' uncle deceased Bhathibhai Jivabhai Gohel. That the appellants' father and deceased Bhathibhai Jivabhai Gohel were real brothers. That Bhathibhai Jivabhai Gohel expired childness on 30/5/1998 and his

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wife Chanchalben expired on 27/2/2003, and hence the plaintiffs are the legal heirs of both the deceased. That the disputed land was handed over to the plaintiffs and since then the possession of the disputed land has been with the plaintiffs, but however, the defendant has unauthorisedly and fradulelty executed registered sale deed on 21/2/1992 in her favour. That when the sale deed was executed, Special Civil Suit No.131 of 1991 was pending with the court of learned Principal Civil Judge, Anand and during the pendency of the said suit, the defendant has executed three different sale deeds in her favour, which, according to the plaintiffs, are ab-initio null and void, and also barred by section 52 of the Transfer of Properties Act. That the defenant on the basis of the aforesaid sale deeds, the defendant is threatening the plaintiffs for vacating the lawful possession of the plaintiffs. Hence, the plaintiffs instituted the suit against the defendants.

2.2. The learned trial court after filing of the written statements by the defendant, framed necessary Issues in Regular Civil Suit No.249 of 2014 and 259 of 2014 which were consolidated and after adducing the evidence and evaluating documentary as well as oral evidence, the trial court dismissed both the suit vide order dated 31/3/2016. Feeling aggrieved by the said order, the plaintiffs preferred an appeal before the court of District Court, Anand being Regular Civil Appeal No.36 of 2016 and the learned 4the Additional District Judge, vide order dated 3/4/2019 dismissed the said appeal confirming the judgement and decree passed by the learned trial courta, which has given

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rise to the present Appeal.

3. Heard Mr.Bhunesh Rupera, learned advocate for the appellants at length and examined the findings of both the courts below on the issues raised in the suit. Upon examination of the judgement and order of both the courts below, learned advocate for the plaintiffs - appellants is unable to point out any infirmity, perversity or impropriety in the concurrent findings of the fact recorded by both the courts below. Not only that the learned advocate for the appellant is unable to show that any finding recorded by the courts below is without any evidence or there is any illegality in the findings.

4. It is undispusted that the father of the plaintiffs and deceased uncle of the plaintiffs obtained the land which is suit property under the Tenancy Act and both the said pwersons became co-owners of the property wherein half portion had come in the share of the father of the plaintiffs and half of the portion came in the share of the uncle of the plaintiffs, who died on 30/5/1998 without any heir. Before his death, he had parted with his share and sold his share to the defendant for a legal consideration. It has also come on record in the findings that the original plaintiff was in the knowledge of the factual aspect and his brother sold his portion of land which had come to his share prior to his death. The partition is admitted and share came in the share of the uncle of the plaintiffs is also admitted. The uncle of the plaintiffs sold his share by registered sale deed. It has also come out in the cross examination that the

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plaintiff had knowledge of the disputed registered sale deed from 10/9/2009 and the suit is filed in the year 2014 and hence the suit is barred. Both the courts have clearly appreciated the evidence regarding fraudulent sale, sale has been controverted after the period of limitation. No complaints have been filed by the plaintiffs regarding fraudulent sale deeds and the plaintiffs have no right, title or interest whatsoever in the suit property. The suit was dismissed and appeal preferred against the judgement and decree of the trial court also came to be dismissed. As stated hereinabove, nothing has been brought by the learned advocate for the appellant regarding legality or perversity committed by the court nor any substantial question is raised.

5. Under the circumstances, this court does not find any error or law in the concurrent findings of the learned courts below. In exercise of powers under section 100 of the Code of Civil Procedure, jurisdiction is confined to substantial question of law only. Here in this case, no substantial question of law has been raised so as to enable this Court to admit the present appeal.

6. The scope of Second Appeal under section 100 is limited. Second Appeal is competent only if it involves, at the stage of admission, substantial question of law. High Court can interfere with the concurrent findings of fact, if the findings are perverse but the perversity should be apparent on the face of record.

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7. Here in this appeal, the question of law raised cannot be said to be substantial question of law and there are question of law but not the substantial question of law.

8. In the case of Easwari Versus Parvathi and others,. reported in (2014) 15 SCC 255, it is held that High Court can entertain a Second Appeal on a substantial question of law and it has absolutely no jurisdiction to entertain the Second Appeal on the ground of erroneous findings of fact, however, gross error seems to be looked into. High Court can interfere in the concurrent findings of facts in the Second Appeal if the appellate court has not properly appreciated the evidence on record.

9. In the case of Samina Khatun, AIR 1995 Gauhati 104, also it is held that High Court can only entertain Second Appeal only on substantial question of law. High Court has absolutely no jurisdiction to entertain Second Appeal on the ground of erroneous findings of fact.

10. As laid down in the case of State of Haryana Versus Khalsa Motors Limited, reported in (1990) 4 SCC 659, on the basis of evidence on record it is held that the trial court and first appellate court has given concurrent findings of facts and the High Court cannot reverse the said findings under ordinary circumstances.

11. In the case of C.Doddanarayana Reddy & Ors. Vs. C. Jayarama Reddy & Ors., reported in (2020) 4 SCC 659, the Hon'ble Apex Court has observed and held as

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under :-

"25. The question as to whether a substantial question of law arises, has been a subject matter of interpretation by this Court. In the judgment reported as Karnataka Board of Wakf v. Anjuman-E-Ismail Madris-Un-Niswan (1999) 6 SCC 343, it was held that findings of the fact could not have been interfered within the second appeal. This Court held as under:

"12. This Court had repeatedly held that the power of the High Court to interfere in second appeal under Section 100 CPC is limited solely to decide a substantial question of law, if at all the same arises in the case. It has deprecated the practice of the High Court routinely interfering in pure findings of fact reached by the courts below without coming to the conclusion that the said finding of fact is either perverse or not based on material on record.

13. In Ramanuja Naidu v. V. Kanniah Naidu (1996 3 SCC 392), this Court held:

"It is now well settled that concurrent findings of fact of trial court and first

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appellate court cannot be interfered with by the High Court in exercise of its 8 (1999) 6 SCC 343 jurisdiction under Section 100 of Civil Procedure Code. The Single Judge of the High Court totally misconceived his jurisdiction in deciding the second appeal under Section 100 of the Code in the way he did."

14. In Navaneethammal v. Arjuna Chetty (1996 6 SCC 166), this Court held :

"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 re- place the findings of the lower courts. ... Even assuming that another view is possible on a reappreciation of the same evidence, that should not have been done by the High Court as it cannot be said that the view taken by the first appellate court was based on no material."

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15. And again in Secy., Taliparamba Education Soci- ety v. Moothedath Mallisseri Illath M.N. (1997 4 SCC 484), this Court held: (SCC p. 486, para 5) "The High Court was grossly in error in trenching upon the appreciation of evidence under Section 100 CPC and recording reverse finding of fact which is impermissible."

26. In a judgment reported as Kondiba Dagadu Kadam v. Savitkibai Sopan Gujar & Ors.9, this Court held that from a given set of circumstances if two inferences are possible then the one drawn by the lower appellate court is binding on the High Court. In the said case, the First Appellate Court set aside the judgment of the trial court. It was held that the High Court can interfere if the conclusion drawn by the lower court was erroneous being contrary to mandatory provisions of law applicable or if it is a settled position on the basis of a pronouncement made by the 9 (1999) 3 SCC 722 court or based upon inadmissible evidence or arrived at without evidence. This Court held as under:

"5. It is not within the domain of the High Court to investigate the grounds on which findings were arrived at, by the last court of fact, being the first appellate

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court. It is true that the lower appellate court should not ordinarily reject witnesses accepted by the trial court in respect of credibility but even where it has rejected the witnesses accepted by the trial court, the same is no ground for interference in second appeal when it is found that the appellate court had given satisfactory reasons for doing so. In a case where from a given set of circumstances two inferences are possible, one drawn by the lower appellate court is binding on the High Court in second appeal. Adopting any other approach is not permissible. The High Court cannot substitute its opinion for the opinion of the first appellate court unless it is found that the conclusions drawn by the tower appellate court were erroneous being contrary to the mandatory provisions of law applicable of its settled position on the basis of pronouncements made by the apex Court, or was based upon in inadmissible evidence or arrived at without evidence."

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27. In another judgment reported as Santosh Hazari v. Purushottam Tiwari, this Court held as under:

"14. A point of law which admits of no two opinions may be a proposition of law but cannot be a substantial question of law. To be substantial, a question of law must be debatable, not previously settled by law of the land or a binding precedent, and must have a material bearing on the decision of the case, if answered either way, in so far as the rights of the parties before it are concerned. To be a question of law involving in the case there must be first a foundation for it laid in the pleadings and the question should emerge from the sustainable findings of fact arrived at by court of facts and it must be necessary to decide that question of law for a just and proper decision of the case. An entirely new point raised for the first time before the High Court is not a question involved in the case unless it goes to the root of the matter. It will, therefore, depend on the facts and

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circumstance of each case whether a question 10 (2001) 3SCC 179 of law is a substantial one and involved in the case, or not; the paramount overall consideration being the need for striking a judicious balance between the indispensable obligation to do justice at all stages and impelling necessity of avoiding prolongation in the life of any lis."

28. Recently in another judgment reported as State of Rajasthan v. Shiv Dayal11, it was held that a concurrent finding of the fact is binding, unless it is pointed out that it was recorded de hors the pleadings or it was based on no evidence or based on misreading of the material on records and documents. The Court held as under:

"When any concurrent finding of fact is assailed in second appeal, the appellant is entitled to point out that it is bad in law because it was recorded de hors the pleadings or it was based on no evidence or it was based on misreading of material documentary evidence or it was recorded against any provision of law and lastly, the decision is one which

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no Judge acting judicially could reasonably have reached. (see observation made by learned Judge Vivian Bose,J. as His Lordship then was a Judge of the Nagpur High Court in Rajeshwar Vishwanath Mamidwar & Ors. vs. Dashrath Narayan Chilwelkar & Ors., AIR 1943 Nagpur 117 Para 43)."

29. The learned High Court has not satisfied the tests laid down in the aforesaid judgements. Both the courts, the trial court and the learned First Appellate Court, have examined the School Leaving Certificate and returned a finding that the date of birth does not stand proved from such certificate. May be the High Court could have taken a different view acting as a trial court but once, two 11 (2019) 8 SCC 637 courts have returned a finding which is not based upon any misreading of material documents, nor is recorded against any provision of law, and neither can it be said that any judge acting judicially and reasonably could not have reached such a finding, then, the High Court cannot be said to have erred. Resultantly, no substantial question of law arose for consideration before the High Court.

12. In the recent decision in the Case of Kapil Kumar Vs.

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Raj Kumar reported in (2022) 10 SCC 281, the Hon'ble Apex Court has observed and held as under :-

"10. At the outset, it is required to be noted that as such there were concurrent findings of facts recorded by the learned trial court as well as the learned first appellate court on execution of pronote by the defendant in favour of the plaintiff. The said findings were on appreciation of entire evidence on record. Therefore, unless the findings recorded by the courts below were found to be perverse, the same were not required to be interfered with by the High Court in exercise of powers under section 100 CPC.

11. Even the substantial question of law framed by the High Court cannot be said to be as such a question of law much less substantial question of law. From the impugned judgement and order passed by the High Court, it appears that as such no specific substantial question of law seems to have been framed by the High Court. However, it appears that what was considered by the High Court was whether the plaintiff proves the execution of pronote and the receipt by leading cogent evidence."

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13. This appeal, as stated above, is devoid of any substantial question of law. Both the courts have rightly decided the issue between the parties in the right perspective. No cogent and convincing evidence has been brought on record to justify the claim of the plaintiffs - appellants. The plaintiff has failed to prove his case before the trial court as well as the appellate Court. This Court does not find any substance in the present Second Appeal as the same is devoid of any merits both on facts and law and hence the same is dismissed at admission stage.

On dismissal of the main Second Appeal, the Civil Application No.1 of 2019 stands rejected.

(RAJENDRA M. SAREEN,J) R.H. PARMAR