Gujarat High Court
L H Of Decd. Sukhabhai Pistabhai Ahir vs Administrator And Elder Of Branch Of ... on 8 February, 2024
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SECOND APPEAL NO. 450 of 2023
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE SANDEEP N. BHATT
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1 Whether Reporters of Local Papers may be allowed Yes
to see the judgment ?
2 To be referred to the Reporter or not ? Yes
3 Whether their Lordships wish to see the fair copy No
of the judgment ?
4 Whether this case involves a substantial question No
of law as to the interpretation of the Constitution
of India or any order made thereunder ?
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L H OF DECD. SUKHABHAI PISTABHAI AHIR & ORS.
Versus
ADMINISTRATOR AND ELDER OF BRANCH OF DECD. KOLDHABHAI
PISTABHAI AHIR & ORS.
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Appearance:
DECEASED LITIGANT for the Appellant(s) No. 1,1.1,2,3,4
MR V B MALIK(5071) for the Appellant(s) No.
1.1.1,1.1.2,1.1.3,1.1.4,1.1.5,1.2,1.3,1.4,1.5,2.2,2.3,3.1,3.2,4.1,4.2,4.3,4.4,4.5
for the Respondent(s) No. 1,1.1,1.2,1.3,1.4,1.5,2,4,5,6,7
MS TEJAL A VASHI(2704) for the Respondent(s) No. 3
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CORAM:HONOURABLE MR. JUSTICE SANDEEP N. BHATT
Date : 08/02/2024
ORAL JUDGMENT
1. The present appeal under Section 100 of the Civil
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Procedure Code, 1908 (hereinafter referred to as "the
Code") is filed by the present appellants by challenging
the judgment and decree dated 18.06.2013 passed in
Regular Civil Suit No.59 of 2023 by the learned
Principal Senior Civil Judge, Chikali, which was
preferred for specific performance of the contract and
declaration and injunction and the judgment and decree
dated 02.01.2019 passed in Regular Civil Suit No.38 of
nd
2013 by the learned 2 Addl. District Judge, Navsari,
whereby the same was dismissed by confirming the
judgment of the trial court.
2. Brief facts of the case are as such that the
plaintiffs Nos.1,2 are the successor and defendants of
Pistabhai Mangabhai and Koldhabhai pistabhai being the
elder son of the family has acted as a karta of joint
family and in that capacity he and one person namely
Bavlabhai Bodabhai (defendant No,2) has purchased a
property bearing Block no.590, survey No.320, ofv illage
Donja, Taluka: Chikhali, Dist : Navsari, from the
predecessor of the defendant No,4, to, 7, the deceased
Asmalji Fakir Lunat, in the years of 1965 out of the
property plaintiff is concerned with the land admeasuring
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at 1-14 acre, which according to appellants was given to
their share and they are holding possessions too and rest
of the property was went to the share of defendant No.2,
Bavlabhai Bodabhai Ahir and possessions on that he part
is holding of property wherein defendant No.3, is
cultivating said land in short in such property neither of
opponents are having any rights interest or title and
only defendant no.1 & 3, are in collusion raising
dispute, with regards to possessions of the suit property
It is further the case of the appellants in this appeal
that the Koldhabhai Pistabhai and Bavlabhai Bodabhai
Ahir was purchased entire property bearing block no.590,
survey no. 320 after making payment of sale
consideration but as defendant no.4, to 7 have settled at
abroad and they are not intending to execute registered
sale deed, through they have often been requested but
not taken into consideration then present plaintiffs
preferred suit for specific performance of contract i.e
possession receipt dated 29/10/1965 against the defendant
no.4 to 7, and further declaration and permanent
injunction has been sought against all the defendants
and said suit has been dismissed and against impugned
order of suit, the plaintiffs has preferred regular civil
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appeal and the same was also dismissed by confirming
the order passed by civil court chikhali. Hence, the
present appeal is preferred.
3. It is relevant to note that the present Second
Appeal is pending for admission, which is yet not
admitted.
4. Heard Mr. V.B. Malik, the learned counsel for the
appellants and Ms. Tejal A. Vashi, learned counsel for
the respondents.
5. The suggested substantial questions of law as
framed in paragraph 3 of the memo of this appeal are
under:
i. Whether the Lower Appellate Court right in
Koldhabhai holding that the Pistabhai, and was deceased
Bavlabhai Bodabhai Ahir was not purchased the land by
way of contract and in possession of land bearing survey
no.320, block No.590, admesuring 1-14, hactor in village
Dolnja, Ta Chikhali, Dist: Navsari.
ii. Whether the Lower plaintiffs Court was consider
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that the plaintiffs was cultivating said land since since
1965, and holding possession.
iii. Whether the Courts below were right in denying
the plaintiffs have not legal right as per the specific
performance of the contract dated 29/6/1965 in defendants
no, 4, to 7, land.
iv. Whether the Courts below were right in ignoring
the evidence regarding the appellants having no any
legal rights by virtue of specific performance.
v. Whether the Courts below were right in ignoring
the produced by evidence and judgement appellant and
defendant having legal right on suit property.
vi. In the aforementioned premises appellant most
humbly prays this Hon'ble Court that.
6.1 Mr. V.B. Malik, the learned counsel for the
appellants has submitted that the impugned judgment
and decree is illegal, unjust, arbitrary, unconstitutional,
and against the facts, circumstances and evidence on
record and is in violation of the principal of natural
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justice and equity and suffers from the vice of total non-
application of mind. Furthermore, he has submitted that
the court below while passing impugned judgment and
decree has failed to exercise the direction vested in him
and thereby has committed an illegality and/or
irregularity and if the impugned order would be allowed
to stand the same will cause miscarriage of the justice.
Furthermore, he has submitted that the courts below
have committed grave error in not appreciating the
evidence of prime witness who is purely support the case
of appellants. Furthermore, he has submitted that the
courts below have committed grave error not examine
any evidence regarding the property of appellants father
was holding possession on land and doing agricultural
work since last four decade and passed impugned
judgment. Furthermore, he has submitted that the
courts below have committed grave error not taken in to
consideration that appellants father has not made any
sale transaction with the defendants. Furthermore, he
has submitted that the courts below committed grave
error in replying the issue framed by in negative was
and against the interest of the justice.
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6.2 Furthermore, he has submitted that the Learned
lower appellate Court ought to have appreciated the fact
that the plea raised by the appellants before the
appellate court goes to the root of the mater that they
are not getting any title on land, which shown by prima-
facie in the suit but only disadvantage defendants on
has the taking taken all proper in their possession, only
statement does not mean that the plea raised by the
appellant is not important and only oral evidence
accepted in to and consider it's against appellant.
Furthermore, he has submitted that the court below
ought to have considered that witnesses examine before
court those not legally supported the case of defendant.
Furthermore, he has submitted that the court below
ought to have considered that the deceased Sukhabhai
was got land from father of defendant no.4 to 7, and
agreement in his favour and said land was not belonging
to Gauchar land, but it was belonging to Kharaba land
and was in possessions to Sukhabhai way back since the
transaction, but his name was not entered in revenue
record and entry was not mutated in his favourand,
therefore, he has submitted that the present appeal is
requited to be admitted and also thereafter, required to
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be allowed.
7. Per contra, Ms. Tejal A. Vashi, learned counsel for
the respondents has submitted that the courts below
have rightly decided the suit proceeding as well as
appeal proceeding and has rightly decided and dismissed
the same by giving cogent and convincing reasons.
Furthermore, she has submitted that no question of law
more particularly substantial question of law involves in
the present appeal and therefore, no interfere is required
to be called for under Section 100 of the Code, and
therefore, the present Second Appeal is required to be
dismissed.
8.1 I have considered the rival submissions made at the
bar by the respective parties. I have also considered the
fact that the suit is filed before the trial court by the
present appellants for declaration, injunction and specific
performance of the agreement. Thereafter, the summons
were served and defendant Nos.1 to 3 have filed their
written statements as well as reply to the injunction
application at Exh.25 by denying for granting the prayers
made in the suit. It is also denied that no prayers for
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specific performance can also be granted and, therefore,
in the written statement, it is prayed that the suit is
required to be dismissed. The issues were framed at
Exh.35 in the suit. The oral evidence as well as
documentary evidence on behalf of the plaintiffs are also
produced, which are referred in paragraph 8 of the
judgment of the trail court. Thereafter, the Court has
considered the suit and came to the conclusion after
considering all the issues that though the plaintiffs are
claiming that though they are upholding possession
receipt at Exh.67 pursuant to the agreement executed on
29.06.1965 by the ancestor of the defendant Nos.4 to 7,
yet the said document is disputed by the defendants in
the written statement and, therefore, the burden of proof
the said document is on the plaintiffs. Thereafter, from
the oral evidence, more particular at Exh.101 in the
cross-examination, the witness said that he has neither
seen the execution of the document at Exh.67 nor seen
anyone, who has connected with the said document.
Therefore, the Court has come to the conclusion that
that document is not proved by the plaintiffs and
plaintiffs have failed to discharge his burden of prove.
The plaintiffs have also relied upon Section 90 of the
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Indian Evidence Act by saying that the said documents
are 30 years old documents as the same are execution in
the year 1965, but when the plaintiffs have failed to
prove in discharging their duty and the parties to the
said contract is disputing about the execution of the said
contract, then the duty is cast on the plaintiffs to prove
such document. But they have failed to discharge their
duty by leading cogent and convincing evidence.
Therefore, that presumption cannot be made under
Section 90 of the Indian Evidence Act and the Court has
given findings to that extent.
8.2 Hence, it transpires that the trial court has
considered all the submissions made at the bar by
detailed scrutinizing the evidence i.e. oral as well as
documentary evidence available on the record in detail.
The trial court has rightly come to the conclusion that
though the revenue receipt is produced at Exh.62 to 65,
but the revenue record is not a conclusive proof for any
ownership or possession of that particular person in
absence of any independent evidence and such document
can be considered for the purpose of corroboration. The
trial court has also considered the cross-examination of
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Talati; Chandubhai Naranbhai, who is examined at
Exh.117, and he has admitted in his cross-examination
that if a person, who is coming for payment of such
amount of revenue or education cess, then he is only
issuing receipt on the name given by that person. These
documents cannot independently establish the factum that
the plaintiff is holding one of share and he was in
occupation of that premises. The Court has also perused
the Panchnama prepared at Exh.113 and sketch at
Exh.114 and also scrutinized the oral examination of the
Court Commissioner - Urmilaben at Exh.111 and has
come to the conclusion that there is no material
available on the record by which it can be said that
there is two part of the land of block no. 590. Whether
1.08 Gutha on north side or 1.08 Gutha on north west
side and that is not reflected in that Panchnama.
Therefore, from the Panchnama also, the case of the
plaintiffs are not supported in any manner. The Court
has also perused the deposition of witnesses, Maganbhai
Chaturbhai at Exh.122, whereby he has stated that he
was having his agricultural land next to the suit land,
but he has stated that he was not aware of what is
stated in Exh.122 the affidavit filed by him as he is an
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illiterate person, therefore, he is not aware about the
contents of the affidavit. Furthermore, he has submitted
that therefore, the Court has rightly not believed the
version stated in the affidavit by that witness in absence
of his unawareness about the contents of the said
affidavit. The trial court has on the contrary found that
the defendant No.3 is having his residential house on
the suit land and has come to the conclusion by
considering the revenue record and revenue proceeding,
more particularly, which is discussed pursuant to the
issue No.5 in para 25 of the judgment, that the
possession of the entire suit land block no. 590 is in the
possession of defendant Nos.1 to 3 and that is also
established from the report of the Court Commissioner -
Urmilaben, who has mentioned about the fact that the
house of the defendant No.3 is situated on the suit land.
The trial court has also found by considering the fact
that after 1957-58, no where in the revenue record, the
name of the forefather of the plaintiff as well as
defendant Nos.1 to 3 - Sri Gordhabhai Pistabhai was
mentioned as protected tenant. Considering all these
aspects, the Court has come to the conclusion that
plaintiff has miserably failed in proving his case.
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8.3 The lower appellate court has also considered the
various submissions made at the bar and has framed the
points of determination as under:
1. Whether the property bearing Block No.590
admeasuring at 1-14 hector Village: Donja, Taluka :
Chikhli was purchased by Koldhabhai Pistabhai and
Bavlabhai Bodabhai Ahir from the power of attorney
holder of its owner Asmalji Fakir Lunat?
2. Whether specific performance of the contract
dated 29/6/1965 can be allowed ?
3. Whether the division of Block No.590 has been
done and accordingly suit property was went to the
share of plaintiffs?
4. Whether the plaintiffs are having any right or
interest in the suit property?
5. Whether the judgment and decree passed by the
learned trial judge is erroneous and same needs
intervention, modification or reversal?
6. What order?
(6) My findings of the aforesaid points for determination
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are as under:
1. In negative
2. In negative
3. In negative
4. In negative
5. In negative
6. As per final order
8.4 Thereafter, considering the material available on the
record, the lower appellate court has re-appreciated the
entire evidence and had come to the conclusion that the
appeal is required to be dismissed. The learned lower
appellate court has rightly framed the point of
determination as required under the provisions of Order
41 Rule 31 of the Civil Procedure Code, and has given
the findings, which is reflected from paragraph 7 onward
in the judgment of the lower appellate court.
8.5 I have also considered the findings. The learned
lower appellate court has rightly dealt with the aspect of
Section 90 of the Indian Evidence Act, as under:
"Section 90 in The Indian Evidence Act, 1872:-
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90. Presumption as to documents thirty years old.
Where any document, purporting or proved to be thirty
years old, is produced from any custody which the Court in
the particular case considers proper, the Court may presume
that the signature and every other part of such document,
which purport to be in the handwriting of any particular
person, is in that person's handwriting, and, in the case of
a document executed or attested, that it was duly executed
and attested by the persons by whom it purports to be
executed and attested.
Explanation. - Documents are said to be in proper custody
if they are in the place in which, and under the care of
the person with whom, they would naturally be; but no
custody is improper if it proved to have had a legitimate
origin, or if the circumstances of the particular case are
such as to render such an origin probable.
8.6 It transpires that the Court has rightly come to the
conclusion that the presumption under Section 90 of the
Indian Evidence Act is not mandatory presumption, but
it is within the discretion of the Court by considering
the facts and circumstances of each case. In the present
case, the Court has come to the conclusion that
document produced at Exh.67 is executed in favour of
original defendant Nos.1 & 2, who are party to the suit
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and that document produced from the custody of the
plaintiffs. The plaintiffs has failed to establish that how
this document come to their custody. In such
circumstances, the document produced by the plaintiffs
cannot be said to be produced from the proper custody
and, therefore, the first requirement for laying down
presumption under Section 90 of the Indian Evidence Act
has not been fulfilled in the present case. Moreover,
before the learned trial Court, one document is produced
at Exh.56, which is a mutation entry No.950 dated
01.06.1965 and having considering that mutation entry, it
is transpires that Asmalji Fakir Lunat was died before 4
years and his legal heirs stated in that entry were
entered in the Revenue Records. Meaning thereby, when
the said entry was made on 01.06.1965, original owner of
the suit property, Asmalji Fakir Lunat was died before
four years. That leads to believe that Asmalji Fakir
Lunat would have died somewhat in the year 1961. That
means when the alleged agreement/possession receipt was
executed by power of attorney holder of Asmalji Fakir
Lunat, the principal/original owner Asmalji Fakir Lunat
was died and, therefore, any power of attorney given by
him became ineffective. Hence, any document executed by
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power of attorney after the death of Asmalji Fakir Lunat
is void-ab-initio and has no legal impact. Therefore, when
the possession receipt was executed on 29.06.1965,
nothing was brought on the record by the plaintiffs to
show at that point of time that the original owner
Asmalji Fakir Lunat was alive. The learned lower
appellate court has also relied upon the Panchnama
drawn by the Court Commissioner as well as deposition
of the Court Commissioner and affidavits of the
otherwise witnesses Balwabhai Bodabhai Ahir and his
son Naranbhia Bavlabhai also, which is sought to be
produced at the appellate stage, but these two witnesses
have rightly been observed by the learned lower
appellate court and that were there right from the
inception of suit as a defendant and therefore, such
affidavit is afterthought. Moreover, the affidavits
simplicitor cannot be considered as an evidence unless an
opportunity of cross-examination of deponent is given to
the rival parties.
8.7 In my view, all these observations made by the
learned lower appellate court are in consonance with the
materials available on the record and trial court as well
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as the learned lower appellate court has not committed
any error in misreading any of the documentary or oral
evidence or misinterpreting any provisions of law. On the
contrary, as discussed, both the courts below have given
detailed and cogent reasons for dismissing the suit as
well as appeal of the present appellant. Therefore,
considering the fact that in the present case also, no
substantial question of law is born out, hence, the
present appeal is required to be dismissed by considering
the recent judgment of the Hon'ble Apex Court in the
case of Gurbachan Singh (Dead) Through Lrs. vs.
Gurcharan Singh (Dead) Through Lrs and Others
reported in (2023) SCC OnLine SC 875, more specifically,
paragraph 7, 14 & 15 are relevant, as under:
"7. The parameters of an appeal under Section 100, CPC
passing muster are well established. The section itself
dictates that such an appeal shall only be maintainable
when the case involves a substantial question of law or that
the appellate decree has been passed ex parte. the latter,
obviously is not the case. This court has, in a multitude of
decisions, expounded on what may be termed as a
substantial question of law to satisfy the requirements of
section 100. In Nazir Mohamed v. J. Kamala6( 2 Judge
Bench), it was observed:
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"27. In HeroVinoth v. Seshammal [HeroVinoth v. S
eshammal, (2006) 5 SCC 545] , this Court referred to
and relied upon Chunilal V. Mehta and Sons Ltd.
[Chunilal V. Mehta & Sons Ltd. v. Century Spg. &
Mfg. Co. Ltd., AIR 1962 SC 1314] and other
judgments and summarised the tests to find out
whether a given set of questions of law were mere
questions of law or substantial questions of law. The
relevant paragraphs of the judgment of this Court in
Hero Vinoth [Hero Vinoth v. Seshammal, (2006) 5
SCC 545] are set out hereinbelow : (SCC p. 554, para
21)
"21. The phrase "substantial question of law", as
occurring in the amended Section 100 CPC is not
defined in the Code. The word substantial, as
qualifying "question of law", means-- of having
substance, essential, real, of sound worth, important
or considerable. It is to be understood as something
in contradistinction with--technical, of no substance or
consequence, or academic merely. However, it is clear
that the legislature has chosen not to qualify the
scope of "substantial question of law" by suffixing the
words "of general importance" as has been done in
many other provisions such as Section 109 of the
Code or Article 133(1)(a) of the Constitution. The
substantial question of law on which a second appeal
shall be heard need not necessarily be a substantial
question of law of general importance. In Guran Ditta
v. Ram Ditta [Guran Ditta v. Ram Ditta, 1928 SCC
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OnLine PC 31 : (192728) 55 IA 235 : AIR 1928 PC
172] the phrase "substantial question of law" as it
was employed in the last clause of the then existing
Section 100 CPC (since omitted by the Amendment
Act, 1973) came up for consideration and their
Lordships held that it did not mean a substantial
question of general importance but a substantial
question of law which was involved in the case. In
Chunilal case [Chunilal V. Mehta & Sons Ltd. v.
Century Spg. & Mfg. Co. Ltd., AIR 1962 SC 1314]
the Constitution Bench expressed agreement with the
following view taken by a Full Bench of the Madras
High Court in Rimmalapudi Subba Rao v. Noony
Veeraju [Rimmalapudi Subba Rao v. Noony Veeraju,
1951 SCC OnLine Mad 100 : AIR 1951 Mad 969] :
(Chunilal case [Chunilal V. Mehta & Sons Ltd. v.
Century Spg. & Mfg. Co. Ltd., AIR 1962 SC 1314] ,
AIR p. 1318, para 5) '
5. ... when a question of law is fairly arguable,
where there is room for difference of opinion on it or
where the Court thought it necessary to deal with
that question at some length and discuss alternative
views, then the question would be a substantial
question of law. On the other hand if the question
was practically covered by the decision of the highest
court or if the general principles to be applied in
determining the question are well settled and the
only question was of applying those principles to the
particular facts of the case it would not be a
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substantial question of law.'
28. To be "substantial", a question of law must be
debatable, not previously settled by the law of the
land or any binding precedent, and must have a
material bearing on the decision of the case and/or
the rights of the parties before it, if answered either
way." (Emphasis supplied)
14. As already noted above, another ground of objection
taken by the Appellant is the fact of the impugned
judgement entering into a reappreciation of evidence. While
it is true that ordinarily, in second appeal, the court must
not disturb facts established by the lower court or the first
appellate court. However, it is also equally well recognised
that this rule is not an absolute one or in other words, it
is not a rule set in stone. In Nazir Mohamed (supra) this
Court has recognised three conditions in which a court in
such jurisdiction, may disturb findings of fact. They are:
" (i) the courts below have ignored material evidence
or acted on no evidence; (ii) the courts have drawn
wrong inferences from proved facts by applying the
law erroneously; or (iii) the courts have wrongly cast
the burden of proof. A decision based on no evidence,
does not refer only to cases where there is a total
dearth of evidence, but also refers to case, where the
evidence, taken as a whole, is not reasonably capable
of supporting the finding."
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15. A Bench of three learned Judges, recently in Balasubramanian
and Anr. v. M. Arockiasamy (Dead) Through LRs., had referred
to, with approval judgement rendered in Ramathal v. Maruthathal
& Ors (twoJudge Bench) wherein it was observed that the
restraint in interfering with questions of fact under the
jurisdiction of second appeal, is not an absolute rule. Where the
court is of the view that the conclusions drawn by the court
below do not have a basis in the evidence led or it is of the
view that the appreciation of evidence "suffers from material
irregularity" the court will be justified in interfering with such
findings."
8.8 It is also relevant to refer the judgment of the
Hon'ble Apex Court in the case of M.B. Ramesh vs K.M.
Veeraje reported in 2013 (7) SCC 490, more specifically,
paragraphs 16 & 17 are relevant, as under:
"14. We may, however, note in this behalf that
as held by a Constitution bench of this Court in
Chunilal Mehta Vs. Century Spinning and Manufacturing
Company reported in AIR 1962 SC 1314, it is well settled
that the construction of a document of title or of a
document which is the foundation of the rights of
parties, necessarily raises a question of law. That apart,
as held by a bench of three judges in Santosh
Hazari Vs. Purushottam Tiwari reported in 2001 (3)
SCC 179, whether a particular question is a substantial
question of law or not, depends on the facts and
circumstances of each case. When the execution of
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the will of Smt. Nagammanni and construction
thereof was the subject matter of consideration,
the framing of the question of law cannot be
faulted. Recently, in Union of India Vs. Ibrahim Uddin
reported in 2012 (8) SCC 148, this Court referred to
various previous judgments in this behalf and
clarified the legal position in the following words:-
"67. There is no prohibition to entertain a second
appeal even on question of fact, provided the Court
is satisfied that the findings of the courts below were
vitiated by non-consideration of relevant evidence
or by showing erroneous approach to the matter and
findings recorded in the court below are
perverse."
15. At the same time we cannot accept the
submission on behalf of the respondents as well that
merely because the will was more than 30 years old, a
presumption under Section 90 of the Indian Evidence
Act, 1872 ('Evidence Act' for short) ought to be drawn
that the document has been duly executed and attested
by the persons by whom it purports to have been
executed and attested. As held by this Court in Bharpur
Singh Vs. Shamsher Singh reported in 2009 (3) SCC 687,
a presumption regarding documents 30 years old does
not apply to a will. A will has to be proved in terms
of Section 63 (c) of the Succession Act read with Section 68
of the Evidence Act."
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9. In view of the above discussions, the present Second
Appeal filed under Section 100 of the Code does not
involve any substantial question of law, which should be
considered by this Court- and accordingly, the appeal is
found meritless and is required to be dismissed.
10. Resultantly, the present Second Appeal is dismissed.
(SANDEEP N. BHATT,J)
DIWAKAR SHUKLA
