Gujarat High Court
Padmaben D/O Babubhai Govindbhai vs Dhirubhai Fatehsinghbhai Gamit on 23 January, 2024
Author: Gita Gopi
Bench: Gita Gopi
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SECOND APPEAL NO. 2 of 2024
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PADMABEN D/O BABUBHAI GOVINDBHAI
Versus
DHIRUBHAI FATEHSINGHBHAI GAMIT
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Appearance:
H P BAXI(9459) for the Appellant(s) No. 1,2,3
SHIVANI R MODI(9280) for the Appellant(s) No. 1,2,3
MR NV GANDHI(1693) for the Respondent(s) No. 1
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CORAM:HONOURABLE MS. JUSTICE GITA GOPI
Date : 23/01/2024
ORAL ORDER
1. Advocate Mr. H.P. Baxi for the
appellants, who were the original defendants in
Regular Civil Suit No.57 of 2011, contends that
on dismissal of the suit, the plaintiff had
preferred Regular Civil Appeal No.40 of 2019,
which came to be allowed on 29.09.2023, and when
there is no concurrent finding of both the
courts, then Second Appeal is required to be
admitted, since the very cause of two contrary
observations would raise a substantial question
of law and facts.
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2. Advocate Mr. Baxi submitted that the
plaintiff cannot succeed on the weakness of the
defendants, and further stated that plaintiff had
no right to file the suit as a Manager of Hindu
undivided family, since he is a single male
member. Mr. Baxi further stated that the sale
deed on which reliance had been placed, was not
produced before the trial Court and only a
photocopy came to be exhibited; thus, stated that
the attestation and execution of the original was
required to be proved, and when original sale
deed is not on record, the same cannot be
believed. Advocate Mr. Baxi further submitted
that the sale deed relied upon by the plaintiff
does not suggest that the possession of the suit
land followed the title, as claimed by the
plaintiff.
3. Advocate Mr. Baxi stated that revenue
entries have no prima facie value and, if at all,
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the family arrangement, which is relied upon, is
to be considered, then it requires compulsory
registration, which has not been so in the
present matter. The core issues have not been
decided by the appellate Court and the reasoned
order of the trial Court has been set aside, and
the facts, which were not recorded, have been
considered.
4. Advocate Mr. Baxi has relied upon the
the following judgments: (i) in case of State of
Rajasthan & Ors. Vs. Shiv Dayal & Anr. in Civil
Appeal No.7363 of 2000 (ii) Anathula Sudhakar Vs.
P.Buchi Reddy, reported in AIR 2008 SC 2033 (iii)
Nazir Mohamed Vs. J.Kamala, reported in AIR 2020
SC 4321 (iv) K.N. Nagarajappa & Ors. Vs.
H.Narasimha Reddy (v) Narayan Sitaramji Badwaik
(Dead) Thr. Lrs. Vs. Bisaram And Ors. (vi) John
Mithalal Desai Vs. Dineshbhai K.vora, reported in
LAWS (GJH) 1997 8 14 (vii) Ramji Daywala And Sons
Pvt. Ltd. Vs. Invest Import, reported in LAWS
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(SC) 1980 10 23 (viii) Dina Ji Vs. Daddi,
reported in LAWS (SC) 1989 11 1 (ix) Union of
India And Ors. Vs. Ram Lakhan Sharma, reported in
LAWS (SC) 2018 76 (x) Sardar Sarovar Narmada
Nigam Ltd. Vs. Rupdevsinhji Dolatsinhji Gohil,
reported in LAWS (GJH) 2021 1 52 (xi) Patel
Ramanbhai Mathurbhai Vs. Govindbhai Chhotabhai
Patel And 3 Ors., reported in LAWS (GJH) 2018 9
20, to contend that this Court is required to
frame substantial questions of law prima facie on
the ground of contrary judgments of both the
courts.
5. Countering the arguments, Advocate Mr.
N.V. Gandhi submitted that the case of the
defendants is not on the ground that sale deed
has not been executed, while the dispute is
raised regarding the documents, which has been
produced in the form of certified copy. Advocate
Mr. Gandhi submitted that the deposition during
the course of the trial requires consideration,
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since when the plaintiff had stepped into the
witness box, he had brought the originals before
the Court, and such fact has been noted in the
trial proceedings, and on observing so the
certified copy was put in evidence at Exh.45.
5.1 Advocate Mr. Gandhi submitted that the
knowledge of execution of sale deed had not for
the very first time known to the defendants,
since earlier in proceedings under section
73AA(3) in case before the Deputy Collector as
128/95 and 132/95, the Deputy Collector, L&D,
Vyara at Surat in his judgment has recorded about
the sale deed dated 13.04.1978. Mr. Gandhi
further submitted that one of the vendor Manuben
i.e. widow of Babubhai Govindbhai has admitted by
way of deposition of the property sold to the
father of the plaintiff. Mr. Gandhi submitted
that the provisions of section 73AA of the
Gujarat Land revenue Code, 1879 came into force
on 01.02.1981, and, therefore the Deputy
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Collector by order dated 25.07.1995 had
considered this development of law, and had found
that the sale was not hit by the provision of
section 73AA, and, therefore the notice was
withdraw and the proceedings were dropped. Hence,
Advocate Mr. Gandhi submitted that by the order
dated 25.07.1995 of the Deputy Collector, the
factum of sale deed was approved, and it was
found to be legal.
5.2 Advocate Mr. Gandhi further submitted
that since the proceedings were dropped, no
subsequent entry could be passed in the revenue
record; however, stated that title would always
follow from the sale deed, and, since the sale
deed is legal and valid, and by way of the sale
deed the possession was handed over to the
plaintiff, which has been referred in the sale
deed itself, no dispute can be raised, and
further there is an admitted evidence of one of
the vendor of the sale deed of handing over the
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possession.
6. In case of Nazir Mohamed Vs. J.Kamala,
reported in AIR 2020 SC 4321, the Apex Court had
the occasion to consider the provision of section
100 of Code of Civil Procedure, 1908 for
appreciating the existence of substantial
question of law sine qua non for exercise of
jurisdiction under section 100 of CPC. The Apex
Court had laid down that the High Court should be
satisfied, that the case involves a substantial
question of law, and not a mere question of law;
further held that a question of law having a
material bearing on decision of case (that is, a
question, answer to which affect the right of
parties to the suit) will be a substantial
question of law, if it is not covered by any
specified provisions of law or settled legal
principle emerging from binding precedents, and,
involves a debatable legal issue. The Apex Court
has further held that a substantial question of
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law will also arise in a contrary situation,
where the legal position is clear, either on
account of express provisions of law or binding
precedents, but Court below has decided the
matter, either ignoring or acting contrary to
such legal principle, and in the second type of
cases, substantial question of law arises not
because the law is still debatable, but because
the decision rendered on a material question,
violates the settled position of law.
6.1 The Hon'ble Apex Court in the referred
judgment held that general rule is, that High
Court will not interfere with the concurrent
findings of the Courts below, but it not an
absolute rule, some of the well-recognised
exceptions are where (i) courts below have
ignored material evidence or acted on no
evidence; (ii) courts have drawn wrong inferences
from proved facts by applying the law
erroneously; or (iii) courts have wrongly cast
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the burden of proof; further held that 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.
7. The suit, which was filed by the
plaintiff as a 'Karta' of Hindu undivided family
against three of the defendants, wherein one
defendant is the vendor of the sale deed dated
13.04.1978. The sale deed was produced on record
at Exh.45. Advocate Mr. Gandhi submitted that the
trial Court failed to distinguish that the
certified copy produced was one, which was
registered before the sub-registrar as
Registration No.325 of sub-registrar, Vyara.
7.1 Having referred to the observation of
the trial Court, the appellate Court has
considered the document at Exh.45 as valid in
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view of the fact that during the course of
evidence, the original sale deed was in the hands
of the plaintiff as a witness, and the document
was certified by Notary from the original.
Considering the Notary Act, which gives the power
to a Notary to certify a document, the learned
appellate Court after having considered the
provision of section 74(2) of the Indian Evidence
Act, observed the same to be public document and
certified before a Notary, has considered that
the same can be read in evidence in view of the
provision of sections 63 and 65(e) of the Indian
Evidence Act. Thus, the dispute of the defendants
does not stand valid. Over and above the fact,
the proceeding before the Deputy Collector in
case No.Jaman/73AA (3) 125/95 132/95,
Fathesinhbhai Gamit, the father of the plaintiff
was shown as a 'Kabjedar' that means in
possession of the property, where the proceeding
was initiated observing that the sale deed would
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not be valid considered it to be a restricted
sale under section 73AA of the Gujarat Land
Revenue Code, 1879. But the learned Deputy
Collector having considered the provision of law
and the change entry in the revenue records, had
not found the same to be hit by the provision of
section 73AA by observing in the operative order
that the sale deed was registered prior to the
provision of section 73AA, hence, the notice was
withdrawn and the proceedings were closed.
7.2 The name of Manuben widow of Babubhai
Govindbhai Gamit was in the revenue record, and
the sale deed which has been executed in favour
of Fatehsingh Samantbhai Gamit, father of the
plaintiff, was by (1) Manuben widow of Babubhai
Govindbhai Gamit, (2) Ramuben Babubhai Gamit, (3)
Padmaben Babubhai Gamit, (3) Vinuben Babubhai
Gamit and (4) Manuben Babubhai Gamit as the
guardian of Faluben Babubhai and Fulsinh
Babhubhai. The recital in the sale deed itself
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suggests that the possession was handed over to
the father of the plaintiff. The revenue entry at
the relevant time was passed noting the name of
father, Fatehsingh Gamit, but since the
proceedings came to be initiated considering to
be restricted land, the name of father got
vacated; however, it appears that further
proceedings for entering the name of the
plaintiff was not initiated and the bracket was
required to be removed; however, the fact remains
that title was passed by the sale deed, since
there was no restrictions on the sale.
7.3 The plaintiff had filed the suit
referring to the sale deed, and also stating that
his family from the year 1978 was taking the
and 1070 were recorded, but because of the
consolidation proceeding the Entry Nos.816 and
927 were cancelled. The defence was raised by the
defendants of the Entry No.694 for partition, and
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also of the case of delay and latches and non-
joinder of parties. Further, the trial Court had
also raised an issue to consider as to whether
the sale deed in favour of the father was false,
bogus and got up. The trial Court answered issue
nos.1, 2, 3 and 4 in negative, and also answered
issue no.5 in negative, wherein the burden was on
the defendants; while issue nos.6 and 7 were
answered in affirmative. It requires to be noted
that the plea of defendants that the sale deed in
favour of the father of the plaintiff urged to be
false, bogus and forged, was answered in
negative. Hence, the defendants could not prove
before the trial Court, of the sale deed, to be
false, bogus and forged.
7.4 The appellate Court while considering
all the issues raised by the trial Court at
Exh.33, has dealt with the arguments and
judgments relied upon to consider whether the
trial Court judgment was erroneous, and whether
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the interference of the appellate Court was
necessary. Answering the point of determination
in affirmative, the appellate Court has referred
to the sale deed dated 13.04.1978, and has also
referred to the cross examination considering the
title of the plaintiff in accordance to the
provisions of section 54 of the Transfer of
Property Act. The document, Exh.45 being
notarized, which is considered to be a legal
document, observing the fact that the original
was brought before the Court, and, thereafter the
notarized true copy was produced on record.
7.5 The fact of the sale deed was known to
the defendants, since the proceeding before the
Deputy Collector under Case No.128/1995 and
132/1995 was between Manuben Widow of Babubhai
Govindbhai Gamit and others. Manuben had affirmed
the possession being handed over. The document
being sale deed also refers regarding possession
of the property handed over to the purchaser.
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7.6 The plea was raised by the plaintiff
before the trial Court that it was because of the
consolidation proceeding Entry Nos.816 and 927
came to be cancelled. The plea raised, was not
considered by the trial Court and the issue was
answered in negative; however, the appellate
Court, having referred to the proceeding before
the Deputy Collector and considering the position
of law that section 73AA came in force on
01.02.1981, and on the observation of Deputy
Collector that the sale deed is not barred by the
provision of law, has believed the proceedings
and the opinion expressed under section 51 of the
Evidence Act of the quasi judicial authority. The
appellate Court has rightly expressed that it was
very strange of the trial Court not believing the
opinion expressed by the authority, and
thereafter the appellate Court views with regard
to Entry No.927. Entry No.816 drawn on
29.07.1979, bears the observation of the notice
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being served to the original land owner on
15.07.1980, and the same entry also reflects the
fact that because of the consolidation
proceeding, it was cancelled. Thereafter,
proceedings were initiated for Entry No.927 on
the basis of the sale deed, which also came to be
cancelled with an endorsement of 'land
consolidation proceedings'; thus, the appellate
Court has rightly observed that both the entries
being Entry No.816 and Entry No.927 were not
certified because of the consolidation
proceedings.
8. The plaintiff holds the land on the
basis of the sale deed. The Deputy Collector has
opined that it was not barred by the provision of
section 73AA of the Gujarat Tenancy Act, since
the sale deed was prior to the section coming
into force; further the possession of the land
being handed over to the plaintiff's father was
admitted by Manuben widow of Babubhai Govindbhai
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Gamit. Defendant no.1 is also one of the
signatory as a vendor to the suit property. She
had the knowledge of execution and registration
of the sale deed before the sub-registrar, Vyara.
The sale deed was not challenged within
limitation period of three years, if at all, they
had any objection to the title or execution.
Further, the suit of the plaintiff as 'Karta' of
the HUF would be maintainable, as he has his
mother in the family, and the land would have
been considered as HUF property after the death
of the father. The suit also cannot be considered
as barred by limitation, since the defendants had
raised a dispute, which became the cause.
9. In view of the same, this Court does not
find any reason to set aside the observations of
the appellate Court having found that the
observations of the trial Court were erroneous
and not in accordance to the provisions of law.
This Court has not found any material to raise
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any substantial questions of law, as being an
owner of the property, by virtue of the sale
deed, the plaintiff has a right to protect the
same. This Court does not find any reason to show
any indulgence in the Second Appeal, hence, the
same stands rejected.
(GITA GOPI,J)
Pankaj
