Valbai Devshi Vishram Hirani Throug Poa ... vs Bhupendra Hirji Gangar
2024 Latest Caselaw 4543 Guj

Gujarat High Court

Valbai Devshi Vishram Hirani Throug Poa ... vs Bhupendra Hirji Gangar on 10 June, 2024

                                                                                  NEUTRAL CITATION




      C/SA/230/2024                              JUDGMENT DATED: 10/06/2024

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          IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                      R/SECOND APPEAL NO. 230 of 2024


FOR APPROVAL AND SIGNATURE:


HONOURABLE MR. JUSTICE J. C. DOSHI

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1     Whether Reporters of Local Papers may be allowed                 No
      to see the judgment ?

2     To be referred to the Reporter or not ?                          No

3     Whether their Lordships wish to see the fair copy of             No
      the judgment ?

4     Whether this case involves a substantial question of             No
      law as to the interpretation of the Constitution of
      India or any order made thereunder ?

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VALBAI DEVSHI VISHRAM HIRANI THROUG POA DEVSHI VISHRAM
                         HIRANI
                         Versus
            BHUPENDRA HIRJI GANGAR & ORS.
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Appearance:
MR JIGAR R SONI(8596) for the Appellant(s) No. 1
for the Respondent(s) No. 1,2,3,4
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    CORAM:HONOURABLE MR. JUSTICE J. C. DOSHI

                             Date : 10/06/2024
                             ORAL JUDGMENT

1. This Second Appeal under Section 100 of Code of Civil Procedure, 1908 (for short 'CPC') has been preferred assailing the concurrent findings of the Courts below whereunder in Regular Civil Suit No.28 of 2016 in judgment and decree dated

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12.05.2022, learned Additional Civil Judge, Mandvi at Kutch dismissed the suit of the plaintiff. The first appeal under Section 96 being Regular Civil Suit No.49 of 2022 by order dated 01.04.2024 is also dismissed. Hence, this second appeal.

2. The brief facts leading to filing of this appeal can be ascertained from the pleadings as under :

2.1 The appellant - original appellant/plaintiff in Regular Civil Suit No.28 of 2016 had prayed for declaration of ownership of agricultural land at Godhara bearing Revenue Survey No.266 and also prayed for temporary and permanent injunction to restrict the respondents - original defendants from encroaching and taking away possession of the above stated land bearing Survey No.266 of village Godhara, Taluka Mandvi, District Kutch. It is the case of the appellant that the learned Courts below came to the conclusion that appellant's ownership is doubtful on the disputed land and appellant has failed to establish that she is the owner of the disputed land despite having registered Sale Deed in her favour. Hence, the present appeal.

3. Heard learned advocate Mr.Jigar Soni appearing for the appellant.

4. Learned advocate Mr.Jigar Soni would argue that both learned Courts below failed to appreciate the aspect that the plaintiff is the owner of land bearing Revenue Survey No.266 admeasuring Hectare 3.60.25 approximately, popularly known

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as Gida (for short 'disputed land') as the plaintiff has purchased the same vide registered Sale Deed dated 04.04.2024 bearing Serial No.3042 and as such the plaintiff is in legal and settled possession of the disputed land. He would further submit that both the Courts below have seriously erred in appreciating the evidence of the registered Sale Deed which ipso facto establishes that the plaintiff is the owner and is in possession of the disputed land. He would further submit that since the petitioner is in settled and legal possession, in view of the judgment of the Hon'ble Supreme Court in case of Subramaniaswamy Temple, Ratnagiri vs V. Kanna Goundar (Dead) By Lrs, Civil Appeal No.7135-7136 of 2000, order dated 14.05.2008, in the absence of proof of better title between two contesting party, possession or prior peaceful settled possession is itself an evidence of title. It is the settled possession or effective possession of a person without title which would entitle him to protect his possession even as against the true owner. He would further submit that there is substantial question of law in the matter. Learned Courts below have ignored the very aspect of registered Sale Deed and its evidentiary value which indicates that the plaintiff was in possession of the disputed property and his possession was sufficient to get relief prayed before the learned Trial Court. He would further submit that even the revenue entry No.3803 was also mutated in favour of the plaintiff pursuant to registered Sale Deed at Exhibit-49 and in view of that learned Courts below have committed serious error in denying the relief prayed by the plaintiff. Upon above submissions, he would submit to admit the present second appeal.

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5. Having heard learned advocate for the petitioner, at the outset, what is required to mark the scope of Section 100 of the CPC.

6. The Hon'ble Privy Council in Pertap Chunder Ghose v. Mohandranath Purkait [ILR (1890) 17 Calcutta 291], observed that the limitation as to the power of the court imposed by sections 100 and 101 in a second appeal ought to be attended to, and an appellant ought not to be allowed to question the finding of the first appellate court upon a matter of fact. Above is the judgment prior to amendment in CPC circumscribing the scope of Section 100 i.e. second appeal.

7. The Amendment Act of 1976 has introduced radical change in the scope and ambit of Section 100 of CPC. A second appeal under Section 100 is now confined to case where question of law is involved and such question must be substantial one. Section 100 of the CPC as amended reads as under :

"100. Second Appeal:

(1) Save as otherwise expressly provided in the body of this Code or by any other law for the time being in force, an appeal shall lie to the High Court from every decree passed in appeal by any Court subordinate to the High Court, if the High Court is satisfied that the case involves a substantial question of law.

(2) An appeal may lie under this section from an appellate decree passed ex parte.

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(3) In an appeal under this section, the memorandum of appeal shall precisely state the substantial question of law involved in the appeal.

(4) Where the High Court is satisfied that a substantial question of law is involved in any case, it shall formulate that question.

(5) The appeal shall be heard on the question so formulated and the respondent shall, at the hearing of the appeal, be allowed to argue that the case does not involve such question:

Provided that nothing in this sub-section shall be deemed to take away or abridge the power of the court to hear, for reasons to be recorded, the appeal on any other substantial question of law, not formulated by it, if it is satisfied that the case involves such question."

8. The Hon'ble Supreme Court in Dnyanoba Bhaurao Shemade vs. Maroti Bhaurao Marnor - 1999 (2) SCC 471, stated that High Court can exercise its jurisdiction under Section 100 of CPC on the basis of substantial questions of law which are to be framed at the time of admission of the second appeal and the second appeal has to be heard and decided only on the basis of such duly framed substantial questions of law.

9. In Kanai Lal Garari vs. Murari Ganguly- 1999 (6) SCC 35, Hon'ble Supreme Court has observed that it is mandatory to formulate substantial question of law while entertaining the appeal in absence of which the judgment is to be set aside.

10. In Thiagarajan Vs. Venugopalaswamy B. Koli - 2004 (5) SCC 762, the Hon'ble Supreme Court has held that High Court

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in its jurisdiction under Section 100 CPC was not justified in interfering with the finding of facts. The Hon'ble Apex Court observed that to say the least the approach of the High Court was not proper. It is the obligation of the Court to further the clear intendment of the legislature and not frustrate it by excluding the same. The Hon'ble Supreme Court in catena of decisions held that the finding of fact by the lower Appellate Court are based on evidence, the High Court in second appeal cannot substitute its own finding on reappreciation of evidence merely on the ground that another view was possible.

11. In Narayanan Rajendran and another vs. Lekshmy Sarojini and others - 2009 (5) SCC 264, the Hon'ble Supreme Court after referring the catena of decisions on the scope of Section 100 of CPC, delivered pre-amendment and post amendment held and observed following :

"The scope of interference by the High Court in second appeal under section 100 CPC after 1976 Amendment has been drastically changed and is strictly confined to cases involving substantial questions of law. The legislative intention has been clearly spelt out in a series of cases of the Supreme Court. The High Court would not be justified in dealing with any second appeal without first formulating substantial question of law."

(Paras 41 and 40)

12. Coming back to the case on hand, first of all is to be noted that the appellant while preferring the second appeal has not framed any substantial question of law. Only grounds are mentioned. Secondly, the learned advocate appearing for the petitioner could not argue to frame any substantial question of law.

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13. If we take the case of the plaintiff, it is based upon the factual foundation that the petitioner has purchased the disputed property vide registered Sale Deed bearing No.3042 dated 04.04.2004 and since then he is owner and occupier and is in settled possession of the disputed land. The defendants are claiming to disturb their possession and therefore he seeks relief for declaration and permanent injunction. Learned Court below framed as many as nine issues vide Exhibit-16 and answer all of them against the plaintiff to negate the relief. In first appeal the Appellate Court has also point of determination at Exhibit-31. They read as under :

"1. Whether appellant is able to show that trial court has made error in evaluation of evidence filed before trial court?

2. Whether appellant is able to show that trial court has made error in the application of law relating to subject matter?

3. Is there any mistake in the finding given by the trial court on the issues framed by it?

4. Whether appellant is able to show that the order and decree passed in RCS No.28/2016 on Dtd. 12/5/2022 is wrong, illegal and perverse in the eyes of law?

5. What is order?"

14. In necessary compliance of Order XXXXI Rule 31 of CPC and Order XXXXI Rule 33 of CPC, learned Appellate Court after reappreciation of the evidence on record noted the finding that the said Sale Deed upon which the plaintiff appellant relied upon is executed by Laxmiben Palan who was not absolute owner of

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the suit property but was joint owner with seven other persons and therefore the Laxmiben Palan had no right to execute the Sale Deed in favour of the plaintiff. The other seven owners of the disputed property have not signed or executed Sale Deed in favour of the plaintiff. So plaintiff cannot claim that he is the purchaser of the disputed property. It also comes on record that the petitioner has purchased the disputed property through power of attorney holder of Laxmiben Palan but during the recording of evidence before the learned Trial Court, the power of attorney did not surface. The power of attorney holder who sold the land to the plaintiff is the husband of the plaintiff and he also deposed on behalf of the plaintiff, meaning thereby that the plaintiff did not come to the witness box and discharged the burden. The deposition of the power of attorney is there without the deed of power of attorney and oral power of attorney cannot depose more than what he is being permitted and what personal knowledge he has.

15. In para 23 of the judgment, learned Appellate Judge has recorded the defects in the case of the plaintiff which runs against the plaintiff :

"A. The suit is alleged the possession from year 2004 after execution of registered sale deed. B. Alleged sale deed was executed by POA of one owners.

C. Property was on the name of seven person at the time of alleged execution of registered sale deed. D. Suit was filed for the declaration of ownership. E. The alleged owner whose names are running on government record is not joined as the party.

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F. The alleged power of attorney through which the alleged transaction was caused, is not produced in evidence.

G. The alleged power of attorney holder has deposed as plaintiff in the suit."

16. Learned advocate has failed to demonstrate any illegality in the finding or perversity in the finding of the learned Appellate Court which has confirmed the judgment and decree of the learned Trial Court. In nutshell, the appellant is failed to point out any involvement of the substantial questions of law in this appeal.

17. By producing the application at Exhibit-37 under Order XXXXI Rule 37 CPC before the learned Appellate Court, the appellant tried to produce the same additional evidence on record but he failed to meet with the necessity of procedure laid down in Order XXXXI Rule 27 of the CPC. Even otherwise, those documents were found to be ontrary to the pleadings of the plaintiff. This evidence was for the purpose of ensuring that the plaintiff was in possession of the disputed property since 1993, whereas the pleading of the plaintiff was indicating that he is in possession of the disputed property since 2004. In nutshell, the appellant has failed to demonstrate any substantial question of law. It is one more dice in the gamble. Thus, the second appeal deserves to be dismissed at the admission stage and accordingly, it is dismissed. Interim application, if any, also stands dismissed.

(J. C. DOSHI, J) GAURAV J THAKER