Gujarat High Court

Patel Gordhanbha Ambalal vs Decd. Harijan (Chamar) Nanjibhai ... on 26 June, 2024

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       C/SA/274/2019                                        ORDER DATED: 26/06/2024

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             IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                       R/SECOND APPEAL NO. 274 of 2019

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                 PATEL GORDHANBHA AMBALAL
                           Versus
       DECD. HARIJAN (CHAMAR) NANJIBHAI GALABHAI & ORS.
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Appearance:
MR. KALRAV R PATEL(7041) for the Appellant(s) No. 1
MR ANVESH V VYAS(5654) for the Respondent(s) No. 2
MR AM BHATASARA(5846) for the Respondent(s) No. 2
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 CORAM:HONOURABLE MR. JUSTICE SANDEEP N. BHATT

                                Date : 26/06/2024

                                  ORAL ORDER

1. This Second Appeal is filed challenging the

judgment and order dated 20.7.2015 passed in Regular Civil

Appeal No.50 of 2011 passed by the Principal District Judge,

at Patan Dist Patan an judgment and order dated 30.8.2011

passed in Regular Civil Suit No.2 of 2005 passed by learned

Principal Civil Judge, Harij, District Patan.

2. Actually, this second appeal was filed in the year

2015 along with condonation of delay application. After the

delay was condoned, the appeal was numbered and registered

in the year 2019. Thereafter, the matter is adjourned from

time to time for about 15 times without any effective

hearing, as is transpired from the proceedings of the appeal.

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3. The brief facts leading to filing of this second

appeal are such that the appellant purchased the suit land

being a land bearing survey no.553 paiki situated at mouje

Vansa Taluka Harij by way of an agreement to sale dated

14.3.1995 for a consideration of Rs.26,400/- and the said sale

consideration was paid to the defendant nos.1 and 2 and the

defendants had handed over the possession of the suit land

to the appellant at the time of executing the agreement to

sale; that though the defendant nos.1 and 2 were under

obligation to get the registered sale deed executed in plaintiff

and the plaintiff had, from 1995 to 2004, time and again

requested the defendant nos.1 and 2 to get the sale deed

executed, however, as the same was not done, the plaintiff

gave legal notice dated 21.10.2004. However, instead of

complying with the said notice, the plaintiff was dispossessed

from the suit land.

4. The plaintiff-appellant had preferred Regular Civil

Suit No.2 of 2005 before the learned Principal Civil Judge,

Harij, District Patan, however, the said suit was rejected by

judgment and decree dated 30.8.2011. The said judgment was

challenged in Regular Civil Appeal No.50 of 2011 before the

Principal District Judge, Patan, which also came to be

rejected vide order dated 20.7.2015.

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5. Heard learned advocate for the appellant. He

submitted that both the Courts below have failed to

appreciate Section 53A of the Transfer of Property Act and

Sections 17 and 18 of the Registration Act in its true

perspective and the impugned judgments are based on

misappreciation of the facts of the case and also

misconstruing the legal provisions. He submitted that the

learned lower appellate Court has also failed to appreciate

the Article 54 of the Limitation Act whereby it is observed

that the limitation period of three years to be reckoned from

the date on which the agreement to sale is executed however,

such an observation is contrary to Article 54 of the

Limitation Act. He submitted that the learned lower appellate

Court has relied upon Section 53A of the Transfer of

Property Act in substance of their finding that the suit is

not for specific performance however, Section 53A of the

Transfer of Property Act does not prescribe any class or kind

of suits but it merely protects the transferee of land. He also

submitted that the learned courts below have not properly

considered the aspect that the plaintiff was ready and willing

to perform his part of contract. He, therefore, submitted that

the appeal is required to be considered on the following

substantial questions of law.

"1. Whether the ld. Trial court and lower appellate court

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have failed to take into consideration the proviso of section 49 of registration act which provides that the an unregistered agreement to sale can be take as a evidence in a suit for a specific performance.

2. Whether the ld.Judge has failed to appreciate section 53A of Transfer of Property Act and distinguished the suit for specific performance under specific relief act from the suit under section 53A.

3. Whether the observation of the ld.Judge that limitation period for a suit of specific performance is to be reckoned from the day on which the said agreement to sale is executed is contrary to art.54 of the Limitation Act.

4. Whether ld.Lower appellate court had framed proper issues/points for determination or the same was merely a repetition of issues framed by ld.trial court.

5.Whether both the courts below have failed in appreciating the true and correct nature of the document."

6. Learned advocate Mr.Vyas appeared for the

respondents in the delay condonation application, pursuant to

the notice issued in the application for condonation of delay.

Today, he does not have any papers to make submissions in

this second appeal.

7. Considering the record available with this court

and considering the fact that the matter is pending since

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2015 by challenging the order of the lower appellate Court

passed in the year 2015, the matter is taken up for final

consideration.

8. It transpires that both the courts below have

concurrently held against the present appellant. That both

the courts below have come to the conclusion that the suit

itself is not maintainable under the various provisions of law.

There is no mention in the agreement to sale about the

period of limitation. While perusing Exh.25 agreement, it

transpires that the agreement is executed on 24.3.1995. The

courts have specifically found that pursuant to Section 14(D)

of the Specific Relief Act, such agreements are not required

to be considered for specific performance.

9. Considering the nature of the land in question

which is new tenure land, the provisions of Section 43A with

Section 64 of the Gujarat Tenancy Act and considering the

recent judgment of Full Bench of this Court in Second

Appeal No.208 of 2021, whereby it is held that such suit

itself not maintainable pursuant to the said agreement which

is executed for the new tenure land, and the judgment of

Division Bench of this Court in First Appeal No.1556 of

2021, the present appeal is not required to be considered.

The judgments passed by the learned Courts below are

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passed after considering various documentary and oral

evidence adduced by the parties. The courts have also

appreciated the various legal provisions in context of the

material available on the record and I find no apparent error

or perversity or illegality in the findings given by the learned

Courts below which are concurrent in nature.

10. It is fruitful to refer the judgment in the case of

Gurbachan Singh (Dead) Through Lrs Gurcharan Singh

(Dead) Through Lrs and Others.reported in 2023 SCC Online

SC 875 paragraphs 7, 14 and 15 which are reproduced 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. Kamala (2- Judge Bench), it was observed:--

"27. In HeroVinoth v. Seshammal [HeroVinoth v. Seshammal, (2006) 5 SCC 545], this Court referred to

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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 OnLine PC 31 : (1927-28) 55 IA 235 : AIR 1928 PC 172] the phrase "substantial question of law" as it was

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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 substantial question of law.'

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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 judgment 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."

15. A Bench of three learned Judges, recently in

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Balasubramanian v. M. Arockiasamy (Dead) Through LRs. , had referred to, with approval judgment rendered in Ramathal v. Maruthathal (two-Judge 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"