Gujarat High Court

Subhashbhai Raijibhai Patel vs Patel Maganbhai Bapujibhai on 28 June, 2024

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     C/SA/123/2023                               JUDGMENT DATED: 28/06/2024

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         IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                  R/SECOND APPEAL NO. 123 of 2023
                                With
             CIVIL APPLICATION (FOR STAY) NO. 1 of 2023
                 In R/SECOND APPEAL NO. 123 of 2023

FOR APPROVAL AND SIGNATURE:

HONOURABLE MR. JUSTICE J. C. DOSHI
==============================================================
 1 Whether Reporters of Local Papers may be allowed to                    No
   see the judgment ?

 2 To be referred to the Reporter or not ?                                No

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

==============================================================
                        SUBHASHBHAI RAIJIBHAI PATEL
                                  Versus
                     PATEL MAGANBHAI BAPUJIBHAI & ANR.
==============================================================
Appearance:
MR PK PANCHOLI(532) for the Appellant(s) No. 1
for the Respondent(s) No. 1,2
==============================================================

 CORAM:HONOURABLE MR. JUSTICE J. C. DOSHI

                             Date : 28/06/2024
                             ORAL JUDGMENT

1. Admission of the second appeal under Section 100 of the Code of Civil Procedure, 1908 (for short 'CPC') has been prayed by the appellant by framing following questions of law :

"(i) Whether the first appellate court has erred in not appreciating the evidence procedure by the

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present appellant in its true spirit while passing impugned order?

(ii) Whether learned first appellate court has erred in not considering the revenue records, registered sale deed and provisions regarding the same?

(iii) Whether learned first appellate court has erred in passing impugned order and confirming the judgment and decree passed by the court in Regular Civil Suit under the provisions of CPC?"

2. Being aggrieved and dissatisfied with the concurrent finding in the judgment and decree recorded by the learned Trial Court whereby learned Principal Senior Civil Judge, Mahisagar at Lunawada dismissed Regular Civil Suit No.33 of 2003 vide order dated 22.12.2022 confirmed by the learned Principal District Judge in Regular Civil Appeal No.2 of 2023 by judgment and order dated 06.03.2023, the unsuccessful plaintiff - appellant has filed this appeal inter alia on the ground of admission of the second appeal with the above questions of law.

3. The factual matrix of the case of the appellant is as under.

3.1 It is the case of the appellant that he has purchased land bearing Survey No.224/4 admeasuring 0-30-35 Hector of village Nana Karva, Taluka Lunawada from Patel Maniben Ramjibhai before 23 years and since then he is in possession of the disputed property.

4. Heard learned advocate Mr.P.K.Pancholi appearing for the appellant. In order to admit this second appeal, he would mainly argued that learned Trial Court has committed serious error in dismissing the suit as well as confirming the said judgment

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while dismissing the appeal. He would further submit that the present appellant had purchased land of Survey No.224/4 from its erstwhile owner Maniben Patel at the sale consideration of Rs.1,33,000/- by executing registered sale deed. The possession of the land sold to the appellant was with him since last more than 20 years before the sale deed was executed. The entry was also mutated in favour of the plaintiff. Yet all these aspects have been erroneously ignored by the learned Trial Court. The evidence on record i.e. the deposition of the plaintiff (Exhibit-65) and three other witnesses (Exhibit-188, Exhibit-195 and Exhibit- 202, respectively) are ignored. So also the copy of the registered sale deed produced at Exhibit-101 and the relevant revenue entries produced at Exhibit-121 to 126. He would further submit that learned Trial Court erroneously believed that prior to selling of the disputed land in favour of the appellant, it was partitioned amongst two owners, namely Maniben and Dhuliben and the disputed land fell in the share of Dhuliben and it was sold by registered sale deed to the defendant. He would further submit that the sale deed on record proves the sale of the disputed land in favour of the plaintiff - appellant. The definition of the sale in Section 54 of the Transfer of Properties Act has not been properly construed by the learned Courts below. It is not necessity that sale consideration should be a part of every sale but learned Trial Court jumped to some erroneous conclusion to believe that since sale consideration is not mentioned in the sale deed, sale could not be believed to be executed in favour of the appellant and pursuant to which the appellant has obtained the possession of the disputed land. In nutshell, it is argued that the learned Trial Court has committed serious error in disbelieving the case of the plaintiff. The error has been transcended as the

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First Appellate Court instead of reassessing the evidence on record just reproduced the finding arrived at by the learned Trial Court to dismiss the appeal.

4.1 In view of the above submissions, learned advocate Mr.Pancholi submits to admit this second appeal.

5. Learned Trial Court went in trial with the following issues :

"1. Whether the plaintiff proves that the suit property is independently owned and possessed by him?

2. Whether the plaintiff proves that the defendant does not have any right, title or interest in the suit property?

3. Whether the defendant proves that the plaintiff does not have any right or authority to file the present suit?

4. Whether the plaintiff is entitled for the reliefs claimed?

5. What order and decree?"

6. All the issues are answered in negative to dismiss the suit. The first issue was to the cause of action pleaded by the plaintiff. The plaintiff came out with the case that he is the owner and occupier of the disputed land. His possession is fallen from the title acquired through registered sale deed and therefore, his possession may not be disturbed without due process of law. The legal maxim 'actori incumbit onus probandi' means the burden is lying upon the plaintiff to prove the facts he has ascertained in the plaint. As stated hereinabove, the plaintiff along with three other witnesses entered into witness-box to discharge the burden. The evidentiary value of the oral deposition of the

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plaintiff's witnesses are discussed by the learned Trial Court in its judgment, more particularly in para 11.1 to 11.3. They have no personal knowledge and therefore their depositions were discarded and according to this Court, it was rightly discarded by the learned Trial Court.

7. The sale deed upon which the plaintiff claims relief to protect his possession is produced at Exhibit-101. The seller is Maniben and according to this sale deed, sale consideration of Rs.1,33,000/- was paid. The date of the sale deed is 25.12.2000 and it was registered at Serial No.1142. In context of this sale deed, if we analyze the other evidence on record at Exhibit-226 and 227, the Will of the deceased Maniben and family settlement executed between the Maniben Ramjibhai and Dhuliben Ramjibhai, two sisters is produced at Exhibit-227. The sale deed in favour of the defendant is dated 25.10.2000 is placed on record at Exhibit-244. Learned Trial Court has evaluated the evidence on record to believe that the sale deed in favour of the defendant at Exhibit-244 was executed prior in point of time and prior to that the Will was executed as well as family settlement was executed respectively at Exhibit-226 and 227. In Exhibit- 244 of the sale deed executed in favour of the defendant on page No.11 and 12 it is mentioned that the effect of the family settlement and the partition between two co-owners are mentioned. Also the mention of Will of the Dhuliben is also there. The important aspect is that as a witness the plaintiff has also made his signature upon the sale deed and subsequently, the plaintiff himself got executed this sale deed. So plaintiff was knowing fully well prior to execution of the sale deed is in favour of that sale deed of the disputed property is already executed in

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favour of the defendant and prior to that partition took place by way of family settlement as well as Will of Dhuliben was also executed. Thus, the learned Trial Court believes that the sale deed in favour of the plaintiff is an eyewash to the sale deed in favour of the defendant. The plaintiff tried to overreach the sale which was executed in favour of the defendant and has been perfected also given the effect in revenue entry. The finding has been again tested by the learned Trial Court on the touchstone of Order 41 Rule 31 of CPC by framing the point of determination and by giving separate reasons. After reanalyzing the evidence on record, learned Trial Court examined this issue to confirm the impugned order.

8. Learned advocate Mr.Pancholi could not point out any illegality in the concurrent finding arrived at by the learned Courts below. Some other defect in the suit is also recorded by the learned Trial Court that the plaintiff has not averred the description of the property sufficient to identify etc.

9. Thus, in view of the concurrent finding of fact as recorded by both the Courts below regarding title and possession of the disputed property, this Court is of the considered view that there is no apparent error which has been apparently committed by the both the Courts below in accordance with the finding finding for refusal of the grant of decree of permanent injunction as plaintiff has not been able to prove the undisputed title in respect of the disputed property. Learned Trial Court has properly evaluated the evidence. The First Appellate Court has addressed the issue, re-scanned the evidence and confirmed the finding of the learned Trial Court.

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10. At this juncture, I may refer to the judgment of Hon'ble Supreme Court in the case of Laliteshwar Prasad Singh vs. S.P.Srivastava (D) - 2017 (2) SCC 415, wherein the Hon'ble Supreme Court has held as under :

"13. The points which arise for determination by a court of first appeal must cover all important questions involved in the case and they should not be general and vague. Even though the appellate court would be justified in taking a different view on question of fact that should be done after adverting to the reasons given by the trial judge in arriving at the finding in question. When appellate court agrees with the views of the trial court on evidence, it need not restate effect of evidence or reiterate reasons given by trial court; expression of general agreement with reasons given by trial court would ordinarily suffice. However, when the first appellate court reverses the findings of the trial court, it must record the findings in clear terms explaining how the reasonings of the trial court is erroneous."

11. The question of law framed by the appellant herein however failed to catch the phrase 'substantial' appearing in Section 100 of CPC, which is explained by the Hon'ble Supreme Court in the case of Gurbachan Singh (Dead) Through Lrs. Vs. Gurcharan Singh (Dead) through Lrs. and others - 2023 (0) INSC 639, by observing 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, (2020) 19 SCC 57( 2 Judge Bench), it was observed:

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"27. In HeroVinoth v. Seshammal [HeroVinoth v.

Seshammal, (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 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

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& 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.'

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)"

12. The second appeal is, therefore, devoid of merits. No substantial question of law is found in the second appeal. Hence, the second appeal stands dismissed at admission stage. Record and proceedings, if any, be sent back to the concerned Court. Interim relief, if any, to discontinue. Connected Civil Application, if any, also stands disposed of.