Gujarat High Court
Batukbhai Lavabhai Solanki vs Pathan Roshanben Alibhai on 4 April, 2025
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C/SA/82/2025 ORDER DATED: 04/04/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SECOND APPEAL NO. 82 of 2025
With
CIVIL APPLICATION (FOR STAY) NO. 1 of 2025
In R/SECOND APPEAL NO. 82 of 2025
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BATUKBHAI LAVABHAI SOLANKI
Versus
PATHAN ROSHANBEN ALIBHAI & ORS.
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Appearance:
MR PARTH S TOLIA(5617) for the Appellant(s) No. 1
SHIRISHCHANDRA B TOLIA(8163) for the Appellant(s) No. 1
MR DAXESH D BAROT(13149) for the Respondent(s) No. 1,3
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CORAM:HONOURABLE MR.JUSTICE SANJEEV J.THAKER
Date : 04/04/2025
ORAL ORDER
1. The present Second Appeal has been filed under Section
100 of the Civil Procedure Code, being aggrieved by the
judgment and decree dated 22.01.2025 in Regular Civil
Appeal No. 32 of 2022 passed by the learned Principal District
Judge, Amreli as well as judgment and decree dated
10.04.2018 passed by learned Principal Senior Civil Judge,
Amreli in Regular Civil Suit No. 55 of 2010.
2. For the sake of convenience, the parties are referred to
as per their original status i.e. the appellant is referred as
original defendant no.2 and respondent no.1 as original-
plaintiff whereas respondent no.2 to 4 as in the said suit
before the trial Court.
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3. The brief facts arising in the second appeal are that the
plaintiff had filed civil suit, seeking declaration to hold the
registered sale deed dated 02.02.2009, is null and void and it
is alleged that the father of the plaintiff and defendant no.3
have been granted the suit property and after the death of the
father of plaintiff the suit land has been mutated in the name
of plaintiff and defendant no.3 and they came to be an
absolute joint owners of the suit property and are in a
possession of the said suit property.
4. In the said suit, the plaintiff alleged that defendant no.1
being the cousin of the plaintiff, the plaintiff and defendant
no.3 being illiterate, the defendant no.1, took disadvantage of
the said fact and got the signatures of plaintiff and defendant
no.3 in blank papers under the pretext that there is need to
pay revenue tax for which their signatures are required and
the plaintiff and defendant no.3 having trust on defendant
no.1, they made their thumb impression on the blank paper
and pursuant to the said thumb impression, the defendant
no.1, got a bogus Power of Attorney executed. As soon as the
plaintiff came to know about the same that the defendant
no.1's intention is to deprive the plaintiff and defendant no.3
from their valuable right in the suit property, the plaintiff
issued a public notice dated 17.06.1998, which is produced
vide Exh.58, thereby cancelling the said Power of Attorney
and informed the public at large about the said fact and also
informed that if any transaction has taken place pursuant to
the said fraudulent Power of Attorney the same may be
treated as null and void and not binding on them.
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5. The plaintiff alleged that on the basis of the said
fraudulent Power of Attorney, the defendant no.1 has
borrowed the crop mortgage loan of Rs.60,000/-, from Amreli
Jilla Madhyashth Sahkari Bank, Vankiya Branch, thereby
defendant no.1 has created a debt over the suit land and the
said fact was not in knowledge of the plaintiff and that the
plaintiff has not used the said amount for personal purpose
and therefore, as and when the said fact came in knowledge of
the plaintiff, a notice dated 17.06.1998, which is produced
Exh.58. was issued.
6. The advocate of the plaintiff has issued a legal notice
dated 17.06.1998, which is produced vide Exh. 59, to the
Manager of Amreli Jilla Madhyashth Sahkari Bank. The
plaintiff also apprehended that misusing the said Power of
Attorney, the defendant no.1 may also execute a sale deed and
or any other document and therefore a written objection was
also filed by the plaintiff before the Mamlatdar, Amreli on
03.01.2009, which is produced vide Exh.60. Thereafter, the
defendant no.1 executed a registered sale deed dated
02.02.2009 on the basis of the alleged Power of Attorney in
favour of defendant no.2. The plaintiff submitted a criminal
complaint before the Chief Judicial Magistrate, Amreli, and
also filed Regular Civil Suit No. 55 of 2010 challenging the
said sale deed executed on 02.02.2009 and for a declaration
to declare the plaintiff to be the absolute owner of the suit
land and that the defendant nos.1 and 2 have no right in the
suit property for an injunction restraining the defendants with
respect to the suit property.
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7. In the said suit, the issues were framed vide Exh. 24, the
plaintiff examined himself vide Exh. 27 and the witness of
plaintiff examined vide Exh. 45. The defendants did not enter
the witness box and examined themselves.
8. After going through the documentary evidence, oral
evidence and going through all the evidence and given
findings on all issues framed by the trial Court, the trial Court
allowed the said suit. Being aggrieved by the impugned
judgment and decree passed in RCS no. 55 of 2010 dated
10.04.2018, the defendant no. 2 filed the Regular Civil Appeal
no. 32 of 2022 and after re-appreciating the findings on each
fact, the first Appellate Court dismissed the said appeal and
hence this Second Appeal.
9. Learned advocate for defendant no.2, has mainly argued
that the plaintiffs' have never informed the defendant no.2
about the fact of challenge of the said Power of Attorney
dated 31.03.1998. It is the case of defendant no.2 that the
said Power of Attorney has been executed by the plaintiffs and
defendant no.3 and the plaintiff could not have challenged the
said sale deed and the Power of Attorney.
9.1 The learned advocate for defendant no.2 has also argued
that the defendant no.2 is the bonafide purchaser of the suit
property and there was no intimation given by the plaintiff
about the the cancellation of Power of Attorney and or the
said Power of Attorney is forged and fraudulent document.
Learned advocate for defendant no.2 has further argued that
just looking at the contents of Power of Attorney, which has
been executed on 31.03.1998, it is very clear that the
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defendant no.1 had powers to execute the sale deed in favour
of a third party for and on behalf of plaintiff and defendant
no.3.
9.2 Learned advocate for defendant no.2 has also argued
that the sale consideration is also paid to the plaintiff and
defendant no.3 and the documentary evidence to support the
same were also produced on record before the trial Court, the
trial Court and the First Appellate Court have not appreciated
the evidence. It has also been argued that the trial Court has
wrongly held that the plaintiff and defendant no.3 are the
owners are in possession of the suit land.
9.3 The learned advocate for defendant no.2 has also argued
that the trial Court and the first Appellate Court have failed to
appreciate the fact that, the suit property was purchased by
way of registered sale deed and the amount of consideration
is also mentioned in the said sale deed.
9.4 In view of the said fact, the learned advocate for
defendant no.2 has argued that there are substantial question
of law, which have been suggested in the memorandum of
appeal. Therefore, the present appeal is required to be
admitted.
10. Having heard learned advocate for the defendant no.2,
the following facts are admitted :
(i) the defendant no.2 is claiming to have purchased the
property by way of registered sale deed produced vide
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Exh.46, through a Power of Attorney dated 31.03.1998,
has been executed in favour of defendant no.1.
(ii) the plaintiff has issued a public notice dated
17.06.1998, produced vide Exh.58. By way of the said
notice the public at large has been informed that the
said the Power of Attorney is a fraudulent document.
(iii) By way of a legal notice dated 17.06.1998 vide Exh.
59, issued by the advocate for the plaintiff to the
Manager of the Bank, with respect to the fact that a
concocted Power of Attorney has been alleged to have
been executed by the plaintiff in favour of defendant
no.1.
(iv) The plaintiff has also issued a objection application
vide Exh.60, to the Mamlatdar writing their objection
with respect to the alleged Power of Attorney.
(v) the defendant no.2 has not produced any document
to show that any sale consideration has been transferred
by virtue of the said sale deed dated 02.02.2009, in
favour of either the plaintiff or defendant no.3. The
defendants have also not entered in the witness box to
examine themselves and or have examined any of their
witnesses.
10.1 The fact remains that before execution of the sale deed
dated 02.02.2009, the plaintiff had issued a public notice
dated 17.06.1998, informing the public at large of fraudulent
transaction with regard to the suit property and also
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informing the public at large that the plaintiff has not issued
the Power of Attorney in respect of the suit property.
10.2 The plaintiff has also issued a notice dated 17.06.2008
produced at Exh. 62, revoking the said Power of Attorney.
Therefore, it can be clearly established that before the
execution of the sale deed the defendant no.1 was very much
aware of the cancellation of the alleged Power of Attorney and
despite the said fact, the defendant no.1 had entered into
transaction with defendant no.2 for executing the registered
sale deed.
10.3 The fact that the plaintiff had entered in the
witnesses box and denied the fact of execution of Power of
Attorney before the Mamlatdar and has stated that as soon as
he came to know about the fraudulent Power of Attorney, she
had issued legal notice. The defendant no.1 has came with a
defence that as a Power of Attorney holder, he entered the
sale transaction and the amount was given to defendant no.3
and as the defendant no.3 was at that point of time in need of
money.
11. It is also the case of defendant no.1, that defendant
no.3 has issued a receipt, but no such receipt has been
produced and proved by the defendant no.1, before the trial
Court. Also the fact that defendant no.2 did not remain
present and did not enter the witnesses box and present
himself to be cross-examined by the plaintiff, though
opportunities were given by the trial Court and ultimately the
rights has been closed which is clearly showing that inspite of
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opportunities were given, the defendant no.2 did not examine
himself.
12. The relevant fact that the trial Court as well as the First
Appellant Court have also dealt with the fact that the suit land
is new tenure land and no sale deed could have been executed
with respect to the suit land, though admittedly the suit
property is at Survey No. 205/2, the order of converting the
land of old tenure to new tenure for revenue survey no. 205/3
has been attached with the said sale deed. The learned
advocate for defendant no.2 has stated that there was some
mistake in mentioning the revenue survey number. But the
fact is that the suit property that was sold was survey no.
205/2. The said fact has also been proved by the plaintiff by
examining the witnesses of the Clerk serving at the Sub-
Registrar office at Amreli, vide Exh. 45.
13. Therefore, on the factual aspects, the plaintiff has been
able to prove that the plaintiff's signatures were taken on
blank paper and there was no Power of Attorney executed by
the plaintiff and defendant no.3 in favour of defendant no.1.
The trial Court as well as the First Appellate Court has also
decided the factual aspects of the matter and therefore the
same cannot be interfered.
14. In the present case, the conclusion which has been
reached by both the Trial Court and the Appellate Court
cannot be interfered, as the judgment and decree of the Court
below are not perverse, arbitrary so as to warrant
interference. Moreover, as per the well settled decisions of
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this Court as well as the Hon'ble Apex Court, the Court
ordinarily will not interfere with concurrent findings of fact
except in exceptional cases where the findings are such that it
shocks the conscious of the Court or may disrespect to the
forms of legal process or some violation or some principle of
natural justice or otherwise substantial and great injustice has
been done.
14.1 It is required to be noted that in Second Appeal, the
scope is very limited and the Court cannot re-appreciate the
evidence. In the case of Navaneethammal v. Arjuna Chetty
reported in 1996 (6) SCC 177, the Hon'ble Apex Court has
observed as under:-
"11. This Court, time without number, pointed out that
interference with the concurrent findings of the courts
below by the High Court under Section 100 CPC must be
avoided unless warranted by compelling reasons. In any
case, the High Court is not expected to reappreciate the
evidence just to replace the findings of the lower
courts."
14.2 In the case of Jaichand (Dead) through Lrs and
Other v. Sahnulal and Another reported in 2024 SCC
OnLine SC 3864, the Hon'ble Apex Court has observed as
under:-
"28. It is thus clear that under Section 100 CPC, the
High Court cannot interfere with the findings of fact
arrived at by the first Appellate Court which is the final
Court of facts except in such cases where such findings
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were erroneous being contrary to the mandatory
provisions of law, or its settled position on the basis of
the pronouncement made by the Apex Court or based
upon inadmissible evidence or without evidence."
15. Under the circumstances, this Second Appeal is
devoid of any substantial question of law. Both the learned
Trial Court and first appellate Court have rightly decided the
issue between the parties in the right perspective and as
stated above no substantial question of law arises in the
present appeal. The appellants have failed to prove their case
before the learned trial Court as well as before the first
appellate Court. This Court does not find any substance in the
present Second Appeal as the same is devoid of any merit
both on facts and law and the same is dismissed at admission
stage. Accordingly, the civil application for stay does not
survives.
Further order
16. Upon pronouncement of the order, learned counsel for
the appellant requested this Court to grant a stay on the order
passed today. However, in view of the fact that no stay was
granted earlier in favour of the appellant, the said request
stands rejected.
(SANJEEV J.THAKER,J)
Radhika
