Gujarat High Court

Shantilal Bhulabhai Patel vs Bhulabhai Khemabhai Patel on 28 April, 2025

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                              C/SA/142/2022                                       JUDGMENT DATED: 28/04/2025

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                                      IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                                                 R/SECOND APPEAL NO. 142 of 2022

                                                             With
                                          CIVIL APPLICATION (FOR STAY) NO. 1 of 2022
                                              In R/SECOND APPEAL NO. 142 of 2022

                        FOR APPROVAL AND SIGNATURE:


                        HONOURABLE MR.JUSTICE SANJEEV J.THAKER

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                                     Approved for Reporting                       Yes           No
                                                                                          ✔
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                                               SHANTILAL BHULABHAI PATEL & ORS.
                                                            Versus
                                               BHULABHAI KHEMABHAI PATEL & ANR.
                        ==========================================================
                        Appearance:
                        MR PK PANCHOLI(532) for the Appellant(s) No. 1,2,3,4
                        MR SUNIL S JOSHI(2925) for the Respondent(s) No. 1,2
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                          CORAM:HONOURABLE MR.JUSTICE SANJEEV J.THAKER

                                                              Date : 28/04/2025

                                                              ORAL JUDGMENT

1. The present Second Appeal has been filed under

Section 100 of the Code of Civil Procedure, 1908. By way

of the present Second Appeal, the appellant has challenged

the judgment and decree passed by the Principal District

Judge, Mahisagar at Lunawada in Regular Civil Appeal

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No.22 of 2021 dated 03.01.2022, whereby the Principal

District Judge has confirmed the order and judgment dated

12.11.2021 passed by Senior Civil Judge, Lunawada in

Regular Civil Suit No.7 of 2020.

2. For the sake of convenience, the parties are

referred to as their original status in the suit i.e. the

appellants are referred to as the original plaintiffs and the

respondents are referred to as the original defendants.

3. The plaintiffs filed Regular Civil Suit No.7 of 2020

on the ground that the plaintiffs are the owner of the suit

property and by way of the registered sale deed dated

03.03.2011, the suit property has been sold by the

plaintiffs to the defendants and it has been stated in the

plaint that by committing fraud the defendants instead of

2 acres, the defendants have mentioned hectare 2.22.58 in

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the sale deed and therefore, it is alleged in the plaint that

by fraud the defendants have mentioned hectare 2.22.58

instead of 2 acres. It has been alleged in the plaint that

thereafter the plaintiffs and the defendants met and the

defendants informed the plaintiffs that the defendants will

not claim any right arising from the sale deed dated

03.03.2011 and it is the case of the plaintiffs that the

plaintiffs refunded the entire sale consideration and

therefore, it is alleged that the defendants do not have any

right, title or interest in the suit property and the plaintiffs

sought relief for declaration, that by virtue of registered

sale deed No.321 of 2011 dated 03.03.2011, the defendants

do not have any right, title and interest in the suit

property and the plaintiffs also sought for injunction with

respect to the suit property.

4. The defendants appeared in the said suit and filed

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application vide Exh.12, that as per the provisions of

Order VII Rule 11(a), (b) and (d) of the Code of the Civil

Procedure, on the ground that looking at the pleadings

stated in the plaint, the plaint is required to be rejected

and after going through the plaint and the documentary

evidence produced with the plaint, the trial Court, by an

order dated 12.11.2021, rejected the plaint and being

aggrieved by the said order, the plaintiffs filed Regular

Civil Appeal No.22 of 2021 which was also dismissed on

03/01/2022 and the decree passed by Principal Senior Civil

Judge, Lunawada in Regular Civil suit No.7 of 2020 was

confirmed. Aggrieved by the said order, the plaintiffs have

filed the present Second Appeal.

5. Learned advocate for the plaintiffs have mainly

contended that the Court could not have rejected the

plaint being barred by law, it has also been argued that

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the trial Court has not appreciated the evidence produced

by the plaintiffs in its true spirit and the trial Court has

not considered revenue records and issue regarding

fragmented land and provisions regarding the same and

therefore, it has been argued that there are substantial

questions of law involved in the present Second Appeal

and therefore, the present Second Appeal is required to be

admitted as the substantial questions suggested in the

Second Appeal required to be considered.

6. Per Contra, learned advocate for the respondents

has argued that the plaintiffs are claiming right in the

property and are trying to seek a declaration that by

virtue of the sale deed which has been executed by the

plaintiffs themselves the sale deed should not be acted

upon by the present defendants.

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7. Having heard learned advocates for the parties,

the fact remains that the plaintiffs have not challenged the

sale deed, moreover, the said sale deed executed on

03.03.2011 specifically states that the possession of the

property is already handed over to the defendants and

therefore, the question of plaintiffs being in possession of

the property does not arise. Learned advocate for the

defendants have also submitted that unless a suit is filed

for cancellation of the sale deed, the seller cannot execute

a cancellation deed unilaterally. In the present case,

though there is no cancellation deed but the fact is that

even in the plaint the plaintiffs state that by oral

understanding the said sale deed was not to be acted

upon, the fact remains that the said sale deed which is

registered document and the said sale deed can only be

cancelled by a registered document and by virtue of the

sale deed, as the defendants have become the owner of

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the property, no reliefs can be granted against the true

owner who has purchased the property after paying sale

consideration and acquiring the property by said registered

document.

8. Undisputed fact in the present case is that the

plaintiffs themselves have executed the sale deed being

registered sale deed No.321 of 2011 dated 03.03.2011 and

the said fact has been admitted by the plaintiffs in the

plaint, the only case of the plaintiffs is that the

measurement of the land has been shown more than the

plaintiffs intended to sell it and there is no challenge to

the sale deed which has been executed on 03.03.2011, the

plaintiffs have filed the suit in the year 2020 and in the

said suit the plaintiffs have not sought any relief to cancel

the said sale deed. Therefore, it can be clearly seen that

by clever drafting the plaintiffs are trying to bring the suit

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within a period of limitation. The fact remains that the

suit is filed in the year 2022 and the sale deed is of the

2011. The plaintiffs have also not come forward with a

case that only recently they have come to know about the

said fraud of excess measurement of land in the said sale

deed, the provisions of Code of the Civil Procedure are

very clear. As per the provisions of Order VI Rule 4,

which reads as under:

"4. Particulars to be given where necessary.--In all cases in which the party pleading relies on any misrepresentation, fraud, breach of trust, wilful default, or undue influence, and in all other cases in which particulars may be necessary beyond such as are exemplified in the forms aforesaid, particulars (with dates and items if necessary) shall be stated in the pleading.

--- xxxxxx"

9. Therefore, when the plaintiffs are alleging that

fraud has been committed, the plaintiffs have to give

particulars regarding dates that on which date the said

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fraud had come to the knowledge of the plaintiffs. In the

present case, the plaintiffs have not challenged the said

sale deed and has only alleged that as the measurement of

the land in the said sale deed was never agreed the

defendants, do not have any right, title and interest by

virtue of the sale deed, but no specific date that has been

mentioned by the plaintiffs so as to show that the cause of

action has arisen from particular date and the suit is filed

on a particular date that is to say, the said suit has been

filed within a period of limitation, in fact the plaintiffs

have not disclosed any date as to when actually the

plaintiffs came to know that the measurement mentioned

in the sale deed dated 03.03.2011 were wrongly

mentioned.

10. In view of the said fact, it has rightly been

decided by the trial Court and the Appellate Court that the

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suit that has been filed by the plaintiffs, was barred by

law and therefore, also the plaint was rightly rejected by

the trial Court.

11. Moreover, the findings of the fact by both the

Courts below were not wrong. Moreover, under Section

100 of the Code of Civil Procedure, the Court cannot

interfere with the findings of the fact arrived at by the

lower Appellate Court as the same are well reasoned and

in the Second appeal, the High Court cannot substitute its

own finding on re-appreciation of evidence merely on the

ground that another view was possible. In the present

case, looking to the facts of the case, more particularly,

when the sale deed in dispute has not even been

challenged by the plaintiffs. The suit was rightly rejected

under the provisions of Order VII Rule 11 of the Code of

Civil Procedure. Moreover, when there are concurrent

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findings of the fact, the High Court cannot interfere with

the said concurrent findings of the fact.

12. 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.

13. Moreover, as per the well settled decisions of 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.

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14. 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."

15. 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

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findings of fact arrived at by the first Appellate Court which is the final Court of facts except in such cases where such findings 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."

16. 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.

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