Gujarat High Court
Hamir Ibrahim Sama vs Laheribhai Tulsidas Bhatt on 12 August, 2025
NEUTRAL CITATION
C/SA/258/2025 JUDGMENT DATED: 12/08/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SECOND APPEAL NO. 258 of 2025
With
CIVIL APPLICATION (FOR STAY) NO. 1 of 2025
In R/SECOND APPEAL NO. 258 of 2025
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE SANJEEV J.THAKER
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Approved for Reporting Yes No
No
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HAMIR IBRAHIM SAMA
Versus
LAHERIBHAI TULSIDAS BHATT
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Appearance:
MR DARSHIT H RAVAL(11887) for the Appellant(s) No. 1
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CORAM:HONOURABLE MR.JUSTICE SANJEEV J.THAKER
Date : 12/08/2025
ORAL JUDGMENT
1. The present Second Appeal has been filed under Section 100
of the Code of Civil Procedure, 1908 ('CPC', for short) challenging
the judgment and decree dated 12.07.2024, passed by the Principal
District Judge, Kachh-Bhuj in Regular Civil Appeal No.162 of 2022,
whereby the judgment and decree passed by Civil Court i.e.
Principal Senior Civil Judge, Bhuj in Special Civil Suit No.51 of
2017 dated 07.12.2022 has been confirmed.
2. For the sake of convenience, the parties are referred to as their
original status referred in the suit.
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FACTS :
3.1 The brief facts arising in the present appeal are that the
plaintiff had filed suit for specific performance alleging that
defendant had agreed to sell the suit property i.e. Shop No.5 and an
agreement to sale to that effect was executed on 15.02.2016. It is the
case of the plaintiff that said agreement was jointly with Pratap
Ratanshi and Narendrabhai Premjibhai Thakkar, as Pratapbhai
agreed to purchase Shop No.4 and Narendrabhai was agreed to
purchase Shop No.6.
3.2 It is the case of the plaintiff that plaintiff had agreed to
purchase the suit property for sale consideration of Rs.6,50,000/- and
at the time of execution of agreement to sale, amount of
Rs.2,50,000/- was to be paid by the plaintiff on 15.02.2016.
Thereafter further amount of Rs.1,00,000/- and Rs.1,00,000/- was
paid on 02.06.2016 and 15.06.2016 respectively. However, as the
defendant has not executed the sale-deed, a legal notice was issued
to the defendant for specific performance on 18.03.2017 and as
defendant failed to execute sale-deed, suit is filed. The trial Court
framed issues vide Exh.25, which reads as under:
"1. Whether the Plaintiff proves that the agreement to sell dated
15/02/2016 was executed whereby the Defendant had
agreed to sell the suit in Rs.6,50,000/- to the Plaintiff ?
2. Whether the Plaintiff proves that he has made total payment
of Rs.4,00,000/- to the Defendant ?
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3. Whether the Plaintiff proves that he was always ready and
willing to pay the remaining amount and to perform his part
as per agreement to sell?
4. Whether the Defendant proves that the receipt dated
02/06/2016 for Rs.1,00,000/- and voucher dated 15/06/2016
for Rs.1,00,000/- are fabricated and forged and it does not
bear his signature ?
5. Whether the Defendant proves that the suit is not
maintainable as the agreement to sell is unregistered
document ?
6. Whether the Defendant proves that the suit suffers from
non-joinder of necessity parties ?
7. Whether the Defendant proves that the Plaintiff has failed
to perform his part and to pay the remaining amount within
time limit and therefore, agreement to sell stand cancelled
and the Defendant has right to forfeit the amount paid to
him by the Plaintiff ?
8. Whether the Defendant proves that he has given the cheque
of Rs.6,50,000/- on dated 30/07/2016 to the Plaintiff as
security of the payment of shop no.5?
9. Whether the Plaintiff is entitled to get the relief as prayed
for ?
10. What Order and Decree ?"
The Plaintiff examined himself vide Exh.30 and witness to the
plaintiff viz. Narendrabhai Premjibhai Thakkar is examined at
Exh.50. The plaintiff produced receipt dated 02.06.2016 for an
amount of Rs.1,00,000/- (Exh.57) and voucher dated 15.06.2016 for
an amount of Rs.1,00,000/- (Exh.58), the defendant examined at
Exh.56 and witness of the defendant is examined at Exh.62 and after
considering the oral evidence and documentary evidence and after
giving findings on all issues, trial Court decreed the said suit. Being
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aggrieved by the said order, defendant filed Regular Civil Appeal
before the first appellate Court and after re-appreciating the evidence
on record, the first appellate Court dismissed the said appeal. Hence,
the present Second Appeal.
4.1 Learned advocate for the defendant has mainly argued that
defendant has not received amount of Rs.2,00,000/- Lakhs which the
plaintiff is stated to have given to the defendant on 02.06.2016 and
on 15.06.2016. Moreover, it is also the case of the defendant that the
trial Court could not have granted decree in view of the fact that
other signatories to agreement to sale produced vide Exh.34 are not
joined as party defendant. Moreover, it has also been argued by
learned advocate for the defendant that plaintiff has miserably failed
to prove the facts stated with respect to purchase of shop no.5 and
cheques given by plaintiff to the defendant with respect to the shop
no.5.
4.2 Learned advocate for the defendant also argued that trial Court
could not have relied on agreement to sale, in view of provisions of
Section 17 of the Registration Act, the said agreement to sale was
compulsorily required to be registered and it has been argued that the
present Second Appeal is required to be admitted on the following
substantial questions of law as suggested in the memo of appeal.
" (1) Whether the court below can dismiss the suit on the issue
which are not framed ?
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(2) Whether the plaintiff proves by evidence that denial by
defendants with regard to allegation made in suit are
false ?
(3) In absence of any contrary evidence and specific denial
by defendants, whether the court below has committed
any error in not allowing the suit and appeal of the
plaintiff ?
(4) Whether the appellate court has erred in not framing
proper issues at the time of deciding appeal ?
(5) Whether both the courts below have erred in law in not
properly considered the oral and documentary evidence
of the case ?
(6) Whether the Ld. Court exceeded its jurisdiction or failed
to exercise its jurisdiction ?"
5.1 Having heard learned advocate for the defendant and having
perused the plaint and the documents annexed with the plaint, fact
remains that there is no dispute that the plaintiff and defendant
entered into agreement to sale dated 15.02.2016, which is produced
vide Exh.34. It is also not in dispute that the plaintiff had paid
amount of Rs.2,50,000/- at the time of execution of agreement to
sale. The only dispute that the defendant has raised is of not
receiving amount of Rs.2,00,000/- and the receipts / vouchers that
are produced vide Exhs.57 and 58, do not bear the signatures of
defendant. The fact remains that witness of the plaintiff deposed vide
Exh.50 has clearly stated that he is aware of the vouchers produced
vide Exhs.57 and 58, the fact also remains that defendant has never
filed any criminal complaint alleging that concocted document have
been created by the plaintiff vide Exhs.57 and 58. Moreover, the trial
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Court and the appellate Court have compared the signatures of the
defendant in Exhs.57 and 58 and the trial Court and the appellate
Court, while exercising powers under Section 73 of the Evidence
Act, have verified / compared the signatures of defendant in the said
document produced at Exhs.57 and 58 along with the affidavit in
examination-in-chief vide Exh.56, as well as vakalatnama produced
vide Exh.10, in Special Civil Suit and the vakalatnama filed in the
appeal vide Exh.2, and after comparing the same, the Court has
stated that it does match with the signatures of the defendant and
after comparing the same, both the Courts below have come to
conclusion that it has been proved that the Exhs.57 and 58 were
signed by the defendant.
5.2 Moreover, the issue whether the documents produced at
Exhs.57 and 58 bears the signatures of defendant is factual aspect
and the same has been taken into consideration by both the Courts
below and, therefore, it cannot be said to be an issue involved in the
present Second Appeal.
5.3 Moreover, with respect to the fact that agreement to sale could
not be looked into as an evidence in view of Section 17 of the
Registration Act as the same is not registered document, the said
contention cannot be taken into consideration in view of Section 49
of the Registration Act which reads as under :
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"49. Effect of non-registration of documents required to be
registered.
- No document required by section 17 [or by any provision of the
Transfer of Property Act, 1882 (4 of 1882),] [Added by Act 21 of
1929, Section 10.] to be registered shall(a)affect any immovable
property comprised therein, or(b)confer any power to adopt, or(c)be
received as evidence of any transaction affecting such property or
conferring such power,unless it has been registered:[Provided that an
unregistered document affecting immovable property and required
by this Act, or the Transfer of Property Act, 1882 (4 of 1882), to be
registered may be received as evidence of a contract in a suit for
specific performance under Chapter II of the [Specific Relief Act,
1877] [Added by Act 21 of 1929, Section 10.], [* * *] [The words
"or as evidence of part performance of a contract for the purposes of
section 53-A of the Transfer of Property Act, 1882 (4 of 1882)"
omitted by Act 48 of 2001, Section 6 (w.e.f. 24.9.2001).] or as
evidence of any collateral transaction not required to be effected by
registered instrument.]"
The suit that has been filed is for specific performance and,
therefore, the said document though unregistered can be received as
evidence of a contract in the present suit.
5.4 The fact also remains that after the shops were ready for
possession, the defendant had not informed the plaintiff of the same
and, therefore, it cannot be said that the plaintiff was not ready and
willing to abide by the agreement dated 15.02.2016. With respect to
the fact that plaintiff had to show his readiness and willingness to
abide by the agreement to sale, plaintiff has already deposited
remaining amount before the Court and, therefore, it can be clearly
stated that plaintiff was always ready and willing to abide by
contract.
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6. 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. The connected Civil Application would
accordingly disposed of.
(SANJEEV J.THAKER,J)
MISHRA AMIT V.
