Gujarat High Court
Jagatsinh Dharmendrasinh Rathod vs Heirs Of Deceased Baldevji Dahyaji on 13 August, 2025
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C/SA/264/2025 ORDER DATED: 13/08/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SECOND APPEAL NO. 264 of 2025
With
CIVIL APPLICATION (FOR STAY) NO. 1 of 2025
In
R/SECOND APPEAL NO. 264 of 2025
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JAGATSINH DHARMENDRASINH RATHOD
Versus
HEIRS OF DECEASED BALDEVJI DAHYAJI & ORS.
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Appearance:
MR VIKRAM J THAKOR(2221) for the Appellant(s) No. 1
MS SHACHI G MATHUR(3069) for the Appellant(s) No. 1
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CORAM:HONOURABLE MR.JUSTICE SANJEEV J.THAKER
Date : 13/08/2025
ORAL ORDER
1. The present Second Appeal has been filed under Section 100
of the Code of Civil Procedure, challenging the judgment and decree
passed by 4th Additinal District Judge, Gandhinagar in Regular Civil
Appeal No.21 of 2017, confirming the judgment and decree dated
10.03.2017, passed by 5th Additional Senior Civil Judge,
Gandhinagar in Regular Civil Suit No.312 of 2015.
2. For the sake of convenience, the parties are referred to as per
their original status as that in the suit.
3. Brief facts arising in the present Second Appeal are that the
plaintiff filed Civil Suit No.312 of 2015, seeking specific
performance of an agreement entered into between the plaintiff and
the father of defendant Nos.1, 2 & 3, dated 04.04.2000 the suit was
filed on 17.08.2010. The trial Court framed issues vide Exhibit-30 as
under:-
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(1) Whether the Plaintiff proves that the elders of the Respondent had
executed agreement, deed in favour of the Plaintiff with the condition
of obtaining prior sanction of the Government after obtaining
consideration of Rs. 3,20,000/- and thereby sold the suit land by
handing over the possession?
(2) Whether the Plaintiff proves that he is legally entitled to get
implemented the sale deed dated 04/04/2000?
(3) Whether the suit of the Plaintiff is barred by time limit?
(4) Whether the suit of the Plaintiff is barred by non joinder of
parties?
(5) Whether the Plaintiff is entitled to get the relief as sought for?
(6) What order and decree?
4. No oral evidence was led by the defendants, nor the
defendants produced any documentary evidence and after
considering the oral evidence of the plaintiff and after considering
the documents and giving findings on all the issues, the trial Court
dismissed the said suit and the first appellate Court after re-
appreciating the evidence dismissed the said appeal and confirmed
the judgment and decree passed by the trial Court.
5. Learned advocate for the plaintiff has mainly contended that
vide Exhibit-37, an agreement was entered into between the plaintiff
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and father of defendant Nos.1,2 & 3, whereby the entire sale
consideration of Rs.3,20,000/- has already been paid by the plaintiff
to the father of the defendants and the owners of the suit property
were the legal heirs of Dayaji Mohanji i.e. Baldevji Dayaji Thakor,
Kalaji, Lasiben, Kaliben, Gajiben Shardaben and on the date when
the agreement to sale was executed in favour of the plaintiff, there
were another agreement whereby all the other legal heirs of Dayaji
Mohanji i.e. Baldevji Dayaji Thakor, Kalaji, Lasiben, Kaliben,
Gajiben, Shardaben have released their right in the suit property in
favour of Baldeveji Dayaji, and therefore, the owner of the property
was only Baldeveji, and therefore, the trial Court and the first
appellate Court could not have dismissed the suit on the ground that
there were other co-owners of the suit property and Baldevji alone
could not have executed the agreement to sale in favour of the
plaintiff.
6. The learned advocate for the plaintiff has also argued that
irrevocable power of attorney was executed in favour of the plaintiff,
which is produced vide Exhibit-34, by Baldevji Dayaji and vide
Exhibit-43, the plaintiff has got the permission of development from
the authority, and therefore, on the date when the agreement to sale
was executed the plaintiff had handed over the possession of the
property and in view of the fact that entire sale consideration was
paid at the time of agreement to sale, the question of plaintiff
showing his readiness and willingness to abide by the terms and
conditions of the agreement to sale, dated 04.04.2000, does not arise
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and in view of the same, the present Second Appeal be admitted on
the substantial question of law which have been suggested in the
memorandum of appeal, which reads as under:-
(i) Whether the Ld. Lower Appellate Court has erred in re-
appreciating the evidence appreciated by the learned trial Court?
(ii) Whether the Learned Lower Appellate Court has committed
error in confirming the findings recorded by Learned Trial Court?
(iii) Whether the Ld. Lower Appellate Court has erred in
appreciating the provisions of Order 8 Rule 3, 4, 5 of the Code of
Civil Procedure?
(iv) Whether Ld. Both the Courts below have erred in interpreting
agreement Exh.34 and relinquishment deed Ex.34 both dated
04.04.2000 executed by the original owner after the relinquishment
of rights by other co-owners of the suit plot?
(v) Whether family arrangement is required to be registered when
the same is amongst family member having blood relation?
(vi) Whether Ld. Both the Courts below have erred in dismissing
the suit being barred by law of limitation? Whether Ld. Both the
Courts below have erred in interpreting Article 54 and 58 of the
Limitation Act?
(vii) Whether Ld. Both the Courts below have erred in framing of
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issue of non-joinder of parties in the absence of any objection by the
defendants? Whether the decision of the Ld. Trial Court dismissing
the suit on the ground of mis-joinder and non-joinder of parties is
contrary to Order 1 Rule 9 r/w Order 1 Rule 13 of the Code of
Civil Procedure?
(viii) Whether Ld. Lower Appellate Court has erred in appreciating
that the Ld. Trial Court has committed material irregularity in
framing and deciding the issue Exh.30?
(ix) Whether Ld. Both the Courts below have erred in interpreting
Section 53(A) and 54 of Transfer of Property Act?
(x) Whether Ld. Both the Courts below have erred in interpreting
the Section 16(C) and 19 of the Specific Relief Act, 1963?
(xi) Whether the impugned judgment and decree passed by both
the Courts below are sustainable in the eye of law?
(xii) Whether the Learned Lower Appellate Court erred in framing
issue for determination of appeal?
(xiii) Whether the impugned judgments and decree delivered by the
Both the Ld. Courts below are legal and valid?
7. Having heard learned advocate for the original plaintiff. The
following are indisputed facts:-
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(a) The suit has been filed against the legal heirs of Baldevji
Dayaji and legal heirs of Kalaji.
(b) The admitted position is that, after the death of Dayaji
Mohanji, his legal heirs became the owner of the property i.e.
Baldevji Dayaji Thakor, Kalaji, Lasiben, Kaliben, Gajiben
Shardaben.
(c) There is no registered document whereby Baldevji Dayaji
Thakor, Kalaji, Lasiben, Kaliben, Gajiben Shardaben, have released
their right in the suit property.
(d) The plaintiff has only relied on notarized document, vide
Exhibit-35 to put forward his case that, other family members other
than Baldevji have released their right in the suit property.
(e) The permission that was sought for development of the
property which is produced, vide Exhibit-43, clearly states that the
same has been received by the plaintiff for and on behalf of
Baldeveji Dayaji Thakore and others.
(f) The admitted position is that other than Baldeveji Dayaji
Thakore no other legal heirs of Baldeveji Dayaji Thakore has
executed agreement to sell the suit property to the plaintiff.
8. In view of the aforesaid facts, it is required to be considered
that even while getting the permission from development authority
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which the plaintiff has been stated to have got on the basis of the
power of attorney executed by Baldeveji Dayaji, there is nothing on
record to show that, the plaintiff has the power of attorney of other
legal heirs of Dayaji Thakor. Moreover, the document, vide Exhibit-
47 which is development permission also clearly states that the said
application has been given by Baldeveji and others, therefore, even
in the year 2010, the plaintiff was aware that there are other owners
alongwith Baldeveji Dayaji Thakore.
9. The prayer that has been sought in the plaint, if perused, the
same also is seeking specific performance of the suit property from
the legal heirs of Baldevji Dayaji and other co-owners, therefore, the
clear fact remains that at the time of filing the suit the plaintiff was
aware that there are other co-owners of the suit property and there is
nothing on record to show that those other co-owners have executed
an agreement to sale in favour of the plaintiff. The other important
aspect that will have also to be considered is that the plaintiff has
stated that before the sale of the suit property, permission was
required to be taken from the competent authority, in view of the fact
that there were restrictions to sell the property within 10 years of its
grant and there were other condition for the property to be sold after
a period of 10 years and the said sale deed was to be executed
subject to the said permission that has to be obtained from the
authority. Taking into consideration the same, the fact remains that
the plaintiff is seeking specific performance of agreement dated
04.04.2000 and the suit that has been filed is in the year 2010 i.e.
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Special Civil Suit No.273 of 2010 is treated as Regular Civil Suit
No.312 of 2015 and all throughout till the development permission
is sought, the plaintiff is relying on the irrevocable power of attorney
that was executed by Baldevji Dayaji Thakore in his favour, there is
nothing on record to establish the fact that the plaintiff had written
letters to the defendant to execute the sale deed in his favour and on
request the defendants to get the permission from the authority to get
the sale deed executed. The fact also remains that the plaintiff had an
irrevocable power of attorney though the plaintiff could have himself
applied before the authority to get the permission. There is also no
iota of evidence as to suggest why the plaintiff did not filed the suit
within the period of limitation and also on the fact that in the
revenue entry also the names of other legal heirs of Dayaji Thakore
are stated to be owner of the property and no agreement to sale
having been executed by other owners of the said property. The trial
Court and the appellate Court have rightly dismissed the said suit.
10. 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 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."
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11. Considering the submissions made and after examining the
findings of both the Courts below on the issue raised in the suit and
upon examining the judgment and orders of both the Courts below,
this Court is of the considered opinion that the learned advocate for
the plaintiff is unable to point out any infirmity, perversity or
impropriety in the concurrent findings of the fact recorded by both
the Courts below, not only that, the learned advocate for the plaintiff
is unable to show that the findings recorded by the learned Courts
are without any evidence or there is any illegality in the findings.
12. Under the circumstances, this Second Appeal is devoid of any
substantial questions 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 questions of
law arises in the present appeal. The appellant has failed to prove his
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.
13. In view of the order passed in main matter, Civil Application
does not survive and stands disposed of accordingly.
(SANJEEV J.THAKER,J)
Manoj Kumar Rai
