[Cites 4, Cited by 0]

Gujarat High Court

Mohanbhai Khumabhai Talar vs Hemabhai Nathabhai Talar (Abated) on 10 December, 2025

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                              C/SA/31/2025                                    JUDGMENT DATED: 10/12/2025

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                                     IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                                                R/SECOND APPEAL NO. 31 of 2025


                       FOR APPROVAL AND SIGNATURE:


                       HONOURABLE MR.JUSTICE SANJEEV J.THAKER
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                                    Approved for Reporting                    Yes            No

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                                          MOHANBHAI KHUMABHAI TALAR & ANR.
                                                       Versus
                                       HEMABHAI NATHABHAI TALAR (ABATED) & ORS.
                       ==========================================================
                       Appearance:
                       MR SUNIL K SHAH(803) for the Appellant(s) No. 1,2
                       MS SUSHMA S SHAH(806) for the Appellant(s) No. 1,2
                       ==========================================================

                          CORAM:HONOURABLE MR.JUSTICE SANJEEV J.THAKER

                                                          Date : 10/12/2025

                                                          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 01.07.2024 passed

by Principal District Judge, Mahisagar at Lunawada in

Regular Civil Appeal No.27 of 2023 whereby the judgment

and decree dated 30.01.2023, passed by the Additional Civil

Judge, Lunawada dismissing Regular Civil Suit No.12 of 2014

has been confirmed.

2. For the sake of brevity the parties are referred to as

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per the their original status as that of in the suit.

2.1. The plaintiffs had filed a suit claiming that the suit

property was jointly owned by the defendants and the

partition was effected amongst the defendant Nos.1 to 4

along with co-sharers, prior to the year 1993, resulting in 54

gunthas of land coming into the possession of the defendants.

Subsequently, the defendants had mortgaged their respective

shares of 54 gunthas to the father of the plaintiffs and the

said 54 gunthas of land is the disputed suit land.

2.2 The plaintiffs has put forward the case that, an

additional amount of Rs.2,301/- and Rs.1,962.50 was given to

the defendant No.2 and defendant No.4, respectively, on

18.06.1994; and that in the year 2002, further amount of

Rs.20,800/- was taken by the defendants; and that in the

year 2002 also, further amount of Rs.27,225/- was taken by

the defendant Nos.1 to 4, who have mortgaged the suit land

with the plaintiffs. On 18.04.2006, the defendants have

further received an amount of Rs.32,876/- from the plaintiffs.

2.3 It was the plaintiffs's case that the defendant Nos.1 to 4

had assured the plaintiffs that they will not transfer the suit

property to anybody as total Rs.1,24,287/- have been paid to

the defendant Nos.1 to 4 by the plaintiffs and his father for

the suit land, as it was mortgaged with the plaintiffs.

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2.4 Since defendant Nos.1 to 4 threatened to transfer the

suit land, the plaintiffs filed a suit seeking declaration that

since the suit land has been transferred to the plaintiffs by

way of mortgage, defendant Nos.1 to 4 have no right to

transfer the suit land in any manner. Further relief has been

sought by the plaintiffs to direct defendant Nos.1 to 4 not to

sell the suit land. An additional prayer for permanent

injunction has been sought to restrain defendant Nos.1 to 4

from transferring the suit land.

2.5 The defendant No.1 had filed a reply in the said suit

denying the facts and the said defendant also has pleaded

that no partition has taken place between the defendant

Nos.1 to 4 and other co-sharers of the suit land.

2.6 The defendant Nos.3 to 4 and 6 to 8 appeared, but have not filed any written statement.

2.7 The plaintiffs examined himself vide Exh.39 and witness

for the plaintiffs was examined vide Exh.91. The defendants

have not adduced any oral or documentary evidence.

2.8 The issues were framed vide Exh.28 and after considering

the oral and documentary evidence, the trial Court dismissed

the said suit.

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2.9 Aggrieved by the said judgment and decree of the trial

Court, the plaintiffs filed an appeal being Regular Civil

Appeal No.27 of 2023 and after reappreciating the evidence,

the Principal District Judge, Mahisagar at Lunawada

dismissed the said appeal and confirmed the judgment and

decree passed by the Additional Civil Judge, Lunawada vide

a judgment and order dated 01.07.2024.

3. It is this judgment and decree impugned which is

challenged by the appellant - original plaintiffs - appellant

before this Court in this second appeal.

3.1 Learned advocate for the plaintiff has mainly argued

that the trial Court and first appellate Court have not taken

into consideration the oral and documentary evidence

produced on record.

3.2 Learned advocate for the plaintiff has also argued that

the trial Court and first appellate Court have not taken into

consideration the fact that necessary consideration was also

received by defendant nos.1 to 4 from the father of the

plaintiff.

3.3 Learned advocate for the plaintiff has also argued that

though the plaintiff had established that the suit land came

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into possession of defendant nos.1 to 4, they have

subsequently mortgaged the land to plaintiff's father and

plaintiff father has been put in possession of the property.

3.4 Learned advocate for the plaintiff has also argued that

trial Court and the first appellate Court have also failed in

taking into consideration the fact that defendants have not

challenged documents on record which clearly shows that suit

property had been mortgaged. It has also been argued that

both the courts below have failed to consider that the

mortgage-deed which was executed in favour of plaintiff and

the possession was handed over to the suit land was

pursuant to the said mortgage deed. He has submitted that,

therefore, the present second appeal is required to be

admitted on the following substantial questions of law as suggested in the memo of appeal.

"(A) The Learned Advocate for the plaintiffs has

submitted oral arguments vide Exh.18, wherein it

has been argued that the plaintiff have prove the

fact by producing various agreements that the suit

land has been mortgaged in favour of the father of

the plaintiffs and thereafter in favour of the

plaintiffs, furthermore, it has been asserted that the

plaintiffs have proved that the necessary

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consideration was received by defendant Nos.1 to 4

from the father of the plaintiffs as well as from the

plaintiffs. However, the trial Court has not

considered such documentary evidence.

(B) Furthermore, it has been argued that by

examining the witnesses, the plaintiffs have proven

the execution of the said documents. Therefore, the

plaintiffs have established that the suit land came

into the possession of defendant Nos.1 to 4 who

subsequently mortgaged the suit land, Consequently,

the plaintiff's father was put into possession.

However the trial court has failed to appreciate such

documentary as well as oral evidence of the

plaintiffs, rendering the judgment and decree of the trial court legally flawed.

defendants have not adduced any evidence, and at

the same time, they have not challenged the

documentary as well as oral evidence presented by

the plaintiffs, Therefore, the suit ought to have been

granted in favour of the plaintiffs, consequently, the

judgment and decree are incorrect in both fact and

law.

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(D) Both the courts have failed to considered the

mortgage deed which were executed in favour of the

plaintiffs, and the possession of the suit land was

also with the father of the plaintiff therefore the

courts have to considered the mortgage deed

produced by wide exhibit 98, 99, 100, 101, 102, 103

and 104, in the favour of the plaintiffs.

(E) The exhibit 98 took place between dependents

No.1 to 4 and the father of the plaintiff, specifically

stated that the suit land was mortgaged by giving

possession to the father of the plaintiff both the

courts have erred in considering the said exhibits.

(F) The appellants crave leave to add, alter,

amend or rescind any ground or grounds at the time

of hearing of this appeal, in the interest of justice."

4.1 Having heard learned advocate for the plaintiff and

having gone through the judgment and decree passed by the

trial Court which is confirmed by the first appellate Court,

the fact remains that the entire case of the plaintiff is based

on the mortgage deed executed by defendant nos.1 to 4 dated

06.06.1993, which was produced vide Exh.98 and the

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mortgage deed executed by defendant no.4 dated 06.01.2007,

which is produced vide Exh.99. On considering the said

evidence, it has come on record that the defendant had

borrowed money from the father of the plaintiff and

thereafter pursuant to the same amount was borrowed and

by virtue of the same, the suit property was handed over to

the plaintiff.

4.2 On perusal of the revenue record produced vide Exhs.95,

96 and 97 for the year 2016 is taken into consideration, the

suit property was in the name of all the defendants and

there is nothing on record which shows that the suit

property only belongs to defendant nos.1 to 4. Moreover, since

the year 1981, the plaintiff has not produced any document

to show and suggest that the plaintiff no.1 is in possession of the suit property. The fact remains that in view of the

said revenue record produced at Exhs. 95 to 97, it can be

clearly established that all the defendants were joint owners

of the suit property and, therefore, the defendant nos.1 to 4

were not competent to execute any documents in favour of

the plaintiff no.1's father.

5. I have considered the rival submissions made by the

learned advocates for the respective parties. I have also

considered the documents available on record. I have perused

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the record and proceedings of the trial Court as well as of

the lower Appellate Court.

5.1 From the record, it transpires that the plaintiffs has not

produced any evidence to demonstrate that partition has

taken place between the parties as mentioned at Exhs.95 and

96 and the suit property exclusively belongs to defendant

Nos.1 to 4. Therefore, the fact that the defendants were

exclusive owners of the suit property and had a right to

execute the mortgage deed having not been proved by the

plaintiffs, the learned trial Court has rightly dismissed the

said suit.

5.2 Moreover, the document produced at Exh.98 indicates that

the defendant Nos.1 to 4 have mortgaged their share to

father of the plaintiffs; the document produced at Exh.99

indicates that the defendant No.2 has mortgaged their share

to plaintiffs No.2; the document produced at Exh.100

indicates that the defendant No.2 has mortgaged his share to

plaintiff No.2 by granting the possession. The document

produced at Exh.101 indicates that the defendant No.3 has

mortgaged his share to plaintiffs No.2 by granting possession,

the document produced at Exh.102 indicates that the

defendant No.4 has mortgaged his share to plaintiff No.2; the

document produced at Exh.103 indicates that the defendant

Nos.1 to 4 have mortgaged their share to the plaintiffs; the

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document produced at Exh.104 indicates that the defendant

No.1 has mortgaged his share to plaintiff No.2.

5.3 The fact remains that though the plaintiffs have relied

on the said documents, none of the said documents is a

registered document. In view of the fact that the said

documents, on which the plaintiffs relied, are required to be

absolutely registered and the same having not been

registered, the plaintiffs have failed to prove that the

defendants have mortgaged the suit land.

5.4 Moreover, it is required to be taken into consideration

that though there are other co-sharers other than defendant

nos.1 to 4 who have alleged to have mortgaged the suit

property, they are neither the signatory to the said mortgage

deed nor is it the case of the plaintiffs that they have

mortgaged the suit property to the plaintiffs.

5.5 By virtue of Section 17 (1) (c) of the Registration act,

the said document on which the plaintiff is placing reliance

i.e. Exhs. 98 and 99 are compulsorily required to be

registered and in view of the said fact that the said

document is also not registered, it cannot be taken into

consideration.

6.1 The conclusion which has been reached by both the

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Trial Court and the Appellate Court cannot be interfered as

the judgment and decree of the Courts below are not

perverse, arbitrary so as to warrant interference. 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.

6.2 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

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reappreciate the evidence just to replace the findings of the lower courts."

6.3 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."

6.4 Therefore, also the plaintiff has miserably failed to show

that there is any substantial question of law involved in the

present appeal and the substantial question of law which has

been suggested in the memo of appeal are also not

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substantial question of law and on facts and the said factual

aspect have well been considered by the Trial Court and the

First Appellate Court and, therefore, the present appeal

requires to be dismissed.

7. Under the circumstances, this Second Appeal is devoid