[Cites 6, Cited by 0]
Gujarat High Court
Khalifa Tanveerahmed Fajleahmed vs Jakirhusain Mohammadhusain Meman on 10 December, 2025
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C/SA/391/2025 JUDGMENT DATED: 10/12/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SECOND APPEAL NO. 391 of 2025
With
CIVIL APPLICATION (FOR STAY) NO. 1 of 2025
In R/SECOND APPEAL NO. 391 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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KHALIFA TANVEERAHMED FAJLEAHMED
Versus
JAKIRHUSAIN MOHAMMADHUSAIN MEMAN & ORS.
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Appearance:
MR PY DIVYESHVAR(2482) for the Appellant(s) No. 1
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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 14.07.2025,
passed by Additional District Judge, Banaskantha in Regular
Civil Appeal No.3 of 2024, whereby the judgment and decree
dated 02.03.2024, passed by the Additional Senior Civil
Judge, Radhanpur, dismissing Regular Civil Suit No.47 of
2023, has been confirmed.
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2. For the sake of brevity the parties are referred to
as per the their original status as that of in the suit.
3.1 The brief facts arising in the present appeal are
that plaintiff filed the suit for cancellation of the sale-deed
and for declaration that the title of the suit property belongs
to the plaintiff. It is the case of the plaintiff that sale-deed
was executed by the plaintiff on 31.3.2008, where the value
of the land was determined Rs.16,00,000/- and according to
the said agreement, the defendants were obliged to pay the
full amount and consequently on the same day, defendants
issued a cheque of Rs.3/- Lakhs as partial payment with a
commitment that the remaining sum would be paid on a
specified date. However, when the plaintiff approached the
defendants, the defendants provided three cheques totalling to
Rs.13/- lakhs and assured that the remaining amount will be
paid through said cheques before production of the cheques
before concerned banks.
3.2 In the meantime, since the father of the plaintiff
had won in different revenue proceedings and civil
proceedings filed by the power of attorney of the father of
the plaintiff, the defendants had never intended to pay the
remaining amount of Rs.13/- Lakhs and, therefore, the suit
has been filed being Regular Civil Suit No.47 of 2003.
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3.3 The defendants appeared in the said suit and filed
application vide Exhibit 10 under the provisions of Order VII
Rule 11 of the Code of Civil Procedure, 1908 and stated that
the plaintiff's claim is barred by law more particularly on the
point of limitation and that there was no cause of action
that arises in the plaint. The trial Court allowed the said
application filed vide Exh.10 and rejected the plaint.
Aggrieved by the said order, plaintiff filed Regular Civil
Appeal No.3 of 2024 and after re-appreciating the evidence,
the first appellate Court rejected the appeal and confirmed
the judgment decree passed by the trial Court in Regular
Civil Suit No.47 of 2023. Hence the present Second Appeal.
4.1 Learned advocate for the plaintiff has mainly
argued that trial Court and the first appellate Court have
erred in holding that plaint is required to be rejected on the
ground of limitation, as the issue of limitation is mixed
question of fact and, therefore, the courts below could not
have rejected the said plaint.
4.2 Learned advocate for the plaintiff has also argued
that trial Court and the first appellate Court have failed in
considering the fact that under Section 17 of the Limitation
Act that the said suit was filed on the ground of fraud, the
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details of which is stated in the plaint and the trial Court
has not taken into consideration the said fact.
4.3 Learned advocate for the plaintiff has also argued
that trial Court and first appellate Court have not taken into
consideration that the cheques were given in lieu of sale
consideration and the fact that the said cheques have never
been honoured was a ground on which the plaintiff could
have filed the present suit and said suit could not have been
rejected by the trial Court and, therefore, present second
appeal is required to be admitted on the substantial question
of law which have been stated in memo of second appeal.
5.1 Having heard learned advocate for the plaintiff
and having considered the plaint and documents annexed
with the plaint and the judgment and decree passed by the
trial Court, the fact remains that if the sale-deed dated
31.03.2008 is taken into consideration, the said sale deed
states that sale consideration is of Rs.40,000/- and the said
amount as per the sale-deed has been received by the
plaintiff and the possession of the suit property is handed
over to defendants. Pursuant to the said sale-deed and after
receiving the said sale consideration of Rs.40,000/-, there is
not even a whisper about the fact that further amount of
Rs.13/- lakhs was to be paid by the defendants to the
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plaintiff with respect to the sale consideration and also the
said sale-deed also does not state that same shall come in
operation subject to the payment of further amount of
Rs.13,00,000/-
5.2 The admitted position of facts, in the present case,
are as under:
1. The plaintiff was the owner of the property.
2. The plaintiff has admitted that the sale-deed dated
31.03.2008 has been executed by the plaintiff.
3. In the sale-deed sale consideration amount is
mentioned.
4. in the sale-deed there is no whisper about the fact
of further amount of Rs.13 lakhs to be paid by the
defendant to the plaintiff and that the sale deed
executed on 31.3.2008 is subject to further payment of
said Rs.13 lakhs.
5.3 The plaintiff's case before the Trial Court and the
Appellate Court is that the further amount of Rs.13/- Lakhs
is not received by the plaintiff but the fact remains that
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even if the averments of the plaintiff are taken to be true in
the present case that the entire sale consideration is not in
fact being paid, the same could not be a ground for
cancellation of the sale-deed, moreover the fact remains that
the sale-deed in question is a registered document and
written document and as per the Section 92 of the Evidence
Act, 1872 which reads as under:
"92. Exclusion of evidence of oral agreement. -- When
the terms of any such contract, grant or other
disposition of property, or any matter required by law
to be reduced to the form of a document, have been
proved according to the last section, no evidence of any
oral agreement or statement shall be admitted, as
between the parties to any such instrument or their
representatives in interest, for the purpose of
contradicting, varying, adding to, or subtracting from, its
terms.
Therefore, the said version of the plaintiff that the
actual sale consideration was further amount of Rs.13/- Lakhs
cannot be believed. As per the provisions of Section 92 of
the Evidence Act, 1872, when the terms of any contract has
been reduced to the form of a document and when the said
document specifically mentions of payment of sale
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consideration, no evidence of any oral agreement or statement
shall be admitted as between the parties to any such
instrument for the purpose of contradicting, varying, adding
to or subtracting from its terms. The Courts have recorded
concurrent findings rejecting the stand of the plaintiff that
the actual sale price was as per the agreement to sale and
the said finding is well in accordance with Section 92 of the
Evidence Act, 1872 and therefore the same does not warrant
interference in the said concurrent findings of the Trial Court
as well as the Appellate Court.
5.4 Moreover, Section 54 of the Transfer of Property
Act, 1882 provides as under:
"54. 'Sale' defined.--'Sale' is a transfer of ownership in
exchange for a price paid or promised or part-paid and
part- promised." The definition of "sale" indicates that
there must be a transfer of ownership from one person
to another i.e. transfer of all rights and interest in the
property, which was possessed by the transferor to the
transferee. The transferor cannot retain any part of the
interest or right in the property, or else it would not
be a sale. The definition further indicates that the
transfer of ownership has to be made for a "price paid
or promised or part paid and part promised". Price
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thus constitutes an essential ingredient of the
transaction of sale."
5.5 On bare perusal of the said sale-deed produced on
record, the said sale-deed does not mention further payment
of Rs.13/- Lakhs and also does not mention that the said
sale-deed is subject to the further payment of Rs.13/- Lakhs
that is to be paid to the plaintiff.
5.6 Looking to the contents of the sale-deed, the said
sale-deed also mentions that an amount of the sale-deed has
been paid by the purchasers to the seller, in this case the
present plaintiffs have given receipt of the said consideration
in the sale-deed.
5.7 In view of the said fact, the sale-deed cannot be
declared cancelled and or null and void on the ground
mentioned in the paint.
5.8 Moreover, as per the provisions of law, there is a
presumption that a registered document is validly executed
and therefore the said registered document prima facie would
be valid in law and the onus of proof would be on a person
who leads evidence to rebut the presumption. In the present
case the plaintiff is not been able to rebut the said
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presumption.
5.9 In the facts of the present case, there is no
substantial questions of law involved and the fact that
plaintiff is claiming declaration to cancel the sale-deed on the
ground that the sale consideration as mentioned in the
agreement to sale is not paid to the plaintiff cannot be
entertained and on the factual aspect also there is a
concurrent finding of the Trial Court and the Appellate Court
and even as per the settled law the sale-deed cannot be
cancelled on the grounds mentioned in the plaint.
5.10 The law is well settled that the plaintiff cannot
claim that even if the entire sale consideration has not in
fact been paid, the same could not be a ground for
cancellation of the sale-deed. The law is also very clear that
the definition of sale indicates that there must be a transfer
of ownership from one person to another, which includes
transfer of all rights and interest in the property which was
possessed by the transferor to the transferee and that the
transferor cannot retain any part of interest or right in the
property and the definition of sale as per provisions of
Section 54 of the Transfer of Property Act, 1882 indicates
that the transfer of the ownership has to be made for a
price paid or premised or part paid and part promised,
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therefore the price thus constitutes an essential ingredient of
transaction of sale and therefore the actual payment of the
whole of the price at the time of execution of sale-deed is
not a sine qua non for completion of sale. In the present
case, the sale consideration as mentioned in the sale-deed has
been stated to have been received by the plaintiff and in the
sale-deed itself the plaintiff has given acknowledgment of the
receipt of the said amount but even otherwise, even if the
whole of the price is not paid but the sale-deed is executed,
the sale would be complete and the title would pass on the
defendant under the transaction, and even if the version of
the plaintiff is to believed, the non-payment of a part of the
sale price would not affect the validity of the sale as the
title in the property having already been passed and even if
the balance sale consideration is not paid, the said sale-deed
could not be invalidated on this ground. In order to
constitute a sale the plaintiff must intent to transfer the
ownership of the property on the agreement to pay the price
either in the present time or in future and from the recital
of the sale-deed, it is very clear that the plaintiff has
transferred all his right title interest in the suit property by
executing registered sale deed.
6.1 The conclusion which has been reached by both
the Trial Court and the Appellate Court cannot be interfered
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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
reappreciate the evidence just to
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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 substantial question of law and on facts and the said
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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 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.
8. Consequently, Civil Application stands disposed of.
(SANJEEV J.THAKER,J)
SRILATHA
