Natwarbhai Chhotabhai Baria vs Shanabhai Chhotabhai Baria
2025 Latest Caselaw 1289 Guj

Gujarat High Court

Natwarbhai Chhotabhai Baria vs Shanabhai Chhotabhai Baria on 24 July, 2025

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                                 C/SA/250/2024                                         ORDER DATED: 24/07/2025

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                                         IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                                                 R/SECOND APPEAL NO. 250 of 2024

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                                                  NATWARBHAI CHHOTABHAI BARIA
                                                              Versus
                                                   SHANABHAI CHHOTABHAI BARIA
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                            Appearance:
                            PARTH Y PATHAK(7528) for the Appellant(s) No. 1
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                         CORAM:HONOURABLE MR.JUSTICE SANJEEV J.THAKER

                                                                 Date : 24/07/2025

                                                                  ORAL ORDER

1. The present Second Appeal is filed under Section 100 of the Code of Civil Procedure, 1908 (for short "the Code") challenging the judgment and decree passed by the Additional District Judge, Bodeli in First Appeal No.37 of 2021, confirming the judgment and decree passed in Civil Suit No.41 of 2017 (Old Civil Suit No.159 of 2002) dated 05.03.2020.

2. For the sake of brevity and convenience, the parties are referred to as per their original status as that in the suit.

3. The brief factss arising in the present Second Appeal are that the plaintiff filed Civil Suit no.41 of 2017 for specific performance of agreement dated 04.06.1991 and 21.01.1992 produced vide Exhibits 84 and 85. The Trial Court framed issues vide Exhibit 66 as under:

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"(1) Whether the plaintiff proves that the defendant and his father agreed to sell the suit property to him and has executed as agreement to sale in favour of the plaintiff on 04/06/1991?

(2) Whether the plaintiff proves that he is in actual possession of the suit property?

(3) Whether the plaintiff proves that he was and is ready and willing to perform his part of obligations under the agreement?

(4) Whether the plaintiff proves that the defendant refused or declined to perform his part of obligation under the contract?

(5) Whether the plaintiff proves that he is entitled for specific performance of the contract? (6) Whether the plaintiff proves that he is entitled to get the relief as prayed for?

(7) What order and decree?"

4. The plaintiff examined himself vide Exhibit 82 and the witnesses of the plaintiff were examined vide Exhibits 98 and 99. The defendant appeared through his advocate and the defendant has not cross- examined the plaintiff nor has led any evidence and after considering the oral evidence of the plaintiff and giving finding on all the issues, the Trial Court rejected the suit of the plaintiff for specific performance of the contract on the ground that the suit

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transaction is for mortgaging the suit property and not an agreement to sell and the said order was challenged by the plaintiff before the First Appellate Court and the First Appellate Court after re-appreciating the evidence has rejected the said first appeal, hence the present Second Appeal.

5. Learned advocate for the plaintiff has mainly argued that the Trial Court and the First Appellate Court has ignored the statutory and mandatory requirement under the law. The Trial Court and the First Appellate Court have not taken into consideration the fact that the defendant has not filed any written statement, nor has the defendant cross- examined witnesses of the plaintiff, nor have the defendant submitted any evidence in support of their defense. It is also been argued that the name of the plaintiff having been entered in the record of rights, is also not considered by the Trial Court and the First Appellate Court. The Trial Court and the First Appellate Court have also not considered the affidavit of the makers/ writer of the document produced vide Exhibits 84 and 85, who have stated that the land was sold on payment of consideration and the said documents have not been appreciated.

6. Moreover, the fact that the defendant has become owner of the suit property by way of adverse possession is also not

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taken into consideration by the Court and therefore, the present Second Appeal is required to be admitted on the substantial questions of law which have been suggested in the memorandum of appeal as under:

"a. Whether the Ld. First Appellate Court was justified in confirming the judgement & decree Dtd. 05-03-2020 pronounced by Ld. Trial Court?

b. Whether the Ld. First Appellate Court was justified in not affording / protecting the possession of the Appellant inspite of specific bbservation of Ld. Trial Court at Issue No. 2 that the land was in possession of the plaintiff (Appellant herein)?

c. Whether the First Appellate Court was justified in not directing the Respondent (defendant) to return the amount spent by the Appellant (plaintiff) to the tune of Rs. 7,000/- and Rs. 20,000/- when it concluded that it was a case of mortgage?

d. Whether Exh. 84 & 85 read together with evidence lead by the Appellant spells out Mortgage by Conditional Sale and by efflux of time, on non-payment of mortgage amount, resulted into Sale?

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e. Whether Exh. 84 & 85 read together with evidence lead by the Appellant makes out the case of Usufrutuary mortgage?

f. Whether the Ld. First Appellate court erred in not protecting possession inspite of believing the case being of mortgage which was never redeemed by the mortgager?

g. Whether the Ld. First Appellate court and Trial Court were justified in rejecting prayer of Sec. 53-A of the Transfer of Property Act as prayed for by the Appellant?

h. Whether the Ld. First Appellate Court and Trial Court erred in ignoring S. 17 and S. 49 of the Registration Act, 1908 and not appreciating Exh. 84 & Exh. 85 as evidence and denying reliefs to the plaintiff in the suit?"

7. Hence, it has been argued that the present Second Appeal is required to be admitted on the said substantial questions of law.

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8. Having heard learned advocate for the plaintiff and having considered the judgment and decree passed by the Trial Court and confirmed by the Appellate Court, the fact remains that the suit that has been filed by the plaintiff is on the basis that in view of the Exhibits 84 and 85, the plaintiff is entitled for the specific performance of the said contract and the defendant has also sought for permanent injunction with respect to the suit property. The fact remains that in the entire suit, the plaintiff has not sought for relief to declare the plaintiff to be the owner by way of adverse possession and the entire suit is based as if the entire transaction as stated in the Exhibits 84 and 85 are that the suit property was agreed to be sold for sale consideration and the plaintiff was always ready and willing to abide by the said agreement to sell and defendants are objecting to the same. If the said documents produced vide Exhibits 84 and 85 are perused, the same clearly states that the same are on Rs.10/ Stamp paper.

9. Moreover, if the terms and conditions of Exhibit 85 are taken into consideration, the terms and conditions state that after receiving an amount of Rs.20,000/-, the suit property has been mortgaged and there is no condition which suggest that the said transaction produced vide Exhibit 85 is an agreement to sale, to sell the suit property

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to the plaintiff.

10. Moreover, the fact also remains that in view of the fact that the plaintiff himself has filed a suit for specific performance, it is not the case of the plaintiff that by virtue of document Exhibits 84 and 85, the plaintiff has become the owner of the suit property and an amount of Rs.20,000/- has been received against the mortgage. Moreover, if the terms of the Exhibit 84 are perused, the same only suggests that the possession of the suit property has been handed over to the plaintiff by way of mortgaging the suit property in lieu of Rs.7,000/- and therefore, both the said documents clearly suggest that same are not an agreement to sell the suit property but the same arises out of mortgaging the suit property.

11. In view of the said fact, the Trial Court and the First Appellate Court have rightly held that the suit transaction was not an agreement to sell but was a mortgage deed, in view of the fact that the mortgage deed having not been registered, the same could not have been considered by the Trial Court and the Appellate Court by virtue of Sections 17 and 49 of the Registration Act. In view of the same, the present second appeal is required to be dismissed.

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12. 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."

13. 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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14. 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 plaintiff has 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.

(SANJEEV J.THAKER,J) URIL RANA