Gujarat High Court
Narsinhbhai Danabhai Vankar vs Vasrambhai Devabhai Rabari on 30 June, 2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SECOND APPEAL NO. 230 of 2025
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NARSINHBHAI DANABHAI VANKAR
Versus
VASRAMBHAI DEVABHAI RABARI
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Appearance:
MS.FALGUNI D.TRIVEDI(3912) for the Appellant(s) No. 1
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CORAM:HONOURABLE MR.JUSTICE SANJEEV J.THAKER
Date : 30/06/2025
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 order dated 10.01.2025 passed
by the 3rd Additional District Judge at Vadodara dismissing
the Regular Civil Appeal No.86 of 2015 and confirming the
judgment and decree passed in Regular Civil Suit No.83 of
2012 by the Principal Civil Judge Padra dated 29.09.2015.
2. For the sake of brevity and convenience, the parties are
referred to as per their original status in the suit.
3. The brief facts arising in the present Second Appeal are that
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the plaintiff filed Regular Civil Suit No.83 of 2012,
challenging the registered saledeed no.585 and also prayed for
declaration and perpetual injunction. The case of the plaintiff
in the suit was that as the defendant was interested to purchase
the suit land approached the plaintiff and it was agreed that the
suit property was to be sold for an amount of Rs.4,51,000/- per
bigha and thereafter the saledeed was executed and in the said
saledeed the jantri rate of Rs.1,54,000/- was stated.
4. It is the case of the plaintiff that though the amount of
Rs.1,54,000/- was stated in the saledeed, the plaintiff was
ready to sell the suit land to the defendant for consideration of
Rs.9,51,000/- and the said saledeed was executed on
08.05.2006 and it is only when the notice under Section 135 of
the Land Revenue Code was served upon the plaintiff, he
came to know that the suit land was mutated on the basis of
saledeed and the plaintiff preferred revenue proceedings and
thereafter filed Civil Suit and as the defendant came to the suit
land and threatened the plaintiff on 22.07.2012, the plaintiff
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filed the suit for:
(i) to cancel the saledeed no.585 dated 08.05.2006 executed in
favour of the defendant as the remaining consideration of
Rs.8,46,000/- is not paid by the defendant;
(ii) To grant permanent injunction to restrain the defendant
from preventing the plaintiff cultivating the suit land as the
plaintiff is in possession and cultivating the suit land;
(iii) To pass a decree in favour of the plaintiff establishing the
right and title on the suit land after cancelling the saledeed.
5. The defendant filed an application under the provisions of
Order VII Rule 11 of the Code for rejection of the plaint on the
ground of limitation, in view of the fact that the suit has been
filed after a period of six years and after taking into
consideration the plaint and documents annexed with the
plaint, the Trial Court allowed an application and rejected the
plaint by an order dated 29.09.2015,the said order was
challenged by the plaintiff by filing Regular Civil Appeal
No.86 of 2015 and after re-appreciating the judgment and
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order the First Appellate Court dismissed the said appeal,
hence the present Second Appeal.
6. Learned advocate Ms.Falguni Trivedi for the plaintiff has
mainly argued that there are substantial questions involved in
the present Second Appeal. The fact that the plaintiff has
stated that the defendant had agreed to pay the remaining
amount of sale consideration and as there was an oral
agreement between the parties, that the suit land was sold by
the plaintiff for an amount of Rs.9,51,000/- and as defendant
has not paid the remaining amount of sale consideration i.e. an
amount of Rs.8,46,000/-, the saledeed was required to be
cancelled. Moreover, the fact that the plaintiff was threatened
on 22.07.2012 and the fact that the plaintiff is in possession of
the property, the Trial Court and the Appellate Court could not
have come to the conclusion that the suit is barred on the
ground of limitation. Moreover, it cannot be said that no cause
of action has arisen for the plaintiff to file the suit in view of
the fact that the plaintiff has filed the suit on the basis of the
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oral understanding that was arrived at between the plaintiff
and defendant and unless and until the oral evidence has been
led in the suit, the Trial Court and the Appellate Court could
not have exercised powers under the provisions of Order VII
Rule 11 of the Code and rejected the plaint and therefore it has
been argued that there are substantial questions of law in the
present Second Appeal and the Second Appeal is required to
be admitted on the substantial questions of law, which are in
the appeal memo as under:
"(1) Whether the cause of action is not
disclosed in the Suit Plaint?
(2) Whether the suit is filed beyond the barred
by any law of limitation?"
7. Having heard learned advocate for the plaintiff, following are
the admitted position in the present suit:
(i) The plaintiff was the owner of the suit property.
(ii) The plaintiff has admitted that the saledeed was executed
on 08.05.2006.
(iii) In the saledeed, the sale consideration amount of
Rs.1,54,000/- is mentioned.
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(iv) In the said saledeed there is no whisper about fact of oral
understanding of payment of Rs.9,51,000/- towards the sale
consideration.
(v) The fact that the saledeed does not mention that over and
above the amount of Rs.1,54,000/-, a further amount of
Rs.8,46,000/- has to be paid by defendant to the plaintiff.
(vi) The case before the Trial Court and the Appellate Court of
the plaintiff is that by way of an oral understanding the sale
consideration was Rs.9,51,000/-, and as the entire sale
consideration is not paid, the saledeed is required to be
cancelled. The fact remains that the saledeed in question is a
registered documents 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
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such instrument or their representatives in
interest, for the purpose of contradicting,
varying, adding to, or subtracting from, its
terms."
8. Therefore, the version of the plaintiff that the actual sale
consideration was an amount of Rs.9,51,000/- can not be believed.
9. 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 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.
10. 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
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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 thus
constitutes an essential ingredient of the
transaction of sale."
11. On bare perusal of the said saledeed produced on record, the
said saledeed does not mention that the said saledeed is subject
to further amount of sale consideration that is to be paid to the
plaintiff.
12.Looking to the contents of the saledeed, the said saledeed also
mentions that an amount of the saledeed has been paid by the
purchasers to the sell, in this case the present plaintiffs have given
receipt of the said consideration in the saledeed.
13. 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 presumption.
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14. 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 saledeed 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 saledeed
cannot be cancelled on the grounds mentioned in the plaint.
15. 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 saledeed.
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 transferer to the
transferee and that the transferer 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,
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 saledeed is not a
sine qua non for completion of sale. In the present case, the
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sale consideration as mentioned in the saledeed has been stated
to have been received by the plaintiff and in the saledeed 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 saledeed 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 saledeed 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 saledeed, it is very clear that the plaintiff has
transferred all his right title interest in the suite property by
executing registered sale deed.
16.In the present case, the plaintiff himself has stated that he has
executed the saledeed and it is not his case that the plaintiff is not a
signatory to the said saledeed or that the said saledeed has been
executed by fraud. The fact remains that the said saledeed is of the
year 2006 and the suit that has been filed by the plaintiff is of the
year 2012 and the only ground that has been taken by the plaintiff
in the plaint is that the plaintiff came to know about the said fact
when the defendants threatened the plaintiff with respect to the
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possession of the property and also when the plaintiff received
notice under Section 135D of the Bombay Land Revenue Code,
1879, but the fact remains that nowhere the plaintiff has stated that
the plaintiff was not aware of the execution of the saledeed by
virtue of Article 59, of the Limitation Act, 1963 which reads as
under:
To cancel or set aside an Three When the facts entitling
instrument or decree or for Years. the plaintiff to have the
the rescission of a contract. instrument or decree
cancelled or set aside or
the contract rescinded
first become known to
him.
17.In view of the said fact the plaintiff has clearly stated that the
plaintiff executed the saledeed and therefore the said fact was very
much in knowledge of the plaintiff. Moreover, in view of the
Article 53 of the Limitation Act, 1963 which reads as under:
By a vendor of immovable Three The time fixed for
property for personal years. completing the sale, or
payment of unpaid (where the title is
purchase-money. accepted after the time
fixed for completion)
the date of the
acceptance.
18.In view of the said fact also when the saledeed is executed on
08.05.2006, the suit for the alleged purchase money was also
required to be filed within a period of three years. In the case of
Dahiben Vs. Arvindbhai Kalyanji Bhanushali, (2020) 7 SCC 366,
wherein it has been held at para nos.29.09 as under:
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"29.9 In view of the law laid down by this Court,
even if the averments of the plaintiffs are taken to
be true, that the entire sale consideration had not
in fact been paid, it could not be a ground for
cancellation of the sale deed. The plaintiffs may
have other remedies in law for recovery of the
balance consideration, but could not be granted
the relief of cancellation of the registered sale
deed. We find that the suit filed by the plaintiffs is
vexatious, meritless, and does not disclose a right
to sue. The plaint is liable to be rejected under
Order 7 Rule 11(a). (emphasis supplied)."
19. In the present case, the conclusion which has been reached by
both the Trial Court and the Appellate Court cannot be
interfered as the judgment and decree of the Court 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.
20. 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
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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."
21. 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."
22. 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
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formulated in the memo of appeal are also not substantial
question of law and on facts.
23. 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
plaintiffs 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.
(SANJEEV J.THAKER,J)
URIL RANA
