Gujarat High Court
Chandrikaben Jagdisbhai Rathod W/O ... vs Jagdisbhai Arjanbhai S/O Arjanbhai ... on 5 May, 2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SECOND APPEAL NO. 102 of 2025
With
CIVIL APPLICATION (FOR STAY) NO. 1 of 2025
In
R/SECOND APPEAL NO. 102 of 2025
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CHANDRIKABEN JAGDISBHAI RATHOD W/O JAGDISBHAI ARJANBHAI
Versus
JAGDISBHAI ARJANBHAI S/O ARJANBHAI NATHABHAI RATHOD & ORS.
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Appearance:
MR. VIVEK M MARU(14011) for the Appellant(s) No. 1
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CORAM:HONOURABLE MR.JUSTICE SANJEEV J.THAKER
Date : 05/05/2025
ORAL ORDER
1. The present Second Appeal has been filed under Section 100 of
the Code of Civil Procedure, 1908 challenging the judgment and
nd
decree passed by the 2 Additional District Judge, Devbhumi
Dwarka at Khambhalia in Regular Civil Appeal No.09 of 2018 dated
20.11.2024 confirming the judgment and decree passed in Regular
Civil Suit No.61 of 2006 on 03.04.2018 passed by Principal Civil
Judge & JMFC, Bhanvad.
2. For the sake of convenience, the parties are referred to as
plaintiffs and defendants herein.
3. The brief facts giving rise in the present Second Appeal are as
under:-
3.1 It is the case of the plaintiffs that the suit property was
purchased in the name of defendant No.1 and as the defendant No.1
was alcoholic and due to transaction of money laundering and due to
payment of interest to defendant No.2, defendant No.1 sold the suit
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property by registered sale deed to defendant No.3 and as the
defendant No.3 sought for possession of the suit property on the
basis of the sale deed the plaintiff filed a suit challenging the sale deed
executed by the defendant No.1 in favour of defendant No.3. The
defendants filed their appearance and the trial Court framed the
issues vide Exhibit-63, which reads as under:-
(i) Whether the plaintiff proves that the defendant No.1 has no
right to execute disputed document?
(ii) Whether the plaintiff proves that the suit property is
ancestral property?
(iii) Whether the plaintiff proves that the sale deed No.552 i.e.
disputed document is illegal and hence liable to be set aside?
(iv) Whether the plaintiffs proves that he is entitled to get relief
as prayed for?
(v) Whether the defendant proves that plaintiff's suit is not
maintainable?
(vi) Whether the defendant No.2 proves that disputed
document is valid and legal, hence the plaintiff is not entitled
to get relief as prayed for?
(vii) What order and decree?
3.2 After going through the oral evidence, documentary
evidence and giving findings on all the issues, the trial Court
dismissed the said suit. Being aggrieved by the said judgment and
decree the plaintiffs filed Regular Civil Appeal No.9 of 2018 and after
reappreciating the evidence, the first appellate Court dismissed the
said appeal and confirmed the judgment and decree passed by the
trial Court in Regular Civil Suit No.61 of 2006 and being aggrieved
by the said judgment and decree, the present Second Appeal has been
filed.
4. Learned advocate for the original plaintiffs has argued that the
plaintiffs are the real owner of the property and it is only because the
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defendant No.1 was the son of plaintiff No.1 the suit property has
been purchased in his name and that the sale deed has been executed
in the name of defendant No.1. It has also been argued by the learned
advocate for the plaintiffs that the sale consideration for purchase of
the suit property has also been paid by the plaintiffs, and therefore,
the defendant No.1 could not have executed sale deed in favour of
defendant No.3. It has also been argued that a fraud has been
committed by defendant Nos.2 & 3 whereby the sale deed has been
executed by defendant No.1. It has also been argued by learned
advocate for the plaintiffs that the possession of the suit property is
with the plaintiffs, as the plaintiffs are residing in the suit property
since many years and because defendant No.1 is alcoholic, the sale
deed has been executed by defendant No.1, in favour of defendant
No.3, which has been executed by fraud committed by defendant
No.3, and therefore, there are substantial questions of law are
involved in the present Second Appeal and the Second Appeal is
required to be admitted. Hence, substantial questions which have
been suggested in the Second Appeal are required to be framed.
5. Having heard learned advocate for the plaintiffs. The admitted
positions are as under:-
(i) Defendant No.1 was the sole owner of the suit property.
(ii) The sole owner has executed a sale deed in favour of defendant
No.3.
(iii) The suit that has been filed by the plaintiffs is only for
cancellation of the sale deed executed by defendant No.1 in favour of
defendant No.3 dated 10.05.2006 and for injunction with respect to
the said property.
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(iv) The seller of said sale deed i.e. defendant No.1, has not filed any
suit challenging the said sale deed.
(v) The plaintiffs have not filed any suit claiming their rights in the
suit property.
(vi) The plaintiffs have also not claimed ownership in the property on
the ground that the consideration for purchase of sale deed has been
paid by plaintiffs.
6. In view of the aforesaid admitted position, the fact remains that
it is the case of the plaintiff that the defendant Nos.1's signature in
the said sale deed executed on 10.05.2006 has fraudulently been
executed by defendant No.3. The fact also remains that defendant
No.1 has neither entered the witness box nor has come forward with
a case that he has not received the sale consideration. In view of the
said fact it is very clear that defendant No.1 has executed the sale
deed in favour of defendant No.3 and that the plaintiffs have not
claimed that defendant No.1 did not have any right, title, interest in
the suit property and the plaintiffs have miserably failed to prove that
the defendant No.1 was not the sole owner of the suit property. The
trial Court and the first appellate Court have taken into
consideration the entire facts of the case and have rightly come to the
conclusion that the plaintiffs not being the owner of the suit property
cannot claim any right in the suit property and challenge the sale
deed executed by defendant No.1 in favour of defendant No.3.
7. In the present case, there are no substantial questions of law
which are involved and the first appellate Court is the final court in
so far as questions of fact are concerned. It is only if substantial
questions of law are involved in a case a Second Appeal can be
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admitted.
8. Moreover, the fact remains that the plaintiff has failed to prove
that he is the owner of the suit property, and therefore, the appellate
Court after reappreciating the factual aspect has rightly come to the
conclusion that the appeal is required to be dismissed.
9. 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."
10. 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 plaintiffs 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
plaintiffs is unable to show that the findings recorded by the learned
Courts are without any evidence or there is any illegality in the
findings.
11. Under the circumstances, this Second Appeal is devoid of any
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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.
12. 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
