Gujarat High Court
Lh Of Decd Shashikant Ganpatbhai Patel vs Krunal Bharatbhai Patel on 7 May, 2025
Author: Sangeeta K. Vishen
Bench: Sangeeta K. Vishen
NEUTRAL CITATION
C/FA/4519/2018 CAV JUDGMENT DATED: 07/05/2025
undefined
Reserved On : 06/01/2025
Pronounced On : 07/05/2025
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 4519 of 2018
With
CIVIL APPLICATION (FOR STAY) NO. 1 of 2018
In R/FIRST APPEAL NO. 4519 of 2018
FOR APPROVAL AND SIGNATURE:
HONOURABLE MS. JUSTICE SANGEETA K. VISHEN
and
HONOURABLE MR. JUSTICE NIRAL R. MEHTA
================================================================
Approved for Reporting Yes No
✔
================================================================
LH OF DECD SHASHIKANT GANPATBHAI PATEL & ORS.
Versus
KRUNAL BHARATBHAI PATEL & ANR.
================================================================
Appearance:
DECEASED LITIGANT THROUGH LEGAL HEIRS/ REPRESTENTATIVES
for the Appellant(s) No. 1
MR KUNJAL D PANDYA(2259) for the Appellant(s) No. 1.1,1.2
SERVED BY AFFIX(N) for the Defendant(s) No. 1
MR ADIL MIRZA with mr SUMIT K PRAJAPATI(8867) for the Defendant No. 2
================================================================
CORAM:HONOURABLE MS. JUSTICE SANGEETA K. VISHEN
and
HONOURABLE MR. JUSTICE NIRAL R. MEHTA
CAV JUDGMENT
(PER : HONOURABLE MR. JUSTICE NIRAL R. MEHTA)
1. Present First Appeal under Section 96 of the Code of
Civil Procedure, 1908 (for short 'the Code'), at the instance of
NEUTRAL CITATION
C/FA/4519/2018 CAV JUDGMENT DATED: 07/05/2025
undefined
appellants, original plaintiffs, is directed against the judgment
and decree dated 30.8.2018 passed by the learned Principal
Senior Civil Judge, Ankleshwar, whereby the suit for
declaration, permanent injunction and cancellation of the sale
deed filed by the original plaintiff was dismissed with costs.
2. The brief facts of the case can be stated as under :
2.1 Shri Shashikant Ganpatbhai Patel, the original plaintiff
instituted Special Civil Suit No.93 of 2013 and during the
pendency of the said suit, he died and, therefore, the
appellant Nos.1.1 and 1.2 being his heirs, were brought on
record. The suit was for declaration, permanent injunction
and cancellation of the sale deed on the ground that the
original plaintiff was the owner of the suit property and the
respondent No.1 does not derive any right, title and interest
on the basis of the partition deed, writing executed in his
favour by the plaintiffs and that all the documents are forged,
fabricated and illegal. The declaration was sought to the effect
that the registered sale deed dated 4.1.2013 executed by the
respondent No.1 in favour of respondent No.2 is illegal, null
and void and that the respondent No.2 does not derive any
right, title and interest in the suit property. The permanent
injunction was accordingly sought restraining the defendants
from causing any hindrance in the ownership right and the
possession of the suit property and forcibly taking the
possession.
2.2 Upon service of summons, the respondents - original
defendants appeared and filed the written statement at
NEUTRAL CITATION
C/FA/4519/2018 CAV JUDGMENT DATED: 07/05/2025
undefined
Exh.15 and Exh.13 respectively, denying, inter alia, the
contentions of the appellants - original plaintiffs.
2.3 The trial court, having considered the pleadings, framed
the issues below Exh.46 as under :
"1. Whether the plaintiff proves that he is owner and
occupant of the suit property ?
2. Whether the plaintiff proves that defendant no. 1 has
cheated him and has taken signatures on blank papers,
which was latter misused and the suit properties are
entered in the name of defendant no.1?
3. Whether plaintiff proves that without any right and title
defendant no. 1 has executed registered sale deed (of
agricultural land survey no. 90/A) no.6 dated 4th January,
2013 which is illegal and void ?
4. Whether the plaintiff proves that the pedigree,
Panchakyash, heir's statements, consent, family
arrangement (partition) etc. documents are fraudulently
made out by the defendant no. 1, which are not binding to
him?
5. Whether the plaintiff proves that the revenue record's
extract entry no. 2404 dated 30th May, 2011 is entered
without his consent and knowledge in favour of defendant
no. 1 in collusion with revenue officers?
6. Whether the plaintiff proves that defendant no. 1 has
created fraudulent documents and made out extract entry,
therefore defendant no. 1 has not right and title to execute
sale deed to defendant no. 2 even though defendant no. 1
has executed registered sale deed so, extract entry and
challenged sale deed in favour of defendant no. 2 is not
binding to him?
7. Whether the defendant no. 2 proves that plaintiff, his
family members including the heirs have released their
right in favour of defendant no. 1. While executing
statements, panchakyash before the revenue accountant
and defendant no.1 became owner and occupant of the suit
property?
NEUTRAL CITATION
C/FA/4519/2018 CAV JUDGMENT DATED: 07/05/2025
undefined
8. Whether the defendant no. 2 proves that he has handed
over all the consideration amount to the owner and legally
he has purchased property from the owner i.e. defendant
no. 1 and he became owner and occupant as a bona fide
purchaser?
9. Whether defendant no. 2 proves that the plaintiff has
filed this suit in collusion ?
10. Whether the defendant no. 1 proves that defendant no.
2 has taken his signatures on the blank papers and which is
misused for registered sale deed. Therefore power of
attorney and sale deed are liable to be declared as void?
11. Whether defendant no. 1 proves that he has not sold the
suit property and executed sale deed or POA as well not
handed over possession to defendant no. 2 and defendant
no. 2 has not paid consideration amount of Rs. 20 Lakhs ?
12. Whether the plaintiff is entitled to get relief as prayed
for?
13. What order and decree?"
2.4 The trial court, having considered the aforesaid oral as
well as documentary evidence, decided the issues as under :
"1. In Negative.
2. In Negative.
3. In Negative.
4. In Negative.
5. In Negative.
6. In Negative.
7. In Affirmative.
8. In Affirmative.
9. In Affirmative.
10. In Negative.
11. In Negative.
NEUTRAL CITATION
C/FA/4519/2018 CAV JUDGMENT DATED: 07/05/2025
undefined
12. In Negative.
13. As per final order."
2.5 The trial court, so as to decide the aforesaid issues, has
considered the oral as well as documentary evidence led by
the respective parties which can be stated in tabular form, as
under:
Plaintiff's Oral evidence :
Sr. Exh. Deposition Date
No.
1. 52 Ms. Kalpanaben Bharatbhai as 10.02.2017
POA of plaintiff.
2. 78 Witness Mr. Ashish Jaswant 14.07.2017
Patel
3. 79 Witness Mr. Dhansukh 14.07.2017
Kashiram
Plaintiff's documentary evidence :
Sr. Exh. Particulars of document Date
No.
1. 55 POA of original plaintiff 17.04.2013
2. 56 copy of revenue record form no. 16.07.2009
8A
3. 57 copy of revenue record form no. 16.07.2009
7 & 12
4. 58 copy of revenue record form no. 16.07.2009
7 & 12
5. 59 copy of revenue record form no. 16.07.2009
7 & 12
6. 60 copy of revenue record form no. 16.07.2009
7 & 12
7. 61 Extract entry no. 2404 30.05.2011
8. 62 Extract entry no. 2500 04.01.2013
9. 63 copy of revenue record form no. 15.02.2013
NEUTRAL CITATION
C/FA/4519/2018 CAV JUDGMENT DATED: 07/05/2025
undefined
8A
10. 64 copy of revenue record form no. 15.02.2013
11. 65 copy of revenue record form no. 15.02.2013
8A
12. 66 copy of revenue record form no. 15.02.2013
8A
13. 67 copy of revenue record form no. 15.02.2013
14. 68 copy of revenue record form no. 15.02.2013
15. 69 copy of Panchakyash 12.05.2011
16. 70 Pedigree
17. 71 Kalpanaben Shashikant's 12.05.2011
statement before Talati
18. 72 Krunal Bharatbhai's statement 12.05.2011
before Talati
19. 73 Registered sale deed No 6 04.01.2013
20. 74 Public Notice 09.04.2013
21. 75 Copy of revenue record form 02.11.2012
no. 7
22. 76 Copy of POA of heirs of 04.03.2015
plaintiffs
Oral evidence of defendant No.1
Sr. Exh. Deposition Date
No.
1. 83 Deposition on oath of defendant 18.08.2017
No.1
Oral evidence of defendant No.2
Sr. Exh. Deposition Date
No.
1. 96 Ashokkumar Nathalal 10.11.2017
Savaliya(deft. no. 2)
2. 111 Wit. Pirubhai Nathubhai 19.01.2018
(Witness of Sale deed)
NEUTRAL CITATION
C/FA/4519/2018 CAV JUDGMENT DATED: 07/05/2025
undefined
3. 119 Witness Sumanbhai 30.03.2018
Thakorebhai Mistry ( Notary)
Documentary evidence of defendant No.2
Sr. Exh. Particulars of document Date
No.
1. 86 Copy of Sp.C.S. No. 83/15 -
2. 87 W.S. Of Deft. No. 1 in Sp.C.S. 29.07.2017
No. 83/15
3. 88 Copy of revenue record form no 20.03.2017
8A
4. 89 Copy of revenue record form no 20.03.2017
5. 90 Copy of revenue record form no 20.03.2017
6. 91 Copy of revenue record form no 20.03.2017
8A
7. 92 Copy of revenue record form no 20.03.2017
8. 99 Copy of the complaint of deft. 27.11.2015
no. 2
9. 100 Copy of Form no. 6 extract entry 7.11.2017
no. 2500
10. 101 Copy of Form no. 7 7.11.2017
11. 102 Affidavit of Bharatbhai 07.07.2012
Shashikantbhai
12. 103 Affidavit of Kalpanaben 07.07.2012
Shashikantbhai
13. 104 Affidavit of Kalpanaben 07.07.2012
Bharatbhai
14. 105 Affidavit of Bhavika Bharatbhai 07.07.2012
15. 106 Bank statement of deft. no. 2 07.07.2012
16. 120 copy of notary's register entry 07.07.2012
no. 1385 to 1388/2018
2.6 The trial court, having decided the issues, as stated
herein-above, vide judgment and decree dated 30.8.2018,
NEUTRAL CITATION
C/FA/4519/2018 CAV JUDGMENT DATED: 07/05/2025
undefined
dismissed the suit of the original plaintiffs, with costs. Being
aggrieved and dissatisfied, the appellants herein - original
plaintiffs have approached this Court by way of this First
Appeal.
3. Heard Mr.Kunjal Pandya learned advocate for the
appellants and Mr.Adil Mirza learned advocate assisted by
Mr.Sumit Prajapati learned advocate for respondent No.2.
Respondent No.1, though served by affixation, chosen not to
appear and/or to contest the matter.
4. Mr.Kunjal Pandya learned advocate for the appellants,
while assailing the impugned judgment and decree, has made
the following submissions :
4.1 Mr.Pandya submitted that the impugned judgment and
decree passed by the trial court is bad in law and contrary to
the facts and evidence on record. He further submitted that
the trial court has seriously erred in appreciating the
pleadings as well as the evidence on record and that has
resulted into miscarriage of justice.
4.2 Mr.Pandya submitted that the trial court has committed
serious error in appreciating the deed of partition (vahechani)
dated 12.5.2011. He submitted that in the deed of partition, at
least there has to be requirement of two persons. However, in
the present partition deed, the original plaintiff i.e. late Shri
Shashibhai Ganpatbhai Patel had given all the properties to
the grandson i.e. Krunal Bharatbhai Patel i.e. original
defendant No.1. Mr.Pandya, therefore, submitted that the said
NEUTRAL CITATION
C/FA/4519/2018 CAV JUDGMENT DATED: 07/05/2025
undefined
partition deed itself is dubious and not registered one. Under
the circumstances, reliance placed on the said partition deed
by the trial court is not tenable in eye of law. Thus, the
impugned judgment and decree based on such piece of
evidence, deserves to be quashed and set aside.
4.3 Mr.Pandya submitted that the trial court has also erred
in believing the documentary evidence such as Panchkyas
Exh.69, pedigree Exh.70, statement before the Talati-cum-
Mantri Exh.71, statement of the defendant No.1 before the
Talati-cum-Mantri Exh.72 resulting into serious miscarriage of
justice. Mr.Pandya further submitted that the defendant No.1
has perpetrated the fraud upon the original plaintiff -
Shashikant Ganpatbhai Patel and by misusing his trust,
created forged and fabricated documents and got his name
entered in the properties and got the property in his name.
Under the circumstances, it is an error committed by the trial
court to give due weightage to the Entry No.2404 dated
30.5.2011 and held the defendant No.1 as the sole owner of
the property in question. Mr.Pandya submitted that the
revenue entry does not confer any right, title or interest and
thereby, holding the defendant No.1 as the exclusive owner on
the basis of the Entry No.2404 by the trial court, is nothing
but a sheer misconception of law and thus, based on such
misconception of law, the impugned judgment and decree
deserves to be quashed and set aside.
4.4 Mr.Pandya next submitted that the so called affidavits
produced before the revenue authorities by all the family
members in favour of defendant No.1, are in nature of release
NEUTRAL CITATION
C/FA/4519/2018 CAV JUDGMENT DATED: 07/05/2025
undefined
deed and therefore, and ought to have been registered in view
of Section 17 of the Registration Act, 1994. In absence of any
registration of the documents, the trial court ought not to
have given due weightage and ought to have discarded the
same. However, the trial court has committed a serious error
in considering those documents as cogent evidence and that
has resulted into serious miscarriage of justice.
4.5 The main bone of contention of Mr.Pandya is that
neither the partition deed nor the affidavits of the family
members before the revenue authorities, are registered as
envisaged under Section 17 of the Registration Act and hence,
no reliance could have been placed on such documents. He,
therefore, requested to quash and set aside the impugned
judgment and decree in the interest of justice. By making
above submissions, Mr.Pandya urged this Court to allow the
First Appeal.
5. Per contra, Mr.Adil Mirza learned advocate assisted by
Mr.Sumit Prajapati learned advocate for respondent No.2,
while supporting the judgment and decree, has made the
following submissions:
5.1 Mr.Mirza submitted that the original defendant No.2 is
the bona fide purchaser of the land in question with due
consideration. He further submitted that a sum of Rs.20 lakhs
has been paid to the defendant No.1 at the time of execution
of sale deed dated 4.1.2013. It is therefore, submitted that the
land was purchased by the respondent No.2 after due
NEUTRAL CITATION
C/FA/4519/2018 CAV JUDGMENT DATED: 07/05/2025
undefined
diligence by verifying the revenue records and mutation of
entry No.2404 dated 30.5.2011. Thus, the sale deed in favour
of respondent No.2 cannot be quashed and set aside in a
collusive suit by way of bald averments of perpetration of
fraud.
5.2 Mr.Mirza submitted that it is the contention of the
original plaintiffs that the defendant has practiced fraud and
by way of forged documents and got the property in his name.
Except the bald averments, there is nothing on record to
suggest that the fraud was actually perpetrated by the
defendant No.1. Mr.Mirza would further submit that as such,
the suit itself is collusive suit. To substantiate such
contention, it is pointed out that the sale deed in favour of
defendant No.2 was executed in the year 2013 on the basis of
the certified entry No.2404. The defendant No.1, who was the
sole owner as per the revenue records, has accepted the sale
consideration and having accepted the consideration, has
supported the case of the plaintiffs in the suit proceedings. It
is next submitted that surprisingly, neither the sale deed
executed by defendant No.1 is challenged nor challenge is
made to any of the so called fraudulent document on the basis
of which entry No.2404 was certified. The challenge to the
sale deed is made by the father of the defendant No.1 and is
supported by the defendant No.1 which speaks volume about
the collusion.
5.3 Mr.Mirza has placed heavy reliance upon the
documentary evidence such as partition deed dated
NEUTRAL CITATION
C/FA/4519/2018 CAV JUDGMENT DATED: 07/05/2025
undefined
12.5.2011, Entry No.2404 dated 30.5.2011 based on such
partition deed Exh.61, Panchkyas by the Talati-cum-Mantri at
Exh.69, pedigree at Exh.70, statement of the appellant
Nos.1.1 and 1.2 before the Talati-cum-Mantri at Exh.71,
statement of defendant No.1 before the Talati-cum-Mantri at
Exh.72 and the notarized affidavit of appellant No.1.1 at
Exh.102, affidavit of appellant No.1.2 at Exh.103, by which
the mutation of entry No.2404 has been confirmed. Mr.Mirza
submitted that admittedly, no such documents have been
challenged by any of the original plaintiffs nor the Entry
No.2404 was questioned before the revenue authorities nor
even the Entry No.2500 which was mutated and certified
pursuant to the registered sale deed. Mr.Mirza, under these
circumstances, submitted that the suit is filed seeking only
declaration without seeking any relief of the cancellation of
documents and thus, rightly dismissed by the trial court,
holding that the sale deed in favour of respondent No.2
cannot be cancelled.
5.4 Mr.Mirza placed heavy reliance upon the deposition of
one Shri Suman Thakorbhai Mistry (Exh.119), a Notary
Advocate, who has executed notarized affidavits which are
produced at Exh.102 to Exh.105. In his oral evidence, said
witness has admitted that said affidavits were notarized by
him by explaining the contents thereof to the deponent.
Mr.Mirza, therefore, submitted that the plaintiffs have, with
all consciousness and willingness, executed the affidavits
releasing their share in favour of defendant No.1 and thus, it
cannot be said that the defendant No.1 has committed any
NEUTRAL CITATION
C/FA/4519/2018 CAV JUDGMENT DATED: 07/05/2025
undefined
fraud and accordingly, the property transferred to the
defendant No.1, cannot be said to be a result of any fraud or
fraudulent act. Mr.Mirza submitted that the defendant No.1
was lawful and legal owner on record from whom the
defendant No.2 has purchased the property with
consideration and thus, the title of the defendant No.2 cannot
be disputed by way of collusive suit brought by the family
members.
5.5 Mr.Mirza submitted that the trial court has rightly not
granted any relief and the suit is rightly dismissed.
Accordingly, Mr.Mirza requested this Court to dismiss the
Appeal in the interest of justice. By making above
submissions, Mr.Mirza requested this Court to dismiss the
Appeal. No other and further submissions have been
canvassed by learned advocates appearing for the respective
parties, except what are stated herein-above.
6. Heard the learned advocates appearing for the
respective parties. Perused the records and proceedings of
the case.
7. Having considered the submissions and material
produced on record, the following questions fall for
consideration of this Court, namely:
(i) Whether the family arrangement in substance
relinquishment deed deserves to be compulsorily registered
under the provision of the Indian Registration Act, 1908?
NEUTRAL CITATION
C/FA/4519/2018 CAV JUDGMENT DATED: 07/05/2025
undefined
(ii) Whether the validity and legality of the document i.e.
Vehachani Karar dated 12.5.2011 in the context of Indian
Registration Act, 1908 can be gone into in absence of any
specific challenge thereof?
8. In the peculiar facts and circumstances of this case, this
Court would like to decide Question No.2 first and if the
answer to the question No.2 is in affirmative, only then the
first question can be gone into.
9. Pertinently, the original plaintiff - Shashikant
Ganpatbhai Patel was the owner of the suit property, who
happened to be the grandfather of the defendant No.1. The
original plaintiff - Shashikant Ganpatbhai Patel had executed
'vahechani karar' on 12.5.2011 in favour of defendant No.1
(grandson). Although the said document is stated as
'vahechani karar' in substance, it is a deed of relinquishment
of right, title and interest of the suit property in favour of
defendant No.1 during life span of the original plaintiff -
Shashikant Ganpatbhai Patel.
10. Pursuant to the said 'vahechani karar', name of
defendant No.1 was mutated in the revenue records. During
the proceedings, panchkyas dated 12.5.2011 was drawn by
the Talati-cum-Mantri (Exh.69), pedigree (Exh.70) was
prepared, statements of plaintiff Nos.1.1 and 1.2 as well as
Kalpnaben Bharatbhai Patel (mother of defendant No.1) and
Bhumikaben Bharatbhai Patel (sister of defendant No.1) were
recorded by the competent authority vide Exh.71 and the
statement of the defendant No.1 was also recorded vide
NEUTRAL CITATION
C/FA/4519/2018 CAV JUDGMENT DATED: 07/05/2025
undefined
Exh.72. Considering the aforesaid and after following the due
procedure of law, the revenue authority has posted the name
of the defendant No.1 vide entry No.2404 dated 30.5.2011
(Exh.61). At this stage, it would not be out of place to mention
that entry No.2404 was never disputed and/or challenged by
any of the plaintiffs or the family members.
11. Thereafter, on 7.7.2012, again, the plaintiff Nos.1.1 and
1.2, Kalpnaben Bharatbhai Patel (mother of defendant No.1)
and Bhumikaben Bharatbhai Patel (sister of defendant No.1)
executed a notarized affidavits confirming the Entry No.2404
dated 30.5.2011. In the affidavits, it has been categorically
stated that the transfer of land in the name of defendant No.1
and the mutation of entry being No.2404 thereof is accepted
by all the family members. The said affidavits are the part of
the record of the suit proceedings being Exh.102 to Exh.105.
Importantly, the Notary Advocate Mr.Sumanbhai Mistry, who
notarized the said affidavits, was examined and in his oral
evidence, Exh.119, he has confirmed the execution of the
aforesaid affidavits and identified the signature as well as the
maker of the affidavits.
12. The defendant No.1, thus, having become absolute
owner of the land in question, with all his competence,
executed a registered sale deed with respect to land bearing
Survey No.90A in favour of defendant No.2 for the
consideration of Rs.10 lakhs by way of cheque and Rs.10 lakhs
by way of cash. Pursuant to the aforesaid registered sale
deed, revenue entry No.2500 dated 4.1.2003 (Exh.62)
NEUTRAL CITATION
C/FA/4519/2018 CAV JUDGMENT DATED: 07/05/2025
undefined
mutated in the revenue record. Admittedly, the defendant
No.1 has neither challenged the said entry nor has challenged
the registered sale deed. Surprisingly, the defendant No.1
appeared in the suit proceedings and filed written statement
below Exh.33, supporting the case of the plaintiffs and
pleaded to have no objection if the prayers of the plaint are
allowed.
13. At this stage, it is necessary to take notice of the reliefs
made in the plaint. The reliefs made therein are declaratory in
nature and is to the effect that the plaintiffs are the owners of
the property and the defendant No.1 has got no right, title
and interest in the suit property by virtue of partition deed,
pedigree and consent agreements etc. Consequentially,
cancellation of the sale deed dated 4.1.20213 executed by the
defendant No.1 in favour of defendant No.2 is also prayed for.
Significantly, the plaintiffs have not challenged any of the
documents alleged to have been forged.
14. Considering the totality of the facts and circumstances,
this Court is of the confirmed opinion that the Vahechani
Karar dated 12.5.2011, was produced before the revenue
authorities for giving effect thereof. During the said revenue
proceedings, the competent authority, after having followed
the due process of law, mutated the name of the defendant
No.1 in the records of right. The plaintiff Nos.1.1 and 1.2 as
well as Kalpnaben Bharatbhai Patel (mother of defendant
No.1) and Bhumikaben Bharatbhai Patel (sister of defendant
No.1) also appeared before the authority and have given their
NEUTRAL CITATION
C/FA/4519/2018 CAV JUDGMENT DATED: 07/05/2025
undefined
positive statements in favour of defendant No.1. Meaning
thereby, while giving effect of Vahechani Karar was given by
the revenue authorities, all the necessary and concerned
parties have appeared and confirmed the 'Vahechani Karar'
dated 12.5.2011. Even, at a later stage, on 7.7.2012, all the
necessary parties including the plaintiff Nos.1.1 and 1.2
executed notarized affidavit confirming the Entry No.2404
dated 30.5.2011 by virtue of which the name of the defendant
No.1 was mutated in the records of right pursuant to the
'Vahechani Karar'. The Notary Advocate Mr.Suman Mistry
was examined before the trial court below Exh.119, who
confirmed the execution of the aforesaid affidavits and
identified the signatures as well as maker of the affidavits.
Thus, not only the 'Vahechani Karar' dated 12.5.2011 was
accepted by all the concerned parties but, the same was also
allowed to be acted upon. The mutation of entry was never
disputed and/or challenged either by the original plaintiff or
by the heirs of the original plaintiff. Thus, this Court is of the
considered opinion that the plaintiffs are now estopped from
disputing the deed of partition and cannot be allowed to back
out from their stand.
15. Moreover, one cannot lose sight of the fact that the
defendant No.2 is a bona fide purchaser with consideration,
who has purchased the land after exercising due diligence.
Unfortunately, after paying full consideration to the defendant
No.1, he is facing present proceedings owing to prejudicially
the defendant No.1 having changed his stand by way of
written statement, supporting the case of the plaintiffs. This
NEUTRAL CITATION
C/FA/4519/2018 CAV JUDGMENT DATED: 07/05/2025
undefined
Court is, therefore, of the opinion that the suit is not only
vexatious but the same is collusive in nature. The original
plaintiff - Shashikant Ganpatbhai Patel never disputed the
execution of 'Vahechani Karar' dated 12.5.2011 during his life
span. Even the plaintiff Nos.1.1 and 1.2 also have not disputed
and/or challenged the 'Vahechani Karar' dated 12.5.2011.
Thus, this Court would certainly not allow and confirm the
dishonest and collusive stand taken by the plaintiff Nos.1.1
and 1.2 and the defendant No.1.
16. It is a cardinal principle of law that if the forgery and/or
fraud is alleged, then it has to be proved. In the instant case,
in the plaint, there is bald averments that the defendant No.1
perpetrated fraud. However, surprisingly, the so called fraud
and fraudulent document - 'Vahechani Karar' dated 12.5.2011
has not been challenged. Under the circumstances, this Court
is of the firm opinion that once the document has been
executed and acted upon, unless it is challenged, legality and
validity of the said document cannot be gone into. The
'Vahechani Karar' dated 12.5.2011 is not registered, but can
be used as corroborative piece of evidence coupled with the
conduct of the parties. This Court is further of the opinion that
the document which has been accepted and allowed to be
implemented by the plaintiffs cannot be questioned without
specific challenge thereof. Mere bald pleadings of fraud
and/or raising a question of legality of the documents without
any challenge in specific, is not permissible in the eye of law.
17. Keeping in mind the aforesaid, this Court would now
NEUTRAL CITATION
C/FA/4519/2018 CAV JUDGMENT DATED: 07/05/2025
undefined
proceed to deal with the contentions of the learned advocate
for the appellants, as under :
(1) So far as the contention with regard to 'Vahechani
Karar' dated 12.5.2011 is concerned, Mr.Kunjal Pandya
learned advocate, submitted that in the said partition deed,
everything has been bequeathed to the defendant No.1 and
that there is no actual partition of the property amongst any
other family members. In the said context, this Court has
considered the 'Vahechani Karar' dated 12.5.2011 as a whole.
Bare perusal of the aforesaid 'Vahechani Karar' dated
12.5.2011, this Court is of the opinion that it is as such a
relinquishment deed in favour of defendant No.1, though the
nomenclature of the deed is stated to be 'Vahechani'. On
perusal of the said deed, it is evident that the original plaintiff
- Shashikant Ganpatbhai Patel being a grandfather of the
defendant No.1, due to his age and the ill-health of the
plaintiff No.1.1, transferred the property in the name of
defendant No.1 for its effective management. Thus, this Court
is of the opinion that the said 'Vahechani Karar' dated
12.5.2011 is not actually a partition of the property amongst
the family members but, it is a relinquishment deed which is
accepted and allowed to be implemented by the plaintiffs.
Therefore, now, it is not open to the plaintiffs to dispute its
veracity, legality and validity.
(2) Another contention of Mr.Kunjal Pandya with regard to
placing heavy reliance on the Entry No.2404 dated 30.5.2011
by the trial court is concerned, in our opinion, the said
contention is not worth accepting. We say so because having
NEUTRAL CITATION
C/FA/4519/2018 CAV JUDGMENT DATED: 07/05/2025
undefined
considered the entire material, we found that after execution
of the 'Vahechani Karar' dated 12.5.2011, the same was
produced before the revenue authorities for its
implementation. Apropos to the aforesaid, the revenue officers
have undertaken the procedure wherein, the plaintiff Nos.1.1
and 1.2 and Kalpnaben Bharatbhai Patel (mother of defendant
No.1) and Bhumikaben Bharatbhai Patel (sister of defendant
No.1) all appeared before the authorities and have confirmed
the 'Vahechani Karar' dated 12.5.2011 in favour of defendant
No.1. The statements recorded during the revenue
proceedings are part and parcel of the record before the trial
court. Thus, in our opinion, in absence of any challenge to the
revenue entries, the trial court cannot be said to have
committed any fault in considering the same as positive
evidence in favour of defendant No.1. Although it is a trite law
that entry does not confirm any right, title or interest,
however, at the same time, if the entry is certified after due
procedure of law and in absence of any challenge thereto, it
cannot also be ignored.
(3) Lastly and more importantly, this Court would not
approve the dishonest and collusive conduct of the plaintiffs
and defendant No.1. This Court has no hesitation to hold that
the suit is a glaring example of abuse of process of law. We
say so because the property had gone into the name of
defendant No.1 by virtue of Vahechani Karar, although it was
alleged to have been fraud, but no prayer was made in the suit
for cancellation of the said Vahechani Karar. No revenue
proceeding are initiated by the plaintiff against the Entry
NEUTRAL CITATION
C/FA/4519/2018 CAV JUDGMENT DATED: 07/05/2025
undefined
No.2404 posted pursuant to the Vahechani Karar dated
12.5.2011. The defendant No.1 on the basis of Entry No.2404,
sold the property and appropriated the money. Thus, on one
hand, he has not challenged the sale deed executed by him in
favour of defendant No.2 but, on the other hand, in the suit,
by way of his written statement, urged that the suit filed by
his father be allowed. The suit itself being collusive and
dishonest attempt on the part of the plaintiff and having
answered the Question No.2 in negative, decision on Question
No.1 does not arise.
18. In view of the above discussion, the present Appeal
being bereft of any merits, deserves to be dismissed and is
hereby dismissed. Notice is discharged.
19. Consequently, Civil Application No.1 of 2018 also stands
disposed of.
(SANGEETA K. VISHEN,J)
(NIRAL R. MEHTA,J)
V.J. SATWARA
