Gujarat High Court

Jignesh Bhalabhai Solanki vs Premilaben Bhalabhai Solanki on 1 May, 2025

                                                                                                                NEUTRAL CITATION




                              C/SA/129/2025                                    ORDER DATED: 01/05/2025

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                                   IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                                              R/SECOND APPEAL NO. 129 of 2025

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                                            JIGNESH BHALABHAI SOLANKI & ANR.
                                                         Versus
                                          PREMILABEN BHALABHAI SOLANKI & ORS.
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                      Appearance:
                      MR M P SHAH(11274) for the Appellant(s) No. 1,2
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                        CORAM:HONOURABLE MR.JUSTICE SANJEEV J.THAKER

                                                          Date : 01/05/2025

                                                            ORAL ORDER

1. The present Second Appeal has been filed under Section 100

of the Code of Civil Procedure, 1908 (for short "the Code")

1908 challenging the Judgement and Decree passed in Civil

appeal no 52 of 2022 by the District Court Gandhinagar which

confirmed the Judgement and Degree passed by Principal

Senior Civil Judge at Gandhinagar in Regular Civil Suit no

292 of 2015.

2. For the sake of brevity and convenience the parties are referred

to as their original status in the Civil Suit.

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3. The brief facts arising in the present second appeal are that the

original plaintiff No.1 is the son of original defendant nos.1

and 2 and plaintiff no.2 is wife of the plaintiff no.1.

4. The plaintiff filed Civil Suit against the defendants and in the

said suit the plaintiff claimed declaration that the defendants

are not entitled to sell, transfer assign or sub-let the suit

property to anybody in any manner and for an injunction

restraining the defendant from taking away the possession of

the suit property without following due process of law and

restraining the defendants from transferring, assigning, sub-

letting the suit property. It is the case of the plaintiff that

plaintiff no.1 and defendant no.1 have obtained joint loan from

the Bank for purchasing the suit property and that the plaintiff

no.1 has paid Rs.1 lakh to defendant no.1 by way of cheque

and it is the case of the plaintiff that defendants have gone to

reside at some other place and the possession of the entire

property is with the plaintiffs.

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5. In the said suit, the defendants filed reply and also filed

counter claim and it is the case of the defendant no.1 i.e. the

father of the plaintiff no.1 i.e. defendant no.1 has purchased

the suit property by virtue of registered sale deed on

28.02.2005 and plaintiff being the son of the defendant nos.1

and 2 and plaintiff no.2 being the daughter-in-law of defendant

nos.1 and 2, have treated the defendants with cruelty and

removed defendants from the suit property and Police Cases

have been filed by defendants against the plaintiff and

defendant nos.1 and 2 have filed counter claim for actual

possession of the suit property and restraining the plaintiffs

from obstructing the defendants from using the property.

6. The Trial Court has framed issues as under:

"(i) Whether the plaintiffs prove the suit claim against the defendant?

(ii) Whether the defendants prove their defence?

(iii) Whether the plaintiffs are entitled for the relief as prayed for?

(iv) What order and decree?"

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7. The plaintiff did not enter the witness box nor produced any

documentary evidence. The defendant no.1 examined himself

vide exhibit 60 and after going through documentary evidence

and oral evidence and giving finding on all the issues the Trial

Court decreed the said suit against the plaintiffs and the

plaintiffs challenged the said order by way of filing Special

Civil Appeal no.52 of 2022 which is also dismissed, hence the

present Second Appeal.

8. Learned advocate for the plaintiff has mainly contended that

after the suit was dismissed and during the pendency of the

appeal, the defendant no.1 expired and the plaintiff no.1 being

son of the defendant no.1 will have right by way of succession

with respect to the suit property and therefore also, the

Judgment and Decree passed by the Trial Court and confirmed

by the Appellate Court is required to be quashed and set aside.

It has also been argued by learned advocate for the plaintiff

that the Trial Court could not have come to the conclusion that

the defendant nos.1 and 2 are both owners of the property

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despite the fact that the defendant no.1 was lawful owner of

the property by virtue of sale deed and revenue records. It has

also been argued that the decree becomes infructuous due to

death of defendant no.1 who has died during the pendency of

the First Appeal.

9. It has also been argued that the plaintiff no.1 having

established his legal heirship right has a right to inherit the

property and therefore, the Appellate Court could not have

confirmed the Judgment and Decree and in view of the said

fact, it has been argue, that the present Second Appeal is

required to be admitted.

10. Having heard learned advocate for the plaintiff, the fact

remains that neither the plaintiff has entered the witness box

nor any documents have been produced by the plaintiff to

claim right in the suit property. The fact remains that sale deed

has been executed is in favour of the original defendant no 1.

The original defendant no.1 was the father of the plaintiff no.1.

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Though, the plaintiff no.1 has claimed that, plaintiff no.1 has

given amount of Rs.1 lakh for the purchase of the suit

property, the said fact has not been proved by the plaintiffs by

leading any evidence to that effect. It is also required to be

seen that defendants have filed counter claim and after taking

into consideration oral evidence of the defendant the Trial

Court has allowed the said counter claim and dismissed the

suit of the plaintiff. Though ample opportunity was given to

the plaintiff to prove his case, the fact that the plaintiffs have

not entered the witness box, adverse inference is required to be

drawn against the plaintiffs.

11. Moreover, as per Section 100 of the Code of Civil Procedure

1908, more particularly Section 100(3) which reads as under:

"100(3) In an appeal under this section, the memorandum of appeal shall precisely state the substantial question of law involved in the appeal."

12. In the present memo of Second Appeal, there are no

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substantial question of law which have been suggested and

formulated by the appellant. Moreover, there are concurrent

findings of facts which has been arrived at by the Trial Court

and the Appellate Court and the plaintiffs have not been able

to prove the claim against defendants and sale deed with

respect to the suit property is also only in the name of original

defendant no.1.

13. In view of the fact, there are no substantial questions of law

involved in the present Second Appeal and the fact that the

Trial Court and the Appellate Court have given concurrent

finding therefore, the appeal is required to be dismissed.

14. 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

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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."

15. 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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16. Therefore, also the plaintiff has miserably failed to show that

there is any substantial question of law involved in the present

appeal and even othervise no substantial questions of law have

been formulated in the memo of appeal.

17. 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