Gujarat High Court
Salim Nasirhusain Gaur vs Jagdish Parshottambhai Patel on 9 May, 2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SECOND APPEAL NO. 142 of 2025
With
CIVIL APPLICATION (FOR STAY) NO. 1 of 2025
In R/SECOND APPEAL NO. 142 of 2025
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SALIM NASIRHUSAIN GAUR
Versus
JAGDISH PARSHOTTAMBHAI PATEL & ORS.
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Appearance:
MR HARESH J TRIVEDI(927) for the Appellant(s) No. 1
MR JAY SNEHAL SHAH(13391) for the Respondent(s) No. 1,2,3,4
MR SP MAJMUDAR(3456) for the Respondent(s) No. 1,2,3,4
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CORAM:HONOURABLE MR.JUSTICE SANJEEV J.THAKER
Date : 09/05/2025
ORAL ORDER
1. The present Second Appeal has been filed under Section 100 of the
Code of Civil Procedure, 1908 (for short "the Code") challenging
the judgment and decree passed by 12th Additional District Judge,
Vadodara in Civil Appeal No.170 of 2023 dated 03.03.2024
whereby the said appeal has been dismissed and the Judgment and
decree passed in Regular Civil Suit No.82 of 2008 has been
confirmed by the First Appellate Court, hence the present Second
Appeal.
2. For the sake of brevity and convenience, the parties are referred to
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their original status as that of the suit.
3. The brief facts arising in the present suit are that the plaintiffs filed
a suit being Civil Suit No.82 of 2008 against the defendants on the
ground that one Avniben Yogeshbhai Makodi and Divya alias
Deepaben Yogeshbhai Makodi have purchased the suit property by
registered sale deed on 25.02.1993. Thereafter, in the year 2000 by
way of three sale deeds, the plaintiff has purchased the suit
property from the above referred Avniben Yogeshbhai Makodi and
Divya alias Deepaben Yogeshbhai Makodi
4. The plaintiffs came to know that the defendants have fabricated
certain documents relying upon those fraudulent documents, the
defendants are representing that they have a right, title and interest
over the suit property. Therefore the plaintiff issued a public notice
on 30.12.2007 and therefore, the plaintiff filed the suit seeking that
the defendants be restrained from entering the suit property and
further seeking a declaration that the defendants do not have any
right, title, interest to transfer assign sell the suit property and
further injunction restraining the defendants from making any
construction in the suit premises.
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5. The defendants entered their appearance in the suit and filed their
written statement denying the case pleaded by the plaintiff in the
plaint. It is the case of the defendant that the possession of the
property is with Tusharbhai K. Shah, who is developing the suit
property the plaintiff has relied on a false and illegal power of
attorney in the name of original owner and that the plaintiffs have
created false agreement and documentary evidence.
6. It is the case of the defendant that the defendant had filed Special
Civil Suit No.303 of 1996 against the legal heirs of Motibhai Patel
and in the said suit, Amiben Yogeshbhai Makodi was also party
defendant. The learned Trial Court had granted an injunction on
27.09.1996 with respect to the suit property.
7. The Trial Court had framed issues vide exhibit 78, which are as
under:
"(1) Whether the plaintiff proves that he is
purchased property illegally and become
owner of the property?
(2) Whether the plaintiff proves that defendant
illegally encroaching his property?
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(3) Whether the defendant proves that his legal
in the suit property basis of registered
agreement No.4800 dated 07.09.1987?
(4) Whether the plaintiff entitled to get relief as prayed?
(8) What order & Decree?"
8. The plaintiff was examined vide exhibit 84, the witness of the
plaintiffs was examined vide exhibit 118 and the defendant had
examined himself vide exhibit 142. After taking into consideration
the oral and documentary evidence and giving finding on all issues,
the Trial Court had dismissed the said suit and being aggrieved by
the said order the plaintiff filed Regular Civil Appeal No.170 of
2023, which was also dismissed on 03.03.2025, hence the present
Second Appeal.
9. Learned advocate for the plaintiff has mainly argued that the
plaintiff is the prior owner of the suit property by virtue of
registered sale deed executed in the year 1993, which has been
executed by the original owner and therefore the alleged sale deed
on which the defendant relies on cannot be considered, for
determining the title of the suit property.
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10. It has also been argued that, if the written statement of the
defendants taken into consideration, the defendant has not raised
any contention that the suit property has been purchased by the
defendant by way of registered sale deed and in fact, the defendant
has only taken a contention that by way of agreement to sell, they
have right, title, interest in the property.
11. The learned advocate for the plaintiff has also argued that the
documents produced by the defendant at a later stage could not
have been considered by the Trial Court while deciding the suit. It
has also been argued that the Trial Court and the Appellate Court
have not taken into consideration the fact that the power of attorney
of Jawahar Ramchandra Gurbakshani was not required to be
produced in view of the fact that the sale deed has been registered
and therefore it has been argued that the Trial Court and the
Appellate Court have not taken into consideration the said fact.
12. It has also been argued that the Court ought to have held that once
Amiben Makodi, Deepaben Makodi and Avniben Makodi have
become legal owners with title of the property, original owner
Ramanbhai Motibhai and any other persons have no right, title,
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interest and could not have executed any sale deed with respect to
the suit property, after the execution of sale deed in favour of the
plaintiff in the year 1993. As after the year 1993, the original
owner will have no right, title or interest in the suit property.
13. It has also been argued that the Special Civil Suit No.303 of 1996
came to be disposed of as abated as a sole plaintiff died and
therefore the Court could not have taken into consideration the
facts of the said Civil Suit. It has also been argued that the Trial
Court could not have taken into consideration the registered sale
deed, exhibit 154 and 155 as the same was without any pleadings
in the written statement. Therefore, it has been argued that there are
substantial questions of law involved in the present second appeal
and the second appeal is required to be admitted on the substantial
question of law as suggested in the memorandum of appeal.
14. The learned advocate for plaintiff has relied on the following
judgments:
(i) Kaushik Premkumar Mishra Vs. Kanji Ravaria @ Kanji on
19th July, 2024 in Civil Appeal No.1573 of 2023 (ii) Kuldip
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Singh Vs. Balwant Kaur reported in 1991 AIR (P&H) 291 (iii)
Manik Majumder And Others Vs. Dipak Kumara Saha (Dead)
Through LRS & Others reported in 2023 LawSuit(SC) 31 (iv)
Srinivas Raghavendrarao Desai (Dead) by LRS V. Kumar
Vamanrao @ Alok And Ors. reported in 2024 LawSuit(SC)
196 (v) Sugandhi (Dead) By LRS & ANR Vs. P Rajkumar Rep
by his Power Agent Imam Oli reported in 2020 LawSuit(SC)
665 (vi) Nutan Corporation Vs. Sunil Thakorbhai Mehta
reported in 2009 LawSuit(Guj) 849 (vii) Corporation of City of
Bangalore Vs. M Papaiah reported in 1989 LawSuit(SC) 359.
15. Per contra, learned advocate for the defendant has mainly relied on
the fact that the plaintiff has not challenged the sale deed that has
been executed in favour of the defendant. It has also been argued
that the said sale deeds are produced along with the written
statement and the plaintiff having not challenged the said sale deed
can not come forward with the case that the defendant does not
have any right, title, interest in the said property.
16. Learned advocate for defendant has also argued that the present
plaintiff had also by way of amendment had sought to amend the
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plaint and challenged the sale deed, but the said amendment
application was rejected and the said order of rejection of the
amendment application was challenged by the plaintiff before the
Hon'ble High Court and since the suit was already dismissed, the
Special Civil Application was disposed off.
17. Learned advocate for the defendant has argued that the entire case
of the plaintiff revolves around the fact that the plaintiff has
become the owner of the property by virtue of sale deed executed
by the power of attorney through Mr.Moti Ramchandra
Gurbakshani. However, the fact remains that the owner of the suit
property were Ramanbhai Motibhai, Vinubhai Motibhai,
Navnitbhai Motibhai and Manibhai Motibhai. The suit property
was transferred through power of attorney name Narendrabhai
Desai to Amiben Makodi, Deepaben Makodi and Avniben Makodi
but the original owner named Manibhai Motibhai Patel passed
away on 07.06.1986, and therefore the power of attorney could not
have executed any sale deed as Manibhai Motibhai Patel had
already expired in the year 1986.
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18. The following facts also remain undisputed: :
(i) The plaintiffs have not challenged the sale deed executed in
favour of the defendant (ii) The plaintiffs have not produce the
power of attorney under which the plaintiff claims to have
purchased the suit property (iii) Amiben Makodi, Deepaben
Makodi and Avniben Makodi had purchased the suit property
under the breach of injunction orders passed in Special Civil Suit
No.303 of 1996.
19. Having heard learned advocates for the parties and having
considered the judgment and decree passed by the Trial Court and
the Appellate Court, the issue involved in the present case is that
the plaintiff has come forward with the case that Amiben Makodi,
Deepaben Makodi and Avniben Makodi have purchased the suit
property from Ramanbhai Motibhai Patel on 25.02.1993 through
registered sale deed.
20. The plaintiff admits that Ramanbhai, Vinubhai and Navnitbhai and
Manibhai were the original owners of the suit property and the suit
property. And the suit property has been purchased from Amiben
Makodi, Deepaben Makodi and Avniben Makodi and Jawahar
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Ramchandra Gurbakshani, became the sole owner of the suit
property in the year 2000.
21. However, the fact remains that there was no mutation entry in the
name of the plaintiffs.
22. The fact also remains that the power of attorney by virtue of which
the sale deed has been executed is also not produced on record. The
fact also remains that the suit property was always in the name of
defendant nos.1 to 4. The sale deeds of defendants were never
challenged in the present proceeding, moreover, no documentary
evidence is produced by the plaintiff to prove that the plaintiffs are
in possession of the property.
23. There is no authenticity with respect to the power of attorney who
has executed the sale deed in the year 1993, therefore, there is no
documentary evidence that Moti Ramchandra Gurbakshani had any
power of attorney from Amiben Makodi, Deepaben Makodi and
Avniben Makodi. In that view of the matter, there are no
substantial questions of law involved. It is also required to be
examined that the entire case of the plaintiff is based on the fact
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that the sale deed has been executed in their favour and the said
sale deed has been executed through a power of attorney. It was
never the case of the plaintiff before the Trial Court in the suit, that
the power of attorney was handed over to the seller and that the
said power of attorney was not in possession of the plaintiffs. The
fact that the plaintiff did not produce the said power of attorney
creates a serious doubt on the authenticity and genuineness of the
power of attorney on which the plaintiff relies. There is no oral
evidence coming forward from the plaintiff to give confidence to
the Court about the execution of the said power of attorney in the
name of Moti Ramchandra Gurbakshani and the fact that there is
any document to show the existence of the power of attorney in
favour of Moti Ramchandra Gurbakshani.
24. In view of the said fact there are no substantial questions of law
involved in the present appeal with respect to the judgments that
have been relied on by the plaintiff, more particularly judgments as
under:
(i) Kaushik Premkumar Mishra Vs. Kanji Ravaria @ Kanji on
19th July, 2024, in Civil Appeal No.1573 of 2023, it has held in
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para nos.32, 34, 35 and 36 as under:
"32. Based upon the aforesaid two factual
errors, the Trial Court and the High Court
wrongly shifted the burden on the plaintiff to
prove execution of the sale deed and also
payment of the sale consideration. The
impugned judgment thus suffers from
manifest error of law and facts both.
34. Coming to the submission of Mr. Ahmadi,
learned senior counsel for the subsequent
purchaser-respondent No.1, his claim would
come up for consideration only if it is finally
held that the sale deed of 02.12.1985 was not
a valid sale deed. As otherwise all the rights,
title and interest of the vendor- respondent
no.2 would be curtailed from the date of
execution of the first sale deed on
02.12.1985. As we have already held above
that the sale deed cannot be discarded as
void ab initio, rather we have held that it is a
valid document of sale, therefore, no benefit
can be extended to respondent no.1.
Respondent no.1 would enter the shoes of the
respondent no.2. If respondent no.2 had
alienated all his rights, title and interest and
also delivered possession, respondent no.1
could not claim to be a bona fide purchaser
for value without notice.
35. The doctrine of bona fide purchaser for
value applies in situations where the seller
appears to have some semblance of
legitimate ownership rights. However, this
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principle does not protect a subsequent
purchaser if the vendor had already
transferred those rights through a prior sale
deed. In a case where the vendor deceitfully
executes a second sale deed 26 years after
the initial transfer, without disclosing the
earlier transaction and without any ongoing
litigation regarding the property, the
subsequent purchaser cannot claim the
benefits of a bona fide purchaser.
Essentially, if the vendor's rights were
already severed by the first sale, any later
sale deed made without transparency and in
bad faith is invalid. The subsequent
purchaser, even if unaware of the prior sale,
cannot be considered bona fide because the
vendor no longer had the legal right to sell
the property. Thus, the protection afforded by
the bona fide purchaser doctrine is nullified
by the vendor's deceitful conduct and the
pre-existing transfer of rights.
This ensures that the original purchaser's
rights are upheld and prevents unjust
enrichment through fraudulent transactions.
36. This is not a case of agreement to sell in
favour of appellants but is a case of sale
deed transferring ownership rights and
possession. It would be open to respondent
no.1 to avail such remedy as may be
available under law to recover the sale
consideration paid by him to respondent
No.2. The sale deed in favour of the
respondent No.1 dated 03.12.2010 needs to
be cancelled and the registering authority be
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directed to score out the same from the
records as directed by the first Appellate
Court."
(ii) Kuldip Singh Vs. Balwant Kaur reported in 1991 AIR
(P&H) 291, in para nos.15 it is held as under:
"15. This view was later on followed in Ramaswami
Pillai v. Ramasami Naicker, AIR 1960 Madras 396. I
fully agree with this reasoning of Madras High Court
and I have no hesitation in holding, on the anology of
this reasoning that sale deed Exhibit P-1, shall take
priority over the later transfer Exhibit DW 3/1 made
by the vendor. The fact that the subsequent purchaser
is a bona fide purchaser cannot be a ground by itself
for postponing the rights of the prior transferee. This
can be supported by another reasoning that no
person can convey a better title than what he has and
he cannot go back from his grant and deal with the
property free from the rights created by him under
the earlier sale deeds. His absolute ownership is
diminished by rights already created under the
earlier transaction and S. 48 of the Transfer of
Property Act, does not save a subsequent transferee,
who purchased property without notice or knowledge
of the prior transfer."
-In case of Kaushik Premkumar Mishra (Supra) and Kuldip
Singh (Supra) both the above judgments will be of no assistance
to the appellant in view of the fact that the appellant has not
challenged the sale deed executed in favour of the respondent nor
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he has produced the power of attorney, by virtue of which the
appellant is claiming to be the owner of the property.
(iii) Manik Majumder And Others Vs. Dipak Kumara Saha
(Dead) Through LRS & Others reported in 2023 LawSuit(SC)
31, in para nos.28 it has held as under:
"28. In short, it has been authoritatively laid down by
this Court that a registered document carries with it,
by virtue of it being registered, the presumption as to
the authority of the person executing it. In the present
case, the Trial Court and the First Appellate Court
failed to treat the endorsement made by the District
Sub-Registrar on the body of the sale deed, as
evidence in respect of the authority of Plaintiff No. 2
to execute the sale deed. This is to be considered in
light of the fact that at no point of time did the
original owner namely, Braja Mohan Dey dispute the
execution of power of attorney in favour of Plaintiff
No. 2."
-The above judgment will also be of no assistance to the appellant as
in the present case neither the sale deed executed in favour of the
defendant is under challenge nor the alleged power of attorney that
has been executed in favour of Mr. Moti Ramchandra Gurbakshani has
been produced to prove the existence of power of attorney and therefore
the said judgment will not be of any assistance.
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(iv) Srinivas Raghavendrarao Desai (Dead) by LRS Vs. Kumar
Vamanrao @ Alok And Ors. reported in 2024 LawSuit(SC) 196, in
para no.15 it has held as under:
"15. There is no quarrel with the proposition of law that no
evidence could be led beyond pleadings. It is not a case in which
there was any error in the pleadings and the parties knowing their
case fully well had led evidence to enable the Court to deal with
that evidence. In the case in hand, specific amendment in the
pleadings was sought by the plaintiffs with reference to 1965
partition but the same was rejected. In such a situation, the
evidence with reference to 1965 partition cannot be considered."
(v) Sugandhi (Dead) By LRS & Anr Vs. P Rajkumar Rep by
his Power Agent Imam Oli reported in 2020 LawSuit(SC) 665, it
has held in para no.7 as under:
"7. Rule 1A of Order 8 of C.P.C.
provides the procedure for
production of documents by the
defendant which is as under:
"1A. Duty of defendant to
produce documents upon which
relief is claimed or relied upon by
him.--
(1) Where the defendant bases his
defence upon a document or
relies upon any document in his
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possession or power, in support
of his defence or claim for set-off
or counter-claim, he shall enter
such document in a list, and shall
produce it in Court when the
written statement is presented by
him and shall, at the same time,
deliver the document and a copy
thereof, to be filed with the
written statement.
(2) Where any such document is
not in the possession or power of
the defendant, he shall, wherever
possible, state in whose
possession or power it is.
(3) A document which ought to be
produced in Court by the
defendant under this rule, but, is
not so produced shall not, without
the leave of the Court, be received
in evidence on his behalf at the
hearing of the suit.
(4) Nothing in this rule shall
apply to document--
(a) produced for the cross-
examination of the plaintiff's
witnesses, or
(b) handed over to a witness
merely to refresh his memory."
Sub-rule (1) mandates the
defendant to produce the
documents in his possession
before the court and file the same
along with his written statement.
He must list out the documents
which are in his possession or
power as well as those which are
not. In case the defendant does
not file any document or copy
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thereof along with his written
statement, such a document shall
not be allowed to be received in
evidence on behalf of the
defendant at the hearing of the
suit. However, this will not apply
to a document produced for
cross- examination of the
plaintiff's witnesses or handed
over to a witness merely to
refresh his memory. Sub-rule (3)
states that a document which is
not produced at the time of filing
of the written statement, shall not
be received in evidence except
with the leave of the court.
Rule (1) of Order 13 of C.P.C.
again makes it mandatory for the
parties to produce their original
documents before settlement of
issues."
-In the Srinivas Raghavendrarao Desai (Dead) by LRS (Supra) and
Sugandhi (Dead) By LRS & Anr, the fact that the defendant has
produced sale deed along with the written statement and
subsequently, the plaintiff has sought an amendment with respect to
challenging the said sale deed, it can not be said that the defendant is
trying to lead evidence beyond the pleadings.
--The defendants case was not based on the sale deed that has been
executed in favour of the defendant, but the case of the defendant
was based on the agreement to sell and therefore, there is no error of
law committed by the Trial Court and the Appellate Court.
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(vi) Nutan Corporation Vs. Sunil Thakorbhai Mehta reported in
2009 LawSuit(Guj) 849, it has held in para no.9 as under:
"9. Order VIII Rule 1(A) and Order XI Rule 12 are as under.
Order VIII Rule 1(A):
"Duty of defendant to produce documents upon which relief is
claimed or relied upon by him:- (1) Where the defendant bases his
defence upon a document or relies upon any document in his
possession or power, in support of his defence or claim in set-off
or counter-claim, he shall enter such document in a list, and shall
produce it in Court when the written statement is presented by him
and shall, at the same time, deliver the document and a copy
thereof, to be filed with the written statement.
(2) Where any such document is not in the possession or power of
the defendant, he shall, wherever, possible, state in whose
possession or power it is.
(3) A document which ought to be produced in Court by the
defendant under this rule, is not so produced shall not, without the
leave of the Court, be received in evidence on his behalf at the
hearing of the suit.
(4) Nothing in this rule shall apply to documents-
(a) produced for the cross-examination of the plaintiff's witnesses,
or
(b) handed over to a witness merely to refresh his memory".
Order XI Rule 12
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"12. Application for discovery of documentsAny party may,
without filing any affidavit, apply to the Court for an order
directing any other party to any suit to make discovery on oath of
the documents which are or have been in his possession or power,
relating to any matter in question therein. On the hearing of such
application the Court may either refuse or adjourn the same, if
satisfied that such discovery is not necessary, or not necessary at
that stage of the suit, or make such order, either generally or
limited to certain classes of documents, as may, in its discretion be
thought fit:
Provided that discovery shall not be ordered when and so far as
the Court shall be of opinion that it is not necessary either for
disposing fairly of the suit or for saving costs"."
(vii) Corporation of City of Bangalore Vs. M Papaiah reported
in 1989 LawSuit(SC) 359.
25. In view of the said fact, the fact remains that neither the
plaintiff has challenged the sale deed executed in favour of the
defendant and the fact that the plaintiff has not proved
execution of the sale deed by producing the power of attorney.
26. Moreover, in the facts of the present case, the plaintiff had to
produce the document on which cause of action is based,
therefore the plaintiff had to produce the power of attorney
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when the plaint was presented by him to prove the fact that the
sale deed was executed on the basis of the said power of
attorney. In the present case, the plaintiff has only produced
the sale deed and when a contention has been raised that no
power of attorney was executed with respect to powers given
to the said power of attorney to execute the sale deed, the Trial
Court and the Appellate Court have rightly held that as the
said power of attorney was not produced, the appellant has not
been able to prove the fact of claiming right by way of sale
deed.
27. The fact that the plaintiff is not able to prove the execution of prior
sale deed and the fact that the plaintiffs have not challenged the
said sale deed executed in favour of the defendant though the said
sale deed has been produced along with written statement, it can
not be said that no opportunity was given to the plaintiff to
challenge the said sale deeds though produced with the written
statement. The fact remains that the plaintiff had challenged the
said sale deed by way of filing amendment application at a belated
stage and the said application having been rejected, the plaintiff
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cannot now agitate the execution of the said sale deed.
28. 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."
29. 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
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settled position on the basis of the
pronouncement made by the Apex Court
or based upon inadmissible evidence or
without evidence."
30. 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 formulated in
the memo of appeal are also not substantial question of law and on
facts and the said factual aspect has well been considered by the
Trial Court and the Appellate Court.
31. The fact that the Court below has not believed the execution of the
said sale deed in favour of the plaintiff in the year 1993 and also
has not relied on the agreement to sell executed in favour of the
defendant executed on 07.09.1987, as the plaintiff could not prove
the existence of power of attorney executed in favour of the Moti
Ramchandra Gurbakshani and the fact that the defendant could not
prove that he has legal right in the suit property based on the
registered agreement no.4800 dated 07.09.1987. The fact remains
that the defendant is relying on the registered sale deeds that have
been executed in favour of the defendant by the original owners. In
view of the said fact, no substantial question of law arise and the
present Second Appeal is required to be dismissed.
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32. 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
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. In view of the disposal
of the Second Appeal, the Civil Application for stay would not
survive and the same is accordingly disposed of.
Further Order
33. After pronouncement of the order, learned advocate for the
appellant prays for stay of this order as he intends to challenge
the same. Learned advocate for the respondents opposed this
request stating that this Court has not granted stay in this
appeal.
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C/SA/142/2025 ORDER DATED: 09/05/2025
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34. Having heard learned advocate for the parties, since learned
advocate for the appellant intends to challenge this order, the
stay is granted for a period of four weeks.
(SANJEEV J.THAKER,J)
URIL RANA
