Gujarat High Court
Gulamahemad Jafarmiya Malek vs Desaibhai Harmanbhai Patel on 1 May, 2025
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C/SA/501/2022 ORDER DATED: 01/05/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SECOND APPEAL NO. 501 of 2022
With
CIVIL APPLICATION (FOR STAY) NO. 1 of 2021
In R/SECOND APPEAL NO. 501 of 2022
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GULAMAHEMAD JAFARMIYA MALEK
Versus
DESAIBHAI HARMANBHAI PATEL & ORS.
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Appearance:
MR.CHIRAG B UPADHYAY(6735) for the Appellant(s) No. 1
MR CB DASTOOR(238) for the Respondent(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 is filed under Section 100 of the Code
of Civil Procedure, 1908 ('CPC', for short).
2. Being aggrieved by and dissatisfied with the judgment and decree
dated 18.07.2019 passed by the 5th Additional District Judge,
Kheda at Nadiad in Regular Civil Appeal No.74 of 2014 whereby
the judgment and decree dated 21.04.2014 passed by the Principal
Civil Judge, Mahuda in Regular Civil Suit No.23 of 2011 has
been confirmed by the appellate Court.
3. For the sake of convenience the parties are referred to as per their
original status before the trial Court.
4.1 The brief facts arising in filing of the present Second Appeal are
that the plaintiff had filed Civil Suit No.23 of 2011 against the
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defendant on the ground that by a registered conditional sale-
deed dated 10.07.1969, the father of the defendant no.2 to 4 had
executed sale-deed in favour of father of the present plaintiff and
consideration of Rs.4,000/- was paid pursuant to the said sale-
deed. It is the case of the plaintiff that the said conditional sale-
deed is a registered document produced vide Exh.47 and by
virtue of the said sale-deed produced at Exh.47, the father of the
plaintiff was handed over the possession of the suit premises and
after the death of the father of the plaintiff, the plaintiffs were in
possession of the premises and having cultivated the land in the
suit premises.
4.2 After executing the said conditional sale-deed, the defendant
nos.2 to 5 or their predecessor-in-title have neither challenged the
said conditional sale deed nor repaid the amount pursuant to the
said conditional sale deed and, therefore, by virtue of the said
sale-deed plaintiff became the owner of the suit premises.
Thereafter the defendant nos.2 to 4 have executed sale-deed in
favour of defendant no.1 dated 12.03.2010 and, therefore as
defendant nos.2 to 4 were not the owners of the property and the
owner of the suit property was the plaintiff, the plaintiff filed suit
for challenging the sale-deed executed in favour of defendant
no.1 by defendant nos.2 to 4 and also sought for declaration that
by virtue of conditional sale-deed dated 10.07.1969 executed by
predecessor-in-title of the defendant no.2 to 7 declare that the
plaintiff is owner of the property and also for a direction to
defendant nos.2 to 7 to execute sale deed in favour of present
plaintiff.
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4.3 The defendant no.1 and 2 to 4 appeared in the matter and filed
written statement at Exhs.13 and 14 and defendant no.1 also filed
counter claim along with the written statement. The trial Court
framed issues vide Exh.39 which reads as under:
"(1) Whether plaintiffs prove that they are legally the
owners of the suit property? [ In affirmative ]
(2) Whether plaintiffs prove that the registered sale-deed
dated 12.03.2010 executed by the plaintiffs in favour of
defendant no.1 in respect to the suit property is illegal
sale-deed ? [ In affirmative ]
(3) Whether plaintiffs prove that defendant no.1 has
illegally and forcibly taken over possession of suit
property on 02.06.2011 from the plaintiffs ? [ In
affirmative ]
(4) Whether defendants prove that suit filed by the plaintiff
is hit by law of Limitation? [ In negative ]
(5) Whether defendant nos.2 to 4 prove that their father
Mahmmadbhai Amin had repaid the amount of
conditional sale deed dated 10.07.1969 to the plaintiffs ?
[ In negative ]
(6) Whether defendant no.1 proves that he is legal owner
and in possession of the suit property ? [ In negative ]
(7) Whether defendant nos.1 to 4 proves that suit of the
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plaintiff is null and void ? [ In negative ]
(8) What decree and order ? [ As per final order ]
4.4 The plaintiff examined himself vide Exh.44 and the witnesses of
the plaintiff are examined at Exh.63 and 68. Defendant no.1
examined himself vide Exh.84 and witnesses of the defendant
no.1 are examined at Exhs.99, 104 and 107. The defendant nos.2
to 4 examined themselves vide Exh.117 and after taking into
consideration the documentary so also the oral evidence and
after giving findings on all the issues, the trial Court came to
conclusion that the plaintiff was able to prove that the plaintiff is
owner of the suit premises and that the sale-deed executed by
defendant nos.2 to 4 in favour of defendant no.1 dated
12.03.2001 is illegal and that the defendant no.1 has illegally
taken away possession of the suit property from the plaintiff on
02.06.2011. It has also come to the conclusion that defendant
nos.2 to 4 were not able to prove that the father of the defendant
nos.2 to 4 has repaid the amount pursuant to the conditional
sale-deed dated 10.07.1969. The said judgment was challenged by
defendant no.1 by filing Regular Civil Appeal No.74 of 2014 and
after reappreciating the evidence, the first Appellate Court has
rejected the said appeal. Hence, the present Second Appeal.
4.5 Learned advocate for the defendant no.1 has mainly contended
that the trial Court and the appellate Court have not considered
Exh.49 which is an unregistered agreement to sale executed
between the predecessor-in-title of the plaintiff and legal
guardian of defendant nos.2 to 4 and in the said agreement it has
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been specifically mentioned that predecessor-in-title of the
plaintiff shall get sale-deed executed in their favour and,
therefore, it has been argued that father of the plaintiff was not
the owner of the property by virtue of document dated
10.07.1969, as he had already become owner pursuant to the
document dated 10.07.1969.
4.6 Learned advocate for defendant no.1 has also argued that
description of the suit property that the plaintiff is claiming by
way of conditional sale deed produced vide Exh.49 and the sale-
deed that has been executed in favour of defendant no.1 by
defendant nos.2 to 4 are different and distinct and therefore also
the suit filed by the plaintiff is not maintainable and, therefore, it
has been argued that there are substantial question of law
involved in present appeal as the Court has not taken into
consideration vital document at Exh.49 which has been executed
on 21.05.1975 and, therefore, the present Second Appeal is
required to be admitted and substantial questions of law, which
have been suggested in the memo of appeal, are required to be
framed.
5.1 Learned advocate for the plaintiff has mainly argued that there
are concurrent findings of the trial Court and the appellate Court
with respect to the fact that plaintiff is the owner of the suit
property. It has also been argued that the conditional sale has
been executed in the year 1969 and neither the father of the
defendant nos.2 to 4 nor legal heirs of defendant nos.2 to 4 have
challenged the said conditional sale-deed.
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5.2 Moreover, it has also been argued by learned advocate for
plaintiff that it is neither the case of the defendant nos.2 to 4 that
they or their father have repaid the consideration as stated in
conditional sale-deed nor they have produced any document to
prove that the amount mentioned in the conditional sale-deed
has been repaid by the father of the defendant nos.2 to 4 and
therefore also the present Second Appeal is required to be
dismissed.
5.3 Learned advocate for the plaintiff has also argued that First
Appeal had been preferred by defendant no.1 who is claiming a
right through defendant nos.2 to 4 and trial Court has already
held that defendant nos.2 to 4 have not proved that the amount
mentioned in the conditional sale deed had been repaid and / or
there is any registered document by which the conditional sale
deed has been re-transferred to the predecessor- in-title of
defendant nos.2 to 4.
5.4 Moreover, it has also been argued that the predecessor in title of
the suit property were owners of northern side of the suit
property and the conditional sale deed of the year 1969 produced
vide Exh.47 specifically states of sale in favour of plaintiff of the
northern side of the suit property and the sale-deed executed by
defendant nos.2 to 4 in favour of defendant no.1 is also on the
northern side of suit property as father of the defendant nos.2 to
4 was owner of the northern side of the suit property and,
therefore it has been argued that defendant has tried to mislead
the Court by stating that the property, that plaintiff has
purchased by conditional sale-deed in the year 1969 and
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property that has been purchased by defendant no.1 by way of
sale-deed at Exh.50 in the year 2010 are different and distinct.
5.5 Learned advocate for the plaintiff has also argued that the said
contention is also taken by defendant no.1 for the first time in
the Second Appeal, even in the written statement filed by
defendant no.1 vide Exh. 13, the said fact has not been stated by
defendant no.1 and in the said written statement defendant no.1
has categorically stated about the purchase of northern side suit
property. Moreover, even if deposition of defendant no.3 is
perused, there is no proof that the father has repaid the amount
of consideration mentioned in the conditional sale deed and the
fact that the defendant nos.2 to 4 have not challenged the
judgment and decree passed by the trial Court and the said
judgment and decree become final and, therefore as said
conditional sale deed has been executed by predecessor-in-title of
the defendant no.1 to 4, the same cannot be challenged by
defendant nos.1 to 4. Moreover, the argument is made that there
are no substantial questions of law involved in the present
Second Appeal and, therefore, Second Appeal is required to be
dismissed.
6. Having heard learned advocates for the parties and having
perused the judgment and decree passed by the trial Court and
the appellate Court, the fact remains that the conditional sale-
deed executed by the father of the defendant nos.2 to 4 in favour
of father of the plaintiff is registered document. The fact also
remains that neither the defendant nos.2 to 4 has ever claimed
that the said property has been re-transferred after the death of
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father of the plaintiff nor defendant nos.2 to 4 have repaid the
amount mentioned in the conditional sale deed and, therefore, in
the year 2010 when defendant nos.2 to 4 executed sale-deed in
favour of defendant no.1, defendant nos.2 to 4 were neither the
owners of the property nor having any right, title , interest in the
suit property. Moreover, the father of the defendant nos.2 to 4
expired on 21.07.1970 and death certificate is produced vide
Exh.76 and therefore till the year 1976 the father of the
defendant nos.2 to 4 has neither challenged the conditional sale
deed nor there is documentary evidence to prove that the
amount mentioned in the conditional sale deed has been repaied
by the father of the defendant nos.2 to 4. Moreover, in the
deposition of defendant no.3, defendant was also able to prove
as to the averment made by defendant nos.2 to 4 with respect to
the conditional sale deed. Moreover, with respect to the
document produced vide Exh.49, the said document has been
elaborately discussed by the trial Court at para:7.32 and,
therefore, looking to the facts of the present case, the present
Second Appeal is required to be dismissed.
7. 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,
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the High Court is not expected to reappreciate
the evidence just to replace the findings of the
lower courts."
8. 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."
9. Therefore, also the appellant 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 suggested in the
memo of appeal are also not substantial question of law and on facts
and the said factual aspect have well been considered by the Trial
Court and the First Appellate Court.
10. 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 present 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
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facts and law and the same is dismissed at admission stage. In view of
the order passed in the Second Appeal, the connected Civil
Application, if any, does not survive and the same is accordingly
disposed of accordingly.
(SANJEEV J.THAKER,J)
MISHRA AMIT V.
