Gujarat High Court
Asmitaben D/O Vitthalbhai Nandpra Wf/O ... vs Rajeshkumar Bhavanbhai Mendpara on 6 November, 2025
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C/SA/91/2017 ORDER DATED: 06/11/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SECOND APPEAL NO. 91 of 2017
With
CIVIL APPLICATION (FOR STAY) NO. 1 of 2017
In R/SECOND APPEAL NO. 91 of 2017
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ASMITABEN D/O VITTHALBHAI NANDPRA WF/O RAJESHBHAI B.
MENDPARA & ORS.
Versus
RAJESHKUMAR BHAVANBHAI MENDPARA & ANR.
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Appearance:
HCLS COMMITTEE(4998) for the Appellants
MS.FALGUNI D.TRIVEDI(3912) for the Appellants
MR RAKESH B SHARMA(2521) for the Respondent(s) No. 2
NOTICE SERVED for the Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE J. C. DOSHI
Date : 06/11/2025
ORAL ORDER
1. Heard learned advocates for the respective parties.
2. This second appeal has been preferred u/s 100 of the
Code of Civil Procedure, 1908 (in short "the Code") by the
appellants challenging judgment and order dated17.6.2016
passed by the learned 3rd Addl. District Judge, Surat in
Regular Civil Appeal No.18 of 2015 upholding the judgment
and decree passed in Regular Civil Suit No.343 of 2011.
3. The facts of the case noticed in the limited arena is that
the appellants who are plaintiffs i.e. wife and minor children
respectively filed the Special Civil Suit for declaration and
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permanent injunction claiming that they have right, title and
interest in the disputed property being plot No.302 and the
constructed made thereon, as the said immovable property is
ancestral property and also seek relief of cancellation of the
agreement executed in favour of the respondent No.2. The
learned trial Court at Exh.29 framed following issues on inter se
dispute between the parties:-
"1. Whether the plaintiff prove that the property claimed
by him is the ancestral property of the plaintiffs and
defendant no. 1?
2. Whether the plaintiffs prove that they are the legal
heirs of the disputed property and that their share lies in
the disputed property?
3. Whether the plaintiffs prove that the disputed property
was sold by defendant no. 1 to defendant no. 2 at the
end of the year 2010?
4. Whether both the defendants prove that defendant No.
2 purchased the property in dispute by paying the
valuable consideration of the property to defendant No.
1?
5. Whether the defendant No.2 prove that the plaintiffs
can get their share from the amount given to the
defendant No.1?
6. Whether the plaintiff prove that the defendant no. 1
has misappropriated the plaintiffs' legal share of the
disputed property by selling it?
7. Is the plaintiff's claim subject to time limits?
8. Are the plaintiffs entitled to the damages sought?
9. What are the orders and decrees?"
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4. After considering the evidence produced by both the
parties, the learned trial Court decided plea of suit by way of
judgment and decree and believed that issue Nos.1 and 3 are
proved in negative, issue Nos.2,3 and 5 are proved in affirmative,
issued Nos.4 and 8 in partly affirmative and passed final
judgment and decree in favour of the appellants by partly
allowing the suit and held that the appellants have right, title
and interest in sale consideration of Rs.2,91,000/- by which the
disputed property was sold prior to filing of the suit and
agreement of which is produced at Exh.44. The learned trial
Court has also believed that the respondent No.2 herein is a
bona fide purchaser with value and did not pass any judgment
and decree against respondent No.2.
5. The appellants unsuccessfully challenged the judgment
and decree before the learned first appellate Court.
6. Hence, present second appeal is filed framing following
substantial questions of law in para 5 of the appeal memo,
which reads as under:-
"(a) Whether the Ld. First Court Appellate the has erred
in passing impugned judgment, order and decree
provisions contrary to the of Sec.96 of the Code of Civil
Procedure ?
(b) Whether the learned First Appellate Court has erred in
not order-41 following of the Code of Civil Procedure ?
(c) Whether the learned First Appellate Court has erred in
passing the impugned judgment and order contrary the
provisions Order-41 Rule-31 of the Code of to of Civil
Procedure ?
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(d) Whether the learned First Appellate Court has erred in
not framing the points for determination as mandatory
under the provisions of Order-41 Rule-31(a) of the Code
of Civil Procedure ?
(e) Whether the learned First Appellate Court has erred in
not framing the points for determination as mandatory
under the provisions of Order-41 Rule-31(b) (c) of the
Code of Civil Procedure ?
(f) Whether the learned First Appellate Court has erred in
not discussing as documentary oral as well evidence on
record and further erred in passing the impugned
judgment order and decree ?"
7. On perusal of the substantial questions of law, what
appears that the solitary question raised by the appellants is
that the issues are not framed properly by the learned appellate
Court and provisions of Order 41 Rule 31 of the Code are not
followed in its true letter and spirit by the learned appellate
Court. However, such contention is found to be meritless and
groundless. The learned appellate Court in para 8 of its
impugned judgment and order framed following points of
determination and then, from para 9 onwards, ascribed the
reason to answer the aforesaid issues. The pertinent findings of
the learned appellate Court reads as under:-
"It is the case of the plaintiff that the property belongs to
father- in-law of the plaintiff no.1 and the name of her
husband i.e. respondent no.1 (original defendant no.1)
was shown as occupant in the revenue records. However,
nothing is brought on record suggesting the said proof. In
this regard, evidence of president of Vijaynagar Co-op.
Housing Society at Exh.50 is material. The witness has
specifically stated that, the respondent no.2 inquired with
respect to the suit property and after verifying the society
register, the witness informed that the suit property
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stands in name of respondent no.1 only and no
maintenance to the society are in arrears and upon
getting the details about the transaction between the
respondent no.1 and 2, the witness issued a certificate.
Witness has specifically and with command stated in the
affidavit that the name of any of the plaintiffs /
appellants is not shown in the society records nor plaintiff
has given any objection to the society. Of course, this
witness has been cross-examined. In the cross-
examination, the witness has admitted that at the time
when the transaction with respect to the suit property
between respondent no.1 and 2 was executed, both the
respondent no.1 and 2 appeared before the witness and
the witness said that he does not know whether anyone
accompanied them or not? It is further stated in the cross-
examination that, the respondent no.2 approached to the
witness with respect to the suit property seven year ago
and he asked about whether the property in question
belongs to his name and witness replied that it stands in
name of respondent no.1. Witness has said that he does
not know as to whether respondent no.1 was addicted to
liquor or not? Witness has denied that he came to know
about public notice on 16.05.2010. Of Course, the witness
has admitted that at the time of issuing the receipt at
Exh.45 he has not shown any sale deed, but it is
submitted that the respondent no.1 and 2 informed to him
that they have entered into transaction consciously. It is
admitted by the witness that at Exh.45 it is mentioned
that in presence of witness, respondent no.1 has handed
over the possession to the respondent no.2. Similarly, at
Exh.51 witness Jayantibhai Mohanbhai Kansagara has
been examined by respondent no.2 who has also stated
that, the property in question belonged to the respondent
no.1, who sold the property to the respondent no.2. It is
stated by witness that he being a member of the society
does not know that whether the plaintiff has filed any
objection to the society with respect to the suit property or
not? At Exh.55 possession receipt is produced. Of Course,
the Ld. Advocate for the appellant has submitted that
there is no pleading on the part of respondent no.2 and
hence, no evidence can be adduced by respondent no.2,
but the present court with respect believes that the
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respondent no.2 at the time of pauper application filed by
the plaintiff has filed reply and has taken contention
which on record and in the said set of circumstances,
evidence of above witness which have also been
subjected to cross- examination by plaintiff / appellant
has to be considered.
The plaintiffs / appellants have not produced any cogent
documentary or oral evidence suggesting the fact that the
suit property is an ancestral property as against that
respondent no.2 has produced the possession receipt
dated 30.05.1990 which is executed by Bhavanbhai
Boghabhai and Jadavnbhai Patel who have sold the
property to Jayantibhai Raghavbhai who in turn has sold
the property to the respondent no.1. It appears that the
plaintiff wrongly stated the name of her father-in-law.
Considering these, from the documentary evidence
produced by the parties as well as oral evidence and
their pleadings it is clear that the appellants / plaintiffs
have failed to show as to how the suit property is
ancestral property and as to how they acquired right, title
and interest in the property, whereas the respondent no.2
has by documentary as well as oral evidence has shown
that they have purchased the property from respondent
no.1 for consideration. The say of the appellants /
plaintiffs that the appellant no.1 / plaintiff no.1 has given
a public notice in "Divya Bhaskar" daily prior to execution
of the agreement to sell, loses the significance in as much
as no competent court has issued any prohibitory order in
favour of appellants / plaintiffs with respect to the suit
property is put to notice of respondent no.2 nor the
appellant / plaintiff has at society records or at revenue
records or at sub-registrar office given any objection
about the pendency of various maintenance applications
preferred by the plaintiff / appellant. In the said set of
circumstances, all the insignias as are necessary for
purchase of the property have been complied with by the
respondent no.2. It is admitted that as regards the suit
property no sale deed has executed. However, the said
aspect in the context of this case is not so material for the
reason that the respondent no.1 has not challenged the
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execution of sale agreement. It is also equally important
that the respondent no.1 has also acquired title to the
property by sale agreement and the original owner has
also acquired the title by possession receipt and from the
entire records of the case it dose not appear that any of
the owners who acquired the titles have challenged the
execution of agreement to sell. Considering this, in the
context of the case, there seems no illegality in the act of
respondent no.2 in respect to purchase of property as he
has purchased the property for consideration.
The appellants / plaintiffs have in the present litigation
apart from lodging the claim of the plaintiffs / appellants
on the ground of legal heirs in respect to the suit property
has raised the claim on the ground that the respondent
no.1 who is the owner of the property is duty bound to
maintain the plaintiffs / appellants who are wife and
children of the respondent no.1. Present Court with due
respect agrees with said proposition and for this reason
only Ld. Trial Judge has allowed the prayer of the
appellant/plaintiff that from the consideration i.e.
received by respondent no.1 to the tune of Rs.2,91,000/-,
respondent no.1 has to pay the plaintiffs / appellants
their share as respondent no.1 has failed to maintain the
plaintiffs / appellants. However, it is also not brought to
the notice of this Court about the status of the
maintenance proceedings initiated by the appellant /
plaintiff be there so as Ld. Trial Judge has considered the
said issue and has held that in consideration of sale,
appellants have their interest and the interests of the
appellants / plaintiffs are protected."
8. At this juncture, fruitful assistance can be taken from the
judgment of the Hon'ble Apex Court in case of Nafees Ahmad
and another Vs, Soinuddin and others rendered in Civil
Appeal No.5213 of 2015, wherein the Hon'ble Apex Court in
para 14 reads as under:-
"14. Thus, this Rule does not make it incumbent on the
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Appellate Court to refer to any part of the proceedings in
the court from whose decree the appeal is preferred. The
Appellate Court can refer, after hearing the parties and
their pleaders, to any part of these proceedings to which
reference be considered necessary. It is in the discretion
of the Appellate Court to refer to the proceedings. It is
competent to pronounce judgment after hearing what the
parties or their pleaders submit to it for consideration. It
follows therefore that if the appellant submits nothing for
its consideration, the Appellate Court can decide the
appeal without any reference to any proceedings of the
courts below and, in doing so, it can simply say that the
appellants have not urged anything which would tend to
show that the judgment and decree under appeal were
wrong. [See : Thakur Sukhpal Singh (supra)] "
9. According to this Court, the appellants have miserably
failed to bring the case within four corners of section 100 of the
Code. There is no material on record to admit the second
appeal, as none of the questions framed by the appellants is
found to be substantial questions of law.
10. Resultantly, present second appeal fails and stands
dismissed. Notice discharged.
11. Consequently, CA does not survive and stands disposed
of accordingly.
(J. C. DOSHI,J)
SHEKHAR P. BARVE
