Gujarat High Court
Arjanbhai Pratapji Koli vs Mamtaben Shah D/O Pukhraj Misrimal And ... on 27 November, 2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SECOND APPEAL NO. 180 of 2024
With
CIVIL APPLICATION (FOR STAY) NO. 1 of 2024
In R/SECOND APPEAL NO. 180 of 2024
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ARJANBHAI PRATAPJI KOLI & ORS.
Versus
MAMTABEN SHAH D/O PUKHRAJ MISRIMAL AND W/O RAMESHBHAI
SHIVLAL SHAH
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Appearance:
MR ANKIT Y BACHANI(5424) for the Appellant(s) No. 1,2,3,4,5
MR K B VIRVADIYA(11272) for the Respondent(s) No. 1
MR. NISHIT P GANDHI(6946) for the Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE J. C. DOSHI
Date : 27/11/2025
ORAL ORDER
1. By way of the present Second Appeal, the appellants prays to
quash and set aside the impugned order dated 30.12.2023 passed by
the learned 4th Additional District Judge, Deesa in Regular Civil
Appeal No. 45 of 2017, as also the judgment and decree dated
23.08.2017 rendered by the learned Additional Senior Civil Judge,
Deesa in Regular Civil Suit No. 131 of 2007.
2. Shorn of non-essential details, the relevant factual milieu
reveals that the appellant No. 1, the original defendant, is in long-
standing ownership and possession of the suit land being agricultural
land bearing Revenue Survey No. 361/2 Paiki-2 situated at Village
Jherda, which devolved upon him as his ancestral share after the
demise of his father and subsequent family partition. The revenue
entries bearing Nos. 4023 and 4063, recorded and certified in the
year 2006, reflect such devolution and possession. The appellant No.
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1, who earns his livelihood from cultivation, cattle-rearing, and
allied activities on the said land, has also constructed a hut, dug a
well, and obtained an electricity connection thereon.
2.1. The dispute germinated when the husband of the respondent
allegedly took undue advantage of the illiteracy and financial
distress of appellant No. 1. Under the pretext of advancing a loan
secured against future crop yields, he procured the execution of a
Registered Sale-Deed in favour of the respondent without the
knowledge and informed consent of appellant No. 1. Subsequent
mutation was effected vide Entry No. 4561. It later surfaced that, to
confer apparent eligibility for holding agricultural land, the
respondent had projected herself as the daughter of one Pukhraj of
Robas Moti, and mutation to that effect was also obtained vide Entry
No. 983 dated 26.06.2007.
2.2. Consequent upon the alleged fraud, appellant No. 1 instituted
Regular Civil Suit No. 9 of 2008 before the Civil Court, Deesa,
seeking annulment of the aforesaid Sale-Deed and consequential
reliefs. Meanwhile, the respondent instituted Regular Civil Suit No.
131 of 2007 seeking permanent injunction on the basis of the very
Sale-Deed. The Trial Court decreed the respondent's suit on
23.08.2017, and the Appellate Court, vide order dated 30.12.2023 in
Regular Civil Appeal No. 45 of 2017, affirmed the same. Aggrieved
thereby, the appellants have preferred the present Second Appeal.
3. Learned advocate appearing for the appellants fervently
contended that the present case indubitably raises substantial
questions of law, warranting admission of the Second Appeal. It was
submitted that both the Trial Court and the First Appellate Court,
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sub silentio the material evidence on record, have concurrently erred
in overlooking the ancestral nature of the suit property and the long-
standing, undisputed possession of appellant No. 1, as reflected in
revenue entries bearing Nos. 4023 and 4063. It was urged that the
courts below have failed to appreciate that the respondent's husband,
taking undue advantage of the illiteracy and financial hardship of the
appellant, had procured the Registered Sale-Deed by practising
fraud, and that the very foundation of the respondent's case rests
upon forged and manipulated documents, including the mutation
entry fraudulently showing the respondent as the daughter of one
Pukhraj.
3.1. It was further submitted that the Courts below erred in law by
proceeding on the erroneous premise that the Sale-Deed stood
proved, without the respondent having discharged the burden of
proof and without any cogent evidence demonstrating the appellant's
informed consent. Learned advocate argued that the finding that the
respondent was in lawful possession is wholly perverse and contrary
to settled principles governing title, possession, and burden of proof.
Ergo, both courts have rendered findings which are not merely
erroneous but have resulted in grave miscarriage of justice, thereby
paving way for interference under Section 100 of the Code of Civil
Procedure. He, thus, urged that the present appeal involves
substantial questions of law relating to fraud, validity of sale
transactions, evidentiary burden, and perversity of concurrent
findings, and prayed for the appeal to be admitted.
4. Per contra, learned advocate for the respondent supported the
impugned judgments, submitting that no substantial question of law
arises in the present matter and that the findings of the courts below
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are pure findings of fact, based upon proper appreciation of oral and
documentary evidence. It was argued that the Registered Sale-Deed
was duly executed by appellant No. 1 of his own volition, and that
the respondent has been in peaceful cultivatory possession since its
execution, as corroborated by revenue entries and attendant
circumstances. Learned advocate contended that the allegations of
fraud are a mere afterthought, bereft of any credible foundation, and
that the appellant, having executed a registered document, cannot be
permitted to resile therefrom.
4.1. It was further submitted that the Trial Court, in tandem with
the First Appellate Court, has rightly decreed the respondent's suit
for injunction upon sound reasoning, and that the concurrent
findings cannot be reopened merely on the basis of re-appreciation
of evidence, which is impermissible in Second Appeal. Learned
advocate for the respondent urged that the appellant's attempt is to
convert the Second Appeal into a third revisional forum under the
guise of raising questions of law. Accordingly, it was prayed that the
present Second Appeal be dismissed at the threshold, as no
substantial question of law arises for consideration.
5. I have heard the learned advocates appearing for both sides
and have meticulously perused the relevant record.
5.1. The first contention advanced by the learned advocate for the
appellants is that the learned Appellate Court has failed to frame
independent and requisite points for determination as mandated
under Order XLI Rule 31 of the Code of Civil Procedure, 1908.
However, upon a careful examination of the impugned judgment
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rendered by the learned Appellate Court, it becomes pellucid that the
principal issue engaging the Court's consideration was whether the
defendants had any subsisting right, title, or interest in the suit
property, and whether the sale deed executed in favour of the
plaintiffs was, as alleged by the defendants, a sham and bogus
document.
5.2. The learned Appellate Court has, in fact, duly formulated the
point for determination in paragraph 6 of the judgment, which reads
thus:-
a) Whether the orders and decrees passed by the learned
Court in R.D.M. No. 131/2007 are illegal, erroneous, or
otherwise vitiated?
b) Whether the plaintiff's claim is legally enforceable?
c) What order?
6. Upon a careful perusal of the reasons assigned by the learned
Appellate Court while dismissing the First Appeal under Section 96
Code of Civil Procedure, 1908, it becomes evident that the rival
submissions advanced by both sides have been duly recorded and
considered in extenso by the learned Appellate Court. Secondly, the
learned Appellate Court has independently appreciated and
evaluated the oral and documentary evidence adduced by the parties
and has, upon such re-appraisal, arrived at the conclusion that no
error much less any perversity or misapprehension of law or fact can
be attributed to the findings rendered by the Court below.
6.1. Thus, the exercise undertaken by the learned First Appellate
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Court indubitably satisfies the mandatory requirements of Order XLI
Rule 31 of the Code of Civil Procedure, 1908. At this juncture, it
would be apposite to refer to the dictum of the Hon'ble Apex Court
in Mrugendra Indravadan Mehta and Others v. Ahmedabad
Municipal Corporation, 2024 SCC OnLine SC 849, wherein the
relevant paragraphs read as under:-
"14. Perusal of the impugned judgment reflects that the High
Court noted the contentions of both parties and then
extracted the issues framed by the Trial Court in extenso.
The High Court, however, did not frame the points that arose
for determination in the appeal, in terms of Order 41 Rule 31
CPC. The High Court then referred to the arguments
advanced on behalf of the parties and started the discussion
on merits from para 5.1 of the judgment. The High Court
observed that compensation had been paid for the shortfall
of 974 sq. mts. @ Rs. 25/- per sq. mt. and noted that it was
not in dispute that the said compensation amount had been
accepted without protest. The High Court also noted that the
plaintiffs had not challenged the second varied Town
Planning Scheme No. 6, Paldi, under which they were
allotted Final Plot No. 187, admeasuring 2278 sq. mts., in
lieu of the originally allotted Final Plot No. 463,
admeasuring 3890 sq. yds. The High Court also took note of
the fact that the plaintiffs supported the second varied
scheme before the Division Bench of the High Court in
Special Civil Application No. 3980 of 1992 and concluded
that they could not make out a grievance with regard to the
non- delivery of the remaining 974 sq. mts. of land.
xxx xxx xxx
27. This being the legal position vis-a-vis the Act of 1976, it
was contended before us by the plaintiffs that the impugned
judgment of the High Court is liable to be set aside on the
short ground that no points for determination were framed
therein, as required by Order 41 Rule 31 CPC. Reliance was
placed on Malluru Mallappa (Dead) through Lrs. vs.
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Kuruvathappa and others, (2020) 4 SCC 313 wherein this
Court observed that the first appellate Court is required to set
out the points for determination, record the decision thereon
and give its own reasoning. It was further observed that,
even when the said Court affirms the judgment of the Trial
Court, it has to comply with the requirements of Order 41
Rule 31 CPC as non-observance thereof would lead to an
infirmity in its judgment. However, it may be noted that no
absolute proposition was laid down therein to the effect that
failure to frame points for determination, in itself, would
render the first appellate Courts judgment invalid on that
ground."
7. In the end, it merits emphasis that the Hon'ble Supreme Court,
in its recent pronouncement in Nafees Ahmad & Anr. v. Soinuddin
& Ors., Civil Appeal No. 5213 of 2025, has reiterated the governing
principles applicable to the adjudicatory exercise in appeals of the
present nature, the same are as under:-
"14. Thus, this Rule does not make it incumbent on the
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)]"
8. In light of the above enunciation of law, the first contention
urged by the learned advocate for the appellants is liable to fail and,
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ergo, stands rejected.
9. Adverting to the second contention that the plaintiff did not
enter the witness box and that the power-of-attorney holder is
incompetent to depose on matters falling within the personal
knowledge of the principal, it is indubitably a well-settled principle
of law. However, the applicability of this doctrinal position must
necessarily be tested against the factual matrix obtaining in the
present lis. Here, the power-of-attorney holder happens to be none
other than the husband of the plaintiff. More significantly, the entire
edifice of the plaintiff's case rests upon a duly executed and
registered sale deed in her favour, executed by defendant No.1
himself.
9.1. The plaintiff asserts that she is the lawful owner and occupier
of the suit property pursuant to the said sale deed and that the
defendants have attempted to dispossess her from her lawful
possession. This is not a case where the execution of the sale deed is
a matter exclusively within the personal knowledge of the plaintiff.
The executant of the document--defendant No.1--is himself fully
cognizant of its execution. Indeed, he has instituted Regular Civil
Suit No. 9 of 2018 challenging the legality and validity of the very
sale deed, alleging it to be a sham and fabricated instrument. He
arrayed the plaintiff, Smt. Mamtaben Shah, as a party therein.
Though the said suit was subsequently withdrawn, culminating in its
disposal by order dated 20.09.2016, the fact remains that the
defendant himself unequivocally acknowledged the execution of the
document.
10. In such circumstances, the argument that the suit must fail
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merely because the plaintiff did not enter the witness box pales into
insignificance. No adverse inference can be drawn in the teeth of the
registered sale deed, its admitted execution, and the nature of the
controversy at hand. Accordingly, the second contention also stands
repelled.
11. For the reasons aforestated, the present Second Appeal, having
failed to demonstrate the existence of any substantial question of law
within the meaning of Section 100 of the Code of Civil Procedure,
merits no indulgence of this Court. Consequently, the second appeal
stands DISMISSED in limine at the admission stage.
11.1. Consequently, all pending civil applications, if any, also stand
disposed of.
11.2. Let the record and proceedings, if received, be forthwith
remitted to the learned Trial Court concerned for consequential
action in accordance with law.
(J. C. DOSHI,J)
MANISH MISHRA
