Gujarat High Court
Chhaganbhai Laljibhai Parmar vs Dahyabhai Fogatbhai Parmar on 6 October, 2025
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C/SA/336/2024 JUDGMENT DATED: 06/10/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SECOND APPEAL NO. 336 of 2024
With
CIVIL APPLICATION (FOR STAY) NO. 1 of 2023
In R/SECOND APPEAL NO. 336 of 2024
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE SANJEEV J.THAKER
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Approved for Reporting Yes No
No
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CHHAGANBHAI LALJIBHAI PARMAR
Versus
DAHYABHAI FOGATBHAI PARMAR & ORS.
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Appearance:
HARSH A VYAS(9330) for the Appellant(s) No. 1
Ms. DIXA U PANDYA(9412) for the Appellant(s) No. 1
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CORAM:HONOURABLE MR.JUSTICE SANJEEV J.THAKER
Date : 06/10/2025
ORAL JUDGMENT
1. The present Second Appeal under Section 100 of the Code
of Civil Procedure has been filed challenging the judgment and
decree, dated 30.09.2022, passed in Regular Civil Appeal No.65
of 2018, by Additional District Judge, Narmada whereby the
judgment and decree dated 29.10.2018 passed in Regular Civil
Suit No.148 of 2011 by Principal Senior Civil Judge, Rajpipla
has been confirmed.
2. For the sake of brevity, the parties are referred to as per
their original status as that in the suit.
3. The brief facts arising in the present Second Appeal are
that the plaintiff filed suit for declaration and permanent
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injunction and partition against the defendant. It was the case of
the plaintiff that the plaintiff and defendant No.1 are brother and
sister and that their parents late Girdharbhai Parmar and
Chitiben did not have any male child, and therefore, uncle
Laljibhai's son i.e. the plaintiff was adopted, when he was 8
years to 10 years old and after the said adoption, the plaintiff
was living with parents of the defendant as their adopted child
and being adopted child, the plaintiff has claimed his rights in
the suit property. It is also the case of the defendant, that
defendant's mother Chitiben has executed a will in favour of the
plaintiff, which was later on registered before the Sub Registrar
Office, Narmada, and therefore, by virtue of said will the
plaintiff has become the absolute owner. The defendant
appeared in the said suit and filed written statement, vide
Exhibit-13. The trial Court framed issues, vide Exhibit-38,
which are as under:-
(i) Whether the plaintif proves that he is the owner of the suit
property?
(ii) Whether the plaintiff proves that he is in actual possession
of the suit property?
(iii) Whether the plaintiff proves that he has equal share in the
suit property?
(iv) Whether the plaintiff proves that the suit property is liable
to be partitioned?
(v) Whether the plaintiff proves that the defendant has no
right, title and interest in the suit property?
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(vi) Whether the defendant proves that the plaintiff is not
entitled to claim relief as prayed for?
(vii) Whether the plaintiff is entitled to get relief as prayed for?
4. The plaintiff examined himself, vide Exhibit-66, witnesses
of the plaintiff were examined vide Exhibit-101 & 102 and after
appreciating the oral evidence, documentary evidence and
giving findings on all the issues, the trial Court dismissed the
said suit. Being aggrieved by the said judgment and decree of
the trial Court, the plaintiff filed Regular Civil Appeal No.65 of
2018 and after reappreciating the evidence, the first appellate
Court dismissed the said appeal. Being aggrieved by the said
judgement and decree, the present Second Appeal is filed.
5. Learned advocate for the plaintiff has argued that the trial
Court and the first appellate Court erred in not considering the
will, produced vide Exhibit-86 whereby the adoptive mother
transferred her share in favour of the plaintiff. It has also been
argued by learned advocate for the plaintiff that the trial Court
and the first appellate Court have failed to appreciate the
provision of section 14(4) of Hindu Adoption and Maintenance
Act 1956 whereby the widow adopts such child, any husband
she marries subsequently shall be deemed to be step father of
the adopted child and in the present case, the step mother has
declared in her will that the plaintiff is adopted son, therefore,
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the plaintiff being adopted son is entitled to receive his right,
title and interest in the suit premises. It has also been argued by
learned advocate for the plaintiff that the trial Court and the first
appellate Court have failed to appreciate the provision of section
13 of the Hindu Adoption and Maintenance Act, 1956, whereby
it is categorically stated that adoption does not deprive the
adoptive father or mother of the power to dispose of his/her
property by transferring by will and it has been argued that even
if the fact that the plaintiff is not adopted son then also even by
way of will the plaintiff has right in the property, and therefore,
the trial Court and first appellate Court have erred in deciding
the claim of the plaintiff, and therefore, the present Second
Appeal is required to be admitted on the following substantial
question of law:-
(i) Whether in the facts and circumstances of the case, the
courts below have failed to appreciate the provision of
section 12 (b) of Hindu Adoption and Maitenance Act,
1956?
(ii) Whether in the facts and circumstances of the case, the
courts below were justified in not accepting the
adoption merely because there is no document of
adoption?
(iii) Whether in the facts and circumstances of the case, the
courts below have failed to appreciate the provisions of
section 32(5) of Indian Evidence Act, 1862?
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(iv) Whether in the facts and circumstances of the case, the
courts below were justified in no appreciating the
Registered will executed in favour of Original Plaintiff by
his adoptive mother?
(v) Whether in facts and circumstances of the case, the courts
below have erred uphelding that Ori. Plaintiff does not
have right, title or interest in the suit property?
(vii) Whether in the facts and circumstances of the case the
order passed by the lower appellate Court is a non-
reasoned and vague considering the fact that the lower
appellate court has not at all cared to re-appreciate
the evidence on record which is of paramount
consideration while deciding the Regular Civil Appeal?
6. Having heard learned advocate for the plaintiff and having
considered the judgment and decree passed by the trial Court
and confirmed by the first appellate Court. The fact remains that
the plaintiff is claiming to be the adopted son of late
Girdharbhai K. Parmar and Chitiben and has also claimed right
in view of execution of will of Chitiben in favour of the
plaintiff. If the fact of adoption is to be taken into consideration,
there are no documents that have been produced by the plaintiff
to prove as to when and as to how and under what circumstances
he was adopted, in view of the fact that the defendant has denied
the fact that the plaintiff was the adopted son and has stated that
the plaintiff was a servant.
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7. Moreover, the plaintiff has also not produced any
documentary or any supporting documents to show that he was
son of defendant No.1's father as the said fact was also denied
by the plaintiff. There is also no documentary proof produced by
the plaintiff to prove that Chitiben was the sole owner of the suit
property.
8. The plaintiff has tried to prove his case by examining
witness Gemabhai, vide Exhibit-101, who has also not
supported the case of the plaintiff and the other witness that has
been examined vide Exhibit-102, has admitted in his cross-
examination that the Chitiben was having only one daughter as
her child and the said witness has not mentioned that the
plaintiff was adopted son of Chitiben.
9. With respect to the fact of proving the will, the plaintiff
has not examined any of the witness and the said will has also
not been proved by the plaintiff. The witness of the plaintiff,
vide Exhibit-102 has also stated that he is not aware as to which
year and which date the said will has been executed and it has
been stated that the witness of the will, Gemabhai Vasava had
been examined vide Exhibit-101 and in his cross examination,
he has stated that he does not know who has prepared the
examination in chief. He has also stated that the facts stated in
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the exminatin in chief filed at Exhibit-101 are false and that he
has not written the same, he has also stated that he has not read
the said examination in chief and the same does not bear his
signature.
10. In view of the said fact the plaintiff has not proved the
execution of the will and in view of the same there are no
substantial questions of law, involved in the Second Appeal.
The present Second Appeal is required to be dismissed.
11. 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."
12. Considering the submissions made and after examining the
findings of both the Courts below on the issue raised in the suit
and upon examining the judgment and orders of both the Courts
below, this Court is of the considered opinion that the learned
advocate for the plaintiffs is unable to point out any infirmity,
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perversity or impropriety in the concurrent findings of the fact
recorded by both the Courts below, not only that, the learned
advocate for the plaintiff is unable to show that the findings
recorded by the learned Courts are without any evidence or there
is any illegality in the findings.
13. Under the circumstances, this Second Appeal is devoid of
any substantial questions 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 questions of law arises in the present appeal. The
plaintiff 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 facts and law and the same is
dismissed at admission stage.
14. In view of the order passed in main matter, Civil
Application does not survive and stands disposed of
accordingly.
(SANJEEV J.THAKER,J)
Manoj Kumar Rai
