Gujarat High Court
Maganbhai Dudabhai Padariya vs Rameshbhai Babubhai Sojitra on 9 October, 2025
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C/SA/400/2025 JUDGMENT DATED: 09/10/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SECOND APPEAL NO. 400 of 2025
With
CIVIL APPLICATION (FOR STAY) NO. 1 of 2025
In R/SECOND APPEAL NO. 400 of 2025
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE SANJEEV J.THAKER Sd/-
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Approved for Reporting Yes No
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MAGANBHAI DUDABHAI PADARIYA
Versus
RAMESHBHAI BABUBHAI SOJITRA & ORS.
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Appearance:
MR HARSH R JOSHI(12752) for the Appellant(s) No. 1
MR. MAULIK M SONI(7249) for the Respondent(s) No. 2.1
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CORAM:HONOURABLE MR.JUSTICE SANJEEV J.THAKER
Date : 09/10/2025
ORAL JUDGMENT
1. The present Second Appeal is filed under Section 100 of the
Code of Civil Procedure, 1908 (CPC), challenging the Judgment and
Decree dated 19.07.2025, passed in Regular Civil Appeal No. 3 of
2018, by the Principal District Judge, Amreli. By the said judgment,
the Judgment and Decree, dated 01.01.2018, passed in Special Civil
Suit No. 184 of 2014, by the Principal Senior Civil Judge, Amreli
has been confirmed.
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2. For the sake of brevity, the parties are referred to as per their
original status in the suit.
3. The brief facts giving rise to the present Second Appeal are
that the Plaintiff, filed the suit, for cancellation of a registered Sale
Deed, executed by Defendant No. 1, in favour of Defendant No. 2,
on 02.11.2004. It was the case of the Plaintiff before the Trial Court
that the suit property originally belonged to the grandfather of the
Plaintiff, Shamjibhai Lakhabhai Sojitra. After the death of
Shamjibhai Lakhabhai Sojitra, the suit property devolved upon
Vallabhbhai Shamjibhai, Shamubhai Shamjibhai, Purushottambhai
Shamjibhai, and Madhubhai Shamjibhai. Defendant No. 1 is the son
of the deceased Purushottambhai Shamjibhai. The Plaintiff claims a
right in the property by inheritance of the share of the deceased
Vallabhbhai Shamjibhai Sojitra.
4. It is the case of the Plaintiff that after the death of Shamjibhai
Sojitra, there were five Legal Heirs, and therefore, all would have a
1/5th share in the suit property. Consequently, the claim of the
Plaintiff was derived from the right that Vallabhbhai Shamjibhai
Sojitra had in the suit property. Therefore, since the registered Sale
Deed was executed by Defendant No. 1 in favour of Defendant No.
2 on 02.11.2004, a relief was sought by the Plaintiff to declare the
said Sale Deed as illegal and void. Alternatively, the Plaintiff sought
an order directing Defendant No. 1 to sell his 1/5th inheritance share
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to the Plaintiff, and for a direction to Defendant No. 1 to return the
full sale amount of ₹4,25,000/- received from Defendant No. 2, and
to restrain Defendant No. 2 from transferring, assigning, selling, or
creating third-party rights in the suit property.
5. The Defendants appeared in the suit and filed a Written
Statement vide Exhibit 18. The Trial Court framed Issues vide
Exhibit 41 which are as under:
"1. Whether the Plaintiff proves that, the suit
property is under joint ownership? And that the
Plaintiff is entitled to have 4/5 share therein as per
the right of succession and that the Respondent
No.1 is entitled to 1/5 share therein?
2. Whether the Plaintiff proves that, Respondent
No.1 has disposed of half part of the suit property
under joint ownership by way of selling that out to
Respondent No.2, without having any type of right
or authority to do so?
3. Whether Respondent No.1 proves that, in the
year 1979, the joint property has already been
distributed amongst the brothers and with the
consent of all the legal heirs, as per the family
understanding, the property situated towards East
was entrusted to the family of Plaintiff No.1 and
the half property situated towards West along with
the tenant was entrusted to the family of
Respondent No.1?
4. Whether Respondent No.2 proves that he has
legally purchased the suit property along with
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tenancy right with bona fide intention, after
carrying out necessary inquiry regarding the
ownership of Respondent No.1 in connection with
the suit property after taking appropriate care for
the same?
5. Whether the Plaintiff is entitled to get any relief
out of the relief/s sought for in the suit / plaint?
6. What order?"
The Plaintiff examined her Power of Attorney holder vide Exhibit
49, and a witness for the Plaintiff was examined vide Exhibit 56.
Defendant No. 1 examined himself vide Exhibit 120, and Defendant
No. 2 examined himself vide Exhibit 127. After considering the oral
evidence and documentary evidence and recording findings on all
issues, the Trial Court allowed the said suit and declared the Sale
Deed executed by Defendant No. 1, in favour of Defendant No. 2, on
02.11.2004, to be illegal and void, and directed Defendant No. 1 to
hand over the sale consideration of Rs. 4,25,000/- to Defendant No.
2. The said Judgment and Decree passed by the Trial Court was
challenged by Defendant No. 2 by filing Regular Civil Appeal No. 3
of 2018, after re-appreciating the evidence, the First Appellate Court
rejected the said appeal, hence the present Second Appeal.
6. Learned advocate for the Defendant has mainly argued that, if
the record and proceedings of the Trial Court are taken into
consideration, the Trial Court has declared the Sale Deed executed
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on 02.11.2004, to be illegal and void. However, the fact remains that
the said Sale Deed, was not produced before the Trial Court.
Therefore, in view of the non-production of the said Sale Deed
before the Trial Court, the Trial Court could not have come to the
conclusion that the said Sale Deed is illegal and void.
7. Advocate for the Defendant has also argued that the Plaintiff
herself has not entered the witness box, and a Power of Attorney
holder has deposed in place of the Plaintiff. The Court could not
have taken into consideration the said oral evidence of the Power of
Attorney, as the Power of Attorney holder could not have deposed
for the Plaintiff regarding the act done by the Plaintiff. The said
Power of Attorney holder also could not have deposed on behalf of
the Plaintiff, as it was the Plaintiff only who would have had
personal knowledge. Therefore, the Trial Court could not have
allowed the suit, and the Appellate Court could not have confirmed
the Judgment and Decree passed by the Trial Court.
8. The learned advocate for the Defendant has also argued that
the Trial Court and the First Appellate Court have acted in
contravention of the settled provisions of Sections 61, 62, 64, and 65
of the Indian Evidence Act, 1872, by cancelling a duly registered
Sale Deed solely on the basis of a photocopy, which was neither
proved nor exhibited in accordance with law.
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9. The learned advocate for the Defendant has also argued that
the Trial Court and the First Appellate Court could not have relied
on the deposition of the Power of Attorney holder of the Plaintiff as
the same is inadmissible in law under Order III, Rule 2 of the Code
of Civil Procedure read with Sections 118 and 60 of the Indian
Evidence Act.
10. The learned advocate for the Defendant has further argued that
the burden of producing the registered Sale Deed was on the
Plaintiff, but the Trial Court and the First Appellate Court shifted
this burden onto the Defendants. Moreover, the learned advocate for
the Defendant has also argued that the Trial Court and the First
Appellate Court have erred in law by not dismissing the suit for non-
joinder of necessary parties, despite the fact that it was the case of
the Plaintiff that the suit property is an ancestral property.
11. With respect to the fact that the original Sale Deed, which is
under challenge, was neither produced by the Plaintiff nor proved to
be illegal by the Plaintiff, there is no secondary evidence as
contemplated by Section 66 of the Indian Evidence Act. Therefore,
the document cannot be said to have been proved either by primary
evidence or by secondary evidence. The learned advocate for the
Defendant has relied on the judgment reported in the case of Kalyan
Singh versus Chhoti, 1990 (1) SCC 266.
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12. With respect to the fact that the Power of Attorney holder
could not depose for and on behalf of the Plaintiff, the learned
advocate for the Defendant has relied on the judgment reported in
the case of Janaki Vashdeo Bhojwani Vs. IndusInd Bank Ltd.,
2005 (2) SCC 217.
13. With respect to the fact that all co-owners have to be
impleaded when the suit is with respect to ancestral property, the
learned advocate for the Defendant has relied on the judgment
reported in the case of Susheel Sinh Udayveersinh Bhadoriya
versus Deepakji Kantiji Thakore, 2025 (0) GUJHC 50632.
14. Therefore, it has been argued that there are substantial
questions of law involved in the present Second Appeal, and the said
present Second Appeal is required to be admitted on the following
substantial questions of Law:
(a) Whether the courts below acted in contravention of the settled
principles of law under Sections 61, 62, 64, and 65 of the Indian
Evidence Act, 1872, in cancelling a duly registered Sale Deed solely
on the basis of an ordinary/photocopy, which was neither proved nor
exhibited in accordance with law, and whether such finding is
vitiated by non-compliance with Order XIII, Rule 1 and 2 of the
Code of Civil Procedure and the mandate of law that secondary
evidence cannot be relied upon without foundational proof of its
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admissibility?
(b) Whether the courts below committed an error of law in
entertaining evidence led through a Power of Attorney holder who
admittedly had no personal knowledge of the transaction in question,
contrary to the settled law under Order III, Rule 2 of the CPC read
with Section 118 and Section 60 of the Indian Evidence Act, 1872,
thereby rendering the entire deposition inadmissible in law?
(c) Whether the concurrent findings of the courts below cancelling a
registered instrument, without adhering to the mandatory provisions
of Section 68 of the Evidence Act, are perverse and unsustainable in
law?
(d) Whether the courts below erred in law in shifting the burden of
producing the registered Sale Deed, which was sought to be
cancelled, upon the Defendant, contrary to the settled legal position
under Sections 101 to 103 of the Indian Evidence Act, 1872, and
contrary to the procedural framework under the Code of Civil
Procedure, 1908, thereby rendering the findings unsustainable in
law?
(e) Whether the courts below erred in law in not dismissing the suit
for cancellation of the Sale Deed for non-joinder of necessary
parties, despite concurrently holding that the suit property is jointly
owned ancestral property, thereby rendering the proceedings
contrary to Order I, Rules 9 and 10 of the Code of Civil Procedure,
1908, and the settled legal principle that all co-owners are necessary
parties in suits affecting joint property?
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15. Per Contra, the learned advocate for the Plaintiff has mainly
argued that there are concurrent findings of the Trial Court and the
First Appellate Court on the fact that the suit property was an
ancestral property and that the Plaintiff has a right in the suit
property. The Trial Court and the First Appellate Court have held
that the suit property belonged to Late Shamjibhai Lakhabhai and
that the Plaintiff is claiming her right in the property by inheritance
from the share of Vallabhbhai Shamjibhai. It is also an admitted
position that other than Defendant No. 1, no other Legal Heirs of
Shamjibhai Sojitra have executed the Sale Deed or are signatories to
the Sale Deed dated 02.11.2004. Therefore, the fact of execution of
the Sale Deed, only by Defendant No. 1, is not in controversy. The
fact remains that when the names of all the Legal Heirs of
Shamjibhai Sojitra are stated in the revenue record, and it has come
on record that Defendant No. 1 was not the exclusive owner of this
property, Defendant No. 1 could not have executed a sale in favour
of Defendant No. 2. Therefore, there are no substantial questions of
law involved in the present Second Appeal, and the present Second
Appeal is required to be dismissed.
16. The learned advocate for the Plaintiff has also argued that the
fact of non-production of the Sale Deed dated 02.11.2004, will be of
no importance, in view of the fact that Defendant No. 2 is claiming
his right of ownership on the said document. The fact remains that
the Plaintiff has proved that she has a 1/5th share in the suit
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property. The Plaintiff has also proved that the suit property
belonged to Shamjibhai Sojitra, and after his death, the father of the
Plaintiff had a 1/5th share in the suit property. The Plaintiff has filed
the present suit to declare the Sale Deed executed by Defendant No.
1 in favour of Defendant No. 2 to be illegal and void. Defendant No.
1 was not the exclusive owner of the property, and it is also not in
dispute that the suit property was an ancestral property, and
Defendant No. 1 did not have any right to execute the Sale Deed in
favour of Defendant No. 2. Therefore, it has been argued that there
are no substantial questions of law involved in the present Second
Appeal, and it is required to be dismissed.
17. With respect to the fact that the Power of Attorney holder has
deposed before the Trial Court vide Exhibit 49, the fact remains that
the said Power of Attorney holder is the son of the Plaintiff, and he
has stated before the Court that the Plaintiff is not keeping good
health because of her old age. The fact remains that it is not denied
that the suit property was an ancestral property and that the signatory
to the Sale Deed was only Defendant No. 1. The burden was on
Defendant Nos. 1 and 2 to prove that the suit property belonged to
Defendant No. 1 only and that Defendant No. 1, had the authority to
execute the Sale Deed. Therefore, the Power of Attorney holder of
the Plaintiff had personal knowledge about the facts of the case, and
thus he has deposed for and on behalf of the Plaintiff, and the
evidence has rightly been taken into consideration by the Trial Court
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and the Appellate Court.
18. Having heard the learned advocates for the parties and having
considered the Judgment and Decree passed by the Trial Court and
confirmed by the First Appellate Court, the fact remains that the suit
filed by the Plaintiff is for challenging the Sale Deed dated
02.11.2004, executed by Defendant No. 1, in favour of Defendant
No. 2. Although the said Sale Deed has not been produced before the
court, the fact remains that the Defendants in their Written Statement
have not denied the execution of the Sale Deed dated 02.11.2004,
and the Defendants themselves are claiming right, title, and interest
in the suit property pursuant to the said Sale Deed executed by
Defendant No. 1, in favour of Defendant No. 2. The fact remains
that when the suit property was an ancestral property, and the
Plaintiff had a right in the suit property, and there are other Legal
Heirs of Shamjibhai Sojitra who also had a right in the suit property,
Defendant No. 1 could not have executed a Sale Deed for the entire
suit property in favour of Defendant No. 2.
19. Though the said Sale Deed is not produced before the Trial
Court and the burden of proof was on the shoulder of the Plaintiff to
prove the facts of the plaint, in the facts of the present case, when the
Defendant himself relied on the said Sale Deed, to prove his right, it
was the duty of the Defendant to produce the original or copy of the
registered Sale Deed before the Trial Court. The Plaintiff has proved
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that she has a share in the suit property, and therefore the burden
shifted onto the Defendants, to prove that Defendant No. 1, had
become the exclusive owner of the property and that Defendant No.
1 had a right to execute a Sale Deed in favour of Defendant No. 2,
for the entire suit property. Therefore, the fact that the said Sale
Deed, on which the Defendant and the Plaintiff both are relying, was
not produced before the court, although both parties relied on the
same document, will be of no significance for the court to adjudicate
the dispute between the parties, in view of the fact that the said Sale
Deed, admittedly is not by the Plaintiff and it is an admitted position
that the Plaintiff had a right in the suit property. Therefore, the
judgment cited in the case of Kalyan Singh (supra) will not be
applicable to the present case.
20. The next contention that has been raised by the Defendant is
with respect to the fact that the Plaintiff herself has not entered the
witness box and the Power of Attorney holder has been examined,
and that the Power of Attorney holder did not have any personal
knowledge, and therefore the deposition of the Power of Attorney
holder cannot be taken into consideration. The fact remains that the
said Power of Attorney holder is the son of the Plaintiff, and he has
stated that he has personal knowledge about the fact that the suit
property was never partitioned. It was the case of the Defendant that
the suit property was partitioned and that Defendant No. 1 had got
his share, and therefore he had the right to sell the suit property.
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Therefore, the burden was on the shoulder of Defendant No. 2 to
prove the said fact. It cannot be said that the court should not rely on
the deposition of the Power of Attorney holder of the Plaintiff. In
view of the same, the judgment relied on in the case of Janki
Vashdeo Bhojwani (supra) will also be of no assistance to the
Defendant.
21. The learned advocate for the Defendant has also taken a
defence that all the co-owners have not been joined in the
proceedings. However, the fact remains that the suit has been filed
by the Plaintiff to challenge the Sale Deed that has been executed by
DefendaSection 100 of the Code of Civil Procedure, 1908 (CPC),
challenging the Judgment and Decree dated 19.07.2025, passed in
Regular Cnt No. 1, in favour of Defendant No. 2. Therefore, it was
not necessary that all the Legal Heirs of Shamjibhai have to be
added as parties in the suit, and the suit is not barred for non-joinder
or misjoinder of necessary parties, in view of the fact that the suit is
not for partition of the suit property. Moreover, the judgment on
which the learned advocate for the Defendant is relying in the case
of Susheel Singh (supra) will also be not applicable to the facts of
the present case, in view of the fact that in the said judgment, the
controversy was with respect to the claim of specific performance
against one party, and it had been stated that the other parties have
not been impleaded. In that background, the Division Bench of this
Court had held that the conclusion of the Trial Court holding the suit
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to be barred by non-joinder or mis-joinder of parties was correct. In
view of the said fact, no substantial question of law is involved in
the present Second Appeal.
22. In the present case, it has been found that (1) The execution of
the Sale Deed by Defendant No. 1 is undisputed by the Defendants,
who rely on it for their claim, making the non-production of the
original Sale Deed irrelevant for adjudicating the dispute, especially
since the Plaintiff's share in the admittedly ancestral property was
proven.
(2) The deposition of the Power of Attorney holder (Plaintiff's son)
was validly considered as the Plaintiff was in poor health, and the
POA holder had personal knowledge of the key facts (i.e., that the
property was never partitioned), shifting the burden onto the
Defendants to prove an exclusive right to sell.
(3) The suit is not barred for non-joinder of co-owners/legal heirs as
it was filed solely to challenge the illegal Sale Deed executed by
Defendant No. 1, and not for the partition of the ancestral property,
the conclusion which has been reached by both the Trial Court and
the Appellate Court cannot be interfered as the judgment and decree
of the Court below are not perverse, arbitrary so as to warrant
interference. Moreover, as per the well settled decisions of this Court
as well as the Hon'ble Apex Court, the Court ordinary will not
interfere with concurrent findings of fact except in exceptional cases
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where the findings are such that it shocks the conscious of the Court
or may disrespect to the forms of legal process or some violation or
some principle of natural justice or otherwise substantial and great
injustice has been done.
23. 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."
24. 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."
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25. Therefore, also the defendant 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 and, therefore, the present
appeal requires to be dismissed.
26. Under the circumstances, this Second Appeal is devoid of any
substantial question of law. The first appellate Court has 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 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. In
view of the disposal of the main matter, the civil application is
accordingly disposed of.
Sd/-
(SANJEEV J.THAKER,J)
Further Order.
After pronouncement of the order, learned advocate for the
appellant states that he has been protected by the First Appellate
Court.
In view of the same, the present order is stayed for the period
of four weeks.
Sd/-
(SANJEEV J.THAKER,J)
URIL RANA/ RAJAT
