Gujarat High Court
Jasmatbhai Jagabhai Dabhi vs Jagabhai Merambhai Dabhi on 1 September, 2025
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C/SA/196/2024 JUDGMENT DATED: 01/09/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SECOND APPEAL NO. 196 of 2024
With
CIVIL APPLICATION (FOR STAY) NO. 1 of 2024
In R/SECOND APPEAL NO. 196 of 2024
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE SANJEEV J.THAKER Sd/-
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Approved for Reporting Yes No
No
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JASMATBHAI JAGABHAI DABHI & ANR.
Versus
JAGABHAI MERAMBHAI DABHI & ORS.
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Appearance:
MR. HJ KARATHIYA(7012) for the Appellant(s) No. 1,2
MR PRATIK Y JASANI(5325) for the Respondent(s) No. 2,2.1,2.2
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CORAM:HONOURABLE MR.JUSTICE SANJEEV J.THAKER
Date : 01/09/2025
ORAL JUDGMENT
1. The present Second Appeal has been filed under Section 100
of the Code of Civil Procedure, 1908 ('CPC', for short) challenging
the judgment and decree dated 21.03.2024 passed in Regular Civil
Appeal No.57 of 2019 by Principal District Judge, Rajkot,
confirming the judgment and decree dated 14.03.2019 passed below
Exh.29 in Regular Civil Suit No.276 of 2017.
2. For the sake of convenience, the parties are referred to as their
original status referred in the suit.
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FACTS :
3.1 The plaintiff filed the suit on the ground that suit property is
ancestral property and plaintiff has right in the suit property and,
therefore, defendant no.1, being father of the plaintiff, could not
have executed the sale deed in favour of defendant no.2 and the suit
was filed challenging the registered sale-deed dated 17.08.2010 and
had sought relief with respect to possession of the suit property. In
the suit, the plaintiff also sought for relief with respect to revenue
entries pursuant to sale-deed executed by defendant no.1 in favour of
defendant no.2. The defendant appeared in the suit and filed an
application under Order VII Rule 11 of the CPC, vide Exh.29, on the
ground that the suit is barred by law and after taking into
consideration the plaint and documents annexed with the plaint, the
trial Court allowed the said application and rejected plaint under the
provisions of Order VII Rule 11(d) of the CPC.
3.2 Aggrieved by the said order, the plaintiff filed an appeal
before the first appellate Court and after re-appreciating the
evidence, the judgment and decree of the trial Court, the first
appellate Court dismissed the said appeal. Hence, the present Second
Appeal.
SUBMISSION OF PLAINTIFF - APPELLANT :
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4.1 Learned advocate for the plaintiff has mainly argued that it is
the case of the plaintiff that the suit property is ancestral property
and that defendant no.1 being father of plaintiff could not have
executed the sale-deed in favour of defendant no.2, in the year 2010
and the fact remains that suit is filed in the year 2017 and, therefore,
limitation to file the suit as per Article 109 of the Limitation Act,
1963 is period of 12 years and the same will have to be considered
and in that view of the matter, trial Court could not have rejected
plaint as being barred by law.
4.2 Learned advocate for the plaintiff has also argued that plaintiff
had also sought for relief for protection of possession of the suit
property and, therefore, plaint cannot be partly rejected in view of
the fact that the relief with respect to protection of possession could
not be said to be barred by law and, therefore, the trial Court could
not have rejected the present suit.
4.3 Learned advocate for the plaintiff has relied on judgment
reported in 2018 (0) AIJEL - HC - 239241 in the case of Mohd.
Ali Saraf Ali vs. Jasabhai Lakhabhai Bharwad and the judgment
reported in 2018 (6) SCC 422 in the case of Chhotanben vs.
Kiritbhai Jalkrushnabhai Thakkar and has argued that in view of the
fact that relief of protection of possession was sought, the trial Court
could not have rejected the plaint.
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4.4 Learned advocate for the plaintiff has also argued that if the
averments of the plaintiff are considered, it is specific case of the
plaintiff that suit property is ancestral property and that defendant
no.1, the father was not keeping good health and, therefore, in the
guise of taking money for his signatures have been taken from
defendant no.1.
4.5 It has also been argued by learned advocate for the plaintiff
that it is the case of plaintiff that it is only recently plaintiff came to
know about the suit transaction and, therefore, suit is within period
of limitation. It is also the case of the plaintiff that suit property
belonging to the grandfather of the plaintiff and by succession, the
plaintiff will have right in the suit property and, therefore, the suit is
within period of limitation.
4.6 It has also been argued by learned advocate for the plaintiff
that trial Court could not have taken into consideration Article 58 of
Limitation Act in view of the fact plaintiff's case is based on Article
109 of the Hindu Succession Act and, therefore, the period of
limitation that has been stated in Article 109 is 12 years and,
therefore, trial Court could not have come to conclusion that
plaintiff's suit is barred on the ground of limitation.
SUBMISSION OF DEFENDANT - RESPONDENT :
5.1 Per contra, learned advocate for the respondent has mainly
argued that from the bare reading of the plaint, it can be clearly
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established that plaintiff's suit is hopelessly time barred. The
plaintiff has sought for relief to declare the sale-deed executed by
defendant no.1, in favour of defendant no.2, dated 17.08.2010, to be
null and void and there are no ingredients to suggest that the suit
property was ancestral property. Moreover, there are no specific
pleadings to the effect that suit property was ancestral property
except fact mentioned in para:1, of the plaint and para:10, that the
suit property was ancestral property.
5.2 Moreover, learned advocate for the defendant has also drawn
attention of this Court to the fact that the defendant himself had
challenged the revenue entries no.988 dated 20.01.2012, which was
filed to enter the names of legal heirs of defendant no.2, on death of
defendant no.2 and the said application was rejected on 21.07.2012,
and, therefore, at least from 21.07.2012, plaintiff was aware of the
execution of the sale-deed and the suit that has been filed
challenging the sale-deed is filed, after period of seven years and,
therefore, trial Court has rightly rejected the plaint being barred by
law and the first appellate Court has rightly confirmed the said
judgment and decree.
ANALYSIS:
6.1 Having heard learned advocate for the parties, the fact remains
that at the time when the suit has been filed by the plaintiff,
signatory to the said sale-deed i.e. father of the plaintiff was alive
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and he had never challenged the said sale-deed on the ground that
fraud has been committed while executing sale-deed. There are no
pleadings to establish the fact that suit property was ancestral
property and the fact that defendant no.1 was the owner of the
property and even if the fact that property belonged to grandfather of
the plaintiff is considered, as per provisions of Section 8 of the
Hindu Succession Act which does not include grand-children, the
plaintiff could not have claimed right in the property. There are no
pleadings with particulars that the suit property is ancestral property.
6.2 Moreover, plaintiff knowing fully well of the execution of the
sale-deed at least on the date when they had filed objection to
revenue entry of the year 2012 and the suit that has been filed by the
plaintiff is after period of seven years, it can be clearly stated that the
present suit comes across as an abuse of process of law having
challenged the sale-deed of the year 2010 after period of seven
years. Article 59 of the Limitation Act reads as under:
Description of suit Period of limitation Time from which period begins to
run
To cancel or set Three Years. When the facts entitling the
aside an instrument Plaintiff to have the instrument
or decree or for the or decree cancelled or set aside
rescission of a or the contract rescinded first
contract. become known to him.
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6.3 Therefore, present case is a classic case where the plaintiff, by way
of clever drafting, has made a ground of cause of action to bring the suit
within a period of limitation. The fact remains that the sale-deed has been
executed in the year 2010 and the suit has been filed to challenge the said
sale-deed in the year 2017. Therefore, as the said sale-deed is registered
document, the date of registration becomes the date of deemed
knowledge and therefore also the plaintiff's suit is hopelessly time barred.
The plaintiff in the plaint has not given any particulars with respect to the
said fact and in the present suit the sale-deed was executed on 17.08.2010
and the suit has been filed on 24.11.2017 i.e. after more than 07 years
from the execution of the sale-deed.
6.4 With respect to the judgment that has been relied upon by
learned advocate for the plaintiff that partially the plaint could not be
rejected, the fact remains that suit property does not belong to the
plaintiff and belongs to defendant no.1 who is father of the plaintiff,
the plaintiffs are also claiming right in the suit property on the basis
of defendant no.1, who has executed sale-deed in favour of
defendant no.2 and the said sale-deed specifically states that on the
date of execution of sale-deed in the year 2010, possession of the
suit property is already handed over to the defendant no.2 and,
therefore, even the fact of plaintiff claiming relief with respect to
possession of the suit property cannot be taken into consideration.
6.5 When the main relief in a suit is not maintainable, the
consequential relief for injunction also must fail. Hon'ble Apex
Court in the case of Padhiyar Prahladji Chenaji (Deceased)
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through L.Rs. vs. Maniben Jagmalbhai (Deceased) through
L.Rs. and Ors. MANU/SC/0272/2022 held as follows:
"11. From the impugned judgment and order
passed by the High Court, it appears that the
High Court has not properly appreciated the
distinction between a substantive relief and a
consequential relief. The High Court has
observed that in the instant case the relief of
permanent injunction can be said to be a
substantive relief, which is clearly an
erroneous view. It is to be noted that the
main reliefs sought by the Plaintiff in the suit
were cancellation of the sale deed and
declaration and the prayer of permanent
injunction restraining Defendant No. 1 from
disturbing her possession can be said to be a
consequential relief. Therefore, the title to the
property was the basis of the relief of
possession. If that be so, in the present case,
the relief for permanent injunction can be said to
be a consequential relief and not a substantive
relief as observed and held by the High Court.
Therefore, once the Plaintiff has failed to get
any substantive relief of cancellation of the
sale deed and failed to get any declaratory
relief, and as observed hereinabove, relief of
injunction can be said to be a consequential
relief. Therefore, the prayer for permanent
injunction must fail. In the instant case as the
Plaintiff cannot be said to be in lawful
possession of the suit land, i.e., the possession
of the Plaintiff is "not legal or authorised by the
law", the Plaintiff shall not be entitled to any
permanent injunction.
11.1 An injunction is a consequential relief and in
a suit for declaration with a consequential relief
of injunction, it is not a suit for declaration
simpliciter, it is a suit for declaration with a
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further relief. Whether the further relief claimed
has, in a particular case as consequential upon a
declaration is adequate must always depend
upon the facts and circumstances of each case.
Where once a suit is held not maintainable,
no relief of injunction can be granted.
Injunction may be granted even against the true
owner of the property, only when the person
seeking the relief is in lawful possession and
enjoyment of the property and also legally
entitled to be in possession, not to disposes him,
except in due process of law."
6.6 Therefore, it is clear that the Plaintiff has sought other reliefs
as a mere consequential relief, which cannot sustain once the
main relief of cancellation of sale-deed has been held to be not
maintainable. Therefore, there is no question of the suit being sent
for trial when there was no cause of action to seek the main relief
of cancellation of the sale deed.
6.7 Since the main relief of cancellation of the Registered Sale
Deed is barred by limitation, the consequential reliefs are also
barred. Hon'ble. Supreme Court has recently while rejecting a
Plaint under Order VII Rule 11, in the judgment of Nikhila Divyang
Mehta v. Hitesh P. Sanghvi and ors., 2025 SCC Online SC 779
held as follows:
"29. ... It is apparent that the primary relief claimed
therein is to declare the Will and the Codicil to be null
and void and also all subsequent proceedings thereto. In
addition to it, the plaintiff has claimed permanent
injunction. The other reliefs are dependent upon the first
relief and cannot be granted until and unless the
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plaintiff succeeds in the first relief. Therefore, once the
Plaint or the suit in respect of the main relief stands
barred by time, the other ancillary relief claimed
therein also falls down.
Conclusion
7. In view of the aforesaid facts, the fact remains that at the
time of execution of the sale-deed, plaintiff's father was alive and
he had never challenged the sale-deed on the ground that fraud
has been committed while executing the sale-deed and in view of
the fact that there are no pleadings to show that the suit property is
ancestral property and even assuming for a moment that the suit
property belonged to the grand-father of the plaintiff, as per
provisions of Section 8 of the Hindu Succession Act, the plaintiff
could not have raised any claim being the grand-children and the
fact that the plaintiffs were aware about the execution of the sale-
deed when they had objected to the revenue entry in the year
2012, there appears to be no merits in the present Second Appeal.
8. 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
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any case, the High Court is not expected to
reappreciate the evidence just to replace the findings of
the lower courts."
9. Under the circumstances, both the learned trial Court and first
appellate Court have rightly decided the issue between the parties in the
right perspective. The appellants have failed to prove their 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
the admission stage. Connected Civil Application if any shall stand
disposed of accordingly.
(SANJEEV J.THAKER,J)
MISHRA AMIT V.
