Gujarat High Court
Vinodbhai Laghubhai Vagheshwari vs State Of Gujarat on 9 September, 2025
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C/SA/366/2025 JUDGMENT DATED: 09/09/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SECOND APPEAL NO. 366 of 2025
With
CIVIL APPLICATION (FOR STAY) NO. 1 of 2025
In R/SECOND APPEAL NO. 366 of 2025
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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VINODBHAI LAGHUBHAI VAGHESHWARI
Versus
STATE OF GUJARAT & ANR.
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Appearance:
MR MAHESH K POOJARA(5879) for the Appellant(s) No. 1
MR NIRAV C SANGHAVI(5950) for the Appellant(s) No. 1
MS. HEMALI D. SONI, AGPfor the Respondent(s) No. 1
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CORAM:HONOURABLE MR.JUSTICE SANJEEV J.THAKER
Date : 09/09/2025
ORAL JUDGMENT
1. The present Second Appeal is filed under Section 100
of the Code of Civil Procedure, 1908 (hereinafter referred
to as "CPC") challenging the judgment and decree passed
by Additional District Judge, Ahmedabad (Rural) at Dholka
in Regular Civil Appeal No.9 of 2024 decided on
29.3.2025, whereby the judgment and decree passed by
Trial Court in Special Civil Suit No.14 of 2020 decided on
19.10.2024 has been confirmed .
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2. For the sake of brevity, the parties are referred to as
per their original status as plaintiff and defendant.
3. The brief facts arising in the present Second Appeal
are that, the plaintiff instituted Special Civil Suit No.14 of
2020, for cancellation of sale deed executed by the
plaintiff in favour of the defendant dated 24.09.2018, on
the ground that at the time when the sale deed executed,
the plaintiff was under the impression that the same is
pertaining to an agreement to sell and the same was not a
sale deed. It was the case of the plaintiff that the suit
property was to be sold for an amount of Rs.1,00,00,000/-
and all throughout the plaintiff was under the impression
that the document that has been executed is an
agreement to sell. The plaintiff signed the said document
before the Sub-Register Office, and an amount of
Rs.39,00,000/- was paid to the plaintiff. Therefore, the
entire suit is based on the fact that the defendant has to
pay a further amount of Rs.61,00,000/-, and the defendant
had agreed to pay the said amount at the time of
execution of sale deed. It is only recently that the plaintiff
came to know that in the guise of executing an agreement
to sell, the defendant has got the sale deed executed, and
therefore, the plaintiff has filed the suit for cancellation of
said sale deed. The defendant has appeared in the said
suit and filed application vide Exhibit 17 under the
provisions of Order 7, Rule 11 of the CPC that the suit is
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required to be rejected as the same is barred by law. The
Trial Court after considering the plaint and the documents
annexed with the plaint rejected the said plaint. Aggrieved
by the said judgment and decree passed by the Trial
Court, the plaintiff filed Regular Civil Appeal No.9 of 2024,
and after reappreciating the judgment and decree passed
by the Trial Court and considering the plaint and
documents annexed with the plaint, the First Appellate
Court dismissed the said appeal and confirmed the
judgment and decree passed by the Trial Court. Hence,
the present Second Appeal.
4. The learned advocate for the plaintiff has argued that
while deciding an application under the provisions of
Order 7, Rule 11 of the CPC, the Trial Court has gone into
the merits of the case. While deciding an application under
the provisions of Order 7, Rule 11 of the CPC, the Court
can only look at the plaint and the documents annexed
with the plaint. And therefore, the Trial Court could not
have rejected the plaint as the plaint specifically states
that a cause of actions have arisen to the plaintiff to file
the present suit. Moreover, it has been argued by the
learned advocate for the plaintiff that, it is the case of the
plaintiff that in the guise of agreement to sell, the
defendant has got the sale deed executed and got the
same registered. Therefore, as the fraud has been
committed with the plaintiff, the plaintiff has challenged
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the said sale deed, in view of the fact that it was
specifically agreed between the plaintiff and the
defendant that the sale consideration of the suit property,
shall be Rs.1,00,00,000/- and initially an amount
Rs.39,00,000/- will be paid by the defendant to the
plaintiff, and therefore, the plaintiff has executed the
document dated 24.09.2018, only on the assurance and
promises made by the defendant that the same is actually
an agreement to sell and not a registered sale deed. And
therefore, the Trial Court could not have rejected the
plaint and allowed the application filed by the defendant
under the provisions of Order 7, Rule 11 of the CPC and
the First Appellate Court could not have dismissed the said
appeal filed by the plaintiff. Therefore, it has been argued
that there are substantial question of law involved in the
present appeal. Therefore, the Second Appeal be admitted
on following substantial question of law:
1. Whether both Hon'ble Courts have committed an
error of law by dismissing the suit where disputed
questions of facts are involved, by exercising the power
available under Order 7 Rule 11 of the CPC?
2. Whether both Hon'ble Courts have committed an
error of law by entering into the merits of the case while
exercising the power available under Order 7 Rule 11 of
the CPC?
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3. Whether both Hon'ble Courts have committed an
error of law by deciding the legality and validity of the
sale deed dated 24.09.2018 in the proceeding of Order 7
Rule 11 of the CPC?
4. Whether Hon'ble Appellate Court has committed an
error of law by not properly framing the points for
determination as per provision of CPC?
5. Having heard learned advocate for the plaintiff and
having gone through plaint and documents annexed to the
plaint and considering the judgment and decree passed by
the Trial Court and confirmed by the Appellate Court, the
following are the admitted facts:
(a) The plaintiff was the owner of the suit property.
(b) The plaintiff has admitted that the sale deed dated
24.09.2018 has been executed by the plaintiff.
(c) It is the case of the plaintiff that though the said
sale deed has been executed and signed by the plaintiff,
the plaintiff was under the impression that the same is
not a sale deed, but a registered agreement to sell.
(d) The plaintiff has admitted of receiving an amount of
Rs.39,00,000/- lakhs at the time of executing the said
registered sale deed dated 24.09.2018.
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(e) It is the case of the plaintiff that the total sale
consideration was Rs.1,00,00,000/- and that the
defendant has to pay an amount of Rs.61,00,000/- at the
time of execution of sale deed.
(f) In the registered sale deed dated 24.09.2018, the
sale consideration amount of Rs.39,00,000/- is
mentioned.
(g) In the said sale deed executed on 24.09.2018, there
is no whisper about the fact that the same being
agreement to sell and the fact of further payment of
Rs.61,00,000/- and that the said sale deed is subject to
further payment of Rs.61,00,000/-.
(h) Therefore, the sale deed executed on 24.09.2018,
does not mention that the sale deed is subject to
payment of further amount of Rs.61,00,000/- and in the
said sale deed, sale consideration is mentioned and
acknowledged by the plaintiff.
(i) The entire case of the plaintiff is based on the fact
that the plaintiff has executed the sale deed, but in fact,
the plaintiff was under the impression that the same is an
agreement to sell.
6. If the provisions of Section 92 of the Evidence Act,
1872, are taken into consideration, which reads as under:
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"92. Exclusion of evidence of oral agreement. -- When
the terms of any such contract, grant or other disposition
of property, or any matter required by law to be reduced
to the form of a document, have been proved according
to the last section, no evidence of any oral agreement or
statement shall be admitted, as between the parties to
any such instrument or their representatives in interest,
for the purpose of contradicting, varying, adding to, or
subtracting from, its terms."
Therefore, the said version of the plaintiff that the
document that will be executed on 24.09.2018, was
actually an agreement to sell cannot be believed. As per
the provisions of Section 92 of the Evidence Act, 1872,
when the terms of any contract has been reduced to the
form of a document, and when the said document
specifically mentions of payment of sale consideration,
and the fact that the said document is actually the sale
deed and that the sale consideration is Rs.39,00,000/-, no
evidence of any oral agreement or statement shall be
admitted as between the parties for any such instrument
for the purpose of contradicting, varying, adding to or
subtracting from its term. The Courts have recorded
concurrent findings rejecting the plaint of the plaintiff that
the plaint is barred by law. Moreover, in view of Section 92
of the Evidence Act, 1872, there is no illegality in the order
that has been passed by the Trial Court and confirm by
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the First Appellate Court.
7. On bare perusal of the sale deed produced on record,
the said sale deed specifically states that the sale
consideration is Rs.39,00,000/- and that the said
document is registered sale deed. In view of the said fact,
the plaintiff did not have any cause of action to file the
present suit.
8. Moreover, as per the provisions of law, there is a
presumption that a registered document is validly
executed and therefore, the said registered document
prima facie would be valid in law and the onus of proof
would be on a person who leads evidence to rebut the
presumption. In the present case the plaintiff has not been
able to rebut the said presumption.
9. In the facts of the present case, there is no
substantial questions of law involved and the fact that
plaintiff is claiming declaration to cancel the sale deed, on
the ground that the sale consideration as decided between
the parties is not paid to the plaintiff cannot be
entertained and on the factual aspect also there are
concurrent finding of the Trial Court and the Appellate
Court and even as per the settled law the sale deed
cannot be cancelled on the grounds mentioned in the
plaint.
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10. The law is well settled that even if the entire sale
consideration has not in fact been paid, the same could
not be a ground for cancellation of the sale deed. The law
is also very clear that the definition of sale indicates that
there must be a transfer of ownership from one person to
another, which includes transfer of all rights and interest
in the property which was possessed by the transferor to
the transferee and that the transferor cannot retain any
part of interest or right in the property and the definition
of sale as per provisions of Section 54 of the Transfer of
Property Act, 1882 indicates that the transfer of the
ownership has to be made for a price paid or promised or
part paid and part promised, therefore the price thus
constitutes an essential ingredient of transaction of sale
and therefore, the actual payment of the whole of the
price at the time of execution of sale deed is not a sine
qua non for completion of sale. In the present case, the
sale consideration as mentioned in the sale deed has been
stated to have been received by the plaintiff and in the
sale deed itself the plaintiff has given acknowledgment of
the receipt of the said amount but even otherwise, even if
the whole of the price is not paid but the sale deed is
executed, the sale would be complete and the title would
pass on the defendant under the transaction, and even if
the version of the plaintiff is to believed, the non-payment
of a part of the sale price would not affect the validity of
the sale as the title in the property having already been
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passed and even if the balance sale consideration is not
paid, the said sale deed could not be invalidated on this
ground. In order to constitute a sale, the plaintiff must
intent to transfer the ownership of the property on the
agreement to pay the price either in the present time or in
future and from the recital of the sale deed, it is very clear
that the plaintiff has transferred all his right, title, interest
in the suit property by executing registered sale deed.
11. In the present case, the conclusion which has been
reached by both the Trial Court and the First Appellate
Court cannot be interfered as the judgment and decree of
the Courts 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 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.
12. 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:-
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"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."
13. 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."
14. Therefore, also the plaintiff has miserably failed to
show that there are any substantial question of law
involved in the present appeal and the substantial
question of law which has been formulated in the memo of
appeal are also not substantial question of law and on
facts and the said factual aspect has well been considered
by the Trial Court and the First Appellate Court.
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15. Under the circumstances, this Second Appeal is
devoid of any substantial question 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 question 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. In view of the order passed
in the Second Appeal, the Civil Application does not
survive and the same is accordingly disposed of.
Sd/-
(SANJEEV J.THAKER,J)
NITIN MAKWANA
