Gujarat High Court
Thakor Saajanben D/O Thakor Ganeshji ... vs Thakor Kirtikumar Chanduji on 30 September, 2025
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C/SA/426/2024 JUDGMENT DATED: 30/09/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SECOND APPEAL NO. 426 of 2024
With
CIVIL APPLICATION (FOR STAY) NO. 1 of 2024
In R/SECOND APPEAL NO. 426 of 2024
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE SANJEEV J.THAKER sd/-
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Approved for Reporting Yes No
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THAKOR SAAJANBEN D/O THAKOR GANESHJI HALAJI AND WD/O
THAKOR JAVANJI SOMAJI
Versus
THAKOR KIRTIKUMAR CHANDUJI & ORS.
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Appearance:
MS SONAL D VYAS(999) for the Appellant(s) No. 1
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CORAM:HONOURABLE MR.JUSTICE SANJEEV J.THAKER
Date : 30/09/2025
ORAL JUDGMENT
1. The present Second Appeal has been filed challenging the
judgment and decree passed by the Principal District Judge,
Mahesana, in Regular Civil Appeal No.162 of 2023, dated
05.07.2024, whereby the First Appellate Court has confirmed
the judgment and decree passed by the 10 th Additional Civil
Judge, Mahesana, below Exhibit 7, under the provisions of
Order VII Rule 11(d) of the Code of Civil Procedure, 1908
(for short "the Code"), whereby the Regular Civil Suit No.108
of 2022 has been rejected by an order dated 05.10.2023.
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2. For the sake of brevity and convenience, 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 a Civil Suit claiming that the suit property
belonged to her grandfather, Halaji Thakor, and that the suit
property was an ancestral property and that the plaintiff has
right, title, interest in the suit property. It is a case of the
Plaintiff that after the death of Halaji Thakor, a forged
pedigree has been submitted before the Revenue Department
by Defendant Nos.1 and 2. Defendant No.2 is the real brother
of the plaintiff and by way of Revenue Entry No.771, the
name of the plaintiff was not mutated in the Revenue Records
and Defendant Nos.1 and 2 have entered their names in the
Revenue Records and thereafter the sale deed has been
executed in favour of defendant nos14 to 19 and the names of
defendant nos.14 to 19 are stated in the Revenue Records. It is
also stated in the plaint that it is only on 10.07.2022, when the
plaintiff met defendant nos.14 to 19 and informed them about
their rights in the suit property, the defendant nos.14 to 19
objected to the same, and therefore, according to the plaintiff,
the cause of action to file the suit had arisen on 10.07.2022,
therefore, the suit that has been filed by the plaintiff is
claiming right by way of inheritance in the suit property, and
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ancillary relief with respect to injunction has been sought in
the plaint.
4. Defendant nos.14 to 19, appeared in the said suit and filed an
application vide Exhibit 7, under the provisions of Order VII
Rule 11 of the Code, on the ground that the suit that has been
filed by the plaintiff is hopelessly time-barred. The Trial
Court, after considering the plaint and the documents annexed
with the plaint, rejected the plaint. Being aggrieved by the said
order, the plaintiff filed Regular Civil Appeal No.162 of 2023
and after re-appreciating the judgment and decree passed by
the Trial Court, the First Appellate Court dismissed the said
appeal. Hence, the present Second Appeal.
5. Learned advocate for the plaintiff has mainly argued that, the
issue of limitation is a mixed question of law and fact, and the
Trial Court could not have rejected the plaint, in view of the
fact that it was the plaintiff's case that it is only in the year
2022, when the plaintiff was threatened by defendant nos.14 to
19, and therefore, the cause of action has arisen only in the
year 2022; and therefore, the suit is within the period of
limitation.
6. The learned advocate for the plaintiff has also argued that the
entire suit is based on the fact that a fraud has been committed
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on the plaintiff, and therefore, the fact that the said fraud came
to the knowledge of the plaintiff only in the year 2022, the
plaintiff has filed a suit and therefore, it cannot be said that the
suit is beyond the period of limitation. In view of the said fact,
it has been argued that the present second appeal is required to
be admitted on the following substantial questions of law:
"(a) Whether the plaint is required to
be rejected on the ground that the
suit is barred by the limitation when
the question of limitation can only be
determined by way of leading
evidence as the question of limitation
is a mixed question of law and fact?
(b) Whether in view of the provisions
of Section 17 of Limitation Act, 1963,
the plaint can be rejected without
giving the plaintiff an opportunity to
prove the fact of the discovery of
fraud by him?
(c) Whether the plaint ought to have
been rejected under the provisions of
Order 7 Rule 11 (d) of the Civil
Procedure Code, when there is a
specific allegation of fraud
committed by the defendants in
posting the revenue entry as well as
in transferring the suit land?"
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7. Having heard the learned advocate for the plaintiff, the
following facts will have to be taken into consideration:
(a) The plaintiff has stated about mutation entry number 771.
(b) The plaintiff has also stated that sale deeds have been
executed in favor of defendant nos.14 to 19.
(c) It is also the case of the plaintiff in the plaint, that the
plaintiff had filed a Revision Application challenging Entry
no.2771.
8. Therefore, as the said facts have been referred to in the plaint,
the documents pertaining to the same will have to be taken
into consideration.
9. In view of the said fact, the fact remains that, admittedly, there
was no entry number 2771; but the said entry is, entry no.771.
If the said entry is taken into consideration, the said entry is
dated 05.10.1980. Thereafter, the first sale deed that has been
executed is on 26.12.1997, and the sale deed executed in favor
of defendant nos.14 to 19 is dated 29.03.2011.
10. Moreover, if the revision application which has been
referred to at paragraph no.2 of the plaint is taken into
consideration, the said revision application had been rejected
by the Collector on 17.07.2017. Therefore, the fact remains
that the first cause of action to file the present suit had arisen
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for the plaintiff on 05.10.1980; i.e., when revenue entry no.771
was mutated in the revenue record, and the name of the
plaintiff was not entered, pursuant to the death of Halaji
Thakor.
11. Thereafter, on 26.12.1997, when the first sale deed was
executed, the plaintiff has neither challenged the said sale
deed, nor has the plaintiff challenged the sale deed dated
29.03.2011. The other fact which will also have to be taken
into consideration is that, at least, when the plaintiff
challenged the revenue entry no.771, and when the order was
passed on 17.07.2017, the plaintiff had knowledge of the fact
that their names have been removed from the revenue record,
and the fact remains that the present suit has been filed in the
year 2022. Therefore, the suit that has been filed by the
plaintiff is hopelessly time-barred. The Trial Court and the
Appellate Court have rightly decided the same.
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. Under the circumstances, 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 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
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the same is devoid of any merit both on facts and law and the same is
dismissed.
15. In view of the disposal of the main Second Appeal, the connected
Civil Application does not survive and the same is accordingly disposed
of.
(SANJEEV J.THAKER,J)
URIL RANA
