Gujarat High Court
Jyotiben W/O Rajeshbhai Solanki vs Ravikant S/O Sureshkumar Surati on 30 September, 2025
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C/SA/127/2021 JUDGMENT DATED: 30/09/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SECOND APPEAL NO. 127 of 2021
With
CIVIL APPLICATION (FOR STAY) NO. 1 of 2021
In R/SECOND APPEAL NO. 127 of 2021
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE SANJEEV J.THAKER sd/-
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Approved for Reporting Yes No
✔
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JYOTIBEN W/O RAJESHBHAI SOLANKI
Versus
RAVIKANT S/O SURESHKUMAR SURATI
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Appearance:
AKASH N SHAH(10130) for the Appellant(s) No. 1
MR CHAITANYA M VYAS(5651) for the Appellant(s) No. 1
MR K I KAZI(5030) for the Respondent(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 is filed under Section 100 of the
Code of Civil Procedure, 1908 (for short "the Code")
challenging the judgment and decree dated 17.06.2021, passed
by the District Judge Gandhinagar, in Regular Civil Appeal
No.62 of 2018, whereby the judgment and decree passed by 4 th
Additional Senior Civil Judge, Gandhinagar, in Regular Civil
Suit no.286 of 2015, dated 29.10.2018 has been confirmed.
2. For the sake of brevity and convenience, the parties are
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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 had purchased the suit property from the funds of
his father and the sale deed was executed on 31.05.2005,
bearing Registration No.4020, and at the time when the sale
deed was executed, the plaintiff was minor and therefore, the
same was executed by plaintiff's sister, i.e. Mintuben Surti, on
behalf of the plaintiff, as his guardian. The factual aspect of
the matter is that the plaintiff's father expired while he was on
duty on 10.08.2003 and at the time of his death, he had three
children, daughter Mintu, Seema and plaintiff-son and as
plaintiff and Seema were minor at the time of the death of the
father, his uncle opened an account in Central Bank of India,
where the amount of family pension, provident fund, etc. and
the other amounts payable as service benefits of the late father
of the plaintiff were to be deposited. It was the case of the
plaintiff before the Trial Court that the uncle got the signatures
of plaintiff's sister on blank cheques, and encashed all the
cheques and amounts were used by him for his personal
purpose and certain amounts were withdrawn by the uncle
from the said account and were given to Nitaben Dilipbhai
Sanghvi, towards the sale of suit property for sale deed dated
31.05 2005.
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4. It is the case of the plaintiff that there is a reference of
payment of Rs.1,60,000/- in the sale deed itself and remaining
amount of Rs.1,90,000/- was used by the uncle for his personal
purpose. It is the case of the plaintiff that uncle got the sign on
some blank papers and in the guise of entering the name of the
plaintiff in the suit property a sale deed was executed by the
defendant and her husband fraudulently, and the suit property
was transferred in the name of defendant, on 17.04.2009, vide
Registration No.3752/09, which came to the knowledge of the
plaintiff only in June 2011 when the defendant and her
husband cut all relation with the plaintiff and therefore the
plaintiff filed criminal complaint and ultimately the plaintiff
filed a suit for cancellation of the said sale deed on the ground
that the same is fraudulent, illegal and void and also prayed for
relief that the plaintiff is in lawful possession of the suit
property. The Trial Court framed issues vide Exhibit 20 as
under:
"(1) Whether the plaintiff proves his suit claim
against the defendant?
(2) Whether the defendant proves his defence?
(3) Whether the plaintiff is entitled for the relief
as prayed for?
(4) What order and decree?"
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5. The defendant had examined herself at Exhibit 41 and the
witness of defendant who knew, both the parties was examined
vide Exhibit 60 and after considering oral evidence,
documentary evidence and giving finding on all the issues, the
Trial Court passed an order that the sale deed produced vide
Exhibit 36 is declared to be fraudulent, illegal, and void and
the Trial Court declared that the plaintiff is legally entitled for
possession of the property and physical possession of the
defendant is illegal and restrained the defendants by permanent
injunction from creating any third-party interest in the suit
property. The said judgement and decree passed by the Trial
Court was challenged by the defendant by filing RCA No.62
of 2018 and after re-appreciating the evidence, the First
Appellate Court dismissed the said appeal and confirmed the
judgment and decree passed by the Trial Court hence the
present Second Appeal.
6. The main arguments of the learned advocate for the defendant
are that the Trial Court could not have granted possession of
the property, in view the fact that the said possession was not
sought by the plaintiff while filing the present suit.
7. It has been argued by the learned advocate for the defendant
that the Trial Court and Appellate Court has not taken into
consideration the provisions of Sections 34 and 36 of the
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Specific Relief Act and the deposition of the plaintiff, vide
Exhibit 30, plaintiff's sister vide Exhibit 37, the defendants
evidence vide Exhibit 41 and the witness of the defendant vide
Exhibit 60 which has not been appreciated properly by the
Trial Court and the Appellate Court.
8. The learned advocate for the defendant has also argued that in
view of the fact that the sale deed is with consideration, the
Court could not have taken into consideration the fact of undue
influence and fraud and therefore, it has been argued that the
present Second Appeal is required to be admitted on
substantial question of law, which have been formulated in the
Second Appeal and which are as under:
"(A) Whether Ld. Lower Appellant Court has
erred in allowing the Judgment and decree passed
by Ld. Trail court by substituting its own reasons
which are on assumptions?
(B)Whether Ld. Lower Appellate Court has erred
in law by allowing the appeal by substituting
findings of Ld. Trial Court in the suit for
cancellation of sale deed only without
consequential relief as well as of Specific relief
and Ld.Trial Court has wrongly exercised its
discretion judiciously after considering the
material available on record?
(C) Whether Ld. Lower Appellate Courts has erred
in law by not applying the principles of Evidence
Act by finding that burden to prove the identity of
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property is on relevant parties where in fact
burden of proof become in significant when the
both the parties have produced evidence?
(D) Whether the Ld Lower Appellate Court has
erred in law to decide and giving definite finding
about the proper interpretation of documents for
cancelling title over suit land ?
(E)Whether the judgment of the Ld. Lower
Appellate Court is unjust, perverse and also
without properly considering the evidence on
record in accordance with provision of law?
(F)Whether the Ld. Lower Appellate Court has
committed gross error of law by giving vague
finding that sale deed without consideration and
with fraud in view of S. 16 and 20 of Specific relief
Act.
(G) Whether the Ld Lower Appellate Court erred
in law by not considering that aspect that sell did
is egistered document which can look into in view
of S. 17 of Registration Act?
(H) Whether, Ld. Trial Court can grant relief
which is not prayed or sought in plaint?
(1) Whether, Ld. Trial court can interpret the
evidence in his own views, while the statement and
depositions are in unequivocal terms?
(J) Whether Both court has jurisdiction to grant
relief or draw decree, beyond scope of limit of
suit? Without specific prayer, can court pass an
order on their own view and basis, which are
contrary to the applicability of law and act?
(K) Whether Court can pass an order of
declaration of ownership without joining
necessary and proper party?
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(L) Whether Trial court and Ld. Appellant court
can pass an order of setting aside sale deed, in
considering ground that there is undivided share
of some coparcener, who was not been party to the
proceeding or joined party throughout proceeding
or trial?"
9. Having heard learned advocate for the defendant and having
taken into consideration the judgement and decree passed by
the Trial Court and confirmed by the First Appellate Court, the
fact remains that the the Trial Court and the First Appellate
Court have decided the said suit and appeal on the ground that
the plaintiff has proved that the sale deed executed vide
Exhibit 36 was on fraud, misrepresentation, and by undue
influence and on the factual aspect, the Court has taken into
consideration the fact that the Trial Court and the Appellate
Court have taken into consideration that no acknowledgment
receipt was taken from the plaintiff for payment of the amount
claimed to have been paid to the plaintiff nor a receipt of such
a consideration has been taken from the plaintiff. The Court
has also not believed the story of lending of money by the
witness examined by the defendant at Exhibit 60. This Court
has also taken into consideration the fact that the Trial Court
and the First Appellate Court have come to a finding that huge
amount has been withdrawn by the defendant and her husband
from the plaintiff's family pension account. Moreover, the
Trial Court and the Appellate Court have also come to the
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conclusion that from bank statement Exhibit 34, it could be
proved that the parties were in a position of active confidence
and there was a fiduciary relationship between them and
therefore, the burden of proving good faith of transaction was
on the defendant and that the defendant has failed to prove the
same. In view of the fact that the Trial Court has come to the
conclusion that the consent of the plaintiff is caused by fraud
and misrepresentation and the same is a factual aspect which
the Trial Court and the First Appellate Court have decided,
this Court in the Second Appeal cannot re-appreciate the
factual aspects that have been taken into consideration.
10. 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
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the findings of the lower courts."
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. Under the circumstances, the learned Trial Court and First
Appellate Court have rightly decided the issue between the parties in
the right perspective in view of the fact that the plaintiff has also
sought for relief of possession, the judgment and decree by the Trial
Court and confirmed by the First Appellate Court are not required to
be interfered 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 the same is devoid of any merit both on
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facts and law and the same is dismissed.
13. 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
