Gujarat High Court
Salim Nasirhusain Gaur vs Jagdish Parshottambhai Patel on 9 May, 2025
NEUTRAL CITATION
C/SA/142/2025 ORDER DATED: 09/05/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SECOND APPEAL NO. 142 of 2025
With
CIVIL APPLICATION (FOR STAY) NO. 1 of 2025
In R/SECOND APPEAL NO. 142 of 2025
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SALIM NASIRHUSAIN GAUR
Versus
JAGDISH PARSHOTTAMBHAI PATEL & ORS.
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Appearance:
MR HARESH J TRIVEDI(927) for the Appellant(s) No. 1
MR JAY SNEHAL SHAH(13391) for the Respondent(s) No. 1,2,3,4
MR SP MAJMUDAR(3456) for the Respondent(s) No. 1,2,3,4
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CORAM:HONOURABLE MR.JUSTICE SANJEEV J.THAKER
Date : 09/05/2025
ORAL ORDER
1. The present Second Appeal has been filed under Section 100 of the Code of Civil Procedure, 1908 (for short "the Code") challenging the judgment and decree passed by 12th Additional District Judge, Vadodara in Civil Appeal No.170 of 2023 dated 03.03.2024 whereby the said appeal has been dismissed and the Judgment and decree passed in Regular Civil Suit No.82 of 2008 has been confirmed by the First Appellate Court, hence the present Second Appeal.
2. For the sake of brevity and convenience, the parties are referred to Page 1 of 25 Uploaded by URIL KRISHNAKUMAR RANA(HC01406) on Fri May 09 2025 Downloaded on : Sat May 10 22:12:22 IST 2025 NEUTRAL CITATION C/SA/142/2025 ORDER DATED: 09/05/2025 undefined their original status as that of the suit.
3. The brief facts arising in the present suit are that the plaintiffs filed a suit being Civil Suit No.82 of 2008 against the defendants on the ground that one Avniben Yogeshbhai Makodi and Divya alias Deepaben Yogeshbhai Makodi have purchased the suit property by registered sale deed on 25.02.1993. Thereafter, in the year 2000 by way of three sale deeds, the plaintiff has purchased the suit property from the above referred Avniben Yogeshbhai Makodi and Divya alias Deepaben Yogeshbhai Makodi
4. The plaintiffs came to know that the defendants have fabricated certain documents relying upon those fraudulent documents, the defendants are representing that they have a right, title and interest over the suit property. Therefore the plaintiff issued a public notice on 30.12.2007 and therefore, the plaintiff filed the suit seeking that the defendants be restrained from entering the suit property and further seeking a declaration that the defendants do not have any right, title, interest to transfer assign sell the suit property and further injunction restraining the defendants from making any construction in the suit premises.
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5. The defendants entered their appearance in the suit and filed their written statement denying the case pleaded by the plaintiff in the plaint. It is the case of the defendant that the possession of the property is with Tusharbhai K. Shah, who is developing the suit property the plaintiff has relied on a false and illegal power of attorney in the name of original owner and that the plaintiffs have created false agreement and documentary evidence.
6. It is the case of the defendant that the defendant had filed Special Civil Suit No.303 of 1996 against the legal heirs of Motibhai Patel and in the said suit, Amiben Yogeshbhai Makodi was also party defendant. The learned Trial Court had granted an injunction on 27.09.1996 with respect to the suit property.
7. The Trial Court had framed issues vide exhibit 78, which are as under:
"(1) Whether the plaintiff proves that he is purchased property illegally and become owner of the property?
(2) Whether the plaintiff proves that defendant illegally encroaching his property?Page 3 of 25 Uploaded by URIL KRISHNAKUMAR RANA(HC01406) on Fri May 09 2025 Downloaded on : Sat May 10 22:12:22 IST 2025
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(4) Whether the plaintiff entitled to get relief as prayed? (8) What order & Decree?"
8. The plaintiff was examined vide exhibit 84, the witness of the plaintiffs was examined vide exhibit 118 and the defendant had examined himself vide exhibit 142. After taking into consideration the oral and documentary evidence and giving finding on all issues, the Trial Court had dismissed the said suit and being aggrieved by the said order the plaintiff filed Regular Civil Appeal No.170 of 2023, which was also dismissed on 03.03.2025, hence the present Second Appeal.
9. Learned advocate for the plaintiff has mainly argued that the plaintiff is the prior owner of the suit property by virtue of registered sale deed executed in the year 1993, which has been executed by the original owner and therefore the alleged sale deed on which the defendant relies on cannot be considered, for determining the title of the suit property. Page 4 of 25 Uploaded by URIL KRISHNAKUMAR RANA(HC01406) on Fri May 09 2025 Downloaded on : Sat May 10 22:12:22 IST 2025
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10. It has also been argued that, if the written statement of the defendants taken into consideration, the defendant has not raised any contention that the suit property has been purchased by the defendant by way of registered sale deed and in fact, the defendant has only taken a contention that by way of agreement to sell, they have right, title, interest in the property.
11. The learned advocate for the plaintiff has also argued that the documents produced by the defendant at a later stage could not have been considered by the Trial Court while deciding the suit. It has also been argued that the Trial Court and the Appellate Court have not taken into consideration the fact that the power of attorney of Jawahar Ramchandra Gurbakshani was not required to be produced in view of the fact that the sale deed has been registered and therefore it has been argued that the Trial Court and the Appellate Court have not taken into consideration the said fact.
12. It has also been argued that the Court ought to have held that once Amiben Makodi, Deepaben Makodi and Avniben Makodi have become legal owners with title of the property, original owner Ramanbhai Motibhai and any other persons have no right, title, Page 5 of 25 Uploaded by URIL KRISHNAKUMAR RANA(HC01406) on Fri May 09 2025 Downloaded on : Sat May 10 22:12:22 IST 2025 NEUTRAL CITATION C/SA/142/2025 ORDER DATED: 09/05/2025 undefined interest and could not have executed any sale deed with respect to the suit property, after the execution of sale deed in favour of the plaintiff in the year 1993. As after the year 1993, the original owner will have no right, title or interest in the suit property.
13. It has also been argued that the Special Civil Suit No.303 of 1996 came to be disposed of as abated as a sole plaintiff died and therefore the Court could not have taken into consideration the facts of the said Civil Suit. It has also been argued that the Trial Court could not have taken into consideration the registered sale deed, exhibit 154 and 155 as the same was without any pleadings in the written statement. Therefore, it has been argued that there are substantial questions of law involved in the present second appeal and the second appeal is required to be admitted on the substantial question of law as suggested in the memorandum of appeal.
14. The learned advocate for plaintiff has relied on the following judgments:
(i) Kaushik Premkumar Mishra Vs. Kanji Ravaria @ Kanji on 19th July, 2024 in Civil Appeal No.1573 of 2023 (ii) Kuldip Page 6 of 25 Uploaded by URIL KRISHNAKUMAR RANA(HC01406) on Fri May 09 2025 Downloaded on : Sat May 10 22:12:22 IST 2025 NEUTRAL CITATION C/SA/142/2025 ORDER DATED: 09/05/2025 undefined Singh Vs. Balwant Kaur reported in 1991 AIR (P&H) 291 (iii) Manik Majumder And Others Vs. Dipak Kumara Saha (Dead) Through LRS & Others reported in 2023 LawSuit(SC) 31 (iv) Srinivas Raghavendrarao Desai (Dead) by LRS V. Kumar Vamanrao @ Alok And Ors. reported in 2024 LawSuit(SC) 196 (v) Sugandhi (Dead) By LRS & ANR Vs. P Rajkumar Rep by his Power Agent Imam Oli reported in 2020 LawSuit(SC) 665 (vi) Nutan Corporation Vs. Sunil Thakorbhai Mehta reported in 2009 LawSuit(Guj) 849 (vii) Corporation of City of Bangalore Vs. M Papaiah reported in 1989 LawSuit(SC) 359.
15. Per contra, learned advocate for the defendant has mainly relied on the fact that the plaintiff has not challenged the sale deed that has been executed in favour of the defendant. It has also been argued that the said sale deeds are produced along with the written statement and the plaintiff having not challenged the said sale deed can not come forward with the case that the defendant does not have any right, title, interest in the said property.
16. Learned advocate for defendant has also argued that the present plaintiff had also by way of amendment had sought to amend the Page 7 of 25 Uploaded by URIL KRISHNAKUMAR RANA(HC01406) on Fri May 09 2025 Downloaded on : Sat May 10 22:12:22 IST 2025 NEUTRAL CITATION C/SA/142/2025 ORDER DATED: 09/05/2025 undefined plaint and challenged the sale deed, but the said amendment application was rejected and the said order of rejection of the amendment application was challenged by the plaintiff before the Hon'ble High Court and since the suit was already dismissed, the Special Civil Application was disposed off.
17. Learned advocate for the defendant has argued that the entire case of the plaintiff revolves around the fact that the plaintiff has become the owner of the property by virtue of sale deed executed by the power of attorney through Mr.Moti Ramchandra Gurbakshani. However, the fact remains that the owner of the suit property were Ramanbhai Motibhai, Vinubhai Motibhai, Navnitbhai Motibhai and Manibhai Motibhai. The suit property was transferred through power of attorney name Narendrabhai Desai to Amiben Makodi, Deepaben Makodi and Avniben Makodi but the original owner named Manibhai Motibhai Patel passed away on 07.06.1986, and therefore the power of attorney could not have executed any sale deed as Manibhai Motibhai Patel had already expired in the year 1986.
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18. The following facts also remain undisputed: :
(i) The plaintiffs have not challenged the sale deed executed in favour of the defendant (ii) The plaintiffs have not produce the power of attorney under which the plaintiff claims to have purchased the suit property (iii) Amiben Makodi, Deepaben Makodi and Avniben Makodi had purchased the suit property under the breach of injunction orders passed in Special Civil Suit No.303 of 1996.
19. Having heard learned advocates for the parties and having considered the judgment and decree passed by the Trial Court and the Appellate Court, the issue involved in the present case is that the plaintiff has come forward with the case that Amiben Makodi, Deepaben Makodi and Avniben Makodi have purchased the suit property from Ramanbhai Motibhai Patel on 25.02.1993 through registered sale deed.
20. The plaintiff admits that Ramanbhai, Vinubhai and Navnitbhai and Manibhai were the original owners of the suit property and the suit property. And the suit property has been purchased from Amiben Makodi, Deepaben Makodi and Avniben Makodi and Jawahar Page 9 of 25 Uploaded by URIL KRISHNAKUMAR RANA(HC01406) on Fri May 09 2025 Downloaded on : Sat May 10 22:12:22 IST 2025 NEUTRAL CITATION C/SA/142/2025 ORDER DATED: 09/05/2025 undefined Ramchandra Gurbakshani, became the sole owner of the suit property in the year 2000.
21. However, the fact remains that there was no mutation entry in the name of the plaintiffs.
22. The fact also remains that the power of attorney by virtue of which the sale deed has been executed is also not produced on record. The fact also remains that the suit property was always in the name of defendant nos.1 to 4. The sale deeds of defendants were never challenged in the present proceeding, moreover, no documentary evidence is produced by the plaintiff to prove that the plaintiffs are in possession of the property.
23. There is no authenticity with respect to the power of attorney who has executed the sale deed in the year 1993, therefore, there is no documentary evidence that Moti Ramchandra Gurbakshani had any power of attorney from Amiben Makodi, Deepaben Makodi and Avniben Makodi. In that view of the matter, there are no substantial questions of law involved. It is also required to be examined that the entire case of the plaintiff is based on the fact Page 10 of 25 Uploaded by URIL KRISHNAKUMAR RANA(HC01406) on Fri May 09 2025 Downloaded on : Sat May 10 22:12:22 IST 2025 NEUTRAL CITATION C/SA/142/2025 ORDER DATED: 09/05/2025 undefined that the sale deed has been executed in their favour and the said sale deed has been executed through a power of attorney. It was never the case of the plaintiff before the Trial Court in the suit, that the power of attorney was handed over to the seller and that the said power of attorney was not in possession of the plaintiffs. The fact that the plaintiff did not produce the said power of attorney creates a serious doubt on the authenticity and genuineness of the power of attorney on which the plaintiff relies. There is no oral evidence coming forward from the plaintiff to give confidence to the Court about the execution of the said power of attorney in the name of Moti Ramchandra Gurbakshani and the fact that there is any document to show the existence of the power of attorney in favour of Moti Ramchandra Gurbakshani.
24. In view of the said fact there are no substantial questions of law involved in the present appeal with respect to the judgments that have been relied on by the plaintiff, more particularly judgments as under:
(i) Kaushik Premkumar Mishra Vs. Kanji Ravaria @ Kanji on 19th July, 2024, in Civil Appeal No.1573 of 2023, it has held in Page 11 of 25 Uploaded by URIL KRISHNAKUMAR RANA(HC01406) on Fri May 09 2025 Downloaded on : Sat May 10 22:12:22 IST 2025 NEUTRAL CITATION C/SA/142/2025 ORDER DATED: 09/05/2025 undefined para nos.32, 34, 35 and 36 as under:
"32. Based upon the aforesaid two factual errors, the Trial Court and the High Court wrongly shifted the burden on the plaintiff to prove execution of the sale deed and also payment of the sale consideration. The impugned judgment thus suffers from manifest error of law and facts both.
34. Coming to the submission of Mr. Ahmadi, learned senior counsel for the subsequent purchaser-respondent No.1, his claim would come up for consideration only if it is finally held that the sale deed of 02.12.1985 was not a valid sale deed. As otherwise all the rights, title and interest of the vendor- respondent no.2 would be curtailed from the date of execution of the first sale deed on 02.12.1985. As we have already held above that the sale deed cannot be discarded as void ab initio, rather we have held that it is a valid document of sale, therefore, no benefit can be extended to respondent no.1. Respondent no.1 would enter the shoes of the respondent no.2. If respondent no.2 had alienated all his rights, title and interest and also delivered possession, respondent no.1 could not claim to be a bona fide purchaser for value without notice.
35. The doctrine of bona fide purchaser for value applies in situations where the seller appears to have some semblance of legitimate ownership rights. However, this Page 12 of 25 Uploaded by URIL KRISHNAKUMAR RANA(HC01406) on Fri May 09 2025 Downloaded on : Sat May 10 22:12:22 IST 2025 NEUTRAL CITATION C/SA/142/2025 ORDER DATED: 09/05/2025 undefined principle does not protect a subsequent purchaser if the vendor had already transferred those rights through a prior sale deed. In a case where the vendor deceitfully executes a second sale deed 26 years after the initial transfer, without disclosing the earlier transaction and without any ongoing litigation regarding the property, the subsequent purchaser cannot claim the benefits of a bona fide purchaser. Essentially, if the vendor's rights were already severed by the first sale, any later sale deed made without transparency and in bad faith is invalid. The subsequent purchaser, even if unaware of the prior sale, cannot be considered bona fide because the vendor no longer had the legal right to sell the property. Thus, the protection afforded by the bona fide purchaser doctrine is nullified by the vendor's deceitful conduct and the pre-existing transfer of rights.
This ensures that the original purchaser's rights are upheld and prevents unjust enrichment through fraudulent transactions.
36. This is not a case of agreement to sell in favour of appellants but is a case of sale deed transferring ownership rights and possession. It would be open to respondent no.1 to avail such remedy as may be available under law to recover the sale consideration paid by him to respondent No.2. The sale deed in favour of the respondent No.1 dated 03.12.2010 needs to be cancelled and the registering authority be Page 13 of 25 Uploaded by URIL KRISHNAKUMAR RANA(HC01406) on Fri May 09 2025 Downloaded on : Sat May 10 22:12:22 IST 2025 NEUTRAL CITATION C/SA/142/2025 ORDER DATED: 09/05/2025 undefined directed to score out the same from the records as directed by the first Appellate Court."
(ii) Kuldip Singh Vs. Balwant Kaur reported in 1991 AIR (P&H) 291, in para nos.15 it is held as under:
"15. This view was later on followed in Ramaswami Pillai v. Ramasami Naicker, AIR 1960 Madras 396. I fully agree with this reasoning of Madras High Court and I have no hesitation in holding, on the anology of this reasoning that sale deed Exhibit P-1, shall take priority over the later transfer Exhibit DW 3/1 made by the vendor. The fact that the subsequent purchaser is a bona fide purchaser cannot be a ground by itself for postponing the rights of the prior transferee. This can be supported by another reasoning that no person can convey a better title than what he has and he cannot go back from his grant and deal with the property free from the rights created by him under the earlier sale deeds. His absolute ownership is diminished by rights already created under the earlier transaction and S. 48 of the Transfer of Property Act, does not save a subsequent transferee, who purchased property without notice or knowledge of the prior transfer."
-In case of Kaushik Premkumar Mishra (Supra) and Kuldip Singh (Supra) both the above judgments will be of no assistance to the appellant in view of the fact that the appellant has not challenged the sale deed executed in favour of the respondent nor Page 14 of 25 Uploaded by URIL KRISHNAKUMAR RANA(HC01406) on Fri May 09 2025 Downloaded on : Sat May 10 22:12:22 IST 2025 NEUTRAL CITATION C/SA/142/2025 ORDER DATED: 09/05/2025 undefined he has produced the power of attorney, by virtue of which the appellant is claiming to be the owner of the property.
(iii) Manik Majumder And Others Vs. Dipak Kumara Saha (Dead) Through LRS & Others reported in 2023 LawSuit(SC) 31, in para nos.28 it has held as under:
"28. In short, it has been authoritatively laid down by this Court that a registered document carries with it, by virtue of it being registered, the presumption as to the authority of the person executing it. In the present case, the Trial Court and the First Appellate Court failed to treat the endorsement made by the District Sub-Registrar on the body of the sale deed, as evidence in respect of the authority of Plaintiff No. 2 to execute the sale deed. This is to be considered in light of the fact that at no point of time did the original owner namely, Braja Mohan Dey dispute the execution of power of attorney in favour of Plaintiff No. 2."
-The above judgment will also be of no assistance to the appellant as in the present case neither the sale deed executed in favour of the defendant is under challenge nor the alleged power of attorney that has been executed in favour of Mr. Moti Ramchandra Gurbakshani has been produced to prove the existence of power of attorney and therefore the said judgment will not be of any assistance. Page 15 of 25 Uploaded by URIL KRISHNAKUMAR RANA(HC01406) on Fri May 09 2025 Downloaded on : Sat May 10 22:12:22 IST 2025
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(iv) Srinivas Raghavendrarao Desai (Dead) by LRS Vs. Kumar Vamanrao @ Alok And Ors. reported in 2024 LawSuit(SC) 196, in para no.15 it has held as under:
"15. There is no quarrel with the proposition of law that no evidence could be led beyond pleadings. It is not a case in which there was any error in the pleadings and the parties knowing their case fully well had led evidence to enable the Court to deal with that evidence. In the case in hand, specific amendment in the pleadings was sought by the plaintiffs with reference to 1965 partition but the same was rejected. In such a situation, the evidence with reference to 1965 partition cannot be considered."
(v) Sugandhi (Dead) By LRS & Anr Vs. P Rajkumar Rep by his Power Agent Imam Oli reported in 2020 LawSuit(SC) 665, it has held in para no.7 as under:
"7. Rule 1A of Order 8 of C.P.C.
provides the procedure for production of documents by the defendant which is as under:
"1A. Duty of defendant to produce documents upon which relief is claimed or relied upon by him.--
(1) Where the defendant bases his defence upon a document or relies upon any document in his Page 16 of 25 Uploaded by URIL KRISHNAKUMAR RANA(HC01406) on Fri May 09 2025 Downloaded on : Sat May 10 22:12:22 IST 2025 NEUTRAL CITATION C/SA/142/2025 ORDER DATED: 09/05/2025 undefined possession or power, in support of his defence or claim for set-off or counter-claim, he shall enter such document in a list, and shall produce it in Court when the written statement is presented by him and shall, at the same time, deliver the document and a copy thereof, to be filed with the written statement.
(2) Where any such document is not in the possession or power of the defendant, he shall, wherever possible, state in whose possession or power it is.
(3) A document which ought to be produced in Court by the defendant under this rule, but, is not so produced shall not, without the leave of the Court, be received in evidence on his behalf at the hearing of the suit.
(4) Nothing in this rule shall apply to document--
(a) produced for the cross-
examination of the plaintiff's witnesses, or
(b) handed over to a witness merely to refresh his memory." Sub-rule (1) mandates the defendant to produce the documents in his possession before the court and file the same along with his written statement. He must list out the documents which are in his possession or power as well as those which are not. In case the defendant does not file any document or copy Page 17 of 25 Uploaded by URIL KRISHNAKUMAR RANA(HC01406) on Fri May 09 2025 Downloaded on : Sat May 10 22:12:22 IST 2025 NEUTRAL CITATION C/SA/142/2025 ORDER DATED: 09/05/2025 undefined thereof along with his written statement, such a document shall not be allowed to be received in evidence on behalf of the defendant at the hearing of the suit. However, this will not apply to a document produced for cross- examination of the plaintiff's witnesses or handed over to a witness merely to refresh his memory. Sub-rule (3) states that a document which is not produced at the time of filing of the written statement, shall not be received in evidence except with the leave of the court.
Rule (1) of Order 13 of C.P.C.
again makes it mandatory for the parties to produce their original documents before settlement of issues."
-In the Srinivas Raghavendrarao Desai (Dead) by LRS (Supra) and Sugandhi (Dead) By LRS & Anr, the fact that the defendant has produced sale deed along with the written statement and subsequently, the plaintiff has sought an amendment with respect to challenging the said sale deed, it can not be said that the defendant is trying to lead evidence beyond the pleadings.
--The defendants case was not based on the sale deed that has been executed in favour of the defendant, but the case of the defendant was based on the agreement to sell and therefore, there is no error of law committed by the Trial Court and the Appellate Court. Page 18 of 25 Uploaded by URIL KRISHNAKUMAR RANA(HC01406) on Fri May 09 2025 Downloaded on : Sat May 10 22:12:22 IST 2025
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(vi) Nutan Corporation Vs. Sunil Thakorbhai Mehta reported in 2009 LawSuit(Guj) 849, it has held in para no.9 as under:
"9. Order VIII Rule 1(A) and Order XI Rule 12 are as under.
Order VIII Rule 1(A):
"Duty of defendant to produce documents upon which relief is claimed or relied upon by him:- (1) Where the defendant bases his defence upon a document or relies upon any document in his possession or power, in support of his defence or claim in set-off or counter-claim, he shall enter such document in a list, and shall produce it in Court when the written statement is presented by him and shall, at the same time, deliver the document and a copy thereof, to be filed with the written statement.
(2) Where any such document is not in the possession or power of the defendant, he shall, wherever, possible, state in whose possession or power it is.
(3) A document which ought to be produced in Court by the defendant under this rule, is not so produced shall not, without the leave of the Court, be received in evidence on his behalf at the hearing of the suit.
(4) Nothing in this rule shall apply to documents-
(a) produced for the cross-examination of the plaintiff's witnesses, or
(b) handed over to a witness merely to refresh his memory".
Order XI Rule 12 Page 19 of 25 Uploaded by URIL KRISHNAKUMAR RANA(HC01406) on Fri May 09 2025 Downloaded on : Sat May 10 22:12:22 IST 2025 NEUTRAL CITATION C/SA/142/2025 ORDER DATED: 09/05/2025 undefined "12. Application for discovery of documentsAny party may, without filing any affidavit, apply to the Court for an order directing any other party to any suit to make discovery on oath of the documents which are or have been in his possession or power, relating to any matter in question therein. On the hearing of such application the Court may either refuse or adjourn the same, if satisfied that such discovery is not necessary, or not necessary at that stage of the suit, or make such order, either generally or limited to certain classes of documents, as may, in its discretion be thought fit:
Provided that discovery shall not be ordered when and so far as the Court shall be of opinion that it is not necessary either for disposing fairly of the suit or for saving costs"."
(vii) Corporation of City of Bangalore Vs. M Papaiah reported in 1989 LawSuit(SC) 359.
25. In view of the said fact, the fact remains that neither the plaintiff has challenged the sale deed executed in favour of the defendant and the fact that the plaintiff has not proved execution of the sale deed by producing the power of attorney.
26. Moreover, in the facts of the present case, the plaintiff had to produce the document on which cause of action is based, therefore the plaintiff had to produce the power of attorney Page 20 of 25 Uploaded by URIL KRISHNAKUMAR RANA(HC01406) on Fri May 09 2025 Downloaded on : Sat May 10 22:12:22 IST 2025 NEUTRAL CITATION C/SA/142/2025 ORDER DATED: 09/05/2025 undefined when the plaint was presented by him to prove the fact that the sale deed was executed on the basis of the said power of attorney. In the present case, the plaintiff has only produced the sale deed and when a contention has been raised that no power of attorney was executed with respect to powers given to the said power of attorney to execute the sale deed, the Trial Court and the Appellate Court have rightly held that as the said power of attorney was not produced, the appellant has not been able to prove the fact of claiming right by way of sale deed.
27. The fact that the plaintiff is not able to prove the execution of prior sale deed and the fact that the plaintiffs have not challenged the said sale deed executed in favour of the defendant though the said sale deed has been produced along with written statement, it can not be said that no opportunity was given to the plaintiff to challenge the said sale deeds though produced with the written statement. The fact remains that the plaintiff had challenged the said sale deed by way of filing amendment application at a belated stage and the said application having been rejected, the plaintiff Page 21 of 25 Uploaded by URIL KRISHNAKUMAR RANA(HC01406) on Fri May 09 2025 Downloaded on : Sat May 10 22:12:22 IST 2025 NEUTRAL CITATION C/SA/142/2025 ORDER DATED: 09/05/2025 undefined cannot now agitate the execution of the said sale deed.
28. 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."
29. 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 Page 22 of 25 Uploaded by URIL KRISHNAKUMAR RANA(HC01406) on Fri May 09 2025 Downloaded on : Sat May 10 22:12:22 IST 2025 NEUTRAL CITATION C/SA/142/2025 ORDER DATED: 09/05/2025 undefined settled position on the basis of the pronouncement made by the Apex Court or based upon inadmissible evidence or without evidence."
30. Therefore, also the plaintiff 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 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 Appellate Court.
31. The fact that the Court below has not believed the execution of the said sale deed in favour of the plaintiff in the year 1993 and also has not relied on the agreement to sell executed in favour of the defendant executed on 07.09.1987, as the plaintiff could not prove the existence of power of attorney executed in favour of the Moti Ramchandra Gurbakshani and the fact that the defendant could not prove that he has legal right in the suit property based on the registered agreement no.4800 dated 07.09.1987. The fact remains that the defendant is relying on the registered sale deeds that have been executed in favour of the defendant by the original owners. In view of the said fact, no substantial question of law arise and the present Second Appeal is required to be dismissed. Page 23 of 25 Uploaded by URIL KRISHNAKUMAR RANA(HC01406) on Fri May 09 2025 Downloaded on : Sat May 10 22:12:22 IST 2025
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32. 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 plaintiffs have failed to prove their case before the learned Trial Court as well as before the 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. In view of the disposal of the Second Appeal, the Civil Application for stay would not survive and the same is accordingly disposed of.
Further Order
33. After pronouncement of the order, learned advocate for the appellant prays for stay of this order as he intends to challenge the same. Learned advocate for the respondents opposed this request stating that this Court has not granted stay in this appeal.
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NEUTRAL CITATION C/SA/142/2025 ORDER DATED: 09/05/2025 undefined
34. Having heard learned advocate for the parties, since learned advocate for the appellant intends to challenge this order, the stay is granted for a period of four weeks.
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