Gujarat High Court
Lh Of Desai Arjanbhai Muljibhai vs Lh Of Jani Shivshankar Mulshankar on 15 September, 2025
NEUTRAL CITATION
C/SA/143/2022 JUDGMENT DATED: 15/09/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SECOND APPEAL NO. 143 of 2022
With
CIVIL APPLICATION (FOR STAY) NO. 1 of 2020
In R/SECOND APPEAL NO. 143 of 2022
With
R/SECOND APPEAL NO. 139 of 2022
With
CIVIL APPLICATION (FOR STAY) NO. 1 of 2020
In R/SECOND APPEAL NO. 139 of 2022
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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LH OF DESAI ARJANBHAI MULJIBHAI & ORS.
Versus
LH OF JANI SHIVSHANKAR MULSHANKAR & ORS.
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Appearance:
MR JAYPRAKASH UMOT(3581) for the Appellant(s) No. 1,1.2
MS TEJAL A VASHI(2704) for the Respondent(s) No. 1.1,1.2,1.3
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CORAM:HONOURABLE MR.JUSTICE SANJEEV J.THAKER
Date : 15/09/2025
ORAL JUDGMENT
1.1 Second Appeal No.139 of 2022 is filed challenging the judgement and decree dated 07.10.2019, passed by Principal District Judge, Mehsana, in Regular Civil Appeal No.4 of 2016, dismissing the appeal and confirming the judgement and decree dated 15.12.2015, passed by 3 rd Additional Civil Judge, Mehsana in Regular Civil Suit No.166 of 2014 (original Special Civil Suit No.60 of 2001).
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in decree passed by Principal District Judge, Mehsana in Regular Civil Appeal No.3 of 2016, whereby the judgement and decree passed in Regular Civil Suit No.165 of 2014 has been confirmed.
1.3 Both the Second Appeals are filed under Section 100 of the Code of Civil Procedure, 1908 ('cpc', for short) challenging the judgement and decree passed with respect to plot no.26 and plot no.27.
2. For the sake of brevity, the parties herein are referred to as per their original status as that of in the suit.
3.1 The brief facts arising in the present Second Appeal are that deceased Shivsankar Jani purchased the suit property, by way of registered sale-deed, dated 04.07.1988, from defendant no.2, viz.Amarsinhbhai Veljibhai Chaudhari and came in possession of the suit property. The father of the plaintiff i.e. Shivsankarbhai and his brother Natvarlal, both went to Mumbai for business and after the death of Shivsankarbhai, the present plaintiff and defendant no.3, became the owners of the suit premises and that defendant nos.1/1 and 1/2 are the legal heirs of deceased Arjanbhai who died on 13.10.1998 and it is only on 14.03.2001, that the plaintiff found that there was some construction work going on and the plaintiff came to know that defendant no.1/2 was constructing on the plot and, therefore, plaintiff filed two suits for plot nos.26 and 27 and on enquiry in the Sub Registrar's office, the plaintiff came to know that defendant no.2 Amarsinhbhai has illegally executed sale-deed in favour of Arjanbhai marsinhbhai on 20.03.2001 and plaintiff informed Amarsinghbhai about the ownership and possession of the Page 2 of 11 Uploaded by MISHRA AMIT V.(HC00187) on Tue Sep 16 2025 Downloaded on : Wed Sep 17 01:48:34 IST 2025 NEUTRAL CITATION C/SA/143/2022 JUDGMENT DATED: 15/09/2025 undefined plaintiff but as defendants are in illegal possession and the plaintiffs have right to enjoy the possession in view of the ownership of the suit property, the plaintiffs filed suit for recovery of possession, permanent injunction, declaration and mesne profit from the defendants.
3.2 The defendants appeared in the said suit and filed written statement vide Exh.47. The plaintiff examined himself vide Exh.130 and the witnesses of the plaintiffs were examined vide Exhs.149 and 150. The defendant examined himself vide Exh.164 and the witnesses of the defendants were examined vide Exhs.183, 196 and 198. The trial Court framed issues vide Exh.129 which reads as under:
"A. Whether plaintiffs prove that disputed plot no.26 was bought by plaintiffs and deceased shivshankar from defendant no.2 on 04- 07-1988?
B. Whether plaintiffs prove that possession of disputed plot handed over to plaintiff no.1 and deceased shivshankar at place in the presence of witnesses ?
C. Whether defendatn no.1 prove that his father purchased the disputed plot from defendant no.2 by paying legal consideration and defendant no.2 legally handed over the possession ? D. Whether defendant no.2 prove that he purchased the disputed plot legally on 28/11/1986 from Ishwarbhai Ambalal Patel by way of registered saledeed ?
E. Whether defendant no.2 prove that saledeed of dated xx-7-1997 they made by mistake and on say of manubhai Maldavia ? F. Whether plaintiffs prove that pending the case defendant no. 2 breached the order of the court ?
G. Whether plaintiffs are entitle for claimed reliefs ?
Page 3 of 11 Uploaded by MISHRA AMIT V.(HC00187) on Tue Sep 16 2025 Downloaded on : Wed Sep 17 01:48:34 IST 2025 NEUTRAL CITATION C/SA/143/2022 JUDGMENT DATED: 15/09/2025 undefined H. Whether plaintiffs are entitle for reliefs prayed application at Exh.84 ?" 3.3 After considering the oral evidence and the documentary evidence
and after giving findings on all the issues, the trial Court declared that the sale-deed executed in favour of defendant no.1 i.e. Arjanbhai Desai with respect to plot nos.26 and 27 as illegal and to direct the defendant no.1/2 to remove at his own expenses the construction immediately from the said plot nos.26 and 27 and handover the vacant possessions of the plots to the plaintiff and also directed the defendant no.1/2 to pay mesne profit of Rs.2500/- to the plaintiff from the date of institution of the suits till its realisation.
3.4 The said judgment and decree passed in Regular Civil Suit No.165 of 2014 and Regular Civil Suit No.166 of 2014 has been challenged by the defendant no.1/2 by filing Regular Civil Appeal Nos.3 of 2016 and 4 of 2016 and after re-appreciating the evidence, the first appellate Court dismissed the said appeals. Hence, the present Second Appeals.
4.1 Learned advocate for the defendant has mainly argued that original owner had sold the suit property to the plaintiff by registered sale-deed dated 04.07.1988 and it is the case of the defendant that thereafter the owner of the suit property viz.Arjanbhai Desai executed sale-deed in favour of the defendant on 15.07.1997. Learned advocate for the defendant has tried to canvass his argument on the basis of the written statement filed by the owner of the suit property who had sold the property to the plaintiff and the defendant vide two different sale-deeds i.e. dated 04.07.1988 executed in favour of the plaintiff and dated 15.07.1997 executed in favour of the defendant and if the said written Page 4 of 11 Uploaded by MISHRA AMIT V.(HC00187) on Tue Sep 16 2025 Downloaded on : Wed Sep 17 01:48:34 IST 2025 NEUTRAL CITATION C/SA/143/2022 JUDGMENT DATED: 15/09/2025 undefined statement is taken into consideration, the owner has specifically stated that in all there were four plots i.e. plot nos.26, 27, 30 and 31 and all the four plots were to be sold and by way of registered sale-deed dated
04.07.1988, plot nos.26 and 27 have been sold to the plaintiffs, but the correct fact is that plot nos.30 and 31, were in the name of his nephew viz. Rameshbhai Ramsangbhai Chaudhary by a sale-deed executed in favour of Rameshbhai Ramsangbhai Chaudhary which has been registered on 02.12.1986 vide Registration No.2701 and, therefore, in all four plots were to be sold and the plot that were to be sold to the defendants were plot nos.30 and 31 and instead of the said plots, by mistake in the sale-deed that is executed in favour of the defendant on 15.07.1997, plot nos.26 and 27 has been stated.
4.2 It has also been argued by learned advocate for the defendant that the nephew of original owner Arjansinh Desai had also given a power of attorney to the defendant on 11.07.1988, and in view of the said power of attorney, sale-deed was to be executed with respect to plot nos.30 and 31 and, therefore, the defendant is genuine and bona fide owner of the suit property and when the original owner himself has admitted that he was owner of plot nos.26, 27, 30 and 31, the question of cancellation of sale- deed whereby a wrong number of plot has been stated, could not have been allowed by the trial Court and confirmed by the first appellate Court and in view of the same, the judgement and decree passed by the trial Court and confirmed by the first appellate Court are required to be quashed and set aside and the present Second Appeal is required to be admitted on the following substantial questions of law, as suggested in the memo of appeal.
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"(1) Whether, in the facts and circumstances of the case, both the Hon'ble Courts below instead of passing a decree for removal of constructions put up on plot nos.26 and 27, ought to have directed original defendant no.2 to execution conveyance of rectification of plot nos.30 and 31, instead of plot nos.26 and 27, in favour of the Plaintiffs, with respect to the Sale deed executed in favour of the Plaintiffs in the year 111988 ?
(2) In the alternative, whether, in the facts and circumstances of teh case, both the Hon'bles Courts below were required to mold the relief by directing the Defendant no.2 to pay compensation to the present appellants towards the expenses incurred by appellant for putting up construction on plot nos.26 and 27 and directing the Defendant no.2 to executing a corrigendum by transferring plot nos.30 and 31, instead of plot nos.26 and 27, in favour of the present Appellants ?
(3) Whether, in the facts and circumstances of the case, both the Hon'ble Courts below have erred in directing the present appellants to pay mesne profit to the plaintiffs, though, in fact, there is no overt act done by the present appellants, in view of the written statement filed by original defendant no.2 wherein he has categorically stated that there is mistake in mentioning correct plot numbers which were sold to the present appellants, and hence, if any order of mesne profit is to be passed, it was required to be passed only against Defendant no. 2 ?
(4) Whether, in the facts and circumstances of the case, both the Hon'ble Courts below have erred in not believing the case put forward by the appellants that in the revenue record names of plaintiffs were not reflecting when teh appellants purchased the property in the year 1997, and therefore the appellants are bonafide purchasers for consideration without notice ?"
5. Per contra, learned advocate for the plaintiff has mainly argued that after the sale- deed that has been executed in favour of the plaintiffs Page 6 of 11 Uploaded by MISHRA AMIT V.(HC00187) on Tue Sep 16 2025 Downloaded on : Wed Sep 17 01:48:34 IST 2025 NEUTRAL CITATION C/SA/143/2022 JUDGMENT DATED: 15/09/2025 undefined on 04.07.1988, for plot nos.26 and 27, the original owner i.e. Arjanbhai Desai, did not have any right, title or authority to execute any sale-deed in favour of defendant on 15.07.1997, with respect to plot nos.26 and 27. Moreover, the case of the defendant, if taken into consideration, is that the sale-deed executed in favour of the plaintiff on 04.07.1988, was for plot nos.30 and 31 and that there is a mistake in said sale-deed with respect to number of the plot, that instead of plot numbers 30 and 31, it has been mentioned as plot numbers 26 and 27, but the fact remains that admittedly, plot numbers.30 and 31 belong to Rameshbhai Chaudhary and even if the alleged power of attorney that is claimed to have been given by Rameshbhai Choudhary in favour of Arjanbhai Desai is seen, the said power of attorney is dated 11.07.1988 i.e. after the execution of sale-deed dated 04.07.1988, for plot numbers 26 and 27, therefore, it cannot be believed that Arjanbhai Desai had any power of attorney in his favour to execute sale deed for and on behalf of Rameshbhai Chaudhary for plot nos.30 and 31, but if the facts that have been stated in the written statement, filed by Arjanbhai Desai, vide Exh.51 is taken into consideration, the said document talks about fact that original owner of the suit property i.e. plot nos.30 and 31 is Rameshbhai Chaudhary and a sale-deed has been executed by Arjanbhai Desai on 15.07.1997, with respect to plot nos.26 and 27. Therefore, if at all the defendant has any right, the same can be with respect to plot nos.30 and 31, which belonged to Rameshbhai Chaudhary and, therefore, the present Second Appeal is required to be dismissed. In view of the fact that there are no substantial questions of law involved in the present Second Appeal, the present Second Appeal deserves to be dismissed.
6. Having heard learned advocates for the parties and having Page 7 of 11 Uploaded by MISHRA AMIT V.(HC00187) on Tue Sep 16 2025 Downloaded on : Wed Sep 17 01:48:34 IST 2025 NEUTRAL CITATION C/SA/143/2022 JUDGMENT DATED: 15/09/2025 undefined considered the judgement and decree passed by the trial court and confirmed by the first appellate Court, the following are undisputed facts before this Court:
(i) the plaintiffs claimed to be the owner of plot nos.26 and 27 by virtue of registered sale-deed dated 04.07.1988, which has been executed by Arjanbhai Desai;
(ii) the defendant is claiming to be the owner of plot nos.26 and 27 by way of registered sale-deed executed on 15.07.1997 which has been executed by Arjanbhai Desai;
(iii) Vide Exh.50, the original owner Arjanbhai Desai has put forward a case that he was the owner of plot nos.26 and 27 and for plot nos.30 and 31 his nephew Rameshbhai Ramsingh Chaudhary is the owner of the property;
(iv) the entire case of the defendant is on the basis that wrong plot numbers have been stated in the sale-deed executed in favour of the plaintiff in view of the fact that the intention of the owner of Arjansing Desai, was to sell plot nos.30 and 31 to the plaintiff and by mistake plot nos.26 and 27 have been stated to be sold to the plaintiffs. Further, if the said sale-deed executed in favour of the plaintiff is taken into consideration, the said sale-deed has been executed on 04.07.1988. The said sale-deed has been executed by original owner of the suit property i.e. Arjanbhai Desai and view the fact that the suit property is already sold by Arjanbhai Desai, said Arjanbhai Desai could not have any right to sell the suit property in the year 1997 to the defendant.Page 8 of 11 Uploaded by MISHRA AMIT V.(HC00187) on Tue Sep 16 2025 Downloaded on : Wed Sep 17 01:48:34 IST 2025
NEUTRAL CITATION C/SA/143/2022 JUDGMENT DATED: 15/09/2025 undefined
7. The fact remains that the defence that has been taken by the defendants are that the said sale-deed which has been executed in favour of the plaintiff, was with respect to plot nos.30 and 31 and not plot nos.26 and 27, the said fact cannot be believed in view of the fact that at the time of execution of the sale-deed dated 04.07.1988, in the favour of plaintiff and on 15.07.1997 when the sale-deed was executed in favour of the defendant for plot nos.26 and 27, Arjanbhai Desai was not the owner of plot nos.30 and 31 and, therefore, he could not have executed a sale-deed with respect to property i.e. plot nos.30 and 31. Therefore, the trial court has rightly allowed the said suit and the first appellate Court has, after re- appreciating the evidence, rightly dismissed the said appeal.
8. There is nothing on record to show that defendant no.1 is bona fide purchaser of the suit property. The fact remains that when the suit property was purchased by defendant no.1, there was registered sale-deed already in favour of the plaintiff with respect to the suit property. There is nothing on record to show that defendant no.1 made any inquiry with respect to the sale-deed that has been executed in favour of the plaintiff. Moreover, in view of the fact that the suit property was already transferred by registered sale-deed in favour of plaintiff, defendant no.2 could not have executed any sale-deed on 15.07.1997 in view of the fact that on 15.07.1997 the defendant no.2 was not the owner of the property and, therefore, the defendant no.1 cannot claim any ownership right over the suit property on the basis of the registered sale-deed executed in his favour.
9. This Court will also have to take into consideration the fact that just because no mutation entry has taken place pursuant to the sale-deed Page 9 of 11 Uploaded by MISHRA AMIT V.(HC00187) on Tue Sep 16 2025 Downloaded on : Wed Sep 17 01:48:34 IST 2025 NEUTRAL CITATION C/SA/143/2022 JUDGMENT DATED: 15/09/2025 undefined that has been executed in favour of plaintiff, it will not be ground for defendant no.2 to execute sale-deed in favour of defendant no.1. Therefore also the trial Court has rightly passed the judgment and decree and the first apppellate Court has confirmed the said judgment and decree passed by the trial Court. In view of the said fact, trial Court and the first appellate Court have not commmitted any error in determining the evidentiary value of the suit and coming to the conclusion that has been arrived at.
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 the findings of the lower courts."
11. 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 in both these Appeal. This Court does not find any substance in the present Second Appeals as the same are devoid of any merit both on facts and law, nor any substantial question of law does involve in any of Second Appeals and, therefore, both the present Second Appeals are dismissed, at the Page 10 of 11 Uploaded by MISHRA AMIT V.(HC00187) on Tue Sep 16 2025 Downloaded on : Wed Sep 17 01:48:34 IST 2025 NEUTRAL CITATION C/SA/143/2022 JUDGMENT DATED: 15/09/2025 undefined admission stage. The connected civil application, if any, would therefore not survive and it is disposed of accordingly.
(SANJEEV J.THAKER,J) MISHRA AMIT V. Page 11 of 11 Uploaded by MISHRA AMIT V.(HC00187) on Tue Sep 16 2025 Downloaded on : Wed Sep 17 01:48:34 IST 2025