Gujarat High Court
Bharuch Jilla Dudh Sahakari Sangh Ltd vs Dahyabhai Gangaram Solanki on 2 December, 2025
NEUTRAL CITATION
C/SA/377/2025 CAV JUDGMENT DATED: 02/12/2025
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Reserved On : 04/09/2025
Pronounced On : 02/12/2025
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SECOND APPEAL NO. 377 of 2025
With
CIVIL APPLICATION (FOR STAY) NO. 1 of 2025
In R/SECOND APPEAL NO. 377 of 2025
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE SANJEEV J.THAKER
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Approved for Reporting Yes No
No
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BHARUCH JILLA DUDH SAHAKARI SANGH LTD.
Versus
DAHYABHAI GANGARAM SOLANKI & ORS.
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Appearance:
MR KASHYAP R JOSHI(2133) for the Appellant(s) No. 1
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CORAM:HONOURABLE MR.JUSTICE SANJEEV J.THAKER
CAV JUDGMENT
1. The present Second Appeal is filed under Section 100 of the Code of Civil Procedure, 1908 ('cpc', for short) challenging the judgment and decree dated 28.04.2025, passed by Additional District Judge, Bharuch in Regular Civil Appeal No.46 of 2014 whereby the judgment and decree dated 30.06.2014 passed in Special Civil Suit No.17 of 2010 by Additional Senior Civil Judge, Bharuch has been confirmed.
2. For the sake of brevity, the parties herein are referred to as per the status as that of in the suit.
Page 1 of 11 Uploaded by MISHRA AMIT V.(HC00187) on Tue Dec 02 2025 Downloaded on : Wed Dec 03 00:00:23 IST 2025NEUTRAL CITATION C/SA/377/2025 CAV JUDGMENT DATED: 02/12/2025 undefined 3.1 The brief facts arising in the present Second Appeal are that in view of the fact that the Government initiated the acquisition of the land under the Land Acquisition Case No.131 of 1980, the acquisition proceedings qua plaintiff's land were initiated and the suit property is a new tenure restricted land under the provision of Section 43 of the Gujarat Tenancy and Agricultural Lands Act, 1948 ('Act,1948', for short) but thereafter the acquisition proceedings were not persuaded by the competent authority and in view of the Land Acquisition proceedings, the plaintiff had given possession of the premises to the defendant for an amount of Rs.44,500/- per Acre and Rs.10,000/- was paid to the original plaintiff as earnest money. Thereafter on 19.04.1983 as the price was revised to Rs.56,001/- per Acre, vide new MOU and accordingly the remaining amount was also paid to the plaintiff. Thus, total Rs.1,33,000/- was paid to the original plaintiff. On 22.04.1983, the possession of the suit property was given to the defendant on the condition that it would be acquired through the process of land acquisition. Thereafter on 14.12.1989, the acquisition proceedings were dropped by Special Land Acquisition Officer. Thereafter Tenancy Case No.84 -C-1-99, under the provisions of Section 84(c) of the 'Act,1948) for recovery of possession of the suit land was also allowed.
3.2 The defendant preferred an Appeal No.1 of 2002. Thereafter plaintiff issued Notice Section 167 of the Gujarat Co-operative Society Act, 1961 on 25.12.2009 and on 18.03.2010, the plaintiff filed Special Civil Suit No.17 of 2010 for obtaining possession of the agricultural land and also sought for permanent injunction and measne profit.
3.3 The trial Court framed issues vide Exh.11, which reads as under:-
Page 2 of 11 Uploaded by MISHRA AMIT V.(HC00187) on Tue Dec 02 2025 Downloaded on : Wed Dec 03 00:00:23 IST 2025NEUTRAL CITATION C/SA/377/2025 CAV JUDGMENT DATED: 02/12/2025 undefined "1. Whether the plaintiffs prove that they are legal heirs of late Gangaram Bhagvanbhai Solanki ?
2. Whether the plaintiffs prove that a land R.S.No.16/4 of village Bholav Dist. Bharuch was acquired for the defendant ?
3. Whether the plaintiffs prove that after acquisition of the land, the defendant did not proceed further as per the direction of the Government ?
4. Whether the plaintiffs prove that Dy. Collector passed an order to handover the possession in Appeal No.1/2002 and panchnama to the effect was prepared by the Mamlatdar Shri Bharuch ?
5. Whether the plaintiffs prove that a notice under Sec.167 of the Gujarat Co.op. Society Act, 1963 was given to the defendant ?
6. Whether the defendant proves that the order of Dy.
Collector Shri in Appeal No.1/2002 was set aside by Gujarat Land Revenue Tribunal ?
7. Whether the plaintiffs are entitled for relief as prayed for in the plaint ?
8. What order and decree ?"
3.4 The plaintiff was examined vide Exh.19 and defendant examined himself vide Exh.58 and 74. After considering oral evidence and the documentary evidence, the trial Court passed judgment and decree on 30.6.2014, directing the defendant to handover the peaceful possession of the suit property and to restrain the defendant from making any construction in the suit property.Page 3 of 11 Uploaded by MISHRA AMIT V.(HC00187) on Tue Dec 02 2025 Downloaded on : Wed Dec 03 00:00:23 IST 2025
NEUTRAL CITATION C/SA/377/2025 CAV JUDGMENT DATED: 02/12/2025 undefined 3.5 Aggrieved by the said order, the defendant filed Regular Civil Appeal No.46 of 2014 and after re-appreciating the evidence and considering the oral evidence, the first appellate Court dismissed the said appeal. Hence, the present Second appeal.
4.1 Learned advocate for the defendant has mainly argued that the trial Court has misconstrued documentary evidence produced by the plaintiff, vide Exh.31 i.e. Memorandum of Understanding and the trial Court has not taken into consideration document, produced vide Exh.66, wherein the deceased Gangaram, Predecessor-in-title of the plaintiff had accepted additional amount and had agreed to sell the suit land to the defendant. It has been argued that the trial Court has not taken into consideration that the suit property, could not be said to be new tenure and appellate Court and trial Court could not have dismissed the suit on the ground that, no suit for specific performance and for protection of his possession has been sought by the defendant in Civil Suit.
4.2 Learned advocate for the defendant has also argued that first appellate Court has incorrectly appreciated Section 53 (a) of Transfer of Property Act, 1882. The trial Court and appellate Court have not taken into consideration the fact that plaintiff's father has received Rs.1,33,000/- from the defendant and possession was also transferred to the defendant. Therefore, the present Second Appeal is required to be admitted on the substantial questions of law, which have been suggested in the memo of appeal, which read as under:-
"1. Whether both the courts below have commited a grave error in partly allowing and confirming the suit for possession when there is a cloud over the title, and no relief is sought for the declaration of title ?Page 4 of 11 Uploaded by MISHRA AMIT V.(HC00187) on Tue Dec 02 2025 Downloaded on : Wed Dec 03 00:00:23 IST 2025
NEUTRAL CITATION C/SA/377/2025 CAV JUDGMENT DATED: 02/12/2025 undefined
2. Whether both the courts below have committed an error in partially allowing the suit of the Plaintiffs even though it was clearly barred by the law of limitation ?
3. Whether both the courts below have committed error in appreciating the fact that the Defendant has become the lawful owner by way of adverse possession, even though it had a coloured title ?
4. Whether the Ld. First Appellate Court committed error while concluding that the transfer of suit land between Plaintiffs and Defendant was illegal as it was in violation of section 43 of the Bombay Tenancy and Agricultural Lands Act, 1948, disregarding the unchallenged finding of Gujarat Revenue Tribunal that section 43 does not apply to said transaction ?
5. Whether the Ld. First Appellate Court has committed an error by upholding the Judgment of Ld. Civil Court entirely on different reasoning and findings, instead of remanding it back ?"
5. Having heard learned advocate for the defendant and having considered the judgment and decree passed by the trial Court and confirmed by the first appellate Court, the fact remains that after the acquisition proceedings was dropped by Special Land Acquisition Officer, the only relationship between the plaintiff and the defendant was that of purchaser and seller. The fact remains that till date plaintiff has not filed any suit for specific performance and the plaintiff is only claiming his right to be in possession of the property by way of the said agreement, whereby an amount of Rs.1,33,000/- has been paid by the defendant to the plaintiff.
6. Considering the facts of the present case, it is an admitted position Page 5 of 11 Uploaded by MISHRA AMIT V.(HC00187) on Tue Dec 02 2025 Downloaded on : Wed Dec 03 00:00:23 IST 2025 NEUTRAL CITATION C/SA/377/2025 CAV JUDGMENT DATED: 02/12/2025 undefined that the possession of the property was handed over to the defendant only because there were acquisition proceedings. The fact also remains that it is an admitted position that the suit property is restricted under Section 43 of the Tenancy Act and, therefore, there is bar under Sections 43 and 63 of the Tenancy Act. No prior permission from the competent authority has been taken and therefore also the question of giving protection to the defendant does not arise. Moreover, as stated hereinabove, the defendant has not filed any suit for specific performance. Moreover, the defendant also could not file suit for specific performance in view of the fact that the suit property is being new tenure land there are restrictions under Section 43 of the Tenancy Act. It is also required to be taken into consideration that the defendant has not taken any plea of stating that entire sale consideration has been paid and / or that the defendant has become owner by way of adverse possession. In view of the same, present appeal is required to be dismissed.
7. It is trite law that an Agreement to sell holder does not have any right in the property. [See: Munishamappa v. M. Rama Reddy and ors., 2023 SCC Online SC 1701, Para 10, Raheja Universal Limited vs. NRC Limited, 2012(4) SCC 148 ]. The only right available to such agreement to sell holder is to seek specific performance of the said agreement.
8. In this regard, this Court is bound by the Judgment of the Hon'ble Apex Court in the case of Balram Singh v. Kelo Devi, MANU/SC/1241/2022 which held as follows:
"17. Having conscious of the fact that the plaintiff might not succeed in getting the relief of specific performance of such agreement to sell as the same was unregistered, the plaintiff Page 6 of 11 Uploaded by MISHRA AMIT V.(HC00187) on Tue Dec 02 2025 Downloaded on : Wed Dec 03 00:00:23 IST 2025 NEUTRAL CITATION C/SA/377/2025 CAV JUDGMENT DATED: 02/12/2025 undefined filed a suit simplicitor for permanent injunction only. It may be true that in a given case, an unregistered document can be used and/or considered for collateral purpose. However, at the same time, the plaintiff cannot get the relief indirectly which otherwise he/she cannot get in a suit for substantive relief, namely, in the present case the relief for specific performance. Therefore, the plaintiff cannot get the relief even for permanent injunction on the basis of such an unregistered document/agreement to sell, more particularly when the defendant specifically filed the counter-claim for getting back the possession which was allowed by the learned trial Court. The plaintiff cleverly prayed for a relief of permanent injunction only and did not seek for the substantive relief of specific performance of the agreement to sell as the agreement to sell was an unregistered document and therefore on such unregistered document/agreement to sell, no decree for specific performance could have been passed. The plaintiff cannot get the relief by clever drafting."
9. This Court in case in CAV Judgment rendered in case of Devesh Metacast Pvt. Ltd. Through' Directors & Ors. Vs. Girish Nagjibhai Savaliya, rendered in Civil Revision Application No.288 of 2022 with Civil Revision Application No.289 of 2022, dated 01.05.2025, has held as follows:
"6.1 In view of the above admitted positions, the first point that has to be seen is that the Plaintiff is relying on Banachitthi which is not a registered Banachitthi and the fact also remains that the suit that has been filed by the Plaintiff is not for specific performance of a contract. Therefore, the fact remains that whether the suit that has been filed by the Plaintiff will be protected under the proviso of Section 49 of the Registration Act which reads as under:
"49. Effect of non-registration of documents required to be registered.Page 7 of 11 Uploaded by MISHRA AMIT V.(HC00187) on Tue Dec 02 2025 Downloaded on : Wed Dec 03 00:00:23 IST 2025
NEUTRAL CITATION C/SA/377/2025 CAV JUDGMENT DATED: 02/12/2025 undefined
- No document required by section 17 [or by any provision of the Transfer of Property Act, 1882 (4 of 1882),] [Added by Act 21 of 1929, Section 10.] to be registered shall
(a) affect any immovable property comprised therein, or
(b) confer any power to adopt, or
(c) be received as evidence of any transaction affecting such property or conferring such power, unless it has been registered:
[Provided that an unregistered document affecting immovable property and required by this Act, or the Transfer of Property Act, 1882 (4 of 1882), to be registered may be received as evidence of a contract in a suit for specific performance under Chapter II of the [Specific Relief Act, 1877] [A of the Transfer of Property Act, 1882 (4 of 1882)" omitted by Act 48 of 2001, Section 6 (w.e.f. 24.9.2001).] or as evidence of any collateral transaction not required to be effected by registered instrument.] 6.2 In view of Section 49 of the Registration Act the Court can receive the evidence of a contract in a suit for specific performance or as evidence of any collateral transaction.
The fact also remains that the suit that has been filed is with respect to a right which the Plaintiff claims having arisen by way of Bana-chitthi that is executed on 31.07.2006 and till filing of the present suit, the Plaintiff has not claimed any right for specific performance and the suit that has been filed is on a document which is required to be registered as per Section 17 of the Registration Act, therefore as the document on which the Plaintiff relies is unregistered document, no right will arise to the Plaintiff to rely on the said document i.e. Bana-chitthi as the suit is not for specific performance of a contract but only seeking permanent injunction and not for specific performance.
6.3 Therefore, the question is whether or not the Plaintiff can seek permanent injunction on basis of an unregistered Agreement to Sell? In view of the well settled law, the answer to the said question is in the negative. 6.4 Hon'ble Apex Court in Balram Singh v. Kelo Devi (supra), was dealing with a similar situation. It has been held Page 8 of 11 Uploaded by MISHRA AMIT V.(HC00187) on Tue Dec 02 2025 Downloaded on : Wed Dec 03 00:00:23 IST 2025 NEUTRAL CITATION C/SA/377/2025 CAV JUDGMENT DATED: 02/12/2025 undefined that if the Plaintiff files suit simplicitor for permanent injunction and does not seek substantive relief of specific performance for agreement to sale which is an unregistered document, on such unregistered document i.e. agreement to sale, no decree for permanent injunction could have been passed.
...
6.5 It is therefore clear that no decree for permanent injunction can be granted on basis of an unregistered agreement to sell, especially where a prayer for specific performance has not been sought.
6.6 The Plaintiff cannot be permitted to achieve indirectly, what it cannot achieve directly....
6.8 The Plaintiff having not filed a suit for specific performance, and in absence of any averment made in the Plaint as regards the readiness of the Defendant to execute the sale deed, cannot seek permanent injunction since the Plaintiffs are very well aware that the Defendant has already cancelled the Bana-chitthi and have refused specific performance of the Bana-chitthi.
6.9 Therefore, the Plaintiff does not have any cause of action to sue the Defendant for permanent injunction and declaration, on basis of an unregistered agreement to sell without having sought specific performance thereof. Hence, the Plaint does not disclose a cause of action and is liable to be rejected under Order VII Rule 11 (a) on this count.
10. Recently the Hon'ble Apex Court in the case of Mahnoor Fatima Imran and Ors. v. M/s. Visweswara Infrastructure Pvt. Ltd, held (in regards to an Unregistered Agreement to sell holder, while reversing the Division Bench's Order by which protection from dispossession had been granted) as under:
"As far as the writ petition praying for a direction not to dispossess, we find that the writ petitioners to have not established a valid title. We prima facie find the title to be Page 9 of 11 Uploaded by MISHRA AMIT V.(HC00187) on Tue Dec 02 2025 Downloaded on : Wed Dec 03 00:00:23 IST 2025 NEUTRAL CITATION C/SA/377/2025 CAV JUDGMENT DATED: 02/12/2025 undefined suspect, which would disentitle them from claiming a rightful possession, which also has not been proved."
11. 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."
12. 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."
13. 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 appellant has failed to prove his case before the learned Trial Court as well as before the First Appellate Court. This Court Page 10 of 11 Uploaded by MISHRA AMIT V.(HC00187) on Tue Dec 02 2025 Downloaded on : Wed Dec 03 00:00:23 IST 2025 NEUTRAL CITATION C/SA/377/2025 CAV JUDGMENT DATED: 02/12/2025 undefined 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. Resultantly, the connected Civil Application does 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 Dec 02 2025 Downloaded on : Wed Dec 03 00:00:23 IST 2025