Gujarat High Court
L H Of Harji Murji, Gami Ramji Harji Gami vs Shamji Ratna Arjan Bhudiya on 10 June, 2024
NEUTRAL CITATION
C/SA/199/2024 JUDGMENT DATED: 10/06/2024
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SECOND APPEAL NO. 199 of 2024
With
CIVIL APPLICATION (DIRECTION) NO. 1 of 2023
In R/SECOND APPEAL NO. 199 of 2024
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE J. C. DOSHI
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1 Whether Reporters of Local Papers may be allowed Yes
to see the judgment ?
2 To be referred to the Reporter or not ? Yes
3 Whether their Lordships wish to see the fair copy No
of the judgment ?
4 Whether this case involves a substantial question No
of law as to the interpretation of the Constitution
of India or any order made thereunder ?
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L H OF HARJI MURJI, GAMI RAMJI HARJI GAMI
Versus
SHAMJI RATNA ARJAN BHUDIYA & ORS.
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Appearance:
MR KIRTIDEV R DAVE(3267) for the Appellant(s) No. 1
MR RAHUL K DAVE(3978) for the Appellant(s) No. 1
for the Respondent(s) No. 1,2,3,4
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CORAM:HONOURABLE MR. JUSTICE J. C. DOSHI
Date : 10/06/2024
ORAL JUDGMENT
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1. Present Second Appeal under section 100 of Code of Civil Procedure, 1908 ('CPC' for short) is filed by original plaintiff challenging judgment and decree delivered in Regular Civil Appeal No.98 of 2008, whereby, learned Additional District Judge, Bhuj allowed the appeal filed by the original defendant and upturned the judgment and decree delivered in Regular Civil Suit No.45 of 1996 by learned Principal Senior Civil Judge, Bhuj whereby, suit was dismissed.
2. Earlier first appeal had been disposed by appellate Court vide order dated 20.05.2019, thereafter, original defendant no.2 had filed Second Appeal before this Court vide Second Appeal No.382 of 2019. By order dated 19.10.2022, Co-ordinate Bench remanded the matter for fresh hearing as there was no compliance or Order 41 Rule 31 of CPC
3. Brief facts which could be gathered from the pleadings are as under :-
3.1. It is the case of plaintiff that plaintiff is son of defendant No.1. The plaintiff is originally resided at Madhapar Tal Bhuj Kachchh and for business purpose he is residing at London The father of plaintiff is having land at Village Madhapar Tal Bhuj Kachchch vide Old survey No . 275, ad measuring 3 Acre and 8 Gunthas and new Survey No 41/2, ad measuring 3 Acre and 2 Gunthas and also having other lands It is further case of plaintiff that Defendant No.1 had given the aforementioned land to plaintiff by having love and affection as being the son by executing Gift Deed and the same was entered in Registrar Office Bhuj on 05/01/1989 and since then the plaintiff became the Page 2 of 16 Downloaded on : Thu Jun 13 21:24:51 IST 2024 NEUTRAL CITATION C/SA/199/2024 JUDGMENT DATED: 10/06/2024 undefined owner of the land and has possessed the said land. The plaintiff maintained the said land through his family members. It is further case of plaintiff that by taking dis-advantage defendant No. 2 executed sale deed illegally in respect of the land vide old survey No.257, 3 acres and 8 gunthas on 16/05/1994 and had registered the said sale deed in Bhuj Sub Registrar Office on -
17/08/1994. It is further case of plaintiff that as per the provision of Transfer of Property Act after giving the land by executing Gift Deed plaintiff become the owner of the said land. The defendant No.1 had no right title and interest in respect of the said land and therefore the sale deed, executed on made in favour of defendant on 16/08/1994 made in favour of defendant no. 2 which is illegal and without given any authority and thus it became null and void and pursuant to that effect defendant did not get any right title and interest over the suit property and as such act there is no any effect of illegality. The defendant No.1 had handed over the suit property to plaintiff by executing Gift Deed and thereafter defendant No.1 did not having possession of disputed land and therefore defendant No.1 cannot give such land to anyone as he had no right over suit property. Hence as defendant No.1 is not having any right over the suit property as he had made Gift Deed in favour of the plaintiff, plaintiff has sought relief for declaration injunction and cancellation of sale deed made on 18/06/1994. Hence he has fled the suit before Ld Trial Court.
4. For convenience, parties are referred to as per their status before the learned Trial Court i.e. plaintiff and defendant.
5. Learned advocate Mr.K.R.Dave for the appellant / original Page 3 of 16 Downloaded on : Thu Jun 13 21:24:51 IST 2024 NEUTRAL CITATION C/SA/199/2024 JUDGMENT DATED: 10/06/2024 undefined plaintiff submitted that learned Appellate Court has committed serious error while allowing Regular Civil Appeal No.98 of 2008. It is submitted that at earlier point of time when appeal was heard by learned Additional District Judge, Bhuj, the appeal was dismissed. However, in view of judgment and order passed by this Court in Second Appeal No.382 of 2019, the appeal was re- heard by another learned Judge to reach conclusion contrary to the conclusion arrived by earlier learned District Judge. It is further submitted that serious question of law which is substantial in the present case is that learned Appellate Court has overlooked evidentary value of gift deed produced at Exh.124 wherein father of the defendant has put his thumb impression as donor and present plaintiff has signed as donee. This document was earlier proved and perusal of execution of such deed, plaintiff becomes owner of disputed property and he is in possession of the same.
5.1. It is further submitted that since plaintiff was son of donor, he automatically becomes agriculturist but this aspect has not been properly appreciated by the learned Appellate Court but by believing that suit is hit by section 89 of the Bombay Tenancy and Agricultural Land Act, the plaintiff was not agriculturist and no gift deed could be executed in favour of the plaintiff qua disputed land. Learned Appellate Court has committed serious error. It is submitted that in case where father was agriculturist, his son (plaintiff) would become agriculturist automatically but that fact and law regarding the same has not been properly appreciated by the learned Appellate Court. He would further submit that substantial question of law framed by appellant indicates that learned Appellate Court has committed serious Page 4 of 16 Downloaded on : Thu Jun 13 21:24:51 IST 2024 NEUTRAL CITATION C/SA/199/2024 JUDGMENT DATED: 10/06/2024 undefined error.
5.2. Upon above submission, learned advocate Mr.Dave submitted to admit this Second Appeal.
6. At the outset, let refer section 100 of CPC, which reads as under :-
100. Second appeal (1)[Save as otherwise expressly provided in the body of this Code or by any other law for the time being in force, an appeal shall lie to the High Court from every decree passed in appeal by any Court subordinate to the High Court, if the High Court is satisfied that the case involves a substantial question of law.(2)An appeal may lie under this section from an appellate decree passed ex parte .
(3)In an appeal under this section, the memorandum of appeal shall precisely state the substantial question of law involved in the appeal.
(4)Where the High Court is satisfied that a substantial question of law is involved in any case, it shall formulate that question.
(5)The appeal shall be heard on the question so formulated and the respondent shall, at the hearing of the appeal, be allowed to argue that the case does not involve such question:Provided that nothing in this sub-section shall be deemed to take away or abridge the power of the Court to hear, for reasons to be recorded, the appeal on any other substantial question of law, not formulated by it, if it is satisfied that the case involves such question.] 6.1. After amendment in 1976 in the CPC, scope of Second Appeal is narrowed down, it is maintainable only if case involves substantial question of law.
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7. In Narayananan Rajendran v/s. Lekshmy Sarojini [(2009) 5 SCC 264], the Hon'ble Apex Court has examined scope of Second Appeal prior to amendment and post amendment. After referring catena of judgments, in para 38 to 42, the Hon'ble Apex Court has held as under :-
"38. "66.The primary cause of the accumulation of arrears of second appeal in the High Court is the laxity with which second appeals are admitted without serious scrutiny of the provisions of Section 100 C.P.C. It is the bounden duty of the High Court to entertain second appeal within the ambit and scope of Section 100 C.P.C.
67. The question which is often asked is why should a litigant have the right of two appeals even on questions of law? The answer to this query is that in every State there are number of District Courts and courts in the District cannot be final arbiters on questions of law. If the law is to be uniformly interpreted and applied, questions of law must be decided by the highest Court in the State whose decisions are binding on all subordinate courts."
Rationale behind permitting second appeal on question of law:
39. "68. The rationale behind allowing a second appeal on a question of law is, that there ought to be some tribunal having a jurisdiction that will enable it to maintain, and, where necessary, re-establish, uniformity throughout the State on important legal issues, so that within the area of the State, the law, in so far as it is not enacted law, should be laid down, or capable of being laid down, by one court whose rulings will be binding on all courts, tribunals and authorities within the area over which it has jurisdiction.
This is implicit in any legal system where the higher courts have authority to make binding decisions on question of law.
69. The analysis of cases decided by the Privy Council and this court prior to 1976 clearly indicated the scope of interference under Section 100 C.P.C. by this Court. Even Page 6 of 16 Downloaded on : Thu Jun 13 21:24:51 IST 2024 NEUTRAL CITATION C/SA/199/2024 JUDGMENT DATED: 10/06/2024 undefined prior to amendment, the consistent position has been that the courts should not interfere with the concurrent findings of facts.
70. Now, after 1976 Amendment, the scope of Section 100 has been drastically curtailed and narrowed down. The High Courts would have jurisdiction of interfering under Section 100 C.P.C. only in a case where substantial questions of law are involved and those questions have been clearly formulated in the memorandum of appeal. At the time of admission of the second appeal, it is the bounden duty and obligation of the High Court to formulate substantial questions of law and then only the High Court is permitted to proceed with the case to decide those questions of law. The language used in the amended section specifically incorporates the words as "substantial question of law" which is indicative of the legislative intention. It must be clearly understood that the legislative intention was very clear that legislature never wanted second appeal to become "third trial on facts" or "one more dice in the gamble". The effect of the amendment mainly, according to the amended section, was:
(i) The High Court would be justified in admitting the second appeal only when a substantial question of law is involved;
(ii) The substantial question of law to precisely state such question;
(iii) A duty has been cast on the High Court to formulate substantial question of law before hearing the appeal;
(iv) Another part of the Section is that the appeal shall be heard only on that question.
71. The fact that, in a series of cases, this court was compelled to interfere was because the true legislative intendment and scope of Section 100 C.P.C. have neither been appreciated nor applied. A class of judges while administering law honestly believe that, if they are satisfied that, in any second appeal brought before them evidence has been grossly misappreciated either by the lower appellate court or by both the courts below, it is their duty to interfere, because they seem to feel that a decree following upon a gross misappreciation of evidence involves injustice and it is the duty of the High Court to redress Page 7 of 16 Downloaded on : Thu Jun 13 21:24:51 IST 2024 NEUTRAL CITATION C/SA/199/2024 JUDGMENT DATED: 10/06/2024 undefined such injustice. We would like to reiterate that the justice has to be administered in accordance with law.
72. When Section 100 C.P.C. is critically examined then, according to the legislative mandate, the interference by the High Court is permissible only in cases involving substantial questions of law.
73. The Judicial Committee of the Privy Council as early as in 1890 stated that there is no jurisdiction to entertain a second appeal on the ground of an erroneous finding of fact, however, gross or inexcusable the error may seem to be and they added a note of warning that no Court in India has power to add to, or enlarge, the grounds specified in Section 100.
74. The High Court seriously erred in interfering with the findings of facts arrived at by the trial court and affirmed by the first appellate court.
40. The scope of interference by the High Court in second appeal under section 100 CPC after 1976 Amendment is strictly confined to cases involving substantial questions of law. The High Court would not be justified in dealing with any second appeal without first formulating substantial question of law. The High Court would not be justified in dealing with any second appeal without first formulating substantial question of law. The legislative intention has been clearly spelt out in a series of cases of this court.
41. In Gurdev Kaur (supra), this court exhaustively dealt with the cases before and after 1976 Amendment of CPC. This court clearly observed that the scope and ambit of section 100 CPC has been drastically changed after the amendment.
42. It is a matter of common experience in this court that despite clear enunciation of law in a catena of cases of this court, a large number of cases are brought to our notice where the High Court under section 100 CPC are disturbing the concurrent findings of fact without formulating the substantial question of law. "
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8. In Kondiba Dagadu Kadam v/s. Savitribhai Sopan Gujar [(1999) 3 SCC 722], the Hon'ble Apex Court observed following :-
"6. If the question of law termed as a substantial question stands already decided by a larger Bench of the High Court concerned or by the Privy Council or by the Federal Court or by the Supreme Court, its merely wrong application on the facts of the case would not be termed to be a substantial question of law. Where a point of law has not been pleaded or is found to be arising between the parties in the absence of any factual format, a litigant should not be allowed to raise that question as a substantial question of law in second appeal. The mere appreciation of the facts, the documentary evidence or the meaning of entries and the contents of the document cannot be held to be raising a substantial question of law..."
9. While setting the law that jurisdiction under second appeal not be exercised merely because an alternate view is possible. It is observed by Hon'ble Apex Court in the case of Hamida v/s. Mohd. Khalil [(2001) 5 SCC 30] as under :-
"7.. ...The High Court, it is well settled, while exercising jurisdiction under Section 100 CPC, cannot reverse the findings of the lower appellate court on facts merely on the ground that on the facts found by the lower appellate court another view was possible."
10. Thus, it is admitted position that in Second Appeal jurisdiction of the High Court is confined to substantial question of law, a finding of fact is not open to challenge in second appeal, even if the appreciation of evidence is palpably erroneous and the finding of fact is incorrect as held by Hon'ble Apex Court in Page 9 of 16 Downloaded on : Thu Jun 13 21:24:51 IST 2024 NEUTRAL CITATION C/SA/199/2024 JUDGMENT DATED: 10/06/2024 undefined the case of V. Ramachandra Ayyar v/s. Ramalingam Chettiar [AIR 1963 SC 302].
11, Recently, in the case of Suresh Lataruji Ramteke v/s. Sau. Sumanbai Pandurang Petkar [2023 Live Law (SC) 821], the Hon'ble Apex Court in para 27 observed following :-
"27. The questions of law raised in the instant appeal are answered as under :
27.1 A Court sitting in second appellate jurisdiction is to frame substantial question of law at the time of admission, save and except in exceptional circumstances. Post such framing of questions the Court shall proceed to hear the parties on such questions, i.e., after giving them adequate time to meet and address them. It is only after such hearing subsequent to the framing that a second appeal shall come to be decided.
27.2 In ordinary course, the High Court in such jurisdiction does not interfere with finding of fact, however, if it does find any compelling reason to do so as regard in law, it can do but only after perusing the records of the Trial Court, on analysis of which the conclusion arrived at by such a Court is sought to be upturned. In other words, when overturning findings of fact, the Court will be required to call for the records of the Trial Court or if placed on record, peruse the same and only then question the veracity of the conclusions drawn by the Court below."
12. Learned Appellate Court framed following issue or point of determination while allowing the appeal :-
[1] Whether it is proved that defendant No.1 has made gift deed in favour of plaintiff ?
[2] Whether such gift deed is valid on the ground that plaintiff is not an agriculturist and not an Indian Citizen ?Page 10 of 16 Downloaded on : Thu Jun 13 21:24:51 IST 2024
NEUTRAL CITATION C/SA/199/2024 JUDGMENT DATED: 10/06/2024 undefined [3] Whether such gift deed is valid under Section of 89 Bombay Tenancy and Agricultural Land Act ? [4] Whether it is proved that sale deed made by defendant No.1 in favour of defendant No.2 is null and void ? [5] Whether the suit is valid as it is filed by Power of Attorney without valid Power of Attorney ? [6] What order and decree ?
12.1. Issue no.1 is answered in affirmative and rest of the issues are answered in negative.
13. The appellant / original plaintiff in order to substantiate Second Appeal as per section 100(3) of CPC, framed following question as substantial question of law :-
(a) Whether the Lower Appellate Court has committed serious error of law and jurisdiction in holding that the gift is invalid without considering the provisions of chapter VII of The Transfer of Property Act, 1882?
(b) Whether the Lower Appellate Court has committed error in not considering the fact that at the time of sale deed in 1994 the vendor had no right title or interest in the property and therefore he could not have passed better title than he had?
(c) Whether the Lower Appellate Court has committed error in exercising the jurisdiction not vested with it under the FERA, 1973?
(d) Whether the Lower Appellate Court has committed serious error of law in considering the revenue entries as title deeds?Page 11 of 16 Downloaded on : Thu Jun 13 21:24:51 IST 2024
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(e) Whether the Lower Appellate Court has committed serious error of law by observing that no entry in the revenue record about the gift deed by not considering section 135C of Gujarat Land Revenue Code?
(f) Whether the First Appellate Court has committed error of law and jurisdiction by holding that the transaction of gift has taken place and simultaneously holding that the defendant No. 1 had authority to transfer the land and such contradictory findings?
(g) Whether the First Appellate Court has committed gross error of law in considering the revenue law by holding that transfer to a non-agriculturist is barred, more particularly when the transferee-donee was none else but son of the transfer-donor?
14. The case of the plaintiff before the learned Trial Court was that he has become owner and he is in possession of disputed land on the ground of gift deed executed by father produced at Exh.124. Strange aspect is that plaintiff was not living in India and yet so called gift deed was executed. Another strange aspect comes on record that father who was donor is illiterate and had put thumb impression. Plaintiff's case was that when he came to India, possession was handed over to him. However, no evidence to that effect was produced on record. Subsequently, sale deed was executed in favour of defendant no.2 in the year 1960 and produced at Exh.131 but same was never questioned till filing of the suit. Power of attorney of father entered into witness box to say that he has not executed any gift deed. However, learned Appellate Court believed that gift deed was executed in favour of the plaintiff but learned Appellate Court in context of section 89 of Bombay Tenancy and Agricultural Land Act believed that Page 12 of 16 Downloaded on : Thu Jun 13 21:24:51 IST 2024 NEUTRAL CITATION C/SA/199/2024 JUDGMENT DATED: 10/06/2024 undefined since plaintiff was not agriculturist, no gift deed could be executed. Section 31(1) of the FERA Act was also pressed into by learned Appellate Court to believe that transaction without permission of RBI is not permitted. Relevant para of judgment delivered by learned Appellate Court in para 19 and 20 reads as under :-
"[19] In the present case the plaintiff is not citizen of India and this fact is also proved in the cross examination of witness of plaintiff at Exh.123 and in the evidence of witness at Exh.155. Further the present plaintiff has not produced any revenue record to show that he is an agriculturist. No revenue record is produced in support of this fact that he is cultivating the land and he was having land in his name. It is categorically admitted by the Power of Attorney on behalf of the plaintiff. In the cross examination the present plaintiff do not have any other land except the suit property. Under that circumstances the present plaintif is not entitled to obtain the land by gift deed regarding which the provision of Section 89 of Bombay Tenancy and Agricultural Land Act is to be considered. The said Act is re produced as under . - " 89. (1) -- Save as provided in this Act
(a) no sale (including sales in execution of a decree of a civil court or for recovery of arrears of land revenue or for sums recoverable as arrears of land revenue) gift, exchange or lease of any land or interest therein or ,
(b) no mortgage of any land or interest therein in which the possession of the mortgaged property is delivered to the mortgagee.
(c) No agreement made by on instrument in writing for the sale, gift, exchange, lease or mortgage of any land or interest therein. Shall be valid in favour of a person who is not an agriculturist or who being an agriculturist cultivates personally land not less than three family holdings whether as owner or tenant or partly as owner or partly as tenant or who is no an agricultural labourer :Page 13 of 16 Downloaded on : Thu Jun 13 21:24:51 IST 2024
NEUTRAL CITATION C/SA/199/2024 JUDGMENT DATED: 10/06/2024 undefined Provided that the Collector or an officer authorized by the State Government in this behalf may grant permission for such sale gift exchanges lease or mortagage or for such agreement. In such circumstances as may be prescribed [provided further that no such permission shall be granted Where land is being sold to a person who is not an agriculturists for agricultural purpose if the annual income of such person from other source exceeds five thousand rupees. Period of management to be excluded in computing period of limitation Manager to be public servant. Transfers to non agriculturists barred. Bombay Tenancy and Agricultural Land Vidarbha Region ( and Kutch Area Act), 1958.
[2] Nothing in this section shall be deemed to prohibit the sale, gift, exchange or lease or the agreement for the sale, gift, exchange, or lease of a dwelling house or the site therefor or any land appurtenant to it in favour of an agricultural labourer or an artisan .
(3) Nothing in this section shall apply to a mortgage of any land or interest therein efected in favour of a co operative - society for the loan advanced by such society . (4) Nothing in section shall apply to any sale made under sub section - (1).
Hence keeping in mind of the aforesaid provision that sale, gift, exchange lease or mortgage of any land shall be valid in favour of a person or who being an agriculturist. There is clear bar under the such provision. Further it is also admitted that after such sale deed the name of the plaintiff is not entered in revenue record. It is also admitted by Power of Attorney that till the name of defendant No 1993- 1994, name of defendant no.1 was there since 1994- 1995. .The name of defendant no.2 is there in the revenue record. Hence there is bar under Bombay Tenancy and Agricultural Land Act to transfer the property in favour of non agriculturist. This ground also would make it clear that though gift deed was made the gift deed is not in compliance with the provision of Section 23 of Indian Contract Act as the contract is itself barred by law. Under that circumstances though the plaintiff has obtained the property by gift deed, such gift deed is not valid.
Page 14 of 16 Downloaded on : Thu Jun 13 21:24:51 IST 2024NEUTRAL CITATION C/SA/199/2024 JUDGMENT DATED: 10/06/2024 undefined [20] Now in the present case looking to the evidence of both the sides it is admitted that the plaintiff is not citizen of India and under that circumstances the permission of Reserve Bank of India is required to obtain immovable property by gift situated in India u/s 31(1) of FERA Act. However looking to the evidence of Power of Attorney on behalf of plaintiff it is admitted that before obtaining gift deed no permission of Reserve Bank of India is obtained. However it is voluntarily stated that no such permission is required however looking to the provision of Section of 31(1) FERA Act, such permission is required and there is breach of such FERA Act as no such permission is obtained ."
15. Learned Appellate Court has also taken exception to judgment of learned Trial Court on the ground that power of attorney at Exh.140 and Exh.141 are prepared and executed outside India. They are not established by not following due procedure under the Stamp Act and as such they are inadmissible. While sum up the judgment, learned Appellate Court in para 25.1 and 25.3 gave reasons as under :-
"[25.1] In the present case looking to the facts of the case and the judgment of Ld Trial Court, Ld Trial Court has only taken into consideration the fact that such gift deed was made prior to sale him by defendant No.1 in favour of defendant No.2 and passed the order granting declaration and injunction in favour of the plaintiff however Ld Trial Court has not taken into consideration the fact that Power of attorney at Exh.140 and 141 were not in consonance with the provision of law and under Section 89 of Bombay Tenancy and Agricultural Land Act, transfer in favour of plaintiff is void.
[25.3] Further Ld Trial Court has also not taken into consideration that Power of Attorney has deposed on Page 15 of 16 Downloaded on : Thu Jun 13 21:24:51 IST 2024 NEUTRAL CITATION C/SA/199/2024 JUDGMENT DATED: 10/06/2024 undefined behalf of the plaintiff and the plaintiff has himself not remained present Further Ld Trial Court has not taken into consideration the fact that under Section 31 of FERA Act, permission of Reserve Bank of Indian is required and under Section 89 of Bombay Tenancy and Agricultural Land Act, transfer to not agriculturist is void and its forbidden and it would be hit by the provision of Section 23 of Indian Contract Act. Thus Ld Trial Court has erred in not considering this aspect while deciding the present suit and decreed the suit in favour of the plaintiff. Hence the judgment and finding of Ld Trial Court is suffers from infirmities and needs to be set aside."
16. In view of above no question framed by appellant found to be substantial question of law which permit admission of appeal. Merely arguing that different view is possible would not be sufficient to substitute view taken by the learned Appellate Court.
17. For the foregoing reasons, this Court does not find any reason to admit this Second Appeal and accordingly, it is dismissed at admission stage.
18. Civil Application for stay does not survive and accordingly, stands disposed of.
(J. C. DOSHI,J) SATISH Page 16 of 16 Downloaded on : Thu Jun 13 21:24:51 IST 2024