Gujarat High Court
Kanji Premji Pindoriya vs Shree Jina Harji Senghani on 24 March, 2025
NEUTRAL CITATION
C/SA/263/2017 ORDER DATED: 24/03/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SECOND APPEAL NO. 263 of 2017
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KANJI PREMJI PINDORIYA & ORS.
Versus
SHREE JINA HARJI SENGHANI & ORS.
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Appearance:
JENIL M SHAH(7840) for the Appellant(s) No. 1,2,3,4,5,6,7,8,9
MR AMAN A SAMA(11691) for the Respondent(s) No. 1.3
MR MEET D KAKADIA(11896) for the Respondent(s) No. 1.3
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CORAM:HONOURABLE MR.JUSTICE SANJEEV J.THAKER
Date : 24/03/2025
ORAL ORDER
1.1 The present Second Appeal has been filed under Section 100 of the Code of Civil Procedure, 1908 ('the CPC', for short) aggrieved by the judgment and order passed by the Principal District Judge, Kachchh at Bhuj dated 19.01.2017 in Regular Civil Appeal No.80 of 2009 whereby the appeal filed by the original defendant succeeded and judgment and order dated 03.01.2009 passed by Principal Senior Civil Judge, Bhuj-Kachchh in Regular Civil Suit No.50 of 1996 was quashed and set aside.
2.1 The present appellants are original plaintiffs and the respondents herein are the original defendants. The parties herein are referred to as per their original status before the trial Court, for the Page 1 of 25 Uploaded by MISHRA AMIT V.(HC00187) on Thu Mar 27 2025 Downloaded on : Thu Mar 27 21:46:30 IST 2025 NEUTRAL CITATION C/SA/263/2017 ORDER DATED: 24/03/2025 undefined sake of convenience.
2.2 The plaintiffs filed Regular Civil Suit No.50 of 1996 against the defendants in the Court of Principal Senior Civil Judge, Bhuj Kachchh. The relief sought in the said suit is for issuance of direction to the defendants to accept the amount and handover vacant and peaceful possession of the suit property to the plaintiffs and in the alternative if the defendants prove that the suit property is given to the defendant as licensee then to declare the said license over and direct the defendant to handover peaceful possession of the suit premises and direct the defendants to pay an amount of Rs.1,000/- per month if the defendants states that the defendant is in possession of the suit premises as a licensee. The trial Court framed issues vide Exh.108 which are reproduced herein under:
"(1) Whether the plaintiff proves that the plaintiff trust is a trust registered under the Bombay Public Trust ?
(2) Whether the plaintiff proves that the defendant got mortgaged the disputed property from the plaintiff ?
(3) Whether the plaintiff proves that the disputed property was lying idle and was not being used by the defendant, hence, it has become dilapidated ?
(4) Whether the defendant proves that the suit is barred by the non rejoinder of necessary Page 2 of 25 Uploaded by MISHRA AMIT V.(HC00187) on Thu Mar 27 2025 Downloaded on : Thu Mar 27 21:46:30 IST 2025 NEUTRAL CITATION C/SA/263/2017 ORDER DATED: 24/03/2025 undefined parties ?
(5) Whether there is a bar of any Law to
the suit ?
(6) Whether the plaintiff is entitled to get
the relief as prayed for ?
(7) What order and decree ?"
2.3 The plaintiff examined himself vide Exh.157 and the witness of
the plaintiff was examined vide Exh.186. The defendant examined himself at Exh.205 and after considering the oral submissions and giving findings on all the issues, trial Court was pleased to decree the said suit in favour of the plaintiff trust. Being aggrieved by the said judgment, the defendant filed Regular Civil Appeal No.8 of 2009 and after re-appreciating the factual aspect and the evidence on record, the first appellate Court allowed the said appeal and quashed and set aside the judgment and decree dated 03.01.2009 passed by the Principal Senior Civil Judge, Kachchh Bhuj in Regular Civil Suit No.50 of 1996. Hence, the present Second Appeal. 3.1 Learned advocate for the plaintiff has mainly contended that the trial Court had allowed the said suit and decreed the suit for rejection of mortgage and possession was directed to be handed over to plaintiff. It is the case of the plaintiff that the appellate Court Page 3 of 25 Uploaded by MISHRA AMIT V.(HC00187) on Thu Mar 27 2025 Downloaded on : Thu Mar 27 21:46:30 IST 2025 NEUTRAL CITATION C/SA/263/2017 ORDER DATED: 24/03/2025 undefined allowed the appeal filed by the defendant mainly on the ground that trial Court has relied upon document produced at Exh.196, which is re-conveyance document though the said document is not registered document but the plaintiff has established that the suit property was mortgaged. It is also submitted that the appellate Court has also come to the conclusion that plaintiff has not been able to prove that the plaintiff trust is the owner of the suit property. 3.2 Learned advocate for the plaintiff has also argued that plaintiff is a trust and plaintiff had given suit property in two portion i.e. (i) western side of the property is given to the present defendant and (ii) the eastern side was given to the brother of the defendant and the properties that was given to the defendant and his brother were mortgaged and eastern part of the suit property which was given to the brother of the defendant was re-conveyed back to the plaintiff through reconveyance deed by the brother of the defendant, which is produced vide Exh.196 and the said reconveyance deed specifically states that there was mortgage and since the mortgage money was paid, property was reconveyed back to the plaintiff. 3.3 It has been argued by learned advocate for the plaintiff that in the document at Exh.196, there is a reference that the western part of Page 4 of 25 Uploaded by MISHRA AMIT V.(HC00187) on Thu Mar 27 2025 Downloaded on : Thu Mar 27 21:46:30 IST 2025 NEUTRAL CITATION C/SA/263/2017 ORDER DATED: 24/03/2025 undefined property i.e. portion that is in possession of the defendant, the defendant shall handover the possession of it to the plaintiff and since the defendant did not handover possession of the western side part of the suit property, the plaintiff gave notice to the defendant indicating his willingness to pay mortgage amount. The said notice is produced vide Exh.194.
3.4 Learned advocate for the plaintiff has also argued that in the said civil suit alternative prayer was sought that, if the Court does not come to the conclusion that the property was mortgaged by the plaintiff, in that case, in the alternative if the defendants are claiming to be licensee of the suit property, the possession of the property be handed-over to the plaintiff as license period is over. Learned advocate has also stated that though mortgage-deed is not produced on record and the fact that the said mortgage-deed is not a registered document but the entire case of the plaintiff is based on the reconveyance deed, which has been executed by the brother of the defendant which is produced vide Exh.196, the fact also remains that the plaintiff is the owner of the property through revenue record and various documents and, therefore, it has been argued that as per the records, as the plaintiff is owner of the property and there is no iota of evidence of defendants being either the owner of the property or Page 5 of 25 Uploaded by MISHRA AMIT V.(HC00187) on Thu Mar 27 2025 Downloaded on : Thu Mar 27 21:46:30 IST 2025 NEUTRAL CITATION C/SA/263/2017 ORDER DATED: 24/03/2025 undefined any document to substantiate the right of the defendant to occupy the property, the appellate Court could have allowed the said appeal and quashed and set aside the judgment and decree passed by the learned trial Court.
3.5 Learned advocate for the plaintiff has relied upon the evidence of Dasrathbhai Govindbhai Nai, Talati-cum-Mantri, who has been examined vide Exh.186 and it is the plaintiff's case that the said Talati has deposed that plaintiff is the owner of the suit property. Learned advocate for the plaintiff has also relied on the entry of public trust record produced vide Exh.200, which also establishes that the plaintiff is the owner of the said property. The plaintiff has also stated that the fact that the plaintiff is owner of the suit property can be established by revenue record of the Panchayat and deposition of the Talati [Exh.186].
3.6 Learned advocate for the plaintiff has also argued that plaintiff had also filed cross-objections in the first appellate Court and the first Appellate Court has not dealt with the said objections and, therefore, also the present Second Appeal is required to be admitted. It has been argued that if the cross-objections are not decided, the matter is required to be remanded back to the first Appellate Court to decide Page 6 of 25 Uploaded by MISHRA AMIT V.(HC00187) on Thu Mar 27 2025 Downloaded on : Thu Mar 27 21:46:30 IST 2025 NEUTRAL CITATION C/SA/263/2017 ORDER DATED: 24/03/2025 undefined the cross objections of the plaintiff.
3.7 Learned advocate for the plaintiff has also argued that first Appellate Court has also not exercised powers under Order 41 Rule 31 of the Code of Civil Procedure, 1908 ['CPC', for short] and has not considered all the evidence on record. It has also been argued that there is no whisper as to why the cross-objections filed by the plaintiff cannot be considered by the first Appellate Court. Learned advocate for the plaintiff has also argued that there is no document establishing the right of defendant to be in possession of the property. The defendant has also not proved or established the fact as to in what capacity defendant is in possession of the property. Learned advocate for the plaintiff has also argued that fact of ownership has been substantially proved by the plaintiff and the first Appellate Court could not have come to conclusion that there is no document to show that the plaintiff is owner of the property. Learned advocate for the plaintiff has relied upon following judgments. (1) (2003) 10 SCC 653; Rajgopal (Dead) By Lrs. vs. Kishan Gopal and another;
(2) 2014 (6) SCC 707; Union of India vs. Robert Zomawia Street;
and
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NEUTRAL CITATION
C/SA/263/2017 ORDER DATED: 24/03/2025
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(3) 2015 0 AIJEL SC 56147 = 2015 (11) SCC 269 ; Shasidhar vs.
Ashwini Uma Mathad
Relying upon the above judgments couple with the facts and circumstances of the case, it has been argued that there are substantial questions of law involved in the present case. The said substantial questions are suggested in the memorandum of Second Appeal and in view of the said facts, Second Appeal is required to be admitted.
4.1 Per contra, learned advocate for the defendant has argued that while instituting the suit, the plaintiff himself was not sure what is the relationship between the plaintiff and defendant as to whether the the same is with regard to mortgage or lease between the parties with respect to the suit property and, therefore, vague prayers were sought for by the plaintiff in the plaint i.e. either for remission or usufructuary mortgage or cancellation of lease, in case, if lease is found.
4.2 It has also been argued by learned advocate for the defendant that only fact to substantiate the case of the plaintiff is the document produced vide Exh.196 which is notorised document, it is not a Page 8 of 25 Uploaded by MISHRA AMIT V.(HC00187) on Thu Mar 27 2025 Downloaded on : Thu Mar 27 21:46:30 IST 2025 NEUTRAL CITATION C/SA/263/2017 ORDER DATED: 24/03/2025 undefined registered document, the said document is on a simple stamp-paper, the said document, does not bear signature of the defendant and the same is alleged to have been executed by brother of the present defendant, in favour of the plaintiff, whereby, the brother of the defendant stated that his part of the property was earlier mortgaged with the plaintiff and, therefore, without insisting of payment towards remission or mortgage, brother of the defendant waived his right, qua the said property in favour of the plaintiff and in the said document, the brother has, stated that the western part of the property was of the ownership of defendant. Other than the above referred document, there is no document which suggests that defendant and the plaintiff have executed any mortgaged-deed whereby the suit property was ever mortgaged. 4.3 Moreover, it has also been argued by learned advocate for the defendant that there is no direct or indirect document to prove the ownership of the plaintiff. The plaintiff has issued notice vide Exh.194 whereby the plaintiff sought possession of the property on the ground that, the brother of the defendant has already handed- over his part of property. In the said notice it has been alleged that both the parts of the property were mortgaged to plaintiff trust. It is the case of the defendant that, vide Exh.189, the Talati-cum-Mantri Page 9 of 25 Uploaded by MISHRA AMIT V.(HC00187) on Thu Mar 27 2025 Downloaded on : Thu Mar 27 21:46:30 IST 2025 NEUTRAL CITATION C/SA/263/2017 ORDER DATED: 24/03/2025 undefined of the Gram Panchaayt preferred communication to the plaintiff in reply to a query with the opinion that the subject property did not reflect on the village record as ownership of the plaintiff and in the said letter, the Talati has also made it clear that there is no entry whatsoever with respect to subject property in the name of the plaintiff.
4.4 Learned advocate for the defendant has also argued that there is no documentary evidence produced in the suit containing direct or indirect relationship with regard to mortgage with respect to suit property between the plaintiff and the defendants. Learned advocate for the defendant has also argued that the notorised document produced, vide Exh.196, also cannot be considered as evidence as it does not bear signature of the defendant, nor the said document is notorised document and any admission made by brother of the opponent cannot bind the present defendant.
4.5 Learned advocate for the defendant has also argued that proviso of Section 49 of the Registration Act will also not applicable in the facts of the present case. Moreover, it has also been argued that there are findings of fact on the issue of ownership of the suit property and, therefore, as the plaintiff has failed to prove the Page 10 of 25 Uploaded by MISHRA AMIT V.(HC00187) on Thu Mar 27 2025 Downloaded on : Thu Mar 27 21:46:30 IST 2025 NEUTRAL CITATION C/SA/263/2017 ORDER DATED: 24/03/2025 undefined ownership of the property, the order passed by the appellate Court is just and proper.
4.6 With respect to contention that cross-objections of the plaintiff that were filed in first appellate Court having not been considered, it has been argued that the said fact is not true and correct. It has been argued that cross-objections were filed vide Exh.18. The said cross- objections were filed under the provisions of Order 41 Rule 22 of the 'CPC' and the said cross-objections were with respect to amount of mesne profit to the tune of Rs.1,000/- per month and seeking eviction from the defendants on the basis of defendants being a licensee in the suit premises.
4.7 Learned advocate for the defendant has argued that looking to the relief that has been sought in para:9.2 of the plaint, the said relief is on the basis that if defendant comes forward with the case that the defendant proves that he is licensee in the suit premises, as the license period is over, the possession of the suit premises be handed over to the plaintiff and the defendant be directed to pay an amount of Rs.1,000/- per month towards licence-fee for occupation of the premises. With respect to the said relief that has been sought in para:9.2, the defendant has argued that it is only when the defendant Page 11 of 25 Uploaded by MISHRA AMIT V.(HC00187) on Thu Mar 27 2025 Downloaded on : Thu Mar 27 21:46:30 IST 2025 NEUTRAL CITATION C/SA/263/2017 ORDER DATED: 24/03/2025 undefined comes forward with the case that the defendant is licensee in the premises then the question of plaintiff claiming right of possession of premises on the basis that the defendant is licensee can arise, and in the present case, it is not the defendant's case that defendant is a licensee in the suit premises and, therefore, the question of granting any relief with respect to defendant being a licensee and plaintiff's claim of having right to recover possession and claiming mesne profit does not arise.
4.8 Moreover, it has also been argued that when the appellate Court has held that the plaintiff is not owner of the property, the question of plaintiff having any right to evict the defendant from the premises or declartion that the plaintiff being entitled to any amount does not arise and, therefore, as appellate Court has come to the conclusion that the plaintiff is not owner of the property, the appellate Court has disposed of the said cross-objections, filed vide Exh.18, with the specific order passed below the said cross-objections, that, in view of the judgment passed on 19.01.2017 whereby the appellate Court has held that plaintiff has failed to prove ownership of the property, question of cross-objections of the plaintiff claiming right that, the plaintiff is entitled to seek possession of the property on the basis of defendant being licensee does not arise and the said Page 12 of 25 Uploaded by MISHRA AMIT V.(HC00187) on Thu Mar 27 2025 Downloaded on : Thu Mar 27 21:46:30 IST 2025 NEUTRAL CITATION C/SA/263/2017 ORDER DATED: 24/03/2025 undefined cross-objections has been decided on the fact that the appellate Court has allowed the appeal and has come to the conclusion that plaintiff has not proved ownership of the property and, therefore, it has been argued that the first Appellate Court has come to right conclusion after reappreciating factual aspect and evidence on record and, therefore, present Second Appeal does not require to be entertained and cannot be admitted as there is no substantial questions of law involved in the present case and, therefore, Second Appeal is required to be dismissed.
5.1 Having heard learned advocates for the respective parties, the fact remains that other than Exh.196 which is a document being heavily relied upon by plaintiff, there is no other document to substantiate the case of the plaintiff that the suit property was mortgaged. The fact also remains that said document at Exh..196 was never signed by defendants and the original of the said document was never produced on record before the Court and xerox document of Exh.196 was produced. The fact also remains that neither executor of the said document nor witness of the said document were ever examined by the plaintiff. In view of the fact that the plaintiff is seeking reliance of xerox document, the burden was on the plaintiff to prove that under what circumstances original document of the Page 13 of 25 Uploaded by MISHRA AMIT V.(HC00187) on Thu Mar 27 2025 Downloaded on : Thu Mar 27 21:46:30 IST 2025 NEUTRAL CITATION C/SA/263/2017 ORDER DATED: 24/03/2025 undefined document at Exh.196 was not produced on record. Neither any explanation to that effect coming forward from the plaintiff, nor the plaintiff has examined any witness to the said document. Moreover, if the document produced vide Exh.196 is looked into, the said document is not registered document, the contents of the said documents are also not proved and the fact that the plaintiff is seeking reliance on the document it cannot be established that the suit property was mortgaged by the plaintiff in favour of defendant, as there is no document which has been produced and proved by the plaintiff to establish the fact that the plaintiff and defendant had ever agreed to mortgage the suit property and the fact that just because the brother of the defendant has executed unregistered document by stating that the suit property was mortgaged by the plaintiff and the said document which the brother of the defendant is executing is not with respect to the whole suit property but its eastern part of the suit property and, therefore, the plaintiff has miserably failed to prove that the suit property was mortgaged by the plaintiff and the fact that said document Exh.196 was required to be registered as per the provisions of Registration Act and since said document is unregistered document, the contents of the said document cannot be proved just by exhibiting the said document.
Page 14 of 25 Uploaded by MISHRA AMIT V.(HC00187) on Thu Mar 27 2025 Downloaded on : Thu Mar 27 21:46:30 IST 2025 NEUTRAL CITATION C/SA/263/2017 ORDER DATED: 24/03/2025 undefined 5.2 There is nothing on record to indicate that the suit property
was actually belonging to the plaintiff. Even the fact that the suit property was ever mortgaged by the plaintiff in favour of the defendant has also not been established by the plaintiff. The plaintiff's witness viz. Velji Ramji Vindoriya, in his deposition vide Exh.157 has also not proved that on what date the suit property was mortgaged by the plaintiff. The period of mortgage has also not been mentioned either in the plaint or in the deposition. The fact that the plaintiff does not have any document to show that the suit property was ever mortgaged itself shows that the plaintiff has miserably failed to prove the said fact. Moreover, even as per the revenue record there is no entry with respect to mortgage-deed having been executed between the plaintiff and the defendants.
5.3 Learned advocate for the plaintiff has relied upon the judgment reported in (2019) 20 SCC 652 in the case of Badru (since deceased) Through Legal Representative Harim Ram vs. NTPC Limited (formerly National Thermal Power Corporation Limited ) , more particularly on paras:15, 16, 18, 19 and 20, which read thus:
15. Order 41 Rule 22(4) of the Code, provides that where, in any case in which any respondent has under this rule filed a memorandum of objection, the original appeal is withdrawn or is dismissed for default, the objection so filed may nevertheless be Page 15 of 25 Uploaded by MISHRA AMIT V.(HC00187) on Thu Mar 27 2025 Downloaded on : Thu Mar 27 21:46:30 IST 2025 NEUTRAL CITATION C/SA/263/2017 ORDER DATED: 24/03/2025 undefined heard and determined after such notice to the other parties as the Court thinks fit.
16. In our considered opinion, merely because the High Court dismissed the appeals filed by the respondents herein though on merits, yet that by itself would not result in dismissal of the landowners' cross objection also. In our view, the cross objection had to be disposed of on its merits notwithstanding the dismissal of the appeals as provided by in Order 41 Rule 22 (4) of the Code by assigning reasons.
18. In our view, the High Court failed to examine the aforesaid question while dealing with the cross objection of the landowners and wrongly rejected it without assigning any reason as is clear from the order quoted above. Rejection of cross objection without any discussion and reason cannot be countenanced. It is not, therefore, legally sustainable.
19. In view of the foregoing discussion, the appeals succeed and are accordingly allowed. The impugned order insofar as it relates to dismissal of the appellants' (landowners) cross objection (Para 25) is set aside.
20. The case is remanded to the High Court for deciding the cross objection filed by the appellants (landowners) in accordance with law with a view to find out as to whether any case on evidence is made out by the appellants (landowners) for claiming further enhancement of the amount of compensation determined by the Reference Court and, if so, to what extent and, if not, why."
5.3.1 Learned advocate for the plaintiff emphasized the above paras contending that it has been observed that if the appeal is dismissed, the same would not result in dismissal of the cross-Page 16 of 25 Uploaded by MISHRA AMIT V.(HC00187) on Thu Mar 27 2025 Downloaded on : Thu Mar 27 21:46:30 IST 2025
NEUTRAL CITATION C/SA/263/2017 ORDER DATED: 24/03/2025 undefined objections and cross-objections are required to be disposed of on its own merits.
5.4 Learned advocate for the plaintiff has also relied upon paras:19, 21, 22 and 23, which read as under, in the judgment reported in (2015) 11 SCC 269 in the case of Shasidhar vs. Ashwini Uma Mathad contending that the ratio laid down in the said judgment are with respect to deciding the cross-objections in the Second Appeal while disposing of the main appeal and in the present case the said cross-objections have been filed by the plaintiff on the ground that relief that has been sought in para:9.2 is relief on the ground that if the defendant pleads that he is licensee in the premises then considering the license period to be over, possession of the property be handed-over back to the plaintiff and while deciding the said appeal, the first appellate Court has held that the fact that plaintiff has not been able to prove that he is owner of the property and the fact that defendant being licensee in the property has no right in the property, the appellate Court has rightly disposed of cross- objections filed vide Exh.18 on the ground that in view of disposal of Exh.29 wherein it has been held that the suit property was not mortgaged, that plaintiff has not been able to prove that the plaintiff is owner of the property and the fact that as the appellate Court has Page 17 of 25 Uploaded by MISHRA AMIT V.(HC00187) on Thu Mar 27 2025 Downloaded on : Thu Mar 27 21:46:30 IST 2025 NEUTRAL CITATION C/SA/263/2017 ORDER DATED: 24/03/2025 undefined held that plaintiff is not owner of the property, question of giving property on license by plaintiff does not arise and in view of the said facts, above referred judgment will not be applicable to the facts of the present case.
5.5 Learned advocate for the plaintiff has also relied upon judgment reported in 2014 (0) AIJEL 55361 [2014 (6) SCC 707] in the case of Union of India vs. Robert Zomawia Street and relied upon paras:14 and 15 of the said judgment and has argued that though there are no documentary evidence or registered document to prove that plaintiff is owner of the property, the fact remains that evidence of Talati and revenue record of Panchayat are clear to prove that plaintiff is owner of the property and, therefore, as against claim of the defendant who has not produced any document to show that on what basis defendant is in possession of the property, the plaintiff has revenue record of panchayat and deposition of Talati to assert his right of ownership in the suit premises. Paras:14 and 15 of the said judgment in the case of Union of India vs. Robert Zomawia Street (supra) reads as under:
"14. The tenures under which permission is given to civilians to occupy Government land in the cantonment for construction of bungalows on the condition of a right of resumption, if required, is known as old grant tenures. It is governed by Page 18 of 25 Uploaded by MISHRA AMIT V.(HC00187) on Thu Mar 27 2025 Downloaded on : Thu Mar 27 21:46:30 IST 2025 NEUTRAL CITATION C/SA/263/2017 ORDER DATED: 24/03/2025 undefined regulation contained in Order No, 179 of 1836 which is self contained and provides for the manner of grant and resumption of land in cantonment area. In respect of old grant tenure, the Government retains the right of resumption.
The GlR in unequivocal terms describes the nature of holder's right as "old grant". Thus, the plaintiff has not been able to establish his title over the suit land in question and, therefore, the plaintiff deserves to be non-suited on this ground alone. However, in deference to Mr. Venugopal, we must answer an ancillary submission projected before us. He points out that, according to the defendants themselves, the land was given as old grant to the predecessor-in-interest of the plaintiff but the said grant has not been produced and in the absence of any explanation by the defendants for its non- production, adverse inference has to be drawn. According to him, once such inference is drawn, the plaintiffs suit deserves to be decreed and was, therefore, rightly decreed by the High Court. This submission of Mr. Venugopal does not appeal to us. It is not possible to accept the contention that since actual grant was not produced, the case pleaded by the defendants that the plaintiff held the land as old grant was not proved. The GLR maintained under the Cantonment Land Administration Rules supports the defendants' contention that the plaintiff held the land on old grant basis. The plaintiff, on the other hand, has not produced any document to show the title of his predecessor-in- interest. Nemo dat quid non habet is the maxim which means no one gives what he does not possess, aptly applies in the case. It needs no emphasis that the successor will not have better title than what his predecessor had. Hence, we reject this submission of Mr. Venugopal.
15. The High Court while decreeing the suit has observed that plaintiff has created a high degree of probability that he is the owner of the land and in Page 19 of 25 Uploaded by MISHRA AMIT V.(HC00187) on Thu Mar 27 2025 Downloaded on : Thu Mar 27 21:46:30 IST 2025 NEUTRAL CITATION C/SA/263/2017 ORDER DATED: 24/03/2025 undefined such circumstance, the onus to prove that he is not the owner shifted on the defendants. It went on to observe that apart from relying on the admission made by the plaintiff's predecessor-in-interest, defendants have not been able to show any entry in the GLR to indicate that suit land is under the old grant. In our opinion, the whole approach of the High court in this regard is absolutely erroneous. Besides relying on the admission, the defendants have produced the GLR, which clearly shows that the land in dispute is covered under old grant. The classification of the land as B3 land also points towards the same conclusion. Thus, the High Court committed grave error in decreeing the plaintiff's suit."
5.5.1 In the present case, the records of village Panchayat Exh.189 which is given by Talati to son of the defendant under Right to Information, more particularly para:4, it is mentioned that there is no entry in the record of the Panchayat as regard any mortgage dated 01.12.1989 by the plaintiff. Moreover, vide Exh.187 the said Talati has also stated that there is no documentary evidence to show that the suit property is in the name of plaintiff as per revenue record and therefore also the above referred judgment will be of no assistance to the plaintiff.
5.6 Learned advocate for the defendant has relied upon the judgment reported in 2008 (0) AIJEL SC 41460 [2008 (8) SCC 564] in the case of K B Saha and Sons Pvt. Ltd. vs. Development Consultant Limited, more particularly para:21 and has stated that as document Page 20 of 25 Uploaded by MISHRA AMIT V.(HC00187) on Thu Mar 27 2025 Downloaded on : Thu Mar 27 21:46:30 IST 2025 NEUTRAL CITATION C/SA/263/2017 ORDER DATED: 24/03/2025 undefined produced vide Exh.196 on which plaintiff claims that the suit property was mortgaged being not registered document, the same cannot be looked into under the provisions of Section 49 of the Registration Act. Para:21 of the judgment in the case of K B Saha and Sons Pvt. Ltd. vs. Development Consultant Limited (supra) reads as under:
"21. From the principles laid down in the various decisions of this Court and the High Courts, as referred to hereinabove, it is evident that :-
1. A document required to be registered is not admissible into evidence u/s. 49 of the Registration Act.
2. Such unregistered document can however be used as an evidence of collateral purpose as provided in the Proviso to Sec. 49 of the Registration Act.
3. A collateral transaction must be independent of, or divisible from, the transaction to effect which the law required registration.
4. A collateral transaction must bea transaction not itself required to be effected by a registered document, that is, a transaction creating, etc. any right, title or interest in immoveable property of the value of one hundred rupees and upwards.
5. If a document is in admissible in evidence for want of registration, none of its terms can be admitted in evidence and that to use a document for the purpose of proving an important clause would not be using it as a collateral purpose."Page 21 of 25 Uploaded by MISHRA AMIT V.(HC00187) on Thu Mar 27 2025 Downloaded on : Thu Mar 27 21:46:30 IST 2025
NEUTRAL CITATION C/SA/263/2017 ORDER DATED: 24/03/2025 undefined 5.7 Learned advocate for the defendant has also relied upon the judgment of the High Court, Himachal Pradesh decided on 19.07.2024 in RSA No.187 of 2023 in case of Himachal Pradesh State Electricity Board Limited vs. Raj Kumar and another and relied upon that when both the suits and counter claim are deemed to be common judgment regardless separate counter decree, both would be required to be challenged by separate appeal and, therefore, in view of the fact that present Second Appeal has no counter objection was not decided, present Second Appeal cannot be decided on the ground that counter objection was not decided and disposed of on merits by the Court and, therefore, if plaintiff wanted to challenge the order passed below Exh.18 i.e. counter objection filed by the plaintiff, the same would only be challenged by way of separate appeal. 5.8 Learned advocate for the defendant has also relied upon the decision in the case of Prem Nath Khanna vs. Narinder Nath Kapoor (Dead) Through Legal Representatives reported in (2016) 12 SCC 235 and has argued that mutation of property neither produced nor exchanged the title or any presumption in that regard and, therefore, stated that plaintiff has miserably failed to prove that plaintiff is owner of the property.
Page 22 of 25 Uploaded by MISHRA AMIT V.(HC00187) on Thu Mar 27 2025 Downloaded on : Thu Mar 27 21:46:30 IST 2025 NEUTRAL CITATION C/SA/263/2017 ORDER DATED: 24/03/2025 undefined 5.9 Learned advocate for the defendant has also relied upon the
decision rendered in the case of State Bank of India & Ors. vs. S.N.Goyal reported in 2008 (0) SC 760 wherein it has been held that the question of law which arises incidentally or collaterally having no bearing in the final outcome will not be substantial question of law and in the present case there is no substantial question of law involved and, therefore, the fact that the defendant is licensee of the suit premises or not, could not have been decided by the first Appellate Court when the first Appellate Court has already decided that the plaintiff has not been able to prove the ownership over the suit property.
6. The plaintiff for proving the ownership of the property has relied on public trust register wherein names of parties and properties have been mentioned but the same does not indicate that the suit property was owned by the plaintiff and that the same was mortgaged with the defendant. The appellate Court, after coming to the conclusion, that the plaintiff has not been able to prove ownership of the property, the question of handing over possession to the defendant as licensee also does not arise. The plaintiff could not prove the ownership over the property and also could not prove that the property has ever been mortgaged to the defendant. Moreover Page 23 of 25 Uploaded by MISHRA AMIT V.(HC00187) on Thu Mar 27 2025 Downloaded on : Thu Mar 27 21:46:30 IST 2025 NEUTRAL CITATION C/SA/263/2017 ORDER DATED: 24/03/2025 undefined there are findings on the fact that even as per the Gram Panchayat reply which is produced vide Exhs.188 and 189, there is nothing on record to show that plaintiffs are owners of the property and in view of the said fact the judgment and decree passed by the first Appellate Court is just and proper.
7. 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."
8. 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 suggested 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 First Appellate Court.
9. Under the circumstances, this Second Appeal is devoid of any Page 24 of 25 Uploaded by MISHRA AMIT V.(HC00187) on Thu Mar 27 2025 Downloaded on : Thu Mar 27 21:46:30 IST 2025 NEUTRAL CITATION C/SA/263/2017 ORDER DATED: 24/03/2025 undefined substantial question of law. The first appellate Court has 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 and as the plaintiff has failed to prove his case before the first appellate Court, this Court does not find any substance in the present Second Appeal as the same is devoid of any merit both on facts and law and, therefore, the same is required to be dismissed and it is dismissed accordingly. Record and Proceedings be sent back to the concerned trial Court.
(SANJEEV J.THAKER,J) MISHRA AMIT V. Page 25 of 25 Uploaded by MISHRA AMIT V.(HC00187) on Thu Mar 27 2025 Downloaded on : Thu Mar 27 21:46:30 IST 2025