Gujarat High Court
Chimanlal Chhotalal Barot vs Ashokbhai Jaydevbhai Barot P.A. Of ... on 3 October, 2025
NEUTRAL CITATION
C/SA/51/2003 JUDGMENT DATED: 03/10/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SECOND APPEAL NO. 51 of 2003
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE SANJEEV J.THAKER
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Approved for Reporting Yes No
Yes
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CHIMANLAL CHHOTALAL BAROT & ORS.
Versus
ASHOKBHAI JAYDEVBHAI BAROT P.A. OF JAYDEVBHAI C
BAROT(DECD.) & ORS.
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Appearance:
(5295) for the Appellant(s) No. 1
JAYDEEP H SINDHI(9585) for the Appellant(s) No. 1.1,1.2,1.3
MR PRAKASH K JANI(355) for the Respondent(s) No. 1.1
SHIVANG P JANI(8285) for the Respondent(s) No. 1.2,1.3,1.4,1.5.2,1.5.3,1.6
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CORAM:HONOURABLE MR.JUSTICE SANJEEV J.THAKER
Date : 03/10/2025
ORAL JUDGMENT
1. The present Second Appeal under Section 100 of the Code of Civil Procedure has been filed challenging the judgment and decree, passed by Joint District Judge, Mahesana, dated 16.04.2003, in Regular Civil Appeal No.112 of 2000, by which the said appeal was allowed and the judgment and decree dated 29.07.2000, passed by 3rd Joint Civil Judge ( J.D.) at Mahesana in Regular Civil Suit No.175 of 1996 was quashed and set aside.
2. For the sake of convenience, the parties are referred to as per their original status as that in the suit.
3. The present Second Appeal has been admitted by the coordinate bench by an order dated 24.06.2003, on the following Page 1 of 15 Uploaded by MANOJ KR. RAI(HC01072) on Fri Oct 03 2025 Downloaded on : Sat Oct 04 11:29:46 IST 2025 NEUTRAL CITATION C/SA/51/2003 JUDGMENT DATED: 03/10/2025 undefined substantial question of law:-
(1) Whether, in the facts and circumsances of the case, the Appellate Court has erred in law in relying on the alleged oral partition?
4. The brief facts arising in the present Second Appeal are that the plaintiff and defendant are real brothers and according to the plaintiff there are two houses situated at village - Geratpur and adjacent to the southern wall, there is an open vada land which is partitioned amongst the plaintiff and defendant by the agreement dated 10.06.1981, which is produced vide Exhibit-96 and in view of the said family arrangement, out of the two houses, one house situated at northern side came in the share of the plaintiff and another house situated at southern side came in the share of defendant and on the same way out of the open vada land, the portion adjacent to the southern side of defendant's house admeasuring about 45' in length and 2.5' width came in the share of the defendant and the remaining portion situated on southern side came in the share of the plaintiff, which is being used by him since long. It was the case of the plaintiff that the defendant made illegal encroachment by making construction of one staircase on the vada land and the defendant was also obstructing plaintiff and the vada land, by Page 2 of 15 Uploaded by MANOJ KR. RAI(HC01072) on Fri Oct 03 2025 Downloaded on : Sat Oct 04 11:29:46 IST 2025 NEUTRAL CITATION C/SA/51/2003 JUDGMENT DATED: 03/10/2025 undefined using his right, and therefore, the said suit was filed for declaration and injunction. The trial Court framed issues vide Exhibit-91 as under:-
1. Whether the Plaintiff proves that a partition of the two houses and the open land involved in the Suit, owned by their father, took place between the Plaintiff and the Defendant on 10/06/81 and that he is the owner and possessor of the open land and house that came to his share, and the Defendant has no right or interest in it?
2. Whether the Plaintiff proves that the Defendant has unauthorizedly constructed a staircase on the path leading to the open land belonging to the Plaintiff, thereby committing encroachment and causing obstruction to the Plaintiff?
3. Whether the Plaintiff proves that the Defendant has encroached on the Plaintiff's share of the open land by constructing a toilet and a bathroom and that the Defendant is using that land unauthorizedly?
4. Whether the Defendant proves that, as mentioned in Para-
17 of the written reply, a partition took place at the time of Bhupendrabhai's marriage, and the entire open land is under his ownership and possession, and that he has carried out construction thereon with permission?
5. Whether the Plaintiff is entitled to get the relief as prayed?
6. Whether the Plaintiff is entitled to get the permanent injunction or interim order as prayed?
7. What order? What decree?
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5. Defendant had appeared in the said suit and filed written statement vide Exhibit-144. It was the case of the defendant that though family arrangement had taken place on 10.06.1981, but at that time, the open vada land was kept undivided and that the said open vada land was with the possession of the defendant from the very beginning and prior to two days of marriage of Bhupendrabhai, relatives of the parties has gathered, and therefore, the oral partition has taken place by which the defendant had given one open plot to the plaintiff and exchanged half portion of the open vada land, and therefore, it was the case of the defendant that by way of oral partition in presence of Ranchhodbhai Ramdas, Amrutlal Mafatlal, Manharbhai Keshabhai, Kishanbhai Joitram and Ashokkumar had taken place and that prior to 1981, the plaintiff has never used the open vada land and in view of the said fact, the plaintiff is not entitled for any relief as prayed for in the suit.
6. The plaintiff examined himself vide Exhibit-95 and witnesses of the plaintiff were examined vide Exhibit-108. The defendant's son examined vide Exhibit-114 and witnesses of the defendant were examined vide Exhibit-113, 133 and 134 and after going through the oral evidence, documentry evidence and giving findings on all the issues the trial Court allowed the said suit.
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7. The defendant filed First Appeal being First Appeal No.112 of 2000 and after reappreciating the evidence the first appellate Court came to the finding that in view of the provision of section-92(4) of the Evidence Act, oral partition is admissible, and therefore, allowed the said appeal and quashed and set aside the judgment and decree passed in Regular Civil Suit No.175 of 1996 passed by 3rd Joint Civil Judge (J.D.), Mahesana on 29.07.2000. Hence, the present Second Appeal.
8. Learned advocate for the plaintiff has mainly argued that the judgment and decree passed by the trial Court was as per law and that the first appellate Court has misread and misconstrued the entire evidence on record and decree was not warranted from the facts and circumsances of the case. It has also been argued by learned advocate for the plaintiff that the first appellate Court has committed an error in not considering the vital documents i.e. Exhibit-96, which had taken place in presence of eight relatives and under which the subject matter namely vada land was partitioned between the plaintiff and defendant and that the possession of respective portion was also taken over by the parties.
9. Learned advocate for the plaintiff has also argued that Exhibit-96 i.e. family arrangement is in the nature of conclusive Page 5 of 15 Uploaded by MANOJ KR. RAI(HC01072) on Fri Oct 03 2025 Downloaded on : Sat Oct 04 11:29:46 IST 2025 NEUTRAL CITATION C/SA/51/2003 JUDGMENT DATED: 03/10/2025 undefined evidence and it has been admitted by both the parties and in view of the same, the appellate Court could not have taken into consideration the provision of section-92(4) of the Evidence Act, in view of the fact that only one of the witness of the said family arrangement produced vide Exhibit-96 has been examined and he has deposed before the Court the fact of oral partition.
10. Learned advocate for the plaintiff has also argued that the plaintiff relies on Exhibit-96, which is written contract and neither has plaintiff admitted about the oral partition i.e. alleged to have taken place after execution of family arrangement, dated 10.06.1981, and therefore, the appellate Court has erred in law by relying on the alleged oral partition, and therefore, the present Second Appeal is required to be allowed and the judgment and decree passed by the first appellate Court in Regular Civil Appeal No.112 of 2000 is required to be quashed and set aside and the judgment and decree passed by the trial Court in Regular Civil Suit No.175 of 1996 is required to be confirmed.
11. Learned advocate for the defendant has argued that if the judgment and decree passed by the trial Court is taken into consideration and the agreement produced vide Exhibit-96, Page 6 of 15 Uploaded by MANOJ KR. RAI(HC01072) on Fri Oct 03 2025 Downloaded on : Sat Oct 04 11:29:46 IST 2025 NEUTRAL CITATION C/SA/51/2003 JUDGMENT DATED: 03/10/2025 undefined dated 10.06.1981, is a family arrangement and the trial Court has specifically stated that as it is a family arrangement, the same is not required to be in writing and/or it is not required to be registered. Therefore, the said findings of the trial Court has not been challenged by the plaintiff and the fact remains that by oral evidence it has been proved by the defendant that after execution of the agreement dated 10.06.1981, an oral partition has been taken place during the period of marriage of Bhupendrabhai, in presence of Ranchhodbhai Ramdas, Amrutlal Mafatlal, Manharbhai Keshabhai, Kishanbhai Joitram and Ashokkumar as per the said understanding there was a modification to the earlier contract dated 10.06.1981 whereby the said open vada land which was always in possession of the defendant.
12. Learned advocate for the defendant has relied on the provision of section 92(4) of the Evidence Act, 1872 and has argued that in view of the fact that the family arrangement was not require to be in writing and the same can be arrived at orally, therefore, the subsequent oral agreement modifying the said desposition can be substituted by parole evidence, and therefore, the said evidence is admissible, therefore, once the Court has already come to the conclusion that the agreement produced vide Exhibit-96 dated 10.06.1981, was not required to be in Page 7 of 15 Uploaded by MANOJ KR. RAI(HC01072) on Fri Oct 03 2025 Downloaded on : Sat Oct 04 11:29:46 IST 2025 NEUTRAL CITATION C/SA/51/2003 JUDGMENT DATED: 03/10/2025 undefined writing and/or was not require to be registered. The same can be substituted by parole evidence. Learned advocate for the defendant has relied on the judgment reported in 2000(0) AIJEL-SC 24791 in the case of S. Saktivel (Dead) By Lrs. v. M. Venugopal Pillai, and therefore, it has been argued by the learned advocate for the defendant that the present Second Appeal is require to be dismissed in view of the fact that the appellate Court has not erred in relying oral partition.
13. Having heard learned advocate for the parties and having considered the judgment and decree passed by the trial Court and which has been confirmed by the First Appellate Court, the fact remains that admittedly both the parties have not denied the fact that there was a partition amongst the plaintiff and defendant by agreement dated 10.01.1981, produced vide Exhibit-96 and by way of the said family arrangement, out of the two houses, one house situated at northern side came in the share of plaintiff another house situted at southern side came in the share of defendant and the appellate Court has taken into consideration section 92(4) of the Evidence Act, which reads as under:-
"Section-92(4).--The existence of any distinct subsequent oral agreement to rescind or modify any such contract, grant or disposition of property, may be proved, except in cases in which such contract, Page 8 of 15 Uploaded by MANOJ KR. RAI(HC01072) on Fri Oct 03 2025 Downloaded on : Sat Oct 04 11:29:46 IST 2025 NEUTRAL CITATION C/SA/51/2003 JUDGMENT DATED: 03/10/2025 undefined grant or disposition of property is by law required to be in writing, or has been registered according to the law in force for the time being as to the registration of documents.
14. Considering the facts of the present case, there is a partition that had taken place in the year 1981, the the trial Court has held that the same was not required to be a registered document, and thereafter, by oral evidence of witnesses, which have been examined by the defendant it has been proved that oral partition have taken place between the plaintiff and defendant in the year 1996 and the said fact has been proved by the defendant by examining one of the witness, vide Exhibit-113 who was present in the earlier family arrangement/partition in the year 1981 and the said witness has specifically stated that oral partition has taken place between the plaintiff and defendant in respect of the subject matter of the suit, the trial Court had not believed the said oral agreement which has been stated by the relatives of both the parties. The fact remains that the said oral agreement is subsequent to the partition deed, produced vide Exhibit-96. Section 92 does not prohibit the parties to lead oral evidence in respect of the contract as well as the oral agreement entered into beween the parties under the provision section 92(4). In the present case, the defendant has argued that in view of subsequent oral agreement previous contract was modified Page 9 of 15 Uploaded by MANOJ KR. RAI(HC01072) on Fri Oct 03 2025 Downloaded on : Sat Oct 04 11:29:46 IST 2025 NEUTRAL CITATION C/SA/51/2003 JUDGMENT DATED: 03/10/2025 undefined and the fact that the trial Court has already decided that earlier family arrangement by way of partition that took place in the year 1981 was not require to be registered, the question of subsequent event was also not required to be compulsory registered and the defendant has specifically stated in the written statement that the subsequent oral agreement had taken place in presence of four people who were alive and were present during the execution of written agreemen produced vide Exhibit-96 and at the time of subsequent evidence oral agreement, only four of the eight independent people who were witness to the written agreement dated 10.06.1981 were present. The defendant has also specifically stated that, the said subsequent oral agreement had taken place in the year 1996, at the time of marriage of Bhupendrabhai and the said subsequent oral arrangement took place in presence of both the parties and also independent witness at the time of execution of the written documents dated 10.06.1981.
15. The son of the appellant was examined and he was one of the signatory to the written document dated 10.06.1981, four persons were examined vide Exhibit-113, 130 to 134 and all have categorically stated that when the written agreement dated 10.06.1981 was executed between the parties, the actual possession of the suit land was not handed over to the plaintiff Page 10 of 15 Uploaded by MANOJ KR. RAI(HC01072) on Fri Oct 03 2025 Downloaded on : Sat Oct 04 11:29:46 IST 2025 NEUTRAL CITATION C/SA/51/2003 JUDGMENT DATED: 03/10/2025 undefined and that the defendant had purchased two plots of land out of which one plot is handed over to the plaintiff in lieu of the suit property, and therefore, it has been stated by the said witnesses that the partition deed dated 10.06.1981 vide Exhibit-96 was not impleaded fully.
16. Moreover, the said witnesses have also stated that they are relatives of the plaintiff and defendant and were called before few days from the date of marriage of Bhupendrabhai to make compromise beween the parties, so far as the disputed suit land is concerned and the specific oral agreement had taken place by which the defendant handed over one plot to the plaintiff, and therefore, the defendant had placed sufficient evidence of existance of specific oral agreement in the year 1996. There is nothing on record to show and sugguest that the oral evidence of the said witness was false in view of the fact that the said witnesses were relatives of both the parties and the fact that all the witnesses are independent winess who have come forward with a case that after the written agreement in the year 1981, by specific oral agreement the plaintiff and defendant had modified and very said written family arrangement/partition which have been in writing on 10.06.1981.
17. In view of the above referred fact when the trial Court has Page 11 of 15 Uploaded by MANOJ KR. RAI(HC01072) on Fri Oct 03 2025 Downloaded on : Sat Oct 04 11:29:46 IST 2025 NEUTRAL CITATION C/SA/51/2003 JUDGMENT DATED: 03/10/2025 undefined already considered that the said document was not required to be registered and the same being family arrangement the same could have been oral understanding between the parties and it cannot be said that the first appellate Court has erred in law in relying on the oral partittion between the parties which took place in the year 1996, it has been proved by the plaintiff by oral evidence. Moreover, the judgment on which the learned advocate for the defendant has relied on i.e. S. Saktivel (Dead) By Lrs. v. M. Venugopal Pillai, reported in 2000 (0) AIJEL SC 24791, more particularly, paragraph No.4, 5 & 6 which was as under:-
4. In First Appeal filed by the plaintiff before the High Court the learned Single Judge of the High Court was of the view that in view of proviso (4) to Section 92 of the Evidence Act it is not open to the parties to let in oral evidence to modify, vary or subtract the terms of the registered document.
Consequently, the First Appeal was allowed and the suit for partition was decreed. The Letters Patent Appeal preferred by the appellant was dismissed by a Division Bench of the High Court. It is against the said judgment the appellant is in appeal before us.
5. Learned counsel appearing for the appellant urged that the view taken by the High Court in decreeing the suit of the plaintiff was erroneous inasmuch as the settlees under Ex.A/1 got the suit property and by the subsequent oral arrangement, they agreed to work out their rights without varying or substituting the terms of Ex.A/1 and, therefore, the High Court was not right in not considering the oral arrangement as pleaded by the defendant/appellant. It is not disputed that disposition under Ex.A/1 in the present case is by way of grant and under the said disposition all the sons of Page 12 of 15 Uploaded by MANOJ KR. RAI(HC01072) on Fri Oct 03 2025 Downloaded on : Sat Oct 04 11:29:46 IST 2025 NEUTRAL CITATION C/SA/51/2003 JUDGMENT DATED: 03/10/2025 undefined Muthuswamy Pillai acquired rights. It is also not disputed that the settlement deed is a registered document and by virtue of alleged subsequent oral arrangement other sons of Muthuswamy Pillai were divested with the rights which they acquired under the settlement deed. Under such circumstances the question that arises for consideration is as to whether any parol evidence can be let in to substantiate subsequent oral arrangement rescinding or modifying the terms of the document which, under law, is required to be in writing or is a registered document, namely, Ex.A/1. Section 92 of the Evidence Act reads as thus:
"92. Exclusion of evidence of oral agreement. - When the terms of any such contract, grant or other disposition of property, or any matter required by law to be reduced to the form of a document, have been proved according to the last section, no evidence of any oral agreement or statement shall be admitted, as between the parties to any such instrument or their representatives in interest, for the purpose of contradicting, varying, adding to, or subtracting from, its terms:
Proviso (4) - The existence of any distinct subsequent oral agreement to rescind or modify any such contract, grant or disposition of property, may be proved, except in cases in which such contract, grant or disposition of property is by law required to be in writing, or has been registered according to the law in force for the time being as to the registration of documents."
A perusal of the aforesaid provision shows that what Section 92 provides is that when the terms of any contract, grant or other disposition of the property, or any matter required by law to be reduced in the form of document, have been proved, no evidence of any oral agreement or statement is permissible for the purpose of contradicting, varying, adding or subtracting the said written document. However this provision is subject to proviso 1 to 6 but we are not concerned with other provisos except proviso 4, which is relevant in the present case. The question then is whether the defendant-appellant can derive any benefit out of proviso (4) to Section 92 for setting up oral arrangement arrived at in Page 13 of 15 Uploaded by MANOJ KR. RAI(HC01072) on Fri Oct 03 2025 Downloaded on : Sat Oct 04 11:29:46 IST 2025 NEUTRAL CITATION C/SA/51/2003 JUDGMENT DATED: 03/10/2025 undefined the year 1941 which has the effect of modifying the written and registered disposition. Proviso (4) to Section 92 contemplates three situations, whereby
(i) the existence of any distinct subsequent oral agreement as to rescind or modify any earlier contract, grant or disposition of the property can be proved.
(ii) However, this is not permissible where the contract, grant or disposition of property is by law required to be in writing.
(iii) No parol evidence can be let in to substantiate any subsequent oral arrangement which has effect of rescinding a contract or disposition of property which is registered according to the law in force for the time being as to the registration of documents.
6. In sum and substance what proviso (4) to Section 92 provides is that where a contract or disposition, not required by law to be in writing, has been arrived at orally then subsequent oral agreement modifying or rescinding the said contract or disposition can be substantiated by parol evidence and such evidence is admissible. Thus if a party has entered into a contract which is not required to be reduced in writing but such a contract has been reduced in writing, or it is oral in such situations it is always open to the parties to the contract to modify its terms and even substitute a new by oral contract and it can be substantiated by parol evidence. In such kind of cases the oral evidence can be let in to prove that the earlier contract or agreement has been modified or substituted by new oral agreement. Where under law a contract or disposition are required to be in writing and the same has been reduced in writing, its terms cannot be modified or altered or substituted by oral contract or disposition. No parol evidence will be admissible to substantiate such an oral contract or disposition. A document for its validity or effectiveness is required by law to be in writing and, therefore, no modification or alteration or substitution of such written document is permissible by parol evidence and it is only by another written document the terms of earlier written document can be altered, rescinded or substituted. There is another reason why the Page 14 of 15 Uploaded by MANOJ KR. RAI(HC01072) on Fri Oct 03 2025 Downloaded on : Sat Oct 04 11:29:46 IST 2025 NEUTRAL CITATION C/SA/51/2003 JUDGMENT DATED: 03/10/2025 undefined defendant/appellant cannot be permitted to let in parol evidence to substantiate the subsequent oral arrangement. The reason being that the settlement deed is a registered document. The second part of proviso (4) to Section 92 does not permit leading of parol evidence for proving a subsequent oral agreement modifying or rescinding the registered instrument. The terms of registered document can be altered, rescinded or varied only by subsequent registered document and not otherwise. If the oral arrangement as pleaded by the appellant if allowed to be substantiated by parol evidence it would mean re- writing of Ex.A/1 and, therefore, no parol evidence is permissible."
18. In view of the said fact, the plaintiff has proved that subsequent to partition between the plaintiff and the defendants on 10.06.1981, there was oral partition, and therefore, the substantial question of law is answered in the negative. The appellate Court has not erred in law in relying on the oral partition that took place in the year 1996.
19. In view of the said facts, the present Second Appeal is dismissed.
(SANJEEV J.THAKER,J) Manoj Kumar Rai Page 15 of 15 Uploaded by MANOJ KR. RAI(HC01072) on Fri Oct 03 2025 Downloaded on : Sat Oct 04 11:29:46 IST 2025