Gujarat High Court
Nileshbhai Ramanbhai Lad vs Niruben Mohanbhai Lad on 7 November, 2025
NEUTRAL CITATION
C/SA/64/2024 JUDGMENT DATED: 07/11/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SECOND APPEAL NO. 64 of 2024
With
CIVIL APPLICATION (FOR STAY) NO. 1 of 2023
In R/SECOND APPEAL NO. 64 of 2024
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE J. C. DOSHI
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Approved for Reporting Yes No
✔
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NILESHBHAI RAMANBHAI LAD & ORS.
Versus
NIRUBEN MOHANBHAI LAD
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Appearance:
MR SHIVANG M SHAH(5916) for the Appellant(s) No. 1,2,2.1,2.2,2.3
MS DHARA M SHAH(5546) for the Appellant(s) No. 1,2,2.1,2.2,2.3
MR NIRAV C SANGHAVI(5950) for the Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE J. C. DOSHI
Date : 07/11/2025
ORAL JUDGMENT
A. IMPUGNED JUDGMENT AND DECREE:-
1. The present Second Appeal calls in question the legality and propriety of the judgment and decree rendered by the learned Principal District Judge, Navsari, in Regular Civil Appeal No. 52 of 2009, whereby the appellate Court reversed the judgment and decree passed by the learned Principal Senior Civil Judge, Gandevi, in Regular Civil Suit No. 95 of 2003. For the sake of brevity and convenience, the parties shall hereinafter be referred to in their original nomenclature as they stood before the learned Trial Court.
B. BRIEF FACTS OF THE CASE:-
2. Smt. Niruben Mohanbhai Lad, instituted Regular Civil Suit Page 1 of 20 Uploaded by MANISH MISHRA(HC01776) on Thu Nov 20 2025 Downloaded on : Fri Nov 21 22:45:50 IST 2025 NEUTRAL CITATION C/SA/64/2024 JUDGMENT DATED: 07/11/2025 undefined No. 95 of 2003 before the learned Civil Court, seeking possession and ancillary reliefs in respect of a residential property situated at village Waghrech, Kumbharwad, Taluka Gandevi, District Navsari, bearing Gram Panchayat House No. 269 (new No. 447), admeasuring approximately 1040 sq. ft., and bounded by the properties of Durlabhbhai Bhanabhai Prajapati on the east, Sukhabhai Haribhai on the west, a Gram Panchayat road on the north, and agricultural land of Zina Vishram Tandel on the south.
The said property was purchased by the plaintiff under a registered sale deed dated 18.02.1999 from its original owner, late Bhagwanbhai Jerambhai Mistry, who had constructed the building in 1994-95 under the supervision of the plaintiff's husband and had subsequently executed a General Power of Attorney in his favour on 28.09.1995. Bhagwanbhai thereafter expired in England on 20.04.2002. The plaintiff's husband, having been in possession and paying house tax since 1998-99, had, out of goodwill, permitted the defendants--who are closely related family members--to temporarily occupy the suit premises in the year 2000 owing to their residential difficulties, on the assurance that the same would be vacated upon securing alternate accommodation. However, despite repeated demands and a legal notice issued through RPAD, the defendants failed to vacate the premises and allegedly issued threats on 20.12.2003, thereby giving rise to the cause of action for the present suit seeking recovery of vacant and peaceful possession.
2.1. The learned Civil Court, Gandevi, conducted the suit proceedings and dismissed the plaintiff's suit. The judgment and decree rendered therein were challenged by filing Regular Civil Appeal No.52 of 2009. The learned First Appellate Court, upon a re- appreciation of the evidence and having found substance in the case of the appellant-plaintiff, allowed the appeal, set aside the judgment and decree of the learned Civil Court, and consequently decreed the civil suit in favour of the appellant-plaintiff.
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2.2. The Second Appeal, at the instance of the defendant-appellant, assails the impugned judgment and decree on various grounds, raising the following substantial questions of law:-
a) Whether in the facts and circumstances of the case, the Lower Appellate Court was right in law in not framing the points for determination as mandated under Order 41 Rule 31 of CPC and merely framing a vague question of illegality and perversity as the same is contrary to the settled legal position?
b) Whether in the facts and circumstances of the case, the Lower Appellate Court committed an error of law in overlooking the binding decision of the Apex Court in H. Siddiqui (dead) by Irs. Vs. A. Ramlingam [JT 2011(3) 522] where the Apex Court has directed that being final court of fact, the Appellate Court is expected to consider the entire evidence on record and raise relevant points for determination which arise out of the issues determined by the Trial Court?
c) Whether the Lower Appellate Court has rendered the judgment which is perverse and illegal to the extent of total non-compliance of the settled legal position?
d) Whether in the facts and circumstances of the case, the Lower Appellate Court committed an error in law in the interpretation of the document at Exh-42 being the power of attorney without the authority to sell?
e) Whether in the facts and circumstances of the case, judgment and order of the Lower Appellate Court was otherwise bad and erroneous in law?
f) Whether the Lower appellate court failed to apply the basic principles of Evidence Act and CPC which requires the plaintiff to prove the case as per the pleadings?
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Appellate Court is hit by the principles of perversity and illegality so as to calling for interference under Section 100 of CPC?
C. SUBMISSION OF THE APPELLANT:-
3. Seeking admission of the present Second Appeal on the substantial question of law formulated hereinabove, learned Senior Advocate Mr. Dhaval Vyas, ably assisted by learned Advocate Mr. Shivang Shah, has fervently canvassed that the learned First Appellate Court has committed a manifest error in overturning the well-reasoned judgment and decree rendered by the learned Trial Court in the Regular Civil Suit.
3.1. It is urged with considerable vehemence that from the very inception of the proceedings, the defendant, who figures as the appellant herein, had categorically and unequivocally repudiated the title of the plaintiff qua the suit property. In such a factual milieu, it was incumbent upon the plaintiff to specifically plead, establish, and substantiate her ownership before seeking recovery of possession of the subject premises. However, the plaintiff, while instituting the suit, conspicuously omitted to seek any declaratory relief pertaining to ownership, an omission which, according to the learned Senior Counsel, strikes at the very root of maintainability of the relief for possession.
3.2. The learned Senior Advocate would further submit that the oral evidence adduced during trial unerringly demonstrates that the sale deed purportedly executed in favour of the plaintiff, which forms the foundation of her title, was executed on the strength of a Power of Attorney (Exh.40) allegedly executed by her husband. It is contended that the said instrument, upon a meticulous perusal, does not invest the attorney with any authority to alienate, convey, or otherwise transfer the immovable property on behalf of the principal.
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Ergo, the sale deed, being founded upon a defective and legally infirm instrument, is vitiated in law and incapable of conferring a valid and lawful title upon the plaintiff.
3.3. It is next contended that apart from producing the impugned sale deed which, in view of the appellant-defendant's cogent defence, stands enveloped by a palpable cloud of suspicion, the plaintiff has not adduced any other credible or corroborative documentary evidence to fortify her claim of ownership. The evidentiary substratum, therefore, remains woefully inadequate to sustain the finding of ownership recorded by the learned Appellate Court.
3.4. It is further urged that Civil Suit No.12 of 2004, instituted before the competent Civil Court, wherein the validity and propriety of the sale deed executed in favour of the plaintiff stood directly in challenge, was pending contemporaneously with the institution of the present suit. Ergo, as on the date of filing of the present proceedings, the plaintiff's title was already enmeshed in a serious cloud of dispute. In such circumstances, and in absence of any prayer for declaratory relief qua title, the plaintiff could not have been held entitled to recovery of possession of the suit property, the very foundation of her title being sub judice.
3.5. The learned Senior Advocate, in fortification of his submissions, has placed substantial reliance upon the aureate enunciation of law by the Hon'ble Supreme Court in Anathula Sudhakar v. P. Buchi Reddy (Dead) by L.Rs. and Others, (2008) 4 SCC 594, to buttress the proposition that where the plaintiff's title is clouded by dispute or serious contestation, a bare suit for possession, sans a declaratory relief, would be legally untenable. The dictum, as crystallized in the said judgment, indubitably lays down that a declaration of title constitutes the life-blood of a claim for possession in such circumstances.
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3.6. Adverting next to the contention touching upon the defective nature of the Power of Attorney, it is submitted that the said instrument, on its plain reading, is conspicuously bereft of any express authority empowering the attorney to effectuate the sale or conveyance of the immovable property on behalf of the principal. Ergo, any alienation or transfer predicated upon such an instrument is ex facie void, inoperative, and incapable of creating any enforceable rights in favour of the transferee.
3.7. Learned Senior Advocate has further drawn sustenance from the authoritative pronouncement of the Hon'ble Supreme Court in Mrs. Umadevi Nambiar v. Thamarasseri Roman Catholic Diocese, rep. by its Procurator Devassia's Son Rev. Father Joseph Kappil, AIR 2022 SC 1640, to reinforce the proposition that a Power of Attorney which is bereft of any express authority to sell or alienate the immovable property cannot, in the eye of law, be the fountainhead of a valid and enforceable conveyance. It was observed therein that a sale transaction founded upon such an instrument is a nullity in ipso jure and confers no title upon the purported transferee.
3.8. It is next contended that no credible or cogent evidence is forthcoming on record to demonstrate that any sale consideration was, in fact, tendered at the time of execution of the sale deed in favour of the plaintiff. Ergo, the sale deed, being unsupported by lawful consideration, stands vitiated and rendered ineffectual in conferring any valid title or proprietary rights upon the plaintiff.
3.9. Learned Senior Advocate would further contend that this very issue was comprehensively and correctly analysed by the learned Trial Court while adjudicating Issue No.1, and its findings were well-reasoned, consonant with the evidentiary record, and in conformity with the settled principles of law. However, the learned Page 6 of 20 Uploaded by MANISH MISHRA(HC01776) on Thu Nov 20 2025 Downloaded on : Fri Nov 21 22:45:50 IST 2025 NEUTRAL CITATION C/SA/64/2024 JUDGMENT DATED: 07/11/2025 undefined Appellate Court, without formulating any precise or specific points for determination as mandated under Order XLI Rule 31 of the Code of Civil Procedure, has, in a rather perfunctory manner, overturned the reasoned conclusions of the learned Trial Court on a simplistic premise that the sale deed, per se, was sufficient to establish ownership, thereby overlooking the nuanced and legally sound reasoning employed by the Trial Court.
3.10. In the conspectus of the aforesaid submissions, the learned Senior Advocate has fervently urged this Court to admit the present Second Appeal, asserting that the propositions canvassed hereinabove constitute substantial questions of law, the adjudication whereof is imperative to secure the ends of justice and to sub-serve the cause of legal certainty.
D. SUBMISSION OF THE RESPONDENTS:-
4. Per contra, learned Advocate Mr. Nirav Sanghavi, appearing on behalf of the plaintiff-respondent, has vehemently controverted the submissions canvassed by the learned Senior Advocate for the appellants. It is his emphatic contention that the Power of Attorney was never impugned or called into question by the principal himself, namely deceased Bhagvanbhai Jerambhai Mistry, during his lifetime, and as such, any challenge to its validity at this stage is wholly misconceived and untenable.
4.1. It is further urged that the Power of Attorney (Exh.35), executed on 18.02.1999, constituted the very substratum of authority under which the sale deed came to be executed in favour of the plaintiff. The suit in question was instituted in the year 2003, much subsequent to the demise of the principal, and at no point in time was the legality, propriety, or authenticity of the said Power of Attorney or the consequential sale deed questioned by any interested person.
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4.2. In this factual milieu, learned Advocate Mr. Sanghavi would submit that the learned Trial Court fell into manifest error in venturing to adjudicate upon the legality and propriety of the Power of Attorney and the sale deed, despite no such relief having been either claimed or put in issue by the defendants in their pleadings. It is his submission that the aforesaid questions were wholly extraneous to the lis before the Court, and by embarking upon such an inquiry, the Trial Court clearly transgressed the limits of its vested jurisdiction, rendering findings upon issues that did not legitimately arise for determination within the frame of the suit.
4.3. Learned Advocate Mr. Sanghavi further submits that the learned First Appellate Court, upon a comprehensive re-appreciation of the evidence and the governing legal principles, has meticulously analysed these aspects, and by assigning cogent and well-reasoned findings, rightly reversed the perverse conclusions recorded by the Trial Court. Ergo, it is submitted that the impugned judgment and decree of the First Appellate Court are legally unassailable and call for no interference by this Court in the exercise of its circumscribed finite jurisdiction under Section 100 of the Code of Civil Procedure.
4.4. Learned Advocate Mr. Nirav Sanghavi, in fortification of his submissions, has placed strong reliance upon the recent pronouncement of the Hon'ble Supreme Court in S. Santhana Lakshmi & Others v. D. Rajammal, 2025 INSC 1197, to buttress his contention and to lend credence to the reasoning adopted by the learned Appellate Court.
4.5. Ergo, it is fervently prayed that the present Second Appeal, being devoid of any substantial question of law, be dismissed in limine.
5. Having heard the learned advocates appearing for the Page 8 of 20 Uploaded by MANISH MISHRA(HC01776) on Thu Nov 20 2025 Downloaded on : Fri Nov 21 22:45:50 IST 2025 NEUTRAL CITATION C/SA/64/2024 JUDGMENT DATED: 07/11/2025 undefined respective parties at considerable length, and having bestowed my thoughtful consideration upon the rival submissions canvassed at the Bar.
E. RELEVANT CASE LAW:-
6. At the very threshold, it would be most apposite to advert to the authoritative and seminal pronouncement of the Hon'ble Supreme Court in Nazir Mohamed v. J. Kamala and Others, Civil Appeal Nos. 2843-2844 of 2010, wherein, in Para 37, the Apex Court has lucidly and categorically enunciated the legal position in the following terms:-
"37. The principles relating to Section 100 CPC relevant for this case may be summarised thus:
(i) An inference of fact from the recitals or contents of a document is a question of fact, but the legal effect of the terms of a document is a question of law. Construction of a document, involving the application of any principle of law, is also a question of law. Therefore, when there is misconstruction of a document or wrong application of a principle of law in construing a document, it gives rise to a question of law.
(ii) The High Court should be satisfied that the case involves a substantial question of law, and not a mere question of law.
A question of law having a material bearing on the decision of the case (that is, a question, answer to which affects the rights of parties to the suit) will be a substantial question of law, if it is not covered by any specific provisions of law or settled legal principle emerging from binding precedents, and, involves a debatable legal issue.
(iii) A substantial question of law will also arise in a contrary situation, where the legal position is clear, either on account of express provisions of law or binding precedents, but the Court below has decided the mat-ter, either ignoring or acting contrary to such legal principle. In the second type Page 9 of 20 Uploaded by MANISH MISHRA(HC01776) on Thu Nov 20 2025 Downloaded on : Fri Nov 21 22:45:50 IST 2025 NEUTRAL CITATION C/SA/64/2024 JUDGMENT DATED: 07/11/2025 undefined of cases, the substantial question of law arises not because the law is still debatable, but because the decision rendered on a material question, violates the settled position of law.
(iv) The general rule is, that High Court will not interfere with the concurrent findings of the Courts below. But it is not an absolute rule. Some of the well-recognised exceptions are where i) the courts below have ignored material evidence or acted on no evidence; ii) the courts have drawn wrong inferences from proved facts by applying the law erroneously; or (iii) the courts have wrongly cast the burden of proof. A decision based on no evidence, does not refer only to cases where there is a total dearth of evidence, but also refers to case, where the evidence, taken as a whole, is not reasonably capable of supporting the finding."
6.1. Reference is also profitably required to be made to the celebrated decision of the Hon'ble Supreme Court in Hero Vinoth v. Seshammal [(2006) 5 SCC 545], wherein, in Para 21, the Apex Court has authoritatively delineated and explicated the contours of the expression "substantial question of law" in the following terms:-
"21. The phrase "substantial question of law", as occurring in the amended Section 100 CPC is not defined in the Code. The word substantial, as qualifying "question of law", means of having substance, essential, real, of sound worth, important or considerable. It is to be understood as something in contradistinction with technical, of no substance or consequence, or academic merely. However, it is clear that the legislature has chosen not to qualify the scope of "substantial question of law" by suffixing the words "of general impor-tance" as has been done in many other provisions such as Section 109 of the Code or Article 133(1)
(a) of the Constitution. The substantial question of law on which a second appeal shall be heard need not necessarily be a substantial question of law of general importance. In Guran Ditta v. Ram Ditta (1927-28) 55 IA 235, AIR 1928 PC 172 the phrase "substantial question of law" as it was employed Page 10 of 20 Uploaded by MANISH MISHRA(HC01776) on Thu Nov 20 2025 Downloaded on : Fri Nov 21 22:45:50 IST 2025 NEUTRAL CITATION C/SA/64/2024 JUDGMENT DATED: 07/11/2025 undefined in the last clause of the then existing Section 100 CPC (since omitted by the Amendment Act, 1973) came up for consideration and their Lordships held that it did not mean a substantial question of general importance but a substantial question of law which was involved in the case. In Sir Chunilal case 1962 Supp (3) SCR 549, AIR 1962 SC 1314 the Constitution Bench expressed agreement with the following view taken by a Full Bench of the Madras High Court in Rimmalapudi Subba Rao v. Noony Veeraju AIR 1951 Mad 969, (1951) 2 MLJ 222 (FB): (Sir Chunilal case 1962 Supp (3) SCR 549, AIR 1962 SC 1314, SCR p. 557) "[When a question of law is fairly arguable, where there is room for difference of opinion on it or where the Court thought it necessary to deal with that question at some length and discuss alternative views, then the question would be a substantial question of law. On the other hand if the question was practically covered by the decision of the highest court or if the general principles to be applied in determining the question are well settled and the only question was of applying those principles to the particular fact of the case it would not be a substantial question of law."
This Court laid down the following test as proper test, for determining whether a question of law raised in the case is substantial: (Sir Chunilal case 1962 Supp (3) SCR 549, AIR 1962 SC 1314, SCR pp. 557-58) "The proper test for determining whether a question of law raised in the case is substantial would, in our opinion. be whether it is of general public importance or whether it directly and substantially affects the rights of the paretics and if so whether it is either an open question in the sense that it is not finally settled by this Court or by the Privy Council or by the Federal Court or is not free from difficulty or calls for discussion of alternative views. If the question is settled by the highest court or the general principles to be applied in determining the question are well settled and there is a mere question of applying those principles or that the plea raised is palpably absurd the question would not be a substantial question of law."
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7. Having given anxious consideration to the principles succinctly enunciated in relation to the substantial question of law occurring under Section 100 of the Code of Civil Procedure, it becomes imperative to examine whether, in the factual conspectus of the present case, the appellant has succeeded in demonstrating the existence of any such substantial question warranting interference in second appellate jurisdiction.
G. DISCUSSION AND FINDINGS:-
8. Upon a meticulous scrutiny of the rival submissions canvassed by the learned advocates, it emerges that the controversy, in essence, pivots around the claim of possession over the suit property asserted by the plaintiff on the premise that she is the lawful owner thereof, her title having been perfected by virtue of the sale deed marked at Exhibit 35, and that the defendant was inducted into possession for a limited and bounded period.
8.1. However, it is manifest that unless and until the plaintiff establishes a valid and subsisting title over the suit property, she cannot, ex hypothesi, seek restoration of possession thereof, without first obtaining an appropriate declaration from a competent court affirming such title.
8.2. The Hon'ble Apex Court, in its celebrated pronouncement in Anathula Sudhakar (supra), has, in Para 21, authoritatively delineated the legal contours governing suits for prohibitory injunction in relation to immovable property, explicating the circumstances under which a plaintiff is required to seek a declaratory relief in conjunction with, or in substitution of, a mere injunction. The relevant extract of Para 21, which lucidly articulates the distinction between suits for injunction simpliciter and those necessitating a declaration of title, is reproduced hereinbelow for Page 12 of 20 Uploaded by MANISH MISHRA(HC01776) on Thu Nov 20 2025 Downloaded on : Fri Nov 21 22:45:50 IST 2025 NEUTRAL CITATION C/SA/64/2024 JUDGMENT DATED: 07/11/2025 undefined ready reference:-
"21. To summarize, the position in regard to suits for prohibitory injunction relating to immovable property, is as under :
(a) Where a cloud is raised over plaintiff's title and he does not have possession, a suit for declaration and possession, with or without a consequential injunction, is the remedy.
Where the plaintiff's title is not in dispute or under a cloud, but he is out of possession, he has to sue for possession with a consequential injunction. Where there is merely an interference with plaintiff's lawful possession or threat of dispossession, it is sufficient to sue for an injunction simpliciter.
(b) As a suit for injunction simpliciter is concerned only with possession, normally the issue of title will not be directly and substantially in issue. The prayer for injunction will be decided with reference to the finding on possession. But in cases where de jure possession has to be established on the basis of title to the property, as in the case of vacant sites, the issue of title may directly and substantially arise for consideration, as without a finding thereon, it will not be possible to decide the issue of possession.
(c) But a finding on title cannot be recorded in a suit for injunction, unless there are necessary pleadings and appropriate issue regarding title [either specific, or implied as noticed in Annaimuthu Thevar (supra)]. Where the averments regarding title are absent in a plaint and where there is no issue relating to title, the court will not investigate or examine or render a finding on a question of title, in a suit for injunction. Even where there are necessary pleadings and issue, if the matter involves complicated questions of fact and law relating to title, the court will relegate the parties to the remedy by way of comprehensive suit for declaration of title, instead of deciding the issue in a suit for mere injunction.
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(d) Where there are necessary pleadings regarding title, and appropriate issue relating to title on which parties lead evidence, if the matter involved is simple and straight- forward, the court may decide upon the issue regarding title, even in a suit for injunction. But such cases, are the exception to the normal rule that question of title will not be decided in suits for injunction. But persons having clear title and possession suing for injunction, should not be driven to the costlier and more cumbersome remedy of a suit for declaration, merely because some meddler vexatiously or wrongfully makes a claim or tries to encroach upon his property. The court should use its discretion carefully to identify cases where it will enquire into title and cases where it will refer to plaintiff to a more comprehensive declaratory suit, depending upon the facts of the case."
8.3. A cloud on the title is said to arise when a prima facie defect or an apparent infirmity is alleged in the title of a person in possession of property, or when a third party sets up a claim suggesting a competing or adverse right over the same. In the factual conspectus of the present case, the appellant-defendant seeks to cast a cloud upon the plaintiff's title by contending that the sale deed in her favour was executed under an allegedly defective Power of Attorney. The said Power of Attorney, placed on record at Exhibit 45, was admittedly executed by deceased Bhagvanbhai Jerambhai Mistry.
8.4. It is of significance that the said Bhagvanbhai Jerambhai Mistry, during his lifetime, never repudiated, impugned, or otherwise challenged the Power of Attorney purportedly executed by him. Neither did he assert that the sale deed executed by his attorney-holder, one Sam, was spurious, fraudulent, or ineffective in conveying title in favour of the plaintiff. Ex facie, the sale deed had withstood the rigours of the Registration Act, and the parties thereto never called into question its legality, validity, or proprietary Page 14 of 20 Uploaded by MANISH MISHRA(HC01776) on Thu Nov 20 2025 Downloaded on : Fri Nov 21 22:45:50 IST 2025 NEUTRAL CITATION C/SA/64/2024 JUDGMENT DATED: 07/11/2025 undefined character.
8.5. It further transpires that a third party, namely the present appellant, who lays no independent or competing claim of ownership over the suit property, has sought to impugn the said sale deed solely on the ground of an alleged defect in the Power of Attorney. Such an endeavour, bereft of any substantiating right or title, indubitably pales into insignificance.
8.6. It is equally noteworthy that the appellant himself, in his capacity as the Power of Attorney holder of some third party, had instituted Regular Civil Suit No. 12 of 2014 before the Civil Court at Gandevi, assailing the legality and validity of the very same sale deed. However, the said suit came to be disposed of in Lok Adalat on 24.08.2012 as uncontested, thereby attaining finality. As such, the challenge to the legality and validity of the sale deed has come to an end. In the existence of these facts, the defence of the defendant, who is the appellant in this appeal, turns out to be nothing more than hollow words.
8.7. Even otherwise, in absence of any cogent or convincing material to the contrary, the title to an immovable property, once vested through a duly executed and registered sale deed, continues to subsist until it is set aside, annulled, or declared void by a competent civil court. Ergo, the submission of the learned Senior Advocate that the plaintiff, not being the owner of the suit property, was precluded from seeking possession without first claiming declaratory relief, stands devoid of merit and cannot be countenanced.
8.8. In such a factual milieu, the suit instituted by the plaintiff seeking recovery of possession was, ex facie, a legally sustainable and justified recourse.
8.9. A perusal of the judgment of the learned Trial Court reveals Page 15 of 20 Uploaded by MANISH MISHRA(HC01776) on Thu Nov 20 2025 Downloaded on : Fri Nov 21 22:45:50 IST 2025 NEUTRAL CITATION C/SA/64/2024 JUDGMENT DATED: 07/11/2025 undefined that it proceeded on an erroneous premise, having ventured into the legality and validity of the title itself, an issue that did not legitimately arise for adjudication. The learned First Appellate Court, upon a lucid and meticulous appreciation of the record, has rightly corrected the said fallacy and held that the real controversy was confined to the recovery of possession and not the validity of title.
8.10. It is an admitted position that the appellant-defendant neither had any lawful right, title, or interest in the suit property nor was he able to plead or prove any such right to justify his continued possession. His occupation of the suit premises was, in effect, purely permissive, at the sufferance and mercy of the plaintiff and, in absence of any juridical foundation, could not have matured into any legally enforceable right.
9. The Hon'ble Supreme Court, in its celebrated pronouncement in Maria Margarida Sequeira Fernandes & Others v. Erasmo Jack De Sequeira (Dead) through LRs, (2012) 5 SCC 370, had occasion to delineate the contours of possessory rights and unequivocally held that the possession of a caretaker, servant, or agent can never be construed as possession in one's own right. Such possession, being derivative in nature, remains subordinate to and on behalf of the true owner, and cannot, by any stretch of legal imagination, ripen into ownership or confer any independent title.
10. In Samarpan Varishtha Jan Parisar & Others v. Rajendra Prasad Agarwal & Others [2022 LiveLaw (SC) 460], the Hon'ble Apex Court has, with characteristic lucidity, expounded the legal position in the following terms:--
"20. Another three-Judge Bench in a judgment reported as Maria Margarida Sequeira Fernandes & Ors. v. Erasmo Jack De Sequeira (Dead) through LRs8 was examining the Page 16 of 20 Uploaded by MANISH MISHRA(HC01776) on Thu Nov 20 2025 Downloaded on : Fri Nov 21 22:45:50 IST 2025 NEUTRAL CITATION C/SA/64/2024 JUDGMENT DATED: 07/11/2025 undefined question of 7 (2004) 1 SCC 769 8 (2012) 5 SCC 370 injunction between the plaintiff - brother, who was given the property in question as a caretaker, the owner being sister of the plaintiff. An argument was raised before this Court that the possession of a caretaker can never be a possession in one's right and no suit for injunction under Section 6 of the Specific Relief Act was maintainable. It was held as under:
"83. Grant or refusal of an injunction in a civil suit is the most important stage in the civil trial. Due care, caution, diligence and attention must be bestowed by the judicial officers and Judges while granting or refusing injunction. In most cases, the fate of the case is decided by grant or refusal of an injunction. Experience has shown that once an injunction is granted, getting it vacated would become a nightmare for the defendant.
xx xx xx
97. Principles of law which emerge in this case are crystallised as under:
(1) No one acquires title to the property if he or she was allowed to stay in the premises gratuitously. Even by long possession of years or decades such person would not acquire any right or interest in the said property.
(2) Caretaker, watchman or servant can never acquire interest in the property irrespective of his long possession.
The caretaker or servant has to give possession forthwith on demand.
(3) The courts are not justified in protecting the possession of a caretaker, servant or any person who was allowed to live in the premises for some time either as a friend, relative, caretaker or as a servant.
(4) The protection of the court can only be granted or extended to the person who has valid, subsisting rent agreement, lease agreement or licence agreement in his favour.
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(5) The caretaker or agent holds property of the principal only on behalf of the principal. He acquires no right or interest whatsoever for himself in such property irrespective of his long stay or possession."
11. In the conspectus of the aforesaid legal exposition, and having regard to the factual matrix of the case at hand, it stands pellucid that the defendant was merely in permissive possession of the suit property on behalf of the plaintiff, devoid of any semblance of an independent or autonomous right to continue in occupation thereof. The learned First Appellate Court, upon a meticulous appraisal of the evidence and the relevant legal provisions, has rightly construed the factual milieu and applied the correct principles of law.
12. This Court, sitting in second appellate jurisdiction under Section 100 of the Code of Civil Procedure, does not discern any cogent ground or jurisdictional error warranting interference with the well-reasoned judgment and decree rendered by the learned Appellate Court.
13. It is pertinent, ex abundanti cautela, to advert to the oft- repeated error committed in the indiscriminate admission of second appeals, despite the absence of a substantial question of law. The Hon'ble Apex Court, in State Bank of India v. S.N. Goyal, (2008) 8 SCC 92, sounded a clear note of caution and held as under:-
"It is a matter of concern that the scope of second appeals and as also the procedural aspects of second appeals are often ignored by the High Courts. Some of the oft-repeated errors are :
(a) Admitting a second appeal when it does not give rise to a substantial question of law.Page 18 of 20 Uploaded by MANISH MISHRA(HC01776) on Thu Nov 20 2025 Downloaded on : Fri Nov 21 22:45:50 IST 2025
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(b) Admitting second appeals without formulating substantial question of law.
(c) Admitting second appeals by formulating a standard or mechanical question such as "whether on the facts and circumstances the judgment of the first appellate court calls for interference" as the substantial question of law.
(d) Failing to consider and formulate relevant and appropriate substantial question/s of law involved in the second appeal.
(e) Rejecting second appeals on the ground that the case does not involve any substantial question of law, when the case in fact involves substantial questions of law.
(f) Reformulating the substantial question of law after the conclusion of the hearing, while preparing the judgment, thereby denying an opportunity to the parties to make submissions on the reformulated substantial question of law.
(g) Deciding second appeals by re-appreciating evidence and interfering with findings of fact, ignoring the questions of law.
These lapses or technical errors lead to injustice and also give rise to avoidable further appeals to this court and remands by this court, thereby prolonging the period of litigation. Care should be taken to ensure that the cases not involving substantial questions of law are not entertained, and at the same time ensure that cases involving substantial questions of law are not rejected, as not involving substantial questions of law."
14. In Gurudev Kaur & Others v. Kaki & Others, (2007) 1 SCC 546, the Hon'ble Supreme Court, while elucidating the legislative intent underlying Section 100 of the Code of Civil Procedure, has held in unequivocal terms that the Legislature, in its wisdom, never Page 19 of 20 Uploaded by MANISH MISHRA(HC01776) on Thu Nov 20 2025 Downloaded on : Fri Nov 21 22:45:50 IST 2025 NEUTRAL CITATION C/SA/64/2024 JUDGMENT DATED: 07/11/2025 undefined envisaged the second appeal to metamorphose into a "third trial on facts" or to afford the litigant "one more throw of the dice in the gamble of litigation." The object, inter alia, was to circumscribe the jurisdiction of the High Court to substantial questions of law of real and enduring significance, and not to permit a reappreciation of evidence as if sitting in appeal over concurrent findings of fact.
15. In the aforesaid conspectus, and in light of the pellucid enunciation of law by the Hon'ble Apex Court, this Court is of the considered view that no substantial question of law arises for determination in the present matter. Ergo, this Court finds no justifiable reason to admit the Second Appeal.
H. CONCLUSION:-
16. For the reasons aforestated, the present Second Appeal, having failed to demonstrate the existence of any substantial question of law within the meaning of Section 100 of the Code of Civil Procedure, merits no indulgence of this Court. Consequently, the second appeal stands DISMISSED in limine at the admission stage.
17. Let the record and proceedings, if received, be forthwith remitted to the learned Trial Court concerned for consequential action in accordance with law.
(J. C. DOSHI,J) MANISH MISHRA Page 20 of 20 Uploaded by MANISH MISHRA(HC01776) on Thu Nov 20 2025 Downloaded on : Fri Nov 21 22:45:50 IST 2025