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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
Hemant M. Prachchhak, J.
Vishniben Kevalram Khushlani – Appellant
Versus
Chaturbhai Abhesinh Baria – Respondent
R/Second Appeal No. 551 of 2022 with Civil Application (For Stay) No. 1 of 2022
Decided On : 19-10-2022
Illegal Sale Deed - Property Dispute - Civil Procedure Code, 1908 - Section 100 - Order 7 Rule 11 - [A] Whether both the Hon’ble Courts below have committed substantial error of law in not appreciating that the sale deed in question was illegal, void and in violation of the interest and share of the plaintiffs-appellants? [B] Whether both the Hon’ble Courts below have committed substantial error of law in holding that the suit of the plaintiffs was barred by limitation in the facts and circumstances of the present case? [C] Whether both the Hon’ble Courts below have wrongly appreciated the oral testimonies of the parties and have completely misread the same? [D] Whether both the Hon’ble Courts below have wrongly considered the revenue records, which are only for fiscal purposes and have not appreciated the fact that the entry in the revenue record does not create any right, title or interest? [E] Whether the judgment, order and decree of the Hon’ble lower appellate court below is contrary to the provisions of Order 41 of the Code of Civil Procedure, 1908?
Fact of the Case:
The plaintiffs filed a Civil Suit claiming that the sale deed of a parcel of land was illegal and void, and that the suit was not barred by limitation. The Trial Court and the Lower Appellate Court dismissed the suit, leading to the present Second Appeal.
Finding of the Court:
The High Court found no substantial question of law involved in the appeal and summarily dismissed it. The Court emphasized the limited scope of the Second Appeal under Section 100 of the Civil Procedure Code and the need for a substantial question of law to be formulated for the appeal to be entertained.
Issues: The issues revolved around the legality of the sale deed, the limitation of the suit, the appreciation of oral testimonies, the consideration of revenue records, and the conformity of the lower appellate court's judgment with the provisions of Order 41 of the Civil Procedure Code, 1908.
Ratio Decidendi: The Court emphasized the need for a substantial question of law to be involved in a Second Appeal under Section 100 of the Civil Procedure Code. It highlighted the principles for determining substantial questions of law, including their debatability, material bearing on the case, and necessity for decision. The Court also stressed the limited scope of re-appreciating evidence and the requirement for framing substantial questions of law for the exercise of jurisdiction under Section 100.
Final Decision: The appeal was summarily dismissed, and no costs were awarded. Connected civil applications were disposed of, and any interim relief granted earlier was vacated.
ORDER :
1. Being aggrieved and dissatisfied with the judgment and order dated 01.02.2010 passed by the learned Principal Civil Judge, Shehera in Regular Civil Suit No.17 of 2006 as well as the judgment and order dated 10.02.2022 passed by the learned 6th Additional District Judge, Panchmahals in Regular Civil Appeal No.14 of 2010, the appellants – original plaintiffs have filed the present second appeal.
2. Heard Mr. S.P. Majmudar, the learned counsel assisted by Mr.H.J. Karathiya, the learned counsel appearing for the appellants.
3. Considering the fact that the Second Appeal is filed under Section 100 of the Civil Procedure Code, 1908 (for short “the Code”) and this Court has very limited scope to entertain the Second Appeal. While considering the concurrent findings recorded against the present appellants, this Court cannot go into the factual matrix of the matter. There is a settled principle of law that against the concurrent findings, while exercising the powers under Section 100 of the Code, the High Court has to take utmost care while appreciating the facts and the evidence which is recorded by the Trial Court as well as the Lower Appellate Court.
4. In the present case, the case of the plaintiffs is that, the subject parcel of land which is allotted to one Kevalram Devaldas Khushlani as an evacuee property and the same was allotted to the said Kevalram on 07.05.1974 as a new tenure land. The subject parcel of land was situated at village Dhamnod of Panchmahal District, bearing revenue survey no.1 admeasuring 6 acres and 9 gunthas. Subsequently, the said parcel of land was sold to the present respondent – original defendant way-back in the year 1977. The said transaction was under challenge in the Civil Suit filed by the legal heirs of Kevalram Devaldas Khushlani being Civil Suit No.17 of 2006 in the Court of Principal Civil Judge at Shehera. The learned Civil Judge has, after considering the written statement of other side and the application filed under the provisions of Order 7 Rule 11, framed the issues vide Exh.-13, which are as under :
(2) Whether the Plaintiff proves that there is no right, interest, concern of the Defendant in the suit property ?
(3) Whether the Plaintiff proves that Sale deed of the suit is dated 22/12/1977 is being against interest and right, it deserves to be rejected.
(4) Whether the Defendant proves that suit of the Plaintiff is barred by limitation ?
(5) Whether the Defendant proves that the suit is barred by necessary defect of party ?
(6) Whether the Defendant proves that the Plaintiff is not entitled to file the present suit ?
(7) Whether the Plaintiff is entitled to get the relief mentioned in suit ?
(8) What order and Final order ?
4.1 After considering the oral as well as documentary evidence, the Trial Court has dismissed the suit filed by the present appellants vide its judgment and decree dated 01.02.2010.
4.2 Being aggrieved and dissatisfied with the impugned judgment and decree passed by the Trial court, the appellants preferred Regular Civil Appeal No.14 of 2010. The Appellate Court has considered the records of the Trial Court and after going through the records and the judgment of the Trial Court has framed the points of determination in paragraph no.4, which is as under :
(2) Whether the Plaintiff's suit is time barred ?
(3) Whether the Appellant proves that order and decree passed at Exh.-117 in R.C.S. No.17/'06 on 1/7/2010 by the Principal Civil Judge of Shehra is erroneous, against the established principles of law and against the produced evidence ?
(4) Whether interference requires in the judgement passed by the Principal Civil Judge of Shehra ?
(5) What order ?
4.3 After goin
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