In a second appeal, the court cannot interfere with concurrent findings of fact unless they are perverse, illegal, or unsupported by evidence, as a substantial question of law is a mandatory requirement for exercising appellate jurisdiction.

Headnote:(A) Code of Civil Procedure, 1908 - Section 100 - Second Appeal - Scope and ambit - High Court’s jurisdiction is limited to substantial questions of law - Interference in concurrent findings of fact by lower courts is strictly prohibited unless findings are found to be perverse, based on inadmissible evidence, or contrary to settled legal principles. (Paras 8, 9)

(B) Evidence - Burden of proof - A party failing to cross-examine the opposing party or lead its own evidence waives the opportunity to challenge established facts, allowing for a presumption that the opposing claim is accepted. (Para 8)

(C) Property Law - Registered Sale Deed - Validity - Challenge to title based on ancestral claims requires cogent evidence - In the absence of evidence demonstrating family inheritance or rights, a registered sale deed creates a valid right to lawful possession, justifying eviction orders against unauthorized occupants. (Para 7)

Facts of the case:
The plaintiffs initiated a suit for recovery of possession following the execution of a registered sale deed. The occupants of the property contested the claim by asserting that the property was ancestral. During the progression of the suit, the defendants failed to lead any evidence or conduct cross-examination. Both the trial court and the first appellate court decreed the suit in favor of the plaintiffs, confirming the validity of the transfer and finding no evidence to support the claim of ancestral rights.

Findings of Court:
The courts determined that the defendants failed to discharge the burden of proving that the property was ancestral. Given the valid title under the registered instrument and the defendants' total failure to rebut the claims in court, the plaintiffs were entitled to recover possession.

Issues: The main issues were whether the lower courts committed an error in evaluating the evidence, whether the property was legally classified as ancestral, and whether the findings of the lower courts were susceptible to interference within the limited scope of a second appeal.

Ratio Decidendi: An appellate court shall not re-examine evidence solely to substitute its own view for that of the lower courts. A second appeal is restricted to substantial questions of law; without demonstrating that the findings were perverse or made without evidence, the concurrent factual determinations are binding.

Result: Appeal dismissed.

Table of Content
1. procedural history and factual background of the dispute. (Para 1 , 3 , 4 , 6)
2. appellants contentions regarding ancestral property and procedural errors. (Para 2 , 5)
3. scope of section 100 regarding interference with concurrent findings. (Para 7 , 8 , 9)
4. dismissal of the appeal and vacation of interim orders. (Para 10 , 11)

JUDGMENT :

DEVAN M. DESAI, J.

1. The present Second Appeal is filed under Section 100 of the Code of Civil Procedure, 1908 (hereinafter, referred to as “the Code”) by the appellant/s – original defendant/s assailing the judgment and decree dated 20.03.2026 passed by the learned Principal District Judge, Anand in Regular Civil Appeal No. 42 of 2022, upholding the Judgment and decree dated 28.06.2019 passed by the learned 4th Additional Senior Civil Judge, Anand in Special Civil Suit No. 70 of 2004.

2. Heard learned advocate Mr. Harshadkumar D Panchal for the appellants.

3. For the sake of convenience, parties are referred to as per their original status in the suit. Appellant/s herein are the original defendant/s and respondent/s herein are the original plaintiff/s.

4. Brief facts of the case are as under:

4.1. It is the case of the plaintiff that the land situated at Chikhodra, bearing Survey No. 198/2, together with house constructed on the said land was owned by defendant No.6 – Mineshbhai Shantilal Patel. Plaintiff purchased a suit property from defendant No. 6 vide registered sale deed dated 19.06.2001 at a consideration of Rupees 7,70,000/- from defendant No.6. Defendant No. 1 and his dependents i.e. defendant Nos. 2 to 5 and 9 were living in suit property. When the plaintiff went to take possession after execution of sale deed, defendants requested time to vacate and executed a writing dated 17.07.2001 in favour of plaintiff. Plaintiff gave six months time to vacate the suit property. When plaintiff asked for the possession, defendants threatened plaintiff not to come again. Therefore, the plaintiff had given notices to the defendant No. 1 on 09.05.2002 and 08.05.2004. However, the defendants did not vacate the suit property. Hence plaintiff was constrained to file a suit against the defendants and sought possession and permanent injunction against the defendants.

4.2. Summons were served upon defendants. Defendant Nos. 1,6 and 9 appeared and filed written statement and counter claim vide Exh. 27. Defendant No. 2 to 5 appeared and filed reply vide Exh. 28. The learned trial Court on the basis of pleadings framed following issues which are reproduced as under:-

"1. Whether plaintiff prove that the suit property was sold to them by registered sale deed dated 19.06.2001 for Rs. 7,70,700/-?

2. Whether the plaintiff prove that at the time of the said sale deed, the defendant No.6 transferred the actual possession of the said property to the plaintiff?

3. Whether the plaintiff prove that Amrishbhai Shantilal Patel, i.e, defendant No.1, vacated the house and made efforts to get a house to live elsewhere, but no house was available immediately, so he asked for some time to vacate and in this regard, defendant No.1 executed a plaintiff on a stamp of Rs.100/- on 17.07.2001?

4. Whether the plaintiff prove that they served notices to the defendant No.1 on 09.05.2002 and 08.05.2004 demanding possession? Despite this, defendant No.1 did not hand over the possession of the suit land to the plaintiff?

5. Whether the plaintiff prove that he is entitled to evict and take possession of the goods of defendant No.1 lying in the said house as stated in the document dated 17.07.2001?

6. Whether the pleadings filed by defendant Nos. 2 to 5 prove the contention raised in response to the plaintiff's claim?

7. Whether the arguments raised by defendant Nos. 1,6,9 in response to the plaintiff's claim prove the allegations?

8. What order and decree?"

4.3. Plaintiff filed examination in chief vide Exh-108 and also produced documentary evidence. No oral or documentary evidences was led by defendants. After considering the evi

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2026 Supreme(Guj) 980

In a second appeal, the court cannot interfere with concurrent findings of fact unless they are perverse, illegal, or unsupported by evidence, as a substantial question of law is a mandatory requirement for exercising appellate jurisdiction.

Cases Referred (2)