RAJPUT NEELABEN D/O BHEMABHAI MEGHABHAI vs RAJPUT ABHABHAI HARSENGBHAI

C/SA/394/2026 (GJHC240702942025) JUDGMENT DATED: 01/09/2026
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SECOND APPEAL NO. 394 of 2026
FOR APPROVAL AND SIGNATURE:

HONOURABLE MR. JUSTICE MAULIK J.SHELAT
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Approved for Reporting Yes No
√
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RAJPUT NEELABEN D/O BHEMABHAI MEGHABHAI
Versus
RAJPUT ABHABHAI HARSENGBHAI
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Appearance:
MR HARI BRAHMBHATT FOR MR DHAVAL M BAROT(2723) for the
Appellant(s) No. 1
MR. NISHIT P GANDHI(6946) for the Respondent(s) No. 1
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CORAM: HONOURABLE MR. JUSTICE MAULIK J.SHELAT

Date : 01/09/2026
JUDGMENT
1. This Second Appeal reflects a growing tendency in
society: once the original owner has sold immovable property,
they challenge the sale after an efflux of time due to the rise
in the value of the property, thereby dragging the buyer
before the Civil Court.
2. The present second appeal is filed under Section 100 of
the Code of Civil Procedure, 1908 (hereinafter referred to as
“ CPC ”) against the judgment and decree dated 03/05/2025
rd
passed by the 3 Additional District Judge, Banaskantha in
Regular Civil Appeal No.10 of 2019, whereby it has confirmed
the judgment and decree dated 26/04/2019 passed by the
Principal Civil Judge, Vav in Civil Suit No.5 of 2013.
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2.1 The appellant herein is the original plaintiff and the
respondent herein is the original defendant. For the sake of
convenience, the parties will herein after be referred to as per
their original positions in the suit.
SHORT FACTS OF THE CASE :
3. The short facts of the case appear to be that immovable
property bearing Survey No.1401 paiki 1, admeasuring
hectare-aare-sq.mtrs. 1-41-49, situated at Vav Taluka, District
Banaskantha, (herein after referred as “ the suit land ”) was
sold by the appellant herein along with her mother in favour
of the respondent/defendant by way of a registered sale deed
dated 09/04/1999 and such sale deed came to be challenged
by filing Regular Civil Suit No.5 of 2013 on 18/03/2013,
whereby sought the cancellation of the aforesaid sale deed on
the ground that it was obtained by fraud and it is a fabricated
sale deed.
3.1 It was the case of the plaintiff that the revenue entry
upon execution of the aforesaid sale deed came to be mutated
by the Revenue Authority only in the year 2012 and having
noticed that fact, she filed the aforesaid suit. It is also pleaded
that the suit land was mortgaged by her father and there was
a redemption of the mortgage by the plaintiff in the year
2012. Thus, it is the case of the plaintiff that she and her
mother never sold the suit land in favor of the respondent /
defendant.
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3.2 Whereas, the respondent/defendant appeared in the suit
and filed his written statement, whereby he refuted all the
allegations. The parties led oral and documentary evidence to
prove their respective case. The trial Court appears to have
framed the following issues and answered them accordingly:
“ ISSUES :
1. Whether the plaintiff proves that registered sale
deed No.296/99, dated 4/9/1999 is forged and
fabricated ?
2. Whether the defendant proves that the suit land
was purchased by him by paying consideration of
Rs.30000/- vide registered sale deed No.296/99 dated
9/4/1999?
3. Whether the defendant proves that he became
owner of suit land by adverse possession ?
4. Whether the defendant proves that suit is barred by
limitation ?
5. What Order and decree ?
ANSWERS :
Issue No.1 – In the negative
Issue No.2 – In the affirmative
Issue No.3 – In the negative
Issue No.4 – In the affirmative
Issue No.5 – As per final order.”
(emphasis supplied)
3.3 Since the suit itself is hopelessly time-barred, inasmuch
as the execution of the sale deed was in the year 1999 and the
suit came to be filed in the year 2013, the trial court found
that such suit ought to have been filed within three years from
the date of execution/registration of the sale deed and
accordingly, the suit came to be dismissed. Apart from the
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above, it was not believed by the trial court that the execution
and registration of the sale deed in question was fraudulent.
3.4 Feeling dissatisfied with the judgment and decree
passed by the trial court, the original plaintiff preferred a first
appeal being Regular Civil Appeal No.10 of 2019 before the
Appellate Court concerned, wherein after hearing the parties,
the Appellate Court vide its judgment and decree dated
03/05/2025 dismissed the aforesaid appeal, which is
impugned in the present Second Appeal.
SUBMISSIONS OF THE APPELLANT :
4. Mr.Hari Brahmbhatt, learned advocate for the appellant,
would submit that the Courts below have committed a serious
error in law by dismissing the suit and appeal filed by the
appellant and as such, the suit ought to have been allowed by
the trial Court. It is submitted that even after execution and
registration of the sale deed in favour of the respondent by
the appellant, being the co-signatory to the sale deed with her
mother, the mutation entry in favour of the defendant came to
be mutated by the Revenue Authority in the year 2012 and as
such, the suit was filed within three years from such period.
4.1 Mr.Brahmbhatt, learned advocate would further submit
that there was a mortgage created by the father of the
plaintiff prior to the execution of the sale deed and the same
was redeemed by the plaintiff in the year 2012 by way of a
registered Redemption Deed and the mutation entry in this
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regard was mutated in the revenue record.
4.2 Thus, according to Mr.Brahmbhatt, learned advocate for
the appellant, the suit was not time-barred and as such, it
ought to have been allowed by the trial court as there was, in
fact, no execution of the sale deed in favor of the defendant by
the plaintiff.
4.3 Making the above submissions, Mr.Brahmbhatt, learned
advocate for the appellant would request this Court to admit
this Second Appeal for consideration of the substantial
question of law framed in Para 2 of the memo of the appeal.
SUBMISSIONS OF THE RESPONDENT :
5. Per contra , Mr. Nishit Gandhi, learned advocate for the
respondent would submit that this Court should not entertain
the Second Appeal which is filed against the concurrent
findings of fact recorded by the Courts below. It is submitted
that the Courts below have concurrently held that the suit is
time-barred and the plaintiff failed to prove that the execution
of the sale deed was by playing any fraud.
5.1 It is further submitted that as per the condition of the
sale deed, as such there was no mortgage at the time of its
execution but even if it is found, it was the burden upon the
seller, i.e., the plaintiff, to redeem such mortgage and thereby
no cause of action arose in favor of the plaintiff. It is also
submitted that the mutation entry in favour of the defendant
in the revenue record in the year 2012 would not give rise any
right in favour of the plaintiff to file this suit in the year 2013
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to challenge the sale deed of the year 1999.
5.2 Mr.Gandhi, learned advocate, would submit that the
institution of the suit by the appellant challenging the sale
deed, having once sold the suit land in favor of the respondent
/ defendant, is nothing but an abuse of the process of law and
despite being defeated before the trial court as well as the
Appellate Court, still the appellant has dragged the matter up
to this Court by way of a Second Appeal.
5.3 To buttress his arguments, Mr.Gandhi, learned advocate
for the respondent has relied upon the following judgment :
(i) Russi Fisheries (P) Ltd. v. Bhavna Seth-2026 SCC
OnLine SC 555.
5.4 Making the above submissions, Mr.Gandhi, learned
advocate for the respondent would request this Court to
dismiss the present second appeal with costs.
6. No other and further submissions being made by the
learned advocates appearing for the respective parties.
7. Heard Mr.Hari Brahmbhatt, learned advocate for
Mr.Dhaval Barot, learned advocate for the appellant and
Mr.Nishit Gandhi, learned advocate for the respondent at
length.
ANALYSIS AND REASONS :
8. Having heard the learned advocates for the respective
parties and upon perusal of the impugned judgment and
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decree passed by the Courts below, it appears that this appeal
is filed against the concurrent findings of fact recorded by the
Courts below against the appellant who happens to be the
plaintiff in the suit in question. It is an undisputed fact that
the plaintiff was a signatory to the sale deed which was
executed in the year 1999 along with her mother, whereby
they sold the suit land in favour of the defendant. The suit in
question came to be filed in the year 2013 challenging the
sale deed of the year 1999.
9. It was the case of the plaintiff that the registered sale
deed in question is a forged and fabricated document and thus
requested the Civil Court to set aside such sale deed. To prove
the factum of a fraudulent transaction, the plaintiff has failed
to lead any evidence except to examine one witness to the sale
deed. It is very easy for the plaintiff to make allegations of
fraud but in the absence of any evidence on record, a
registered document cannot be declared as a fraudulent
document unless such fraud has been established on record
by the plaintiff. Rather, it is the settled position of law that
there is a presumption as regards the genuineness of a
registered document. When such would be the factual
scenario, once both the Courts below concurrently held that
the plaintiff has failed to prove that the defendant obtained
the sale deed by fraud, and such finding of fact is neither
perverse nor grossly erroneous one, in the second appeal, this
Court cannot not interfere with such finding
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10. So far as the contention raised by Mr.Brahmbhatt,
learned advocate for the appellant, that when the mutation
entry came in the revenue record in favour of the defendant in
the year 2012 and there was a redemption of the mortgage by
the plaintiff, that too in the year 2012, it gave rise to a cause
of action to the plaintiff to file the suit, it is nothing but a
fallacious submission and it requires outright rejection. The
cause of action accrued to the plaintiff to challenge the sale
deed when it was executed, i.e., in the year 1999, as she was a
signatory to the sale deed. The mere mutation entry in favour
of the defendant in the year 2012 would not give rise to the
right to file a suit, as it is the settled position of law that a
mutation entry does not confer a right, title, or interest in
favour of the person concerned. It cannot be gainsaid that the
suit was hopelessly time-barred.
11. So far as the redemption of the mortgage is concerned,
except that redemption deed on record, there is nothing to
suggest that there was actually any mortgage at the time of
execution of the sale deed. This aspect has been dealt with by
the Appellate Court; thereby, I would not like to add anything
more, rather I am in agreement with the finding of fact
recorded by the Court below in this regard. Apart from the
aforesaid aspect, it has been clearly stated in the sale deed in
question that in a case where any mortgage would find, it was
a duty of the plaintiff to redeem such mortgage and get the
suit land free from any encumbrance.
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C/SA/394/2026 (GJHC240702942025) JUDGMENT DATED: 01/09/2026
12. It is a well-settled position of law that unless the findings
of fact recorded by the Courts are perverse or grossly
erroneous and/or contrary to law, this Court should not
interfere with the findings of fact by re-appreciating the
evidence while exercising its power under Section 100 of the
CPC.
12.1 It would be apt to refer to and rely upon the recent
decision of the Hon'ble Apex Court with regard to scope and
ambit of power of this Court while adjudicating any second
appeal filed under Section 100 of CPC. In the case of Russi
Fisheries (P) Ltd. v. Bhavna Seth-2026 SCC OnLine SC
555 , it has been categorically held by the Hon’ble Apex Court
that this Court should not interfere with findings of fact
recorded by the Courts below unless it is so perverse or
grossly erroneous, and / or contrary to a settled principle of
law. The relevant observations of the said decision read thus:
"31. It is settled in law that the findings of fact howsoever
erroneous, cannot be reopened and disturbed in second
appeal which is required to be adjudicated only upon the
substantial question of law, if any, arising therein. Thus,
the argument that the High Court in second appeal ought
to have examined the evidence to ensure the correctness
of the findings of the First Appellate Court has no legs to
stand and fails.
32. Long back in 1981, three judges of this Court in the
case of Bholaram vs. Ameerchand had ruled that even if
findings of facts by courts below are wrong or grossly
inexcusable that by itself would not entitle the High Court
to interfere under Section 100 CPC in the absence of clear
error of law. A similar view was reiterated in Madhavan
Nair v. Bhaskar Pillai (Dead) by Lrs ., wherein it has
been laid down that even if the First Appellate Court
commits an error in recording a finding of fact, that itself
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will not be a ground for the High Court to upset the same.
33. In Kashibai w/o Lachiram v. Parwatibai w/o
Lachiram , a similar proposition of law was laid down by
this Court and it was held that the High Court cannot re-
appreciate the evidence and interfere with the findings of
facts unless a substantial question of law or a question of
law duly formulated is to be decided. The second appeal
does not lie on the ground of erroneous findings of facts
based on appreciation of the relevant evidence.
35. Again, in Kulwant Kaur v. Gurdial Singh Mann
(Dead) by Lrs , it was emphasized that the fact remains
that in a second appeal, a finding of fact, even if
erroneous, will not be disturbed unless it is found that it
stands vitiated for want of perversity. No such case for
interference has been made out in the present case."
(Emphasis supplied)
12.2 It is also profitable to refer and rely upon the decision of
the Hon’ble Apex Court in the case of Jaichand (Dead)
through Lrs and Others v. Sahnulal and Another - 2024
SCC OnLine SC 3864 , whereby, the Hon’ble Apex Court held
as under:
“25. In Kshitisn Chandra Purkait v. Santhosh
Kumar Purkait reported in (1997) 5 S.C.C. 438) ,
this Court held that in the Second Appeal, the High
Court should be satisfied that the case involves a
substantial question of law and not mere question of
law.
27. This Court in Kondira Dagadu Kadam v.
Savitribai Sopan Gujar reported in AIR 1999 S.C.
2213 held:-
“The High Court cannot substitute its opinion for the
opinion of the first appellate Court unless it is found
that the conclusions drawn by the lower appellate
Court were erroneous being contrary to the
mandatory provisions of law applicable or its settled
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position on the basis of pronouncements made by
the Apex Court, or was based upon inadmissible
evidence or arrived at without evidence.”
28. It is thus clear that under Section 100, C.P.C., 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.”
(Emphasis supplied)
13. Thus, in view of the aforesaid peculiar facts and
circumstances of the case and applying the ratio of the
decisions supra to the case on hand, I am of the considered
view that no substantial questions of law is made out though
framed by the appellant in Para-2 of the memo of the Second
Appeal, inasmuch as the questions which are framed can
hardly be considered as question of law; rather, I am of the
considered view that the institution of the suit by the plaintiff
in the year 2013, having once sold the suit land by way of a
registered sale deed to the defendant in the year 1999 and
challenging it after about 14 years, is nothing but an abuse of
the process of law. Such type of litigant is required to be
discouraged by the Court by imposing heavy and exemplary
costs.
14. At this stage, Mr.Brahmbhatt, learned advocate for the
appellant, would request that this Court may not impose
exemplary and heavy costs and considering the fact that the
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appellant is a lady, bona fide pursuing her right before the
Civil Court, some leniency may be shown to the appellant.
15. Taking note of the request of Mr.Brahmbhatt, learned
advocate for the appellant, and overall facts and
circumstances of the present case, instead of imposing
exemplary and heavy costs, I would like to impose costs of
Rs.10,000/- to be paid by the appellant to the respondent and
Rs.10,000/- shall be deposited by the appellant with the DLSA,
Banaskantha, which shall be paid/deposited within one month
from today.
16. In view of the foregoing discussion and reasons, I do not
find any merit in the Second Appeal. Accordingly, it is
dismissed with costs. All pending application(s), if any, also
stands disposed of. Decree shall be drawn accordingly.
(MAULIK J. SHELAT, J)
GAURAV J THAKER
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