DHIRUBHAI MOHANBHAI SORATHIYA vs PANCHABHAI JIVABHAI SORATHIYA
- Court
- Gujarat High Court
C/SA/534/2026 (GJHC240643342026) JUDGMENT DATED: 03/09/2026
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SECOND APPEAL NO. 534 of 2026
With
CIVIL APPLICATION (FOR STAY) NO. 1 of 2026
In R/SECOND APPEAL NO. 534 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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DHIRUBHAI MOHANBHAI SORATHIYA & ANR.
Versus
PANCHABHAI JIVABHAI SORATHIYA
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Appearance:
MR KRUNAL R SAKSENA(5915) for the Appellant(s) No. 1,2
MS PRIYAL YATIN SHAH(8996) for the Appellant(s) No. 1,2
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CORAM: HONOURABLE MR. JUSTICE MAULIK J.SHELAT
Date : 03/09/2026
JUDGMENT
1. Heard Mr. Krunal Saksena, learned advocate with Ms.
Priyal Yatin Shah, learned advocate for the appellants.
2. At the outset, Mr. Krunal Saksena, learned advocate for
the appellants would tender the draft amendment, which is
allowed and the same shall be carried out forthwith.
3. This second appeal is filed against the judgment and
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C/SA/534/2026 (GJHC240643342026) JUDGMENT DATED: 03/09/2026
rd
decree dated 29.07.2026 passed by the learned 3 Additional
District Judge, Jamnagar, in Regular Civil Appeal No.27 of 2019,
whereby it has quashed and set aside the judgment and
nd
decree dated 08.04.2019 passed by learned 2 Additional
Senior Civil Judge, Jamnagar, in Regular Civil Suit No.350 of
2013.
4. The appellants herein are the original defendants,
whereas respondent herein is the original plaintiff. For the sake
of convenience, hereinafter parties will be referred to as per
their original position in the suit.
5. The short facts of the case appear to be that the plaintiff
happens to be real uncle of the defendants. The residential
house standing on the land bearing Revenue Survey No.
79/Paiki-3 ad-measuring Hector-0, Are-61, Square Meters-71
situated at Village: Khilos, in District: Jamnagar (hereinafter
referred to as “ suit property ”), is a subject matter of Regular
Civil Suit No.350 of 2013.
6. According to the case of plaintiff, as per the family
arrangements, the suit property has come to his share and he
is the owner of the suit property. Since the plaintiff was away
from the suit property due to his occupation, the defendants
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being his nephew took possession of the suit property, and
despite requests, they were not vacating the house. Thus, the
aforesaid suit came to be filed seeking possession of the suit
property.
7. The parties have submitted their oral and documentary
evidence before the trial Court in support of their case. At the
end of trial, the trial Court has answered the Issue No.1 in
favour of the plaintiff, whereby it has been held that the
plaintiff is the owner of suit property. While answering Issue
No.3 against the defendants, it has been held that the
defendants are unable to prove on record that the disputed
house came to their share and they are the exclusive owners
of the suit property. Nonetheless, vide its judgment and decree
dated 08.04.2019, the trial Court dismissed the suit.
8. Feeling aggrieved and dissatisfied with the aforesaid
judgment and decree passed by the trial Court, original
plaintiff preferred Regular Civil Appeal No.27 of 2019 before
Appellate Court. The Appellate Court appears to have frame
following points for determination and answered accordingly:
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Sr. No. POINTS FOR DETERMINATION
Whether it is proved that the Plaintiff is legal and lawful
owner of the suit property, more particularly described
in schedule 'A' ?
1
Whether the Hon'ble Trial Court has committed an error
in not granting the relief after holding the Issue No. 1 in
affirmative and holding the issue No. 3 in Negative?
2
Whether the impugned Judgment and Order dated
08/04/2019 passed in Regular Civil Suit No. 350/2013
by Ld. 2nd Additional Senior Civil Judge, Jamnagar, is
erroneous, illegal, perverse or with material irregularity,
which requires interference by this Court and whether
the said Order deserves to be quashed and set aside ?
3
4 What's Order & Decree ?
Sr. No. FINDINGS
1 In AFFIRMATIVE
2 In AFFIRMATIVE
3 In AFFIRMATIVE
4 As per FINAL ORDER .
8.1 Thus, after hearing the parties, the Appellate Court has
allowed the aforesaid appeal on the ground that once the trial
Court has held that the suit property is owned by the plaintiff
and the defendants failed to prove their ownership over the
suit property, suit could not have been dismissed. Accordingly,
it has allowed the appeal vide its impugned judgment and
decree dated 29.07.2026, whereby the defendants are
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directed to hand over the peaceful and vacant possession of
the suit property (house) to plaintiff. Hence, the present
second appeal.
SUBMISSIONS OF THE APPELLANTS:
9. Mr. Saksena, learned advocate for the appellants-
defendants, would submit that the Appellate Court has
committed serious error in law by allowing the appeal and
reversed the finding of fact recorded by the trial Court in
favour of defendants. It is submitted that the plaintiff has failed
to prove on record that he was the owner of the suit property.
Since last more than 70 years, the possession of the suit
property (house) is with the defendants, thereby they become
the owner. It is further submitted that the suit was time barred
inasmuch as the possession of the defendants over the suit
property was 70 years prior to the date of filing of the suit and
considering the Article 65 of the Limitation Act, 1963, the suit
ought to have been dismissed being barred by law.
9.1 Making the above submissions, Mr. Saksena, learned
advocate would request this Court to admit this appeal on
substantial questions of law framed in memo of appeal.
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10. No other and further submissions have been made by the
learned advocate for the appellants-defendants.
ANALYSIS:
11. Having heard Mr. Saksena, learned advocate for the
appellants-defendants, at length and upon perusal of the
impugned judgment and decree passed by Courts below
especially the Appellate Court, prima facie , it appears that the
trial Court has answered Issue No.1 in favour of the plaintiff
whereby he was declared as owner of the suit property and at
the same time, Issue No.3 was answered against the
defendants, whereby it has been held by the trial Court that
defendants have failed to prove on record that the disputed
suit property came to their share and they are the exclusive
owners of suit property. Once such would be the finding of fact
recorded by the trial Court, which was not assailed by the
defendants either by way of filing appeal and/or cross-
objection, then it became final and binding upon the
defendants.
11.1. The Appellate Court appears to have taken note of the
aforesaid facts, and while answering the points for
determination, it observed that once the trial Court held the
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Issue No.1 in affirmative by holding that the plaintiff is the
owner of the suit property and answered the Issue No.3 in
negative, whereby held that the defendants have not proved
their ownership over the suit property, the trial Court was
required to decree the suit.
12. According to my considered view, the finding of fact
recorded by the Appellate Court as observed above, it cannot
be said that such finding of fact is either perverse or grossly
erroneous, which requires any interference of this Court while
exercising it power under Section 100 of the Code of Civil
Procedure, 1908 (CPC).
13. So far as arguments canvassed by Mr. Saksena, learned
advocate of the appellants is concern, the issue of limitation
was never pressed in to service vis-à-vis declaration of title on
the basis of adverse possession before the trial Court.
Moreover, the defendants have failed to prove their ownership
and legal possession over the suit property. In such situation,
they having failed to assail the finding of fact of the trial Court
recorded against them in the appeal, at this stage, they cannot
be permitted to find fault with the impugned judgement and
decree passed by the Appellate Court.
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14. At this stage, it would be apt to refer to and rely upon the
decision of Hon’ble the Apex Court in the case of Russi
Fisheries (P) Ltd. v. Bhavna Seth, reported in 2026 SCC
OnLine SC 555 wherein the Hon’ble Apex Court observed and
held 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 v. 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
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 reappreciate 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)
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14.1 It is also profitable to refer to 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 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)
15. In view of the aforesaid facts and circumstances, I am of
the considered view that there is no error, much less any gross
error of law, committed by the Appellate Court while decreeing
the suit in favour of the plaintiff, inasmuch as the plaintiff was
already declared to be the owner of the suit property and the
defendants failed to prove their ownership, in such
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circumstances, the decree of possession was inevitable.
Having not found any perversity or any gross error of law
committed by the Appellate Court while allowing the regular
civil appeal, I am unable to agree with the submissions made
by Mr. Saksena, learned advocate for the appellants, so much
so that the substantial questions of law though framed in the
memo of appeal but in light of the aforesaid facts, it can hardly
be treated as questions of law.
16. Having reached to the aforesaid conclusion that no
substantial questions of law have been made out in this second
appeal, this Court is not required to entertain this second
appeal.
17. Accordingly, this second appeal failed and it is dismissed
in limine . The impugned judgment and decree passed by the
Appellate Court is hereby confirmed. No order as to costs.
18. In view of the above, the Civil Application No.1 of 2026
would not survive and it is disposed of, accordingly.
19. The registry shall draw the Decree accordingly.
(MAULIK J.SHELAT,J)
DEEPAK GEHLOT
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