DEVUBEN WD/O. NARANBHAI VALJIBHAI BALDANIYA (DECEASED) vs ASHWIN RATILAL BALDANIYA
- Court
- Gujarat High Court
C/SA/206/2026 JUDGMENT DATED: 21/10/2026
(GJHC240195142026)
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SECOND APPEAL NO. 206 of 2026
With
CIVIL APPLICATION (FOR STAY) NO. 1 of 2026
In R/SECOND APPEAL NO. 206 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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DEVUBEN WD/O. NARANBHAI VALJIBHAI BALDANIYA (DECEASED) &
ORS.
Versus
ASHWIN RATILAL BALDANIYA & ORS.
==========================================================
Appearance:
MR. NISARG B DAVE(19530) for the Appellant(s) No. 1,2,3,4
MS. MEGHA JANI, SR. COUNSEL ASSISTED BY MR. VATSAL D.
RUPAREL(14194) for the Appellant(s) No. 1,2,3,4
MR. TEJAS BAROT, SR. COUNSEL ASSISTED BY MR V B SHUKLA(8955)
for the Respondent(s) No. 1,2,3,4,5,6
NOTICE SERVED BY DS for the Respondent(s) No. 7
==========================================================
CORAM: HONOURABLE MR. JUSTICE MAULIK J.SHELAT
Date : 21/10/2026
JUDGMENT
1. The present Second Appeal is filed under Section 100 of the
Civil Procedure Code, 1908 (CPC) by the original defendants
against the judgment and decree dated 24.02.2026 passed by the
th
4 Additional District Judge, Gandhidham, Kachchh in Regular
Civil Appeal No.2 of 2019 whereby the Appellate Court confirmed
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the judgment and eviction decree dated 28.11.2018 passed by the
th
4 Additional Civil Judge, Gandhidham – Kutchchh in Regular
Civil Suit No.196 of 2014 (Old Special Civil Suit No.46 of 2008).
2. The appellants herein are the legal heirs and representatives
of original defendant, whereas the respondents herein are original
plaintiffs. For the sake of convenience and brevity, the parties will
hereinafter be referred to as the defendant and the plaintiff,
respectively.
SHORT FACTS :-
3. The plaintiff instituted the suit in question seeking vacant
possession of the suit property, i.e., Plot No.204, Ward No. 2/B,
Adipur -Kachchh, possessed by the defendant, and also sought
mesne profit of Rs.10,000/- per month from the date of the suit till
the vacant and peaceful possession of the suit property is handed
over to the plaintiff.
3.1 One Manjulaben happened to be the leaseholder of the suit
property, who died in an accident with her husband. Prior thereto,
the defendant being the brother-in-law of Manjulaben put in
possession of the suit property; thereby, he is in permissive
possession. Since Manjulaben died in a car accident on
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30.04.2008, the plaintiff, being her successor-in-interest, i.e., her
legal heirs and representatives, sought possession of the suit
property from the defendant, which was refused. Since the
defendant did not return the possession of the suit property in
favour of the plaintiff being the legal heirs and representatives of
the said Manjulaben, they instituted the suit in question for the
possession of the suit property with mesne profit.
3.2 It may be recorded here that the lessor of the suit property is
the Sindhu Resettlement Corporation, and after the death of the
said Manjulaben, being the lessee, her legal heirs and
representatives, i.e., the plaintiff, appears to have approached the
lessor for mutation of their names in respect of the suit property.
At that time, the plaintiff was informed by the said Corporation
that there was an application dated 22.12.2006 submitted to
transfer the leasehold rights in favour of the wife of the original
defendant, i.e., Smt. Devuben Narayanbhai Baldania (appellant
No.1). According to the plaintiff, the said application was got up
one and, as such, their predecessor-Manjulaben never agreed to
transfer her leasehold rights in favour of her sister-in-law
(appellant No.1).
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3.3 The defendant appeared and contested the suit by filing his
written statement. Necessary issues were framed by the Trial
Court. It appears that after the cross-examination of the plaintiff
got over, it was reported to the Trial Court that the original
defendant, namely, Narayanbhai died. The necessary application
came to be filed by the plaintiff to bring on record the legal heirs
and representatives of the original defendant, i.e., the appellants
herein. The record suggests that despite service of notice upon the
appellants herein, they did not appear and contested the suit. Even
as per the rojkam of the suit proceedings, even after the
submission of the amended copy of the plaint on 28.02.2018 by the
plaintiff, then after the Trial Court again issued fresh notice upon
the appellants herein on 05.03.2018, which was duly served upon
the appellants herein on 17.09.2018. As neither the appellants
herein nor their lawyer had remained present before the Trial
Court, the right of the defendants to lead evidence was closed.
3.4. After hearing the learned advocate for the plaintiff, and since
none appeared for the defendants, the Trial Court, vide its
judgment and decree dated 28.11.2018, allowed the suit, whereby
the defendant was directed to handover peaceful and vacant
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possession of the suit property to the plaintiff. Further, the plaintiff
has been awarded mesne profit of Rs. 10,000/- per month from the
date of the suit till receipt of actual possession of the suit property
from the defendant.
3.5 Being aggrieved and dissatisfied with the judgment and
decree passed by the Trial Court, the defendant preferred an
appeal before the Appellate Court. After hearing the parties and
upon re-appreciation of the evidence on record, the Appellate
Court, vide its impugned judgment and decree dated 24.02.2026,
dismissed the appeal.
3.6 Hence, the present Second Appeal.
4. Heard Ms. Megha Jani, learned Senior Counsel assisted by
Mr. Vatsal D. Ruparel, learned advocate for the appellants –
original defendants and Mr. Tejas Barot, learned Senior Counsel
assisted by Mr. V. B. Shukla, learned advocate for the respondents
– orig. plaintiffs.
SUBMISSIONS OF THE APPELLANTS- ORIG.
DEFENDANTS .
5. Ms. Jani, learned Senior Counsel for the defendant would
submit that the Trial Court without framing proper issues decreed
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the suit in favour of the plaintiff, whereby the Trial Court
committed a serious error of law which goes to the root of the
matter. It is submitted that despite drawing the attention of the
Appellate Court to such a glaring defect on the part of the Trial
Court while adjudicating the lis between the parties, the Appellate
Court, in a very casual and cavalier manner, dismissed the appeal
filed by the defendant.
5.1 Ms. Jani, learned Senior Counsel, would further submit that
the entire case of the plaintiff was based upon forgery, inasmuch as
the plaintiff claimed that the request application dated 22.12.2006
to transfer the leasehold rights of Manjulaben in favour of the wife
of the defendant was nothing but a fraudulent document but
without framing and deciding such issue, the Trial Court allowed
the suit. It is submitted that as per the case of the plaintiff, there
was no false signature of Manjulaben on the said application;
however, no issue as regards forgery was framed by the Trial Court,
thereby committed a serious error of law. It is further submitted
that to prove such an allegation, the plaintiff did not lead any
evidence. It is a well-settled position of law that on a mere
allegation of forgery, in the absence of any evidence, no Court
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should draw any inference in favour of the party who is making
such an allegation of forgery.
5.3 Ms. Jani, learned Senior Counsel, would further submit that
the reason of absence of the appellants before the Trial Court was
not at all appreciated by the Appellate Court, thereby it committed
a serious error of law. It is submitted that, as such, the suit
proceeded ex parte against the present appellants, inasmuch as
after being joined in the suit proceedings, they never served with a
copy of the amended plaint. It is further submitted that there was a
procedural irregularity remained before the Trial Court, and an
opportunity ought to have been given to the appellants to lead their
evidence. It is further submitted that the Appellate Court ought to
have remanded the matter back to the Trial Court for a retrial of
the case.
5.4 Ms. Jani, learned Senior Counsel, would further submit that
the Trial Court as well as the Appellate Court could not have
ordered mesne profit to be paid by the defendant to the plaintiff,
inasmuch as no evidence led by the plaintiff in this regard. It is
submitted that mesne profit is required to be determined by the
Court not on the basis of inference, but upon evidence being led by
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the parties. It is submitted that the plaintiff failed to lead any
evidence whereby the plaintiff could claim mesne profit of Rs.
10,000/- per month.
5.5 Ms. Jani, learned Senior Counsel, would further submit that
appellant No.1 herein- wife of the original defendant, has already
instituted a suit, being Civil Suit No.54 of 2009, seeking specific
performance of an agreement to sale against the plaintiff in
relation to the suit property on the basis of the said application
filed before the Sindhu Corporation. It is submitted that until the
final outcome of such suit proceedings instituted by appellant No.1,
no decree for eviction could have been passed by the Trial Court.
5.6 By making the above submissions, Ms. Jani, learned Senior
Counsel, would request this Court to entertain this appeal.
SUBMISSIONS OF THE RESPONDENTS – ORIG.
PLAINTIFFS.
6. Per contra , Mr. Barot, learned Senior Counsel, has
vehemently opposed this appeal contending inter alia that there is
no substance in the present appeal, so much so it does not raise
any substantial question of law. It is submitted that since the
findings of fact recorded by the Courts below were based upon
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evidence and were neither perverse nor grossly erroneous, this
Court, while exercising its powers under Section 100 of the CPC,
may not entertain this appeal.
6.1 Mr. Barot, learned Senior Counsel, would further submit that
it is an undisputed fact that the leasehold right was in favour of
Manjulaben - a predecessor of the plaintiff, and as on the date of
her death, such right was not transferred in favour of appellant
No.1 herein, i.e., Devuben by way of any registered instrument. It is
submitted that merely because any suit for specific performance is
instituted by the said Devuben against the plaintiff and the same is
pending as on date, the Courts below have not committed any
gross error of law by adjudicating the lis between the parties and
thereby, passed a decree of eviction.
6.2 Mr. Barot, learned Senior Counsel, would further submit that
it may be true that there is an allegation of forgery pleaded by the
plaintiff, insofar as the application bearing the signature of
Manjulaben, alleged to have been submitted to the Sindhu
Corporation, is concerned, the Trial Court did not opine anything
on the forgery, inasmuch as no issue as regards forgery was
framed, it would not mean that the Courts below have committed
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any serious error of law.
6.3 Mr. Barot, learned Senior Counsel, would further submit that
the defendant failed to prove any right, title, or interest in the suit
property, and the plaintiff, being the legal heir and representative
of the said Manjulaben, who possessed the leasehold right in her
favour at the time of her death, is entitled to a decree of eviction;
accordingly, the Trial Court appropriately passed a decree of
eviction in favour of the plaintiff.
6.4 Mr. Barot, learned Senior Counsel, would further submit that
despite sufficient opportunities were being given to the appellants
to appear and contest the suit, but they have chosen not to appear
and contested the suit. It is submitted that there is no iota of
evidence on record to show that the appellants herein – defendant
did not aware about the pendency of the suit; rather, they had
consciously chosen not to appear and contest the suit, then later
on, they are not allowed to request for remand of the case. It is
further submitted that the Appellate Court has correctly observed
that there was no procedural irregularity committed by the Trial
Court while proceed with the suit in the absence of the defendant.
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6.5 Mr. Barot, learned Senior Counsel, would further submit that
since there are concurrent findings of fact recorded by the Courts
below against the defendant, who failed to lead any evidence to
prove his defense, this Court should not interfere with such a
finding of fact in the Second Appeal. The defendant has no right,
title, or interest, or any common interest with the plaintiff,
otherwise appellant No.1 could not have filed said suit.
6.6 Lastly, Mr. Barot, learned Senior Counsel, under instructions
of his client, would state before this Court that, so far as the decree
qua mesne profit is concerned, the plaintiff is ready to forgo the
mesne profit awarded by the Courts below, and this Court may
appropriately observe in this judgement/order that the plaintiff
will not execute the decree against the defendant qua mesne profit.
6.7 By making the above submissions, Mr. Barot, learned Senior
Counsel, would request this Court to dismiss the appeal.
7. No other and further submissions are being made by the
learned Senior Counsel appearing for the respective parties.
ANALYSIS AND REASONS : -
8. Having heard the learned counsel for the respective parties
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and upon perusal of the impugned judgment and decree passed by
the Courts below, it is an undisputed fact that this Second Appeal
is filed against concurrent findings of fact recorded by the Courts
below against the defendant, inasmuch as the defendant did not
lead any evidence in support of his case, whereas the plaintiff
successfully proved their right, title and interest in the suit
property.
8.1 It appears that the original defendant - Narayanbhai, filed his
written statement but reported died during the pendency of the
suit proceedings. It appears that the oral evidence of the plaintiff
was closed on 14.02.2017. Thereafter, on 08.03.2017, the
defendant’s learned advocate declared said fact before the Trial
Court vide purshis (D-45). Since the paper book has been made
available with this appeal, it appears from the rojkam of the suit
proceedings that the plaintiff filed an appropriate application (D-
46) under Order XXII Rule 4 of the CPC to join the legal heirs and
representatives of the deceased original defendant on 27.03.2017.
The notice came to be served upon the appellants herein, i.e., the
legal heirs and representatives of the original defendant, on
26.04.2017. Nonetheless, they did not remain present.
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8.2 It further appears that the Trial Court, vide its order dated
28.02.2018, allowed the aforesaid application (D-46), thereby
joined the appellants herein in the suit proceedings. The rojkam
further suggests that the plaintiff submitted an amended copy of
the plaint on 28.02.2018 and, thereafter, the Trial Court appears to
have issued notice to the appellants herein on 05.03.2018, i.e.,
subsequent to they being joined in the suit proceedings. It remains
undisputed on record that despite such notices being served upon
the appellants herein – defendants, they choose not to appear
before the Trial Court and, as such, did not lead any oral evidence.
Thus, after hearing the learned advocate for the plaintiff, the Trial
Court decreed the suit in favour of the plaintiff.
8.3 Against this background of facts, the defendant approached
the Appellate Court, complaining that no reasonable opportunity
of hearing was given to them and that the matter ought to be
remanded back to the Trial Court. Apart from that, they raised
other submissions on merits. Even after hearing the parties and
upon re-appreciation of the evidence on record, the Appellate
Court did not agree with any of the submissions so advanced by the
defendants, rather, by its impugned judgment and decree,
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dismissed the appeal. Thus, the decree passed by the Trial Court
was confirmed by the Appellate Court.
9. Although, Ms. Jani, learned Senior Counsel appearing for the
defendants, tried to convince this Court that there are issues
germane to this appeal require consideration, yet, upon going
through the impugned judgment and decree passed by the Courts
below as well as the evidence on record, prima facie , I do not find
any gross error of law committed by the Courts below while
decreeing the suit in favour of the plaintiff, except for the grant of
mesne profit. Since Mr. Barot, learned Senior Counsel, under
instructions from his client, does not press the relief qua grant of
mesne profit and, as such, the plaintiff has declared before this
Court that they will not execute the decree qua mesne profits
though granted by the Courts below in their favour, this Court
would like to consider the other submissions advanced by Ms. Jani,
learned Senior Counsel.
10. As far as the non-framing of proper issues is concerned, the
original defendant, during his lifetime, having appeared through
his lawyer, never complained to the Trial Court regarding the non-
framing of proper issues. According to me, the necessary issues
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were framed by the Trial Court. Issue No.4 was in regard to the
grant of reliefs as prayed for in the suit. The reliefs prayed for in
the suit related to the possession of the suit property as well as
mesne profits. Thus, at this stage, the defendants cannot dispute
that no proper issues were framed by the Trial Court; rather, the
parties to the suit were very much aware about the issues involved
in the matter, including the reliefs prayed for in the suit and
accordingly, the plaintiff led his oral evidence, whereas the
defendant failed to lead his oral evidence. It is a well-settled
position of law that pleadings are no substitute for proof. [ See-
Manager, R.B.I., Bangalore vs S. Mani & Ors., reported in (2005) 5
SCC 100]. In absence of any material evidence on record which
proved the case of the defendant, the contention advanced on
behalf of the defendant that on the strength of the agreement to
sell in favour of appellant No. 1 herein, the Trial Court ought not to
have decreed the suit in favour of the plaintiff, cannot be accepted.
11. Ms. Jani, learned Senior Counsel, would not be in a position
to show this Court any singular evidence that could prima facie
show any right, title, or interest of the defendant in the suit
property. Even if the case of the defendant can be accepted as he
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came out with a case that, during her lifetime, Manjulaben agreed
to transfer the suit property in favour of appellant No. 1 herein -
wife of the original defendant, indisputably, such transfer of the
suit property was never effected by a registered instrument by
Manjulaben in favour of appellant No.1. It is a well-settled position
of law that the mere execution of an agreement to sell by the
original owner of an immovable property does not confer any right,
title, or interest in favour of the holder of the agreement to sell
( See: - Section 54 of the Transfer of Property Act, 1882 ).
Rather, filing of the suit for specific performance by the original
defendant’s wife – appellant No.1 herein against the plaintiff would
itself shows that there is no direct right, title, or interest of the
defendant in the suit property.
12. Ms. Jani, learned Senior Counsel, has fairly conceded before
this Court that there is no stay granted in favour of the defendant –
the appellant No.1 in her suit filed for specific performance (Civil
Suit No. 54/2009). A mere filing of a suit for specific performance
would not ipso facto entitle the defendant to claim that no decree
for eviction can be passed against him especially when the
appellant No.1 failed to secure any injunction in her suit. This
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Court would not like to make any further observations on such
issue, except to state that, as on date, the defendant is unable to
show or prove before this Court that he has any right, title, or
interest in the suit property in any manner; rather, as stated above,
the defendant failed to lead any evidence on record.
13. As far as the aspect of forgery is concerned, it is true that the
plaintiff pleaded forgery in regard to the aforesaid application
which carried the signature of the said Manjulaben; however, after
going through the impugned judgment and decree passed by the
Courts below, on such aspect of forgery, the Courts below have not
passed the decree of eviction, inasmuch as the Courts below have
not concluded whether any forgery was committed by the
defendant or not. Since the ground for passing the decree was not
based upon any such forgery, there was no reason for the Trial
Court to frame any such issue. According to me, the plaintiff
secured the possession decree on the strength of his predecessor’s
title.
14. It is proved on record by the plaintiff that his predecessor-in-
interest, Manjulaben, held the leasehold right over the suit
property. The possession of the suit property was given to the
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defendant as a family member, i.e., the brother-in-law of
Manjulaben; hence, the possession of the defendant was
permissive in nature. Accordingly, the plaintiff is entitled to file a
suit for eviction and recover possession of the suit property from
the defendant as he refused to return possession. According to me,
neither the Trial Court nor the Appellate Court has committed any
gross error of law by concluding that the plaintiff is entitled to get
back the possession from the defendant, who otherwise in
permissive possession. The law is well-settled in this regard and
does not require further deliberation. [See: Maria Margarida
Sequeria Fernandes And Others V/S. Erasmo Jack De
Sequeria (Dead) Through L RS reported in (2012) 5 SCC
370].
15. The aspect of giving an opportunity of hearing is concerned,
after going through the rojkam of the Trial Court proceedings, I
am of the considered opinion that the appellants, despite being
granted reasonable opportunities as the legal heirs and
representatives of the original defendant, failed to appear. The
Trial Court issued notice to them on two distinct occasions: first, at
the stage of the application filed under Order XXII Rule 4 of the
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CPC, and subsequently, after they were formally joined in the suit
proceedings. Despite being duly served on both occasions, the
appellants failed to appear and avail themselves of the opportunity
to contest the matter. Later on, they cannot be allowed to cry foul
that no reasonable opportunity was given to them. I am in
complete agreement with the view taken by the Appellate Court, as
the findings of fact recorded by the Appellate Court in this regard
cannot be said to be either perverse or grossly erroneous.
16. At last, it can only be observed that the defendant has not
made out any case for interference by this Court under Section 100
of the CPC, except on the issue of mesne profit which was awarded
by the Courts below in favour of the plaintiff. Since the plaintiff has
declared before this Court that they will not claim any mesne profit
and are not going to execute the decree in this regard, i.e., to
recover the mesne profit from the date of the suit till receipt of
actual possession of the suit property, this Court is not inclined to
entertain this second appeal.
17. Having gone through the substantial questions of law framed
by the appellants herein in this appeal, including an additional
one, I do not find that such questions can be considered as
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substantial questions of law. It is a well-settled position of law that
raising question of law is no ground to entertain a Second Appeal
filed under Section 100 of the CPC.
18. It is not out of place to refer to 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 reported
in 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)
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19. Even, recently also, the Hon'ble Apex Court in the case of
Russi Fisheries (P) Ltd. v. Bhavna Seth , reported in 2026
SCC OnLine SC 555 , wherein it has been categorically held that
this Court should not interfere with finding of fact recorded by the
Courts below unless it is so perverse or grossly erroneous, and / or
runs contrary to a settled principles of law. The pertinent
observations made in 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 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
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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)
20. Having considered the aforesaid facts and circumstances of
the case, and applying the ratio of the decisions supra to the facts
of the case at hand, I am of the considered view that no case is
made out by the appellants - defendants, inasmuch as the present
Second Appeal does not raise any substantial questions of law qua
decree for the possession of the suit property.
21. Before parting with the matter, it is clarified that since the
plaintiff has stated before this Court that they will not execute the
decree for mesne profits against the defendant, accordingly, the
plaintiff is held not entitled to recover any amount under that
head, notwithstanding decreed by the Trial Court.
22. In view of the foregoing discussion and reasons, the
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impugned judgment and decree passed by the Courts below are
hereby confirmed, with the modification that the plaintiff shall not
be entitled to recover any mesne profits from the defendant.
Accordingly, this second appeal is dismissed in limine . No order as
to costs. Decree shall be drawn accordingly. The Civil Application
for the stay would not survive, accordingly, it is disposed of.
(MAULIK J.SHELAT,J)
Lalji Desai
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