PATEL MULJIBHAI JETHABHAI GOL vs NAI NARANBHAI MANILAL
- Court
- Gujarat High Court
C/SA/121/2008 JUDGMENT DATED: 28/10/2026
(GJHC240403442008)
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SECOND APPEAL NO. 121 of 2008
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PATEL MULJIBHAI JETHABHAI GOL & ORS.
Versus
NAI NARANBHAI MANILAL
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Appearance:
MR VARUN H. MODASIA, ADVOCATE FOR MR SP MAJMUDAR(3456) for
the Appellant(s) No. 1,2,3
ADVOCATE NOTICE SERVED for the Respondent(s) No. 1
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CORAM: HONOURABLE MR.JUSTICE D.N.RAY
Date : 28/10/2026
ORAL JUDGMENT
1. Heard Mr. Varun H. Modasia, learned advocate on behalf
of Mr. S. P. Majmudar, learned advocate for the appellants.
2. In the judgment and order of the learned First appellate
court dated 08.05.2008 which reversed the decree in favour of
the present appellants, there is a categorical recording of the
statement as under:-
“ Another important fact is that the learned advocate for
the defendant submitted a purshis at Exhibit ___, declaring
that they do not wish to carry out any construction in the
disputed navoli. Considering this, as well, the allegation
that the defendant is constructing in the disputed navoli
cannot be believed. In the same panchnama, the heap of
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C/SA/121/2008 JUDGMENT DATED: 28/10/2026
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bricks lying in the navoli is situated adjacent to the west of
the defendant's house.”
3. It is the categorical submission of learned counsel for
the appellants that in view of the aforesaid admission, the
Court ought to have maintained the decree and dismissed the
appeal, inasmuch as, this itself was the final relief sought in
the suit filed by the plaintiffs/appellants.
4. When the matter is called out today, none appears on
behalf of the respondent. It would also be seen that the
respondent had withdrawn the engagement of his erstwhile
advocate and therefore, an advocate notice was served on the
respondent no.1 on 10.07.2026. However, none appears on
behalf of the respondent to contest the present appeal.
5. In view of the categorical admission on the part of the
respondent as recorded by the learned First Appellate Court
(as quoted here in above), I find that the learned First
Appellate Court was in gross error in reversing the findings of
the Suit Court, which had decreed the suit filed by the
plaintiffs/ appellants herein.
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6. However, on perusal of the questions of law framed by
this Court on 18.06.2008, it will be seen that this Court had
framed the following substantial questions of law:-
“ Following substantial questions deserve to be examined
in this Second Appeal.
(A) Whether the lower Appellate Court has committed
substantial error of law in mis-appreciating,
misconstruing and misinterpreting the documentary
evidence on record, mainly below Exhibit No. 11 to 17
produced before the Trial Court ?
(B) Whether the lower Appellate Court has committed
substantial error of law in setting aside the order dated
13/4/2007 passed by the learned Civil Judge, Palanpur in
Regular Civil Suit No. 256 of 1999, despite the fact that
the respondent, his agents, servants etc. was trying to
make construction over 'Navoli' and thereby close the
way of the present appellant ?
(C) Whether the lower Appellate Court has committed
substantial error of law in holding that the respondent
was not making any construction over the disputed area
and further holding that the construction of the
respondent was as per the sanctioned plan ? ”
7. I am, however, of the opinion that in order to decide the
list between the parties, the following question of law is
required to be framed as a substantial question of law. In view
of catena of decisions of the Honourable Apex Court, the
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Court hearing a second appeal under Section 100 of the CPC
is entitled to re-frame/frame additional substantial questions
of law at any given stage of the proceedings before it.
Accordingly, I deem it appropriate to frame the additional
substantial question of law as under:-
“Whether upon the admission on behalf of the
defendant/first appellant, that the defendant had no
intention to construct on the Navoli, the appeal of the
defendant ought to have been dismissed inasmuch as
on the basis of the admission, the plaintiffs were
entitled to a decree within the meaning of Order XII
Rule 6 of the CPC and the aforesaid statement would
have satisfied the decree and would have resulted in
dismissal of the First Appeal under Section 96 of the
CPC?”
8. I am of the opinion based on the unquestionable records
of the case, that there has been a clear admission on the part
of the defendant which is recorded by the first appellate court
as quoted herein above, to the effect that the defendant did
not intend to construct on the Navoli. To my mind, this is
exactly the relief which was claimed by the plaintiff in the suit
and based on the aforesaid admission, the suit could be
decreed under Order XII Rule 6 of the CPC.
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9. In such view of the matter, it was not necessary for the
First Appellate Court to examine the appeal any further and
consequently, dismiss the First Appeal and confirm the
decree. I, therefore, answer the additional question of law
framed today, in the affirmative and in favour of the
appellants/plaintiffs.
10. Consequently, the present Second Appeal is hereby
allowed. The judgment and order dated 08.05.2008 passed by
the learned Additional District Judge and Presiding Officer,
Fast Track Court, Palanpur in Regular Civil Appeal No.27 of
2007 thereby setting order dated 13.04.2007 passed by the
learned trial Court in Regular Civil Suit No.256 of 1999, is
hereby quashed and set aside and the modified decree to be
drawn up accordingly.
(D.N.RAY,J)
A. B. VAGHELA
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