PRAHLAD BHAI KANTILAL PATEL vs VINU BHAI KANTILAL PATEL

C/SA/633/2026 JUDGMENT DATED: 03/11/2026
(GJHC240748102026)
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SECOND APPEAL NO. 633 of 2026
With
CIVIL APPLICATION (FOR STAY) NO. 1 of 2026
In R/SECOND APPEAL NO. 633 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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PRAHLAD BHAI KANTILAL PATEL
Versus
VINU BHAI KANTILAL PATEL & ANR.
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Appearance:
MR SHRIRAJ D SHAH(10475) for the Appellant(s) No. 1
MR JINESH H KAPADIA(5601) for the Respondent(s) No. 1
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CORAM: HONOURABLE MR. JUSTICE MAULIK J.SHELAT

Date : 03/11/2026

JUDGMENT
1. Heard Mr. Shriraj D. Shah, learned advocate for the appellant and
Mr. Jinesh H. Kapadia, learned advocate for the respondent – Caveator,
at length.
2. The present Second Appeal is filed under Section 100 of the Code
of Civil Procedure, 1908 (CPC) arising out of the judgment and decree
dated 27.07.2026 passed by the Principal District Judge, Mahesana in
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Regular Civil Appeal No. 121 of 2023, whereby it has dismissed the said
appeal and confirmed the judgment and decree dated 10.08.2023
nd
passed by the 2 Additional Civil Judge, Mahesana in Regular Civil Suit
No.142 of 2018.
3. The appellant herein is original plaintiff and the respondents
herein are original defendant Nos.1 and 2. For sake of convenience and
brevity, hereinafter they will be referred to as the plaintiff and defendant
Nos.1 and 2, respectively.
4. The plaintiff and defendant No.1 happen to be real brothers, and
the dispute arose between them after the death of their mother, who, at
the relevant point of time, was holding a plot allotted by the defendant
No.2. Since the Appellate Court has narrated the facts/pleadings of the
parties, the same can be read as follows: -
“3. The facts leading to the Suit, in nut-shell, as under:-
The defendant No.1 is the real younger brother of the plaintiff. The
mother of plaintiff Hiraben Kantilal Patel died on 30/01/2016. Two
residential plots are situated in a Housing Plot No.H-146 on the
land of Survey No.639-P of GIDC-2 sitauted at Mouje: Nagalpur,
Tal. & Dist. Mahesana-2 (hereinafter referred to as suit plot). On
19/03/2019, the defendant No.2 has allotted the said Plot No.H-
146 to the mother of plaintiff Hiraben in the name of Mukeshkumar
P. Patel in which two residential properties were constructed on
05/12/2010, wherein the plaintiff and defendant No.1 have their
right, title and interest. Out of the said two residential properties
over the suit plot, the plaintiff is living in the residential property
situated on the eastern side and defendant No.1 is living in the
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residential property situated on the western side of the suit plot.
The defendant No.1 has obtained loan over the suit property from
the State Bank of India. The plaintiff has further contended that the
defendant No.1 has been consented only to obtain loan from the
Bank, but no right of transfer, sale, mortgage or any encumbrances
given to the defendant No.1. The plaintiff has further contended
that on 05/07/2011, the defendant No.1 has executed affidavit duly
notarized in favour of the defendant No.2 on stamp papers of
Rs.50/-, which bears signatures of the plaintiff and sisters of the
plaintiff. As per the plaintiff, the plaintiff has not signed the said
affidavit and the signature of the plaintiff has been misused. The
plaintiff has never waived his right over the suit plot and also not
executed any writings in favour of the defendants. The plaintiff has
only written a letter consenting to obtain loan over the suit plot.
Thus, the plaintiff has raised objection before the defendant No.2
for partition and transfer of the suit plot. The defendants have no
right, title and interest over the residential property of plaintiff over
the suit plot. The defendant has not considered the objection
application dated 13/08/2018 given by the plaintiff. As such, it is
all possibilities that defendant may transfer, sale or allot the the
residential property of the plaintiff in lieu of letter dated
23/09/2018, present suit preferred by the plaintiff and prayed for
the relief as sought for in Para.12 of the suit.
5. The defendant No.1 has filed his Written Statement vide Exh.22
and defendant No.2 has filed its Written Statement vide Exh.9 and
denied the contentions raised and allegations made by the plaintiff
in the suit against the defendant. The defendants have mainly
averred that the suit Plot No.H/146 was demanded by the owner of
Unique Radiators and vide letter dated 31/03/1998, the said plot
allotted to one Mukeshkumar P. Patel by the defendant No.2 and
vide possession receipt dated 15/09/1998, the said plot allotted to
Mukeshkumar P. Patel. Thereafter, on demand made by said
Mukeshkumar to transfer the plot to Hiraben Kantilal Patel, on
19/03/2009, the defendant No.2 has transferred the said plot to
Hiraben. Thereafter, Hiraben has made an application to transfer
the said suit plot to defendant No.1 Vinubhai Kantilal Patel. In
view of the application of said Hiraben, the defendant No.2 called
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for the names of heirs of Hiraben. Thus, on 27/07/2011 the plaintiff
and his sisters have consented by filing their affidavit. After
obtaining thumb impression of Hiraben and after obtaining
signatures of plaintiff as witness over the documents, on
20/11/2012, the defendant No.2 has transferred the suit plot in
favour of the defendant No.1- Vinubhai Kantilal Patel. Thereafter,
upon demand made by the defendant No.1 for partition of suit plot,
the suit plot has been partitioned. At the time of executing
supplementary agreement, the plaintiff has signed the said
document. The plaintiff has also signed and executed undertaking
and Deed of Assignment in favour of the defendant No.2. Not only
that, on 27/07/2011, the plaintiff by filing his affidavit duly
notarized, waived his rights in favour of the defendant No.1 and
also assured that he will not initiate any legal proceedings, and
therefore, no cause of action arisen to file the suit. Thus, it is
requested to dismiss the suit with cost.”
4.1 The Trial Court framed necessary issues and ultimately, found
that the plaintiff failed to prove his claim over the suit property, and also
recorded a finding of fact that there is no sign of force, nor any
intimidation by defendant No.1 to evict the plaintiff without due process
of law.
4.2 It is also observed that during her lifetime, the plot in question
was already transferred by the plaintiff’s mother in favour of defendant
No.1 (her son), and the necessary approval from defendant No. 2 in this
regard was also obtained, who in fact gave its no-objection. Accordingly,
it was concluded by the Trial Court that the superstructure built on such
plot was self-acquired property of the plaintiff. Thus, the suit was
dismissed.
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4.3 The plaintiff carried the matter further before the Appellate Court
by way of Regular Civil Appeal No.121 of 2023, wherein after re-
appreciating the evidence on record, the Appellate Court has dismissed
the appeal.
4.4 Hence, the present Second Appeal.
5. Mr. Shah, learned advocate for the appellant would submit that
the Trial Court has committed a gross error of law by answering Issue
Nos.1 and 2 that the plot in question (suit property) is a self-acquired
property of defendant No.1.
5.1 It is submitted that the plot in question was owned by defendant
No.2 - GIDC and it was allotted to the plaintiff’s mother, which was later
on assigned/transferred in favour of defendant No.1, but by no means,
defendant No.1 claims absolute ownership over the suit property.
5.2 Mr. Shah, learned advocate would further submit that since the
question of title of the suit plot hold by either the plaintiff and/or
defendant No.1 was not in question in the suit, it was uncalled for on the
part of the Trial Court to give any finding of fact whereby it declared
that defendant No.1 is the owner of the suit property and that it is his
self-acquired property.
5.3 According to Mr. Shah, learned advocate, the finding of fact
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recorded by the Courts below in regard to the declaration in favour of
defendant No.1, so far as ownership of the plot in question is concerned,
is not only perverse but grossly erroneous, and in that view of the
matter, this Court should interfere with such perverse finding of fact.
5.4 To buttress his arguments, he would rely upon the decision of the
Hon’ble Apex Court in the case of K.N. Nagarajappa & Ors. vs. H.
Narasimha Reddy reported in (2021) 18 SCC 263 and Russi
Fisheries (P) Ltd. v. Bhavna Seth , reported in 2026 SCC OnLine
SC 555.
6. Per contra , Mr. Kapadia, learned advocate for defendant No.1,
would submit that there is no substance in this Second Appeal,
inasmuch as it is filed against the concurrent findings of fact recorded
by the Courts below against the plaintiff.
6.1 It is submitted that the plaintiff has miserably failed to prove any
right, title, or interest in the subject suit plot, and in absence of any right
to claim any ownership, the relief prayed in the suit could not have been
granted in favour of the plaintiff, which, in fact, was correctly not
granted by the Courts below.
6.2 It is further submitted that since the plaintiff sought for
declaratory relief and injunction, the Trial Court had appreciated the
evidence on record and having found that during the lifetime of the
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mother of the plaintiff and defendant No.1, Hiraben, transferred the suit
plot in favour of defendant No.1, and in fact, defendant No.2 - GIDC,
gave its no-objection in this regard, there is no error, much less any
gross error of law committed by the Trial Court while holding that
defendant No.1 became absolute owner of the suit plot in question.
6.3 Mr. Kapadia, learned advocate would further submit that as per
settled position of law, this Court cannot re-appreciate the evidence on
record, and even if there is an erroneous observation made by the Trial
Court, it cannot be gone into by this Court under Section 100 of the
CPC.
6.4 According to Mr. Kapadia, learned advocate, the plaintiff-
appellant is unable to show any perversity and/or any gross irregularity
committed by the Courts below while dismissing his suit and appeal
respectively; and in absence of any egregious error committed by the
Courts below, this Court should not entertain this Second Appeal.
7. No other and further submissions are being made by the learned
advocates for the respective parties.
8. Having heard learned advocates for the respective parties and
upon perusal of the impugned judgment and decree passed by the
Courts below, as well as the documentary evidence placed before me in
the form of paper-book submitted by the learned advocate for the
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plaintiff, it appears that this Second Appeal is filed against concurrent
findings of fact recorded by the Courts below against the plaintiff.
9. It is undisputed that the plaintiff has failed to bring on record any
material to show that he can have a claim over the subject suit plot in
any manner; rather it was observed by the Courts below that during the
lifetime of the plaintiff's mother, Hiraben, she transferred her interest in
the subject suit plot in favour of defendant No.1, and at the relevant
point of time, it was not objected to by the plaintiff. Even defendant
No.2 - GIDC, also gave its no-objection for such transfer, and
accordingly, way back in the year 2012, defendant No.1 became owner of
the subject suit plot.
10. Since the Trial Court as well as the Appellate Court have given
their findings of fact on the issues raised before them, without
burdening myself, I would like to quote relevant paragraphs of the
impugned judgment passed by the Appellate Court, which read thus: -
“17. Bare perusal of the record of the case, it is undisputed fact that
the mother of plaintiff and defendant No.1 was in in occupation
of the suit plot. Moreover, the defendant No.1 himself has
admitted in his cross-examination that the plaintiff is living in
the residential property situated on the eastern side and
defendant No.1 is living in the residential property situated on
the western side, which are constructed over the suit plot. On
reappreciating the document produced vide Exh.70- Deed of
Assignment, Exh.71- Letter of Undertaking, Exh.72 & 74 –
Undertaking and Exh.76- Supplementary Agreement, it clearly
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shows that Hiraben -mother of plaintiff and defendant No.1
alienated the suit property in favour of the defendant No.1
during her life tenure. Not only that, the defendant No.2, vide its
office order dated 20/11/2012 produced vide Exh.75,
transferred the suit plot in favour of the defendant No.1. It is
pertinent to note here that the plaintiff himself has signed the
documents produced vide Exh.70 to 75 as a witness of the
document. However, the plaintiff has not filed counter-affidavit
to rebut the facts of the said documents produced vide Exh.70 to
75. The plaintiff has also not disputed anywhere the thumb
impression of his mother over the said documents. It is also
undisputed fact that Hiraben has alienated the suit plot in
favour of the defendant No.1 during her life span. Since the
transfer of suit plot in favour of the defendant No.1 till the year
2016, the plaintiff has not disputed the said alienation by his
mother Hiraben. The plaintiff has heavily relied upon the
affidavit dated 06/07/2011 produced vide Exh.61 and submitted
that neither plaintiff nor any legal heirs of Hiraben have ever
waived their rights over the suit plot. At this juncture, it is
pertinent to note here that at the time of execution of affidavit
Exh.61, Hiraben was alive and was an independent owner of
the suit plot, and therefore, there is no question arisen to
transfer or alienate the suit plot to the legal heirs of said
Hiraben, and hence, the said document has no legal entity. The
suit plot transferred/alienated in the year 2012 in favour of the
defendant No.1 during the life tenure of Hiraben, and therefore,
the suit property cannot be said to be an ancestral property of
the plaintiff, but it is said to be a self acquired property of the
defendant No.1. As discussed above, the suit property is self
acquired property of the defendant No.1 and is an independent
owner of the suit plot, he has all rights over the suit property.
18. The plaintiff has contended in the suit that the cause of action
arisen when he has given objection application dated
13/08/2018 to the defendant for not transferring the suit plot
and the defendant vide letter dated 23/08/2018 replied to the
objection application that objection application cannot be taken
into consideration and defendants are trying to sell, transfer or
allot the suit plot, the cause of action has arisen. The letter
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dated 13/08/2018 of plaintiff is produced on record vide Exh.65
and the letter dated 23/08/2018 of the defendant produced on
record vide Exh.66. The letter Exh.65 written by the plaintiff to
the defendant No.2, whereas letter Exh.66 is the reply by the
defendant No.2 to the letter written by the plaintiff. The reply
Exh.66 contains the actual physical position of suit plot,
wherein nothing causing harm to the rights of plaintiff has been
mentioned and also not mentioned that the defendant No.2 has
tried to dispossess the plaintiff from the suit plot. The plaintiff
has also not produced any document, which shows that
defendant No.1 has tried to transfer or alienate the suit plot or
also tried to dispossess the plaintiff from the suit plot forcibly.
Thus, no cause of action arisen to file the suit. In view of the
above findings, the plaintiff failed to prove that he has
inheritance rights over the suit plot. On the other hand, the
defendant No.1 has proved that the suit property is self acquired
property and defendant No.1 is sole independent owner of the
suit plot. On overall reappreciating the evidence, it becomes
very clear that the disputed suit plot has been transferred in the
name of Hiraben by executing Supplementary Agreement
Exh.76 and order dated 19/03/2009 and Hiraben occupied the
disputed property, and therefore, Hiraben was the sole owner of
disputed plot. Now, considering the Exh.70, 71, 72, 74 and 76,
it becomes clear that Hiraben has transferred the suit plot in
the name of defendant No.1. Hiraben was the sole owner of the
suit plot, and therefore, the same cannot be said to be ancestral
property and plaintiff has no interest in the suit plot. Therefore,
in the disputed plot, the plaintiff has no inheritance rights. On
reappreciating overall documentary evidence, it becomes very
clear that the plaintiff was not sole owner of the suit plot, and
therefore, consent of plaintiff is not necessary. Thus, plaintiff
failed to prove his case by leading oral and documentary
evidence, and therefore, the plaintiff is not entitled to get relief
as prayed for.”
11. Having gone through the impugned judgment and decree passed
by the Courts below, and appreciating the submissions advanced by
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learned advocates for the respective parties, I am of the considered view
that there is no error, much less any gross error of law committed by the
Courts below while answering Issue Nos.1 and 2; rather, I am in
complete agreement with the view taken by the Courts below. When the
plaintiff was not able to show any right, title, or interest in the subject
suit plot, it would not lie in the mouth of the plaintiff to complain that
the Trial Court has committed any error by declaring defendant No.1 as
an owner of the suit plot by observing that defendant No.1 has self-
acquired the subject suit plot.
11.1 If any grievance could have been raised in regard to the
ownership of the suit plot, it would be the defendant No.2 - GIDC, who
at best could claim that the title of the subject plot belongs to GIDC and
possessory right with the defendant No.1; in those circumstances, this
Court might have examined that aspect. It is not in dispute that the
judgment and decree passed by the Trial Court was not carried by
defendant No.2 before the Appellate Court and/or before this Court.
12. At this stage, 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:
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“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)
13. Even, recently also, the Hon'ble Apex Court in the case of Russi
Fisheries (P) Ltd. (supra) , 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
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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)
14. In view of the foregoing discussion and reasons, I am of the
considered view that the finding of fact recorded by the Courts below are
neither perverse nor grossly erroneous.
15. Thus, in view of the foregoing conclusion, I do not find any merit in
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the present appeal, as no substantial questions of law are made out in
this Second Appeal. Accordingly, this Second Appeal is dismissed in
limine . The judgment and decree passed by the Courts below are hereby
confirmed. No order as to costs. The decree shall be drawn accordingly.
16. As a sequel, connected Civil Application would not survive and is
also disposed of.
(MAULIK J.SHELAT,J)
Lalji Desai
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