HEIRS OF DECD. THAKORBHAI ISHWARBHAI PATEL vs SIPAI KALUBHAI HUSSAINBHAI
- Court
- Gujarat High Court
C/SA/24/2025 JUDGMENT DATED: 27/10/2026
(GJHC240507822024)
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SECOND APPEAL NO. 24 of 2025
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE MAULIK J.SHELAT
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Approved for Reporting Yes No
√
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HEIRS OF DECD. THAKORBHAI ISHWARBHAI PATEL & ORS.
Versus
SIPAI KALUBHAI HUSSAINBHAI
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Appearance:
MR SJ NAIK FOR MR NK MAJMUDAR(430) for the Appellant(s) No.
1,1.1,1.2
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CORAM: HONOURABLE MR. JUSTICE MAULIK J.SHELAT
Date : 27/10/2026
JUDGMENT
1. Heard Mr.S.J.Naik, learned advocate for
Mr.N.K.Majmudar, learned advocate for the appellants.
2. The present appeal is filed under Section 100 of the
Code of Civil Procedure, 1908 (for short “ CPC ”) arising out of
the judgment and decree dated 30/04/2024 passed by the
Second Additional District Judge, Mehsana, in Regular Civil
Appeal No.58 of 2023, whereby it has confirmed the judgment
and decree dated 31/03/2023 passed by the learned Additional
Civil Judge, Kadi in Regular Civil Suit No. 280 of 2010. The
trial court dismissed the suit instituted by the predecessor of
appellants herein.
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3. The appellants herein are the legal heirs and
representative of the original plaintiff, and the respondent
herein is the original defendant. For the sake of brevity and
convenience, the parties will be referred to as plaintiff and
defendant respectively.
4. At the outset, it is required to be observed that this
Court, vide its order dated 01/05/2025, passed the following
order:
“Learned advocate for the appellants seek time to
produce the paper-book.
th
In view of the said fact, stand over to 20 June, 2025.”
5. Till date, the learned advocate for the appellants has not
supplied and submit a copy of the paper-book containing the
relevant documentary and oral evidence led by the parties.
6. Be that as it may, Mr.Naik, learned advocate appearing
for the appellants, is permitted by this Court to argue the
matter from the impugned judgment and decree and the
copies of the documents available on record.
SUBMISSIONS OF THE APPELLANTS:
7. Mr.Naik, learned advocate would submit that the
plaintiff is the holder of the registered agreement to sell
executed by the defendant in relation to the suit property, and
the suit was instituted seeking a declaration that by virtue of
the registered agreement to sell, the right, title and interest of
the plaintiffs accrued in the suit property whereby he has first
right to purchase it.
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7.1 Mr. Naik, learned advocate would submit that the courts
below have completely ignored the aspect of the registered
agreement to sell and arrived at a wrong conclusion that the
plaintiff is not entitled to the relief as sought in the suit. It is
submitted that both the courts below have committed a
serious error of law which requires to be corrected by this
Court while exercising its powers under Section 100 of the
CPC.
7.2 Mr. Naik, learned advocate would request this Court to
entertain this appeal on the substantial questions of law
proposed by the appellants, which are produced along with
the memo of the appeal.
ANALYSIS :
8. Having heard Mr.Naik, learned advocate for the
appellant at length, prima facie , this Second Appeal is filed
against the concurrent findings of fact recorded by the courts
below against the plaintiff who instituted a suit seeking a
declaration that by virtue of a registered agreement to sell
executed by the defendant in his favour in relation to the suit
land, there is a right, title and interest accrued in favour of
the plaintiff. According to me, the institution of the suit
seeking such a relief itself was not maintainable, inasmuch as,
as per Section 54 of the Transfer of Property Act, no right,
title or interest accrued in favour of the plaintiff on mere
execution of the registered agreement to sell by the
defendant. It is now well settled position of law that mere
execution of an agreement to sale would not confer any right,
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title and interest in favour of its holder in the immovable
property.
8.1 At this stage, it would be apt to refer to and rely upon the
decision of the Hon’ble Apex Court dated 07.01.2025 in a case
of Indian Overseas Bank vs. A.S. Subramanian passed in
Civil Appeal No. 282 & 283 of 2025 , wherein it held thus:
“[6] It is well settled that an agreement for sale in respect of
an immovable property does not transfer title in favour of the
purchaser under the agreement. In view of Section 54 of the
Transfer of Property Act, 1882, an agreement for sale does
not create any interest in the property. The only mode by
which an immovable property worth more than Rs.100/-
(Rupees one hundred) can be sold is by a sale deed duly
registered in accordance with the Indian Registration Act,
1908.”
(Emphasis supplied)
9. Since the plaintiffs did not seek any relief as regard to
performance of the agreement to sell, such aspect is not
required to be considered by this Court. Nonetheless, the
courts below appear to have examined that aspect and found
that the plaintiffs failed to perform their part of the
agreement.
10. According to me, when the principal prayer sought by
the plaintiff as regard the declaration that he is having right,
title or interest in the suit property because of the execution
of the registered agreement to sell itself cannot be granted in
law, the consequential relief sought also cannot be granted.
There is a concurrent findings of fact recorded by the courts
below and in the absence of any prayer sought by the
plaintiffs for specific performance of the registered agreement
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to sell in question, according to me, in view of the provisions
of Section 54 of the Transfer of Property Act read with Section
34 of the Specific Relief Act, 1963, the suit and appeal both
were correctly dismissed by the Courts below.
11. At this stage, it would be apt to refer to and rely upon
the following decisions of the Hon'ble Apex Court regarding
the scope and ambit of the power of this Court while
adjudicating the second appeal filed under Section 100 of
CPC.
11.1 In the case of Russi Fisheries (P) Ltd. vs. 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 they are 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 – (1981) 2 SCC 414 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
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Nair v. Bhaskar Pillai (Dead) by Lrs. - (2005) 10 SCC
553 , 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 – (1995) 6 SCC 213 , 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 – AIR 2001 SC 1273 , 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)
11.2 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 thus:
“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:-
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“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)
CONCLUSION :
12. In view of the foregoing discussion and reasons, I do not
find any merit in this appeal, inasmuch as no substantial
question of law emerges from the appeal, though proposed by
the appellants for consideration of this Court. Accordingly, the
present second appeal is dismissed. The judgement and
decree passed by the Courts below are hereby confirmed. No
order as to costs. The Decree shall be drawn accordingly.
(MAULIK J. SHELAT, J)
GAURAV J THAKER
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