C/SA/222/2022 CAV JUDGMENT DATED: 04/02/2026

Reserved On : 27/01/2026

Pronounced On : 04/02/2026

IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

R/SECOND APPEAL NO. 222 of 2022

With

CIVIL APPLICATION (FOR STAY) NO. 1 of 2022

In R/SECOND APPEAL NO. 222 of 2022

FOR APPROVAL AND SIGNATURE:

HONOURABLE MR. JUSTICE J. C. DOSHI

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Approved for Reporting Yes No

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HANSABEN W/O JIVAN BARIYA

Versus

SAKARBHAI RAMBHAI SOLANKI & ORS.

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Appearance:

MR. BHAUMIK DHOLARIYA(7009) for the Appellant(s) No. 1

MR TUSHARKUMAR R UPADHYAY(9812) for the Respondent(s) No. 1

MS SNEHA A JOSHI(2156) for the Respondent(s) No. 1

NOTICE SERVED for the Respondent(s) No. 2,3,4

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CORAM:HONOURABLE MR. JUSTICE J. C. DOSHI

CAV JUDGMENT

1.This second appeal u/s 100 of the Code of Civil

Procedure, 1908 (in short “the Code”) at the instance of the

original plaintiff challenges concurrent findings of fact arrived

at by the learned Courts below, whereby firstly, the learned

Addl. Senior Civil Judge, Una by judgment and decree dated

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3.4.2021 dismissed the suit. Regular Civil Appeal No.7 of

2021 filed by the appellant – plaintiff was also dismissed by

the learned 2

nd

Additional District Judge, Una by judgment

and decree dated 9.3.2022. Both the judgment and decree

have been questioned by the appellant – plaintiff inter alia

raising following questions as substantial questions of law.

“i. Whether the Court(s) below erred in holding

that registered deed / document is mandatory for

relinquishment / waiver of right?

ii. Whether in the facts and circumstances of the

case, while deciding the title of the property in the

civil suit, the Courts below erred in heavily relying

upon the Judgment passed by the High Court in

revenue entry proceedings?

iii.Whether the revenue entry of family

settlement / waiver of right has no evidentiary value?

Iv Whether in the facts and circumstances of the

case, the Court(s) below erred in holding that on

account of withdrawal of previous suit by the

Defendant No.2, the Defendant No.1 has no dispute

with respect to title of the suit land and therefore the

Plaintiff is not entitled to get the reliefs as prayed in

the plaint?

v. Whether the Court(s) below erred in holding

that the Plaintiff is not the bonafide purchaser of the

suit land?

vi. Whether the Id. Lower Appellate Court has

erred in not framing proper issues for determination

and has mechanically upheld the Judgment of Id. Trial

Court without appreciating the evidences on record

in its true perspective?”

2.For the sake of convenience and brevity, parties are

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referred to as per their original status before the learned trial

Court.

3.The factual matrix required notice in nutshell are that

the plaintiff filed suit for declaration and cancellation of sale

deed executed on 7.5.1990 registered at Sr No.556 by Rajiben

Jadav through her irrevocable power of attorney Vasantlal

Gokalbhai in favour of defendant No.1 Sakarbhai Solanki and

to declare that the plaintiff is the owner and occupier of the

land bearing survey No. 179/1 admeasuring 1 acre 3 guntha

of Tal: Una (in short “suit land”). The plaintiff ‘s case is based

on the fact that previously, the suit land was in name of

Rajiben. Defendant No.2 Valabhai Jadav is son of Rajiben. The

revenue entry was mutated in favour of Valabhai Jadav on

5.9.1975 being mutation entry No.672, which assigned the

title in favour of Valabhai Jadav, It is further the case of the

plaintiff that the plaintiff being bona fide purchaser of the suit

land purchased the same on 18.4.2009 by executing

registered sale deed No.1005 from defendant No.1 Valabhai

and on the premises of the said execution of the sale deed, the

plaintiff became the owner and occupier of the suit land.

3.1The aforesaid suit was tried by the learned trial Court,

who, after fixing the issues and permitting both the parties to

lead evidence, ultimately dismissed the suit by judgment and

decree impugned in this second appeal.

3.2Being aggrieved, the plaintiff preferred the Regular Civil

Appeal before the learned appellate Court. The learned

appellate Court after hearing both the parties dismissed the

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Regular Civil Appeal.

3.3Being further aggrieved, the plaintiff is before this Court.

4.I have heard learned advocate Mr. Bhaumik Dholariya

for the plaintiff and learned advocate Ms. Sneha Joshi for the

respondent No.1. Rest of the respondents though served, did

not remain present.

5.To swell up the questions of law framed by the plaintiff,

learned advocate Mr. Dholariya, referring to the judgment in

case of Subraya M.N. Vs. Vittala M.N. and others, (2016)

8 SCC 75, would submit that the promulgation entry of the

suit land and other parcels of land were mutated in the

revenue records in name of deceased Ahir Bai Sona Bhagvan

vide promulgation entry No.2 on 21.1.1951. He would further

submit that deceased Bai Sona gave the suit land and other

parcels of land to her daughter Rajiben, whereby two other

sisters namely, Chhavarben and Puniben relinquished their

right over the suit land and other parcels of land. Said fact is

recorded in Mutation Entry No.665 dated 27.6.2025. He

would further submit that likewise, Rajiben in her lifetime,

assigned the suit land and other parcels of land in favour of

her son Valabhai and entry No.672 is mutated in the revenue

records on 5.9.1975. He would further submit that this

mutation entry No.672 was pursuant to family settlement took

place between the parties. The family settlement since was to

ally the dispute between the parties has to be adhered to in its

true sense by the Court of law. He would further submit that

after 5.9.1975, vide mutation entry No.672, Valabhai Jadav

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became the absolute owner of the suit land. Thus, subsequent

thereto, Rajiben had no right or authority whatsoever in the

suit land to sell the same through power of attorney and

therefore, such sale has no legality value in the eyes of law.

5.1Learned advocate Mr. Dholariya would further submit

that the learned Courts below failed to consider this issue

being survived on the ground that revenue entry mutated in

favour of defendant No.1 pursuant to the registered sale deed

executed by Rajiben has been approved by this Court in writ

proceedings. He would further submit that revenue

entries/mutation entries admittedly are for fiscal purpose.

Revenue entry/mutation entry does not create nor extinguish

title. It is only civil Court which has authority to decide the

title of the immovable property and the revenue authority has

to follow the decision of the civil Court.

5.2Stretching argument further, learned advocate Mr.

Dholariya would submit that in view of above, since the year

1975, the suit land stands in name of defendants Valabhai

Jadav, Rajiben, who has relinquished her right from the suit

land and thus, she had no whatsoever right, authority or title

to execute sale deed. This aspect has been totally ignored by

the learned Courts below.

5.3Lengthening the argument further, learned advocate Mr.

Dholariya would submit that the learned appellate Court erred

in considering that the registered deed or document is

mandatory requirement of the right as well as failed to

consider the evidentiary value of the revenue entry decided

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since 1975 in favour of the plaintiff and further failed to mark

that the plaintiff is a bona fide purchaser of the suit land.

5.4Upon above submissions, learned advocate Mr.

Dholariya requests the Court to admit the second appeal on

the aforestated substantial questions of law or any other

substantial questions of law as this Court deems fit and proper.

6.In contrast, learned advocate Ms. Sneha Joshi supports

the concurrent findings of fact of the learned Courts below

and assails the questions of law framed by the plaintiff by

arguing that these questions are questions of fact and not the

questions of law. She would further submit that the

jurisdiction of this Court u/s 100 of the Code is limited to

examine whether the substantial question of law exists or not.

The findings of fact given by the learned Courts below if are

on no evidence or on misrepresentation of the evidence, then

this Court certainly can entertain the second appeal, but

otherwise, the Court cannot disturb the concurrent findings of

fact arrived at by the learned Courts below.

6.1Learned advocate Ms. Sneha Joshi would further submit

that entry No.672 does not confer title in favour of Vala Jadav.

She would further submit that it is not a relinquishment by

Rajiben, but it is conveyance or assignment, whereby,

according to entry No.672, Rajiben conveyed property to Vala

Jadav, who had no pre-existing right in the suit land. She

would further submit that Rajiben received the suit land from

her maternal side and therefore, u/s 14 and 15 of the Hindu

Succession Act, the Rajiben became absolute owner of the suit

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land and her son cannot claim any right in the immovable

property until the immovable property is conveyed by way of

instrument recognized by law. Mere revenue entry would be

insufficient to convey the title. She would further submit that

the learned Courts below have discussed this issue at length

and breath. Therefore, present second appeal being an

attempt to convert dispute in third trial is not maintainable.

6.2Upon above submissions, learned advocate Ms. Sneha

Joshi requests the Court to dismiss the second appeal at

threshold.

7.I have heard learned advocates for both the sides and

perused the paper book, along with record and proceedings,

as well as the judgment and decree impugned in the second

appeal.

8.Learned trial court fixed the issue at Exh. 29, which

reads as under:-

“1). Whether the plaintiff proves that he has

purchased the suit property from deft.no.1 by

registered sale. deed ?

2). Whether the plaintiff proves that he become

owner and occupier of suit property by virtue of regd.

sale deed по.1005 dt. 18/04/09 ? of

3) Whether the plaintiff proves that he is a bonafide

purchaser of suit property ?

4) Whether the plaintiff proves that sale deed no.556

of dated 07/05/1990 is false, bogus and null and

void ?

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5) Whether the plaintiff is entitled to get the relief as

prayed for ?

6.) What order and decree ?”

8.1Issue No. 1 is answered in affirmative, whereas rest of

the issues are in negative and suit was dismissed as answer of

issue No.6.

9.It is noticeable that the plaintiff, who has propogated

theory of family settlement, did not plead a whisper of word in

the pleadings that revenue entry No.672 was mutated

pursuant to the family settlement between the parties. In

absence of the pleadings, no issue is framed qua and

obviously, no evidence to that effect was led. The theory is

propagated first time in second appeal with a view to come

out from the operation of the impugned judgment and decree.

Nonetheless, the family settlement must be between the

parties and not between family members and not mother and

son. Raising of the issue first time in second appeal duly

related to facts of the case is totally impermissible.

10.Learned advocate, Mr. Dholariya, was put to question

that whether defendant No.2 has obtained any share pursuant

to any family settlement ever took place. He was not in a

position to answer this question, as there is no document

produced on record to show that at any point of time, the

family settlement was taken place and was reduced in writing

between the parties and subsequently acted upon. Thus,

theory of family settlement argued by learned advocate Mr.

Dholariya is deceptive and proved to be fictitious and dummy.

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The entire case of the plaintiff is based upon revenue entry

No.672. It is between Rajiben and Vala Jadav, where mother

conveyed/assigned the title of the suit land in favour of Vala

Jadav.

11.Section 5 of the transfer of property act defines transfer

of property; section 6 defines what may be transfer; section 8

defines operation of transfer. Reading harmoniously all these

provisions along with section 54 of the transfer of property

Act, it indicates that instrument is required, and if value of the

involved property is more than Rs.100/-, it requires

registration as per section 17 of the Registration Act to

convey the title from one person to another person.

12.The copy, upon which the plaintiff relied upon to claim

title of the suit land i.e. by way of mutating entry by mother in

favour of without registering any instrument, is not

recognized copy of transfer under law. By revenue entry

No.672, the defendant Vala Jadav did not get any title in his

favour, as the revenue entry apparently are for the fiscal

purpose except in case otherwise is proved.

13.In case of Sawarni Versus Inder Kaur, 1996 (6) SCC

223, the Hon’ble Apex Court held that mutation of name in

the revenue records does not create or extinguish title nor has

it any presumptive value on title. It only enables the person in

whose favour mutation is ordered to pay the land revenue.

14.The aforestated ratio has been reiterated by the Hon’ble

Apex Court in case of Balwant Singh Versus Daulat Singh,

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1997 (7) SCC 137 , wherein it is held that mutation of entry

in revenue records neither creates nor extinguishes title to

the property nor has it any presumptive value on title.

15.In the present case, the plaintiff, except revenue entry

No.672 dated 5

th

September 1975 failed to establish that

defendant No.2 Vala Jadav was holding any title in the suit

land. In view of above settled legal position, the revenue

entry by itself, does not create title or even presumption to

the title.

16.Another aspect is noticeable that Rajiben through her

power of attorney executed sale deed in the year 1990,

precisely on 7th May 1990 vide Sr No.556 in favour of

defendant No.1 and revenue entry to that effect was mutated

in the revenue records. This Court in SCA No.9254 of 2009, by

judgment dated 3

rd

November 2009, noted that there is no

dispute in regards to title exist between the parties and

further noted that the revenue authority is bound to post

revenue entry pursuant to the registration and execution of

the sale deed. In para 9, the Coordinate Bench of this Court

observed as under:-

“9. In view of the aforesaid facts, the present petition

is required to be considered. As per the decision

rendered by this Court in the case of Jhaverbhai

Savjibhai Patel Thro' POA Holder Ashok J. Patel

(Supra) entry posted on the basis of the registered

sale deed is required to be reflected in the revenue

record. As held by learned Single Judge in the case of

Agricultural Produce Market Committee, Khambhat

(Supra), once there is a right acquired in the

property by a registered document, it must be

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reflected in the revenue record unless the objector

contends that the sale deed is bogus or not executed

at all or the executor of the sale deed was lacking

inherent jurisdiction or authority to execute the sale-

deed. In the present case, such is not the situation as

Civil Suit filed by respondent No.5 against the

petitioner has been withdrawn and there is no

dispute now pending with respect to title of the

petitioner and challenging the sale deed in favour of

the petitioner. Therefore, it was required for the

revenue authority to mutate the name of the

petitioner on the basis of the registered sale deed.

The Collector, Junagadh as well as the Secretary

(Appeals), Revenue Department, State of Gujarat has

materially erred in cancelling the mutation entry

No.998, which was in favour of the petitioner on the

basis of the registered sale deed and in quashing and

setting aside the order passed by the Deputy

Collector, Veraval. Under the circumstances and

considering the aforesaid two decisions of this Court,

the present petition deserves to be allowed and the

order passed by the Collector, Junagadh as well as

the Secretary (Appeals), Revenue Department, State

of Gujarat cancelling the mutation entry No.998,

which was in favour of the petitioner, are required to

be quashed and set aside and the order passed by

the Deputy Collector, Veraval dated 26/09/2005

deserves to be restored.”

17.Thus the revenue entry in name of purchaser i.e.

defendant No.1 was posted thereon and it was within the

knowledge of defendant No.2 Vala Jadav. Vala Jadav initially

filed a suit in a civil court, Una, but then withdrew it without

reserving any right /liberty or without giving any reason, in

other words, has conditionally withdrawn the suit and thus,

revenue entry No.998, which was posted pursuant to the

order passed by this Court, is thus confirmed. The sale deed in

favour of the plaintiff was executed on 18th April 2009 by Vala

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Jadav. There is yawning gap in the execution of the sale deed

by Rajiben Jadav through her power of attorney in the year

1990 and another one is in 2009 by Vala Jadav in favour of the

plaintiff. Thus, it is evident that the plaintiff having seen

revenue entry No.672 has taken a chance and got executed

sale deed with a view to disturb the title of the suit land in

favour of the defendant No.1. It is a speculative litigation and

filed with a view to grab the land. The title of the suit land

changed in the year 2009 when Rajiben executed sale deed

precisely on 7.5.1990. The revenue entry mutated pursuant to

the registered sale deed has been confirmed by this Court in

the order of the SCA. Thus, when sale deed was executed in

2009 by Vala Jadav in favour of the plaintiff, Vala Jadav was

not holding any title or interest in the immovable property and

therefore, he had no right to transfer the suit land in favour of

the plaintiff. It is famous principle that a person cannot

transfer immovable property which he does not possess on the

date of executing sale deed and recipient or purchaser cannot

get better title than title of seller.

18.Once Vala Jadav predecessor in title of the plaintiff has

withdrawn the suit from the civil Court, the plaintiff has no

locus to file any civil litigation. Principle of estoppel squarely

applies. The plaintiff, thus, is stated to have taken chance by

got executing sale deed from Vala Jadav without noticing the

fact that at the same time, Vala Jadav was holding just a

revenue entry of the suit land in his favour. The title of this

suit land was transferred in 1999 by Raji Jadav through her

power of attorney in favour of defendant No.1 and thus, in the

year 2009, Vala Jadav was not holding any legal title. Qua suit

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land and thus the sale deed, which the plaintiff claims to be an

instrument of transferring title, is just an eye wash and

remains as piece of paper.

19.It is also to be borne in mind that the concurrent

findings of the learned court below have been challenged in

this appeal. The scope of second appeal has been specifically

discussed by the Hon’ble Apex Court along with the findings

that what are the substantial question of law.

20.Recently, the Hon’ble Apex Court in the case of

Jaichand (dead) through LRs v. Sahanulal, 2024 INSC

996 with regard to what could be considered a substantial

question of law and what is the scope of a second appeal, in

para 23 to 31 read as under:-

“23. We are thoroughly disappointed with the manner in

which the High Court framed the so-called substantial

question of law. By any stretch of imagination, it cannot

be termed even a question of law far from being a

substantial question of law. How many times the Apex

Court should keep explaining the scope of a second

appeal under Section 100 of the CPC and how a

substantial question of law should be framed? We may

once again explain the well-settled principles governing

the scope of a second appeal under Section 100 of the

CPC.

24. In Navaneethammal v. Arjuna Chetty reported in

AIR 1996 S.C. 3521, it was held by this Court that the

High Court should not reappreciate the evidence to

reach another possible view in order to set aside the

findings of fact arrived at by the first appellate Court.

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

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satisfied that the case involves a substantial question of

law and not mere question of law.

26. In Dnyanoba Bhaurao Shemade v. Maroti

Bhaurao Marnor reported in 1999 (2) S.C.C. 471,

this Court held:-

Keeping in view the amendment made in 1976, the High

Court can exercise its jurisdiction under Section 100,

C.P.C. only on the basis of substantial questions of law

which are to be framed at the time of admission of the

Second Appeal and the Second Appeal has to be heard

and decided only on the basis of such duly framed

substantial questions of law. A judgment rendered by the

High Court under Section 100 C.P.C. without following

the aforesaid procedure cannot be sustained.

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.

29. The High Court in the Second Appeal can interfere

with the findings of the trial Court on the ground of

failure on the part of the trial as well as the first

appellate Court, as the case may be, when such findings

are either recorded without proper construction of the

documents or failure to follow the decisions of this Court

and acted on assumption not supported by evidence.

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Under Section 103, C.P.C, the High Court has got power

to determine the issue of fact. The Section lays down:-

Power of High Court to determine issue of fact: In any

Second Appeal, the High Court may, if the evidence on

the record is sufficient to determine any issue necessary

for the disposal of the appeal,-

(a) Which has not been determined by the lower

Appellate Court or both by the Court of first instance

and the lower Appellate Court, or

(b) Which has been wrongly determined by such Court

or Courts by reason of a decision on such question of law

as is referred to in Section 100.

30. In Bhagwan Sharma v. Bani Ghosh reported in

AIR 1993 S.C. 398 , this Court held:-

The High Court was certainly entitled to go into the

question as to whether the findings of fact recorded by

the first appellate court which was the final court of fact

were vitiated in the eye of law on account of non-

consideration of admissible evidence of vital nature. But,

after setting aside the findings of fact on that ground the

Court had either to remand the matter to the first

appellate Court for a rehearing of the first appeal and

decision in accordance with law after taking into

consideration the entire relevant evidence on the

records, or in the alternative to decide the case finally in

accordance with the provisions of Section 103(b). If in

an appropriate case the High Court decides to follow the

second course, it must hear the parties fully with

reference to the entire evidence on the records relevant

to the issue in question and this is possible if only a

proper paper book is prepared for hearing of facts and

notice is given to the parties. The grounds which may be

available in support of a plea that the finding of fact by

the court below is vitiated in law does not by itself lead

to the further conclusion that a contrary finding has to

be finally arrived at on the disputed issue. On a

reappraisal of the entire evidence the ultimate

conclusion may go in favour of either party and it cannot

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be prejudged.

31. In the case of Hero Vinoth v. Seshammal

reported in (2006) 5 SCC 545 this Court explained

the concept in the following words:

It must be tested whether the question is of general

public importance or whether it directly and

substantially affects the rights of the parties.

Or whether it is not finally decided, or not free from

difficulty or calls for discussion of alternative views.”

21.In the aforesaid circumstances, the appeal fails to bring

any substantial question of law. It is found to be ‘third trial’ on

facts and ‘one more dice in the gamble’, as held by the Apex

Court in the case of Gurdev Kaur & Ors. v. Kaki & Ors. ,

reported in (2007) 1 SCC 546 of the Supreme Court, wherein it

is observed that:-

“The legislative intention was very clear that legislature

never wanted second appeal to become ‘third trial on facts’

or ‘one more dice in the gamble’.”

22.Applying the aforesaid ratio to the facts of the present

case, no case is made out for admission of the second appeal.

23.Accordingly, second appeal fails and stands dismissed at

admission stage. Notice discharged.

24.Consequently, CA does not survive and stands disposed

of accordingly. Notice discharged.

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Registry is directed to return back the R & P, if any, to the

concerned Court forthwith.

(J. C. DOSHI,J)

SHEKHAR P. BARVE

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