Gujarat High Court

Vinodbhai Bhikhabhai Patel vs Shantaben Khushalbhai Patel on 23 September, 2022

C/SA/365/2019 JUDGMENT DATED: 23/09/2022

IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

R/SECOND APPEAL NO. 365 of 2019
With
CIVIL APPLICATION (FOR STAY) NO. 1 of 2019
In
R/SECOND APPEAL NO. 365 of 2019
With
CIVIL APPLICATION (FOR STAY) NO. 3 of 2021
In
R/SECOND APPEAL NO. 365 of 2019

FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE HEMANT M. PRACHCHHAK
=======================================
1 Whether Reporters of Local Papers may be Yes
allowed to see the judgment ?

2 To be referred to the Reporter or not ? Yes

3 Whether their Lordships wish to see the fair No
copy of the judgment ?

4 Whether this case involves a substantial No
question of law as to the interpretation of the
Constitution of India or any order made
thereunder ?

=======================================
VINODBHAI BHIKHABHAI PATEL
Versus
SHANTABEN KHUSHALBHAI PATEL
=======================================
Appearance:
MR MEHUL SHAH, SENIOR COUNSEL WITH MR NK
MAJMUDAR(430) for the Appellants
MR MIHIR THAKORE SENIOR COUNSEL WITH MS MEGHA
JANI(1028) for the Respondents
=======================================

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CORAM:HONOURABLE MR. JUSTICE HEMANT M.
PRACHCHHAK

Date : 23/09/2022

ORAL JUDGMENT

1. Feeling aggrieved and dissatisfied by the impugned

judgment and order dated 04.04.2019 passed by the learned

Additional District Judge, Vadodara in Regular Civil Appeal No.43

of 2008 confirming the judgment and decree dated 30.09.1994

passed by the learned 4th Additional Civil Judge (S.D.), Vadodara

in Special Civil Suit No.536 of 1982. The appellants herein are

the original defendants and the respondents herein are the

original plaintiffs.

2. The appeal is pending since 2019 for admission and no

questions of law are yet to be framed and, therefore, the learned

counsel appearing for the respective parties press for final

hearing and disposal of the appeal. Therefore, with the consent

of learned counsel appearing for the respective parties, the

present appeal is taken up for final hearing.

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3. Brief facts of the present case are as under:-

3.1 That the original plaintiff - Khushalbhai Chhotabhai Patel

filed Special Civil Suit No.536 of 1982 seeking division and/or

partition of ancestral property and to handover the legal

possession of the suit property. The plaintiff, defendant no.1 and

deceased Umedbhai Chhotabhai Patel are the real brothers.

Chhotabhai Amdubhai Patel was holding various agricultural

lands and property in Village: Bhayali. That after the death of

Chhotabhai, one Lambha Lekh (family settlement) dated

27.03.1950 was executed between the mother - Jivaben and

three brothers and the property was divided as per the Lambha

Lekh. The deceased Umedbhai had executed a registered sale

deed on 10.05.1961 and accordingly he became the owner and

came into possession of the share, which belonged to deceased

Umedbhai. In the said Lambha Lekh, the brothers and mother -

Jivaben had made arrangement for maintenance of the mother

and after the death of Jivaben, the share of the mother was

divided between all the brothers. The defendant no.1 filed a

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revenue case before the Revenue Authority claiming to be the

tenant of the suit property, which had come into the share of the

plaintiff and deceased Umedbhai. The claim of the defendant

was rejected and revenue proceedings culminated in favour of

the plaintiff. The division of the agricultural property had not

taken place and defendant no.1 used to raise dispute including

criminal case and restrained the plaintiff in cultivating the land

which had come into his share and this had caused to file the

suit. The original plaintiff filed Special Civil Suit No.536 of 1982

for division / partition of the ancestral property and for

permanent injunction before the Civil Court, Senior Division,

Vadodara (hereinafter be referred to as the "Trial Court").

3.2 The Trial Court having regard to the pleadings of the

parties framed the following issues vide Exhibit 161.

(1) Whether the plaintiff proves that after the death of
Chhotabhai, the property of the Chhotabhai was
divided between Jivaben, Umedbhai, plaintiff and
defendant No.1 as per Lambha Lekh dated
27.03.1950 as alleged?

(2) Whether the plaintiff proves that he has got 2/3 share
in the H.U.F. property as alleged?

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(3) Whether the plaintiff proves that the suit is barred
under law of limitation?

(4) Whether the defendants prove that they have
become the owners by adverse possession?

(5) Whether the suit is bad for misjoinder of the parties?
(6) Whether the plaintiff is entitled for getting the
possession of the suit property as described in plaint
at para 11(1)?

(7) Whether the plaintiff is entitled to claim relief as
prayed?

(8) What order and decree?

3.3 The issues framed by the Trial Court referred to above

came to be answered as under:-

(1) In the negative;

(2) In the affirmative:

(3) In the negative;

(4) In the negative;

(5) In the negative;

(6) In the affirmative;

(7) In the affirmative;

(8) As per final order;

3.4 The Trial Court, on appreciation of the oral as well as

documentary evidence on record, decreed the suit with cost and

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the defendants were ordered to handover the suit property as

prayed in para-11 of the plaint within six months and if the

defendants fail to comply with an order they will be at liberty to

ask for the further relief for the appointment of the Court

Commissioner regarding the compliance after the completion of

six months. Further, regarding relief of mense profit, the Trial

Court dismissed the same.

3.5 The Trial Court, while deciding the suit, has observed in

paragraphs no.6, 7 and 8 as under:-

"6. As far as the issue no.1 is concerned, the burden of
proof lies on the plaintiff to prove it that HUF property is
belonging to Chhotabhai Amthabhai divided between the
brothers as per Lambha Lekh dated 27.03.1950. As per the
say of the plaintiff, his father was expired before long time
and widow of deceased Chhotabhai Amthabhai is Jiviben
who is known as Jibaben and he has divided the suit
property as per Lambha Lekh dated 27.03.1950. The
Lambha Lekh is produced and proved at Exh.31 and
looking to the Lambha Lekh, it appears that the property is
divided but the said Lambha Lekh is not registered and
looking to the Lambha Lekh, it appears that the property is
an agricultural land and it belongs to S.No.648, 168 and
171/1 and other are fragment land and the provisions of
the Fragmentation law is applicable as agricultural land is

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divided into various parts and the parts have gone to three
brothers. Looking to the entire record of this matter, it
appears to me that no doubt, the Lambha Lekh is executed
but no action has taken place pertaining to the division of
the property as per Lambha Lekh and has not been divided
as Lambha Lekh hence issue no.1 in negative.

7. As far as issue no.2 is concerned, there is no dispute
between the parties that the plaintiff and deceased
Bhikhabhai was real brothers and defendant nos.2 to 5 are
legal heirs of deceased Bhikhabhai and they have got the
interest in the property of their father. As the plaintiff has
purchased the property from Umedbhai it was purchased
by the plaintiff which can be seen at Exh.84. Hence, the
plaintiff has become the owner of 2/3 share of the property
and his mother was expired hence by Hindu Succession
right, the plaintiff is getting 1/2 share of the property of
the deceased mother Jiviben. Moreover, defendant no.1
had raised some dispute pertaining to the said property
which was dismissed by the Revenue Officer, regarding the
contention as to a tenant. The deposition of the defendant
in revenue proceedings is produced at Exh.90 wherein the
defendant has admitted that the plaintiff has got 2/3 right
in the suit property hence reply of issue no.2 comes in
affirmative. Moreover, the suit property is belonging to the
ancestral one and there is no dispute between the parties.
Moreover, in the written statement also, the defendant
never contended that the suit property is not an ancestral
one. The defendant is examined at Exh.122 wherein the
defendant has agreed that property No.171/1, 1156,
1628/2 and 1686 are belonging to Chhotabhai Amthabhai.

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Moreover, it is admitted that the house No.550 was
purchased by Chhotabhai Amthabhai hence one thing is
crystal clear that the entire suit property was belonging to
ancestral one hence I have no hesitation in quote here that
the suit property is belonging to the Hindu Undivided
Property and as per the division made in the Lambha Lekh
dated 27.03.1950 some property had gone in the part of
the plaintiff, defendant and deceased Umedbhai and as per
the sale deed as proved by the plaintiff, the plaintiff has
purchased the property which has gone to Umedbhai and
more particularly after the death of mother Jiba 1/2
property have gone in the favour of the plaintiff hence the
plaintiff has got 2/3 part of the share of the entire suit
property as described in the Lambha Lekh hence reply of
issue no.2 comes in affirmative.

As far as issue no.3 is concerned, the defendant has raised
a contention regarding the provision of the
Limitation Act
,
as suit is barred under law of limitation. For that purpose
one thing can be seen that no doubt, that the Lambha Lekh
is not registered but as per the execution of the Lambha
Lekh, all the parties were having the possession of the
properties regarding the averments made in the Lambha
Lekh and whatever, the property had gone in favour of all
brothers and mother they were enjoying the property but
the dispute had raised in the year 1982. The defendant
no.1 quarreled with the plaintiff and fractured was also
made to the plaintiff and defendant no.1 was convicted by
the Court of law and it can be seen that in the year 1982,
the defendant no.1 has taken the possession of the
property hence one thing is crystal clear to note that on

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13.06.1982, the defendant no.1 had taken the possession.
One another thing can be noted from Exh.37 to 42 utara
which can be seen that property had gone in favour of the
plaintiff and a possession has been cited separately and
agricultural right is also cited in 7/12 utara. In the year
1982 the plaintiff was having the possession of the two
lands in supporting their contentions they had proved and
produced a revenue receipt at mark 61 to 82 which are
belonging for the year 1982-83 which can be presumed
that the plaintiff was cultivating the suit land. Moreover,
the plaintiff was pleased to sell the cotton to the Varnama
Group Society which is in the year 1982 hence one thing is
crystal clear to note that the plaintiff was having the
possession of the suit property till 1982. Moreover, the
plaintiff has produced a tax assessment, copy of it
produced at Exh.96 which year of 1981-82 the property
was running in the name of the plaintiff. The plaintiff has
paid which can be seen by receipt at Exh.62 & 63 hence
there is no hesitation to hold that the plaintiff was having
the possession of the suit property right from Lambha Lekh
to 1982. While in the written statement, the defendant has
raised the contention that the plaintiff has got monetary
right but nothing has been proved in deposition and by the
documentary evidence. Moreover, no documentary
evidence is proved by the plaintiff that he has right over
the suit property from 1950 hence the provision of the law
of limitation proved in this case hence the suit was filed in
the year 1982, in the year 1982 the plaintiff dispossessed
by the defendant. Hence this issue is not proved by the
defendant. Hence, issue nos.3 & 4 come in negative.

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8. As far as issue no.5 is concerned, the defendant no.2
to 5 have been joined as a defendant they are the legal
heirs of defendant no.1. To avoid the technicalities and at
the time of handing over the possession of legal heirs may
put some hurdles hence the plaintiff was pleased to join
them as defendant hence the present suit is not bad for
misjoinder of the parties. One thing is crystal clear that as
far as the suit property is concerned, the present suit is not
barred by law of limitation as well as adverse possession.
Moreover, the provision of the Fragmentation Act is not
applicable in this matter. Moreover, it is proved that the
present plaintiff was having the possession over the suit
property right from 1952 to 1982 hence the plaintiff is
entitled to claim the relief as prayed. The plaintiff's L.A.
Mr.Y. M. Pandya produced the case of Girijanandini Devi
Vs. Bijendra Narain Choudhary, AIR 1967 SC 1124 wherein
the provision of the Hindu law is provided that it is held
that the rights of the coparceners are defined when there
is partition. Partition consists in defining the share of the
coparceners in the joint property actual division of the
property by metes and bounds is not necessary to
constitute partition. Once the shares are defined, whether
by agreement between the parties or otherwise, partition
is complete. Mr. Pandya argued before me that Lambha
Lekh is proved it is not necessary that as per the Lambha
Lekh the possession was handed over. But one thing is
crystal clear to note that the partition of the suit property
has really taken place. As far as relief prayed at para 7, 8
are concerned, it is held that the plaintiff is entitled to get
the relief."

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3.6 Being aggrieved and dissatisfied with the impugned

judgment and decree passed by the Trial Court, the original

defendants preferred Regular Civil Appeal No.43 of 2008 before

the District Court, Vadodara [hereinafter referred to as the "first

Appellate Court"] wherein the First Appellate Court framed the

following issues at Exhibit 161.

(1) Whether the Trial Court committed error in
concluding that the plaintiff / opponent has 2/3rd
share in the H.U.F. property as alleged?

(2) Whether the the Trial court committed error in
rejecting the plea of adverse possession raised by the
appellant / defendant?

(3) Whether the Trial Court committed any error in
concluding that the suit is within the period of
limitation?

(4) Whether the Trial Court committed any error in
passing order to the effect that the plaintiff shall be at
liberty to ask for appointment of Court commissioner
regarding the compliance, though Sec.54 of the Civil
Procedure Code provides partition of estate or
separate of share on the basis of decree shall be
made by Collector or any Subordinate Officer of the
Collector?

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(5) Whether the judgment and decree passed by the Trial
Court is erroneous, illegal and without appreciation of
evidence are required any interference?

3.7 The points determined by the first Appellate Court referred

to above came to be answered as under:-

(1) In negative;
(2) In negative;
(3) In negative;
(4) Partly in affirmative;
(5) In negative;

3.8 The first Appellate Court, while deciding the appeal, has

observed in paragraphs no.14.1, 14.2, 15, 16, 17, 20, 21, 23, 24,

25, 26, 27 and 28 as under:-

"14.1 The trial Court has recorded in the impugned
judgment that, there is no dispute between the parties
pertaining to Lambha Lekh in the year 1950. The Lambha
Lekh is produced and proved vide Ex.31. The Trial Court
answered issue No.1 with regard to division of suit property
on the basis of Lambha Lekh dated 27.3.1950, in Negative.
However the Trial Court has recorded that, the Lambha
Lekh is produced and proved at Ex.31 and looking to the
Lambha Lekh it appears that, the property is divided but
Lambha Lekh is not registered, and land is agricultural land

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and answers issue No.1 in negative but further records
that, the Lambha Lekh is executed but no action pertaining
to division of property as per Lambha Lekh has taken
place.

14.2 Under these circumstances, this Court is required to
consider as to whether there was execution of Lambha
Lekh and whether the parties had decided to divide the
share as per Lambha Lekh or not ? As per Lambha Lekh
(Ex.31), all the three sons of Chhotabhai Patel i.e.
Umedbhai Patel, Bhikhabhai Patel and Khushalbhai Patel
decided to distribute suit property which is recorded in
Lambha Lekh. It is stated that, Umedbhai will get the
property as per condition No.1, Bhikhabhai will get
property as per condition No.2 and Khushalbhai will get
property as per condition No.3 and it is also recorded that,
rest of the property remains undistributed and is kept for
the maintenance of their mother and after the death of
their mother, the property would be divided equally
amongst the three brothers. The Lambha Lekh is signed by
Umedbhai Patel, Bhikhabhai Patel and Khushalbhai Patel.
The Ld. Trial Court has specifically recorded that the
Lambha Lekh is proved. This Court records its concurrence
with the findings of the Trial Court. The fact with regard to
the execution of Lambha Lekh, each brother agreed 1/3rd
share in suit property, is not only proved as recorded
herein above, but also considering the subsequent
proceedings which were initiated between the brothers,
more particularly by defendant Bhikhabhai Chhotabhai
Patel.

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15. Ex.84 is the copy of registered sale deed executed by
Umedbhai Chhotabhai Patel in favour of Khushalbhai
Chhotabhai Patel (Plaintiff). Description of the property in
the above registered sale deed describes the property as
agricultural land bearing Survey No.172 and named
"Dibatiyu", ad-measuring 5.5 Vigha, agricultural land
bearing Survey No.648 and named "Ankoliyu",
admeasuring 5.5 Vigha and one house in village Bhaiyali. It
also appears from this sale deed that, Umedbhai had 1/3rd
share as similarly recorded in Lambha Lekh dated
27.03.1950 in condition No.1 of the said Lambha Lekh. By
the said registered sale deed the fact with regard to
division of share i.e. 1/3rd share of each brother stands
concluded from the Lambha Lekh as well as from the
registered sale deed executed by Umedbhai Patel. This fact
is further fortified considering the judgment and decree
recorded below RCS No.67/1963, which was filed by
deceased - Umedbhai Chhotabhai Patel against plaintiff -
Khushalbhai Chhotabhai Patel. The suit was filed by
Umedbhai Chhotabhai Patel against Khushalbhai
Chhotabhai Patel seeking cancellation of sale deed dated
10.5.1961 and the said suit was dismissed. Against this
Judgment and Decree, deceased - Umedbhai Chhotabhai
Patel had preferred Civil Appeal No.112/1966 and the said
appeal was dismissed with cost vide order dated 8.8.1967
by the 2nd Extra Assistant Judge, Baroda. The copy of
Judgment and order dated 8.8.1967 recorded below Civil
Appeal No.112/66 is produced vide Ex.87. Nothing is
brought on record as to whether there were further
challenge to the order passed in above referred appeal and
the said decision has attained finality, meaning thereby to

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believe that, the plaintiff Khushal Chhotabhai had
purchased share of Umedbhai by way of registered sale
deed as established from the above referred two decisions
of the Civil Court as well as Appellate Court which were
preferred by Deceased Umedhai Chhotabhai Patel.

15.1 The fact with regard to each brother had 1/3rd suit
property is not only proved from above referred discussion,
but is further emerging from the very proceedings initiated
by Bhikhabhai Chhotabhai Patel (Appellant/ Defendant).
Ex.89 is a copy of order dated 8.10.1976 passed by the
Mamlatdar and ALT, Vadodara, in Case No.1781/1975
wherein Bhikhabhai had claimed that he holds possession
of his 1/3rd share and the opponent Khushal and Umedbhai
holds 2/3rd Share and Bhikhabhai had claimed relief to
declare him as tenant of the 2/3rd share which belonged to
Khushalbhai and Umedbhai. The claim of Bhikhabhai with
regard to tenancy is rejected by the Mamlatdar's Order
dated 8.10.1976 (Ex.89).

16. Ex.90 is the copy of deposition of Bhikhabhai
Chhotabhai Patel recorded in proceedings U/s.70B of the
Tenancy Act. On reading deposition of the Bhikhabhai
Chhotabhai Patel, he has stated that, opponents are his
real brothers and he is cultivating 2/3rd share which
belongs to his two brothers. Thus admission on the part of
Bhikhabhai makes it clear and prove that, there were three
brothers having equal share i.e. 1/3rd share in the said
property. He has also stated that, the property is divided
and shares are divided separately amongst three brothers.
He has admitted that, the names of his brothers are

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recorded in the Revenue Records. He has also admitted
that, 1/3rd share is recorded in his name and 2/3rd share is
recorded in the name of opponent No.1 i.e. in the name of
plaintiff Khushalbhai. This deposition is recorded on
3.2.1976 in proceedings before the additional Mamlatdar
under the
Tenancy Act
.

17. Ex.91 is the copy of RCS No.1780/1981, which was
preferred by Bhikhabhai Chhotabhai Patel (Appellant /
Defendant) against Khushalbhai C. Patel (Plaintiff/
Opponent), wherein the Additional Mamlatdar has recorded
that, the opponent i.e. Khushalbhai is cultivating the land
in question and rejected the claim of Bhikhabhai
Chhotabhai Patel and further ordered to record the name
in Revenue Records in Survey No.7/1B, 168, 171/1,
648,1156/2, 1628/2 and 1686. The above order was also
challenged by appellant/ defendant Bhikhabhai Chhotabhai
Patel by way of RTS Appeal No.34/1981, which was also
rejected and order passed by the Mamlatdar was
confirmed by Dy. Collector vide order dated 25.11.1983.
The documentary evidence produced in the nature of tax
assessment, Revenue Records makes it clear that, the
property was in the possession and was recorded in the
name of the Plaintiff - Khushalbhai Chhotabhai Patel.

20. One of the contention raised by the appellant is to the
effect that, the Trial Court did not consider that, the
appellant/ defendant had become owner of the suit
property by adverse possession. To deal with the above
contention with regard to adverse possession, it would be
relevant to note that, the appellant/ defendant is claiming

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adverse possession with the co-owners who are real
brothers. It is settled position of law that, there could be no
adverse possession between coowners, unless there has
been a denial of title and an ouster to the knowledge of the
other.

21. In the present case as recorded herein above, on one
hand it is admitted by the appellant/ defendant before the
Revenue Authorities that all the brothers were having
equal shares and even it was his specific contention before
the Revenue Authority under the tenancy proceedings
that, he is holding his 1/3rd share and is in possession of
2/3rd share of his two brothers i.e. 1/3rd share of
Khushalbhai and 1/3rd share of deceased Umedbhai. The
appellant / original defendant Bhikhabhai claimed adverse
possession of 2/3rd share, however, there 18 Regular Civil
Appeal No.43/2008 is no evidence to prove the plea of
adverse possession. To deal with the contention of adverse
possession, it would be relevant to refer case law on this
issue.

21.1 The Hon'ble Apex Court in recent decision in case of
Nanjegowda @ Gowda (dead) by legal heirs Vs.
Ramegowda, 2018(1), SCC 574, in the said case the suit
was for declaration of title over part of family property.
Defendant admitting oral partition in the family and its
implementation. The defendant failed to independently
establish his case by leading cogent evidence and decree
was passed in the favour of plaintiff and the said decree
was upheld by the Hon'ble Apex Court. In the said case,
claim of adverse possession was also raised and the

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Hon'ble Apex Court has held that, there cannot be adverse
possession amongst members of one family for want of
animus among them for land belonging to their family."

21.2 The three Judges Bench of the Hon'ble Apex Court in
case of
P. Lakshmi Reddy Vs. R. Lakshmi Reddy
, while
examining the necessary conditions for applicability of
doctrine of ouster to the share of co-owners held that,

"The ordinary classical requirement of adverse possession
is that, it should be nec vi nec clam nec precario.

[See
Secretary of State for
India Vs. Debendra Lal Khan
, AIR
1934, SC 23), 82]."

The possession required must be adequate, in continuity,
in publicity and in extent to show that, it is possession
adverse to the competitor. But it is well settled that, in
order to establish adverse possession of one co-heir
against another it is not enough to show that, one out of
them is in sole possession and enjoyment of the profits of
the properties. Ouster of that non-possession co-heir by
the co-heir in possession who claims his possession to be
adverse, should be made out. The possession of one heir is
considered, in law, as possession of all the co-heirs. When
one co-heir is found to be in possession of the properties, it
is presumed to be on the basis of joint title. The co-heir in
possession cannot render his possession adverse to the
other co-heir not in possession merely by any secret,
hostile, animus on his own part in derogation of other co-
heirs title. It is settled rule of law that as between co-heirs
there must be evidence of open assertion of hostile title,

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coupled with exclusive possession and enjoyment by one
of them to the knowledge of the other, so as to constitute
ouster. The above referred observation are made and
referred by the Hon'ble Apex Court in case of Nagabhusha
Nammal (D) by legal heirs Vs. C. Chandikeswara Lingam,
AIR 2016 SC 1134. In view of the above principle with
regard to adverse possession,there being no evidence to
support the contention, this Court do not finds any merits
in the contentions raised by the appellant/ defendant and
accordingly point No.2 is answered in negative.

23. The plaintiff in his plaint has stated that, the cause to
file the suit aroused when the Mamlatdar did not accept
the division of suit property as per Lambha Lekh. The
cause aroused on 23.8.1982 as the Mamlatdar did not
accept division and there were continuous disputes
between the brothers and therefore he filed suit in the year
1982. The defendant / appellant has raised the issue of
limitation in his written statement by stating that, the suit
is filed beyond period of limitation of period of 12 years. On
going through the evidence which is produced by the
respective parties, it appears that, each brother was
holding 1/3rd share in the said property and all the
brothers were enjoying the 20 Regular Civil Appeal
No.43/2008 property and were in the possession of the suit
property as per their share. The dispute is said to have
arise in the year 1982 and this gave the cause of filing the
suit. The Revenue Records also discloses that, the plaintiff
was in possession of his share as well as share of deceased

- Umedbhai which plaintiff had purchased by way of
registered sale deed and defendant was in possession of

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his 1/3rd share. The appellant / defendant - Bikhabhai
Chhotahai Patel had initiated various proceedings before
the Revenue authority, Mamlatdar claiming 2/3rd share as
tenant which belong to plaintiff - Khushalbhai and
Umedbhai which is not tilted in favour of the
appellant/defendant.

24. Ex.27 to Ex.42 are the extracts of Revenue records
which establish that, the property had come in favour of
the plaintiff and even possession is recorded separately in
7/12 extract. It also appears from the revenue receipt
produced under Mark-61 to Mark-82 that, plaintiff was in
possession of the two lands. The other documentary
evidence in the form of Tax Assessment copy (Ex.96),
Receipt (Ex.62 and 63) discloses that, the plaintiff/
opponent - Khushalbhai was in possession of the suit
property upto year 1982. The defendant on the other hand
except raising contentions that, suit is barred by limitation
has not been able to prove that, how suit is barred by
limitation. In view of the above, discussion this Court, do
not find any error or illegality in the findings of the Trial
Court that, the suit is not barred by limitation.

25. The appellant/defendant has raised issue in this appeal
that to the Trial Court while passing impugned judgment
has ignored provisions of Sec.54 and Order-20 Rule-18(2)
and though the competent authority would be the Collector
or any Gazetted Officer or Subordinate of Collector, who
will partition or separate the share in case of decree of
partition of undivided estate. It is stated that, the trial
Court committed error in ordering to comply with the order

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passed in the judgment and it would be open for the
plaintiff to seek further relief for appointment of Court
Commissioner regarding the compliance after completion
of six months.

26.
Sec.54
of CPC deals with the partition of estate or
separation of share. It provides that, where ever the
decree is for partition of undivided estate, access to
payment or separation of share the same shall be made by
the Collector or any Gazetted Officer Subordinate Officer to
the Collector.

27. Order-20, Rule-18 deals with the procedure in case of
decree in suit for partition of property or separate
possession of a share. Rule-18 also provides separation or
partition to be made by the Collector or Gazetted Officer
Subordinate of the Collector deputed by him in his behalf
in consonance with the provisions of Sec.54. To this extent
this Court finds that, the Trial Court could not have granted
liberty to apply for Court Commissioner, when Sec.54 and
Order-20 Rule-18 provides specific provisions in connection
with partition. Even Learned Advocate Mr. Pandya for the
Opponent has stated that, he have no objection if the
decree of the trial court is effected as per the provision of
Section 54 and Order-20 Rule-18
of the CPC
. To this extent
the operative order which grants liberty to apply for Court
Commissioner requires to be interfered considering the
provisions of Sec.54 and Order-20 Rule-18 and it is
modified to the extent that, the decree shall be effected as
per the provisions of Sec.54 and Order-20 Rule-18 of Civil
Procedure Code.

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28. In view of the above discussion and re-appreciation of
evidence recorded before the Trial Court, this Court do not
finds any error, illegality in the Judgment and records its
concurrence with the findings and Judgment of the Trial
Court, except with modification as discussed in point No.4.
The points raised in this appeal i.e. point Nos.1, 2 and 3 are
answered in negative, point No.4 is answered partly in
affirmative and the appeal being devoid of merits, point
No.5 is also answered in negative. Resultantly, the appeal
fails and following order is passed :

:: O R D E R ::

1. This Appeal is ordered to be dismissed with cost.

2. The Judgment dated 30.9.1994 recorded below
Special Civil Suit No.536/1982 is hereby confirmed except
with the modification as recorded in point No.4.

3. The appellant shall pay the cost of this Appeal to the
opponents and shall bear his own costs.

4. Decree be drawn accordingly.

5. Record & Proceedings be transmitted to the Trial
Court along with the copy of this Judgment.

Pronounced in the Open Court today on this 4th Day of the
month of April, 2019.

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Date : 04/04/2019 (Kamal Mohanlal Sojitra)
Vadodara. Additional District Judge,
Vadodara.
Code No.GJ01494

4. Being aggrieved and dissatisfied by the impugned

judgment and orders of both the Courts below, the present

appeal is filed.

5. Heard Mr.Mehul Shah, learned senior counsel for Mr.N. K.

Majmudar, learned counsel for the appellants - original

defendants and Mr.Mihir Thakore, learned senior counsel for

Ms.Megha Jani, learned counsel for the respondents - original

plaintiffs.

6. Mr.Shah, learned senior counsel for Mr.Majmudar, learned

counsel for the appellants submitted that the Courts below have

committed an error in interpreting the Lambha Lekh, which

never established the partition amongst the family members and

signed by the members of Hindu Undivided Family. He submitted

that the contention of the original plaintiff itself was contrary to

the evidence and the averment made in the plaint vis-a-vis

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documentary evidence / sale deed produced and relied upon by

him for accepting the rights regarding survey no.171/1 as the

documents produced by the plaintiff in the nature of sale deed of

1961 is in respect of survey no.172 and the said survey number

was not owned and occupied by the plaintiff / defendant and

their predecessor-in-title. He submitted that the Courts below

believed survey no.171/1 as part of the Joint Family Property,

though the same was self-acquired property of Bhikhabhai

Chhotabhai at his own sale consideration in the name of

Umedbhai Chhotabhai. He has submitted that the Courts below

committed error in interpreting the documentary evidence as

house no.815 (new no.990) city survey no.113, 815/1 - Vada

Land having panchayat no.991 (new number) city survey

no.1102 was purchased by Umedbhai Patel. He submitted that in

view of the above facts, the appeal deserves allowed.

6.1. Learned counsel appearing on behalf of the appellants

submitted that Special Civil Suit No.536 of 1982 came to be filed

by Khushalbhai Chhotabhai Patel, against Bhikhabhai

Chhotabhai, Vinodbhai Bhikhabhai Patel, Thakorbhai Bhikhabhai

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Patel and Bharatbhai Bhikhabhai Patel. He submitted that the

original plaintiff, original defendant no.1 and Umedbhai

Chhotabhai Patel were the real brothers and after the death of

Chhotabhai Amthabhai Patel i.e. father of original plaintiff -

Khushalbhai, a Lambha Lekh dated 27.03.1950 came to be

executed and the plaintiff had preferred the suit on the basis of

the Lambha Lekh which came to be executed for arrangement of

various properties amongst the legal heirs and representatives of

deceased Chhotabhai. He submitted that the plaintiff filed the

suit on the basis of the fact that if Lambha Lekh was not being

considered or accepted or believed by the Court, then the

properties mentioned in the plaint as well as Lambha Lekh be

partitioned amongst the plaintiff and defendants. While referring

to the paper-book, he submitted that the suit was filed seeking

partition of the properties and the cause of action arisen for

seeking partition by metes and bounds through the revenue

department, as at the relevant point of time, on passing of the

preliminary decrees, on declaration of the respective shares of

the concerned plaintiff - defendant, the actual physical

possession and actual demarcation of respective portion of

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shares was to be done through the revenue department. He also

referred to para-11, 11(2), 11(3) and 11(6) of the prayers clause

and submitted that the said prayers are in respect of seeking

partition of the properties as mentioned in the suit. It is

submitted that even the Lambha Lekh at Exhibit 31 is an

unregistered document. He further submitted that original

defendants have filed written statement to the plaint and

counter affidavit to the interim injunction application denying all

the averments and contentions and contended that no partition

had ever taken place. He submitted that the judgment and

decree passed by the Trial Court provided that division of

ancestral properties and/or partition of the said properties and

permanent injunction and thus, the nature of the suit itself was

considered as a suit for division of ancestral properties and

partition of the properties.

6.2 It is submitted that the Trial Court has observed in para-6

of the judgment and decree that no doubt, the Lambha Lekh was

executed but no action has taken place pertaining to the division

of the properties as per the Lambha Lekh and has not been

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divided as per the Lambha Lekh. He submitted that the findings

of the Trial Court have become final and after giving the

reasoning, the suit came to be decreed and possession is

ordered to be handed over to the concerned plaintiffs and, thus,

the reasons assigned by the Trial Court are contradictory to law.

He submitted that the defendants stated that no Lambha Lekh

was executed and no partition had taken place on the basis of

the said document and the same is not a document which

provides for division of properties amongst the coparcener of the

Hindu Undivided Family. He submitted that the deposition of the

plaintiff at Exhibit 30 is required to be considered and the

deposition of the defendant in respect of
Section 70(b)
of the

Tenancy Act is very much relevant. It is submitted that in view of

the statutory provisions of
Section 17
of the Indian Registration

Act, the Lambha Lekh could not be considered as a document,

which declares the division of the respective shares in their

respective properties amongst the coparcener of Hindu

Undivided Family. He submitted that neither there is any

challenge made to the findings of the Trial Court nor any cross-

objections have been filed by the original plaintiff as it ought to

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have been done under Order XXXIX Rule 22 of the Civil

Procedure Code. He submitted that in view of the findings on

issue No.1 and issue no.2, the decree could not have been

passed and the suit could not have been allowed and, therefore,

the judgment and decree of the Trial Court which came to be

confirmed by the first Appellate Court deserves to be quashed

and set aside. He submitted that the plaintiff failed to make out

any averments in the plaint and to lead oral as well as

documentary evidence as to what had happened to the

properties which had gone into the share of Jibaben @ Jiviben. He

submitted that as per the settled proposition of law, in a suit for

decree of partition, the Trial Court ought to have passed the

preliminary decree by which the respective shares in the

properties ought to have been declared and, thereafter, the

further orders ought to have been passed for actual physical

division of the share of the concerned coparcener and,

thereafter, the final decree for physical division be metes and

bounds was required to be passed. He also submitted that the

preliminary decree and final decree have been passed

simultaneously which is serious error cropped-up by both the

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Courts below. While referring to the deposition of the defendants

at page no.105 and page-93, he submitted that it is clearly

established that the defendant stated that the defendants are in

possession of the entire lands since 1951-1952 and no partition

could be said to have effected, however, the said aspects have

not been considered by both the Courts below. He has submitted

that various civil proceedings had taken place between the two

other brothers, however, the defendants were not parties to the

suit and sale transaction which had taken place was without the

consent of the defendants and, therefore, the sale transactions

was null and void and, therefore, the judgment and decree

passed in earlier suit would not be binding to the present

appellants - original defendants. He further submitted that the

plaintiff approached before the revenue authority on 02.09.1976

and considering the averments made in para-7, para-14 and

Lambha Lekh, it appears that the suit was barred by law of

limitation as the limitation was started from 27.03.1950 and the

same had continued to remain in force and the suit was filed on

30.12.1982, which came to be barred by law of limitation. He has

submitted that considering
Article 113
of the
Limitation Act
, the

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suit for partition ought to have been filed within a period of three

years and the suit for possession ought to have been filed within

the period of three years from the date of the so-called Lambha

Lekh. He has submitted that survey no.171/1 was never sold by

one of the brother - Umedbhai to the plaintiff, however, the

decree provides the same and, therefore, there is serious error

cropped-up while passing the decree. He has submitted that the

provisions of Section 103 of the Civil Procedure Code, this Court

can interfere with the findings of facts in a given case if finding

of question of law is erroneous and if Trial Court's decree is

perverse or without considering the pleadings and relevant

evidence or on erroneous approaches or requires constructions

of documents. He lastly submitted that in view of the facts and

circumstances of the case, the appeal deserves to be allowed.

6.3 In support of his arguments, Mr.Shah, learned senior

counsel relied upon the following decisions.

(
1) Ramabhai Shamalbhai Patel and another Vs. Ravjibhai

Motibhai Patel
, 2015 (1) GLR 494;

(
2) Krishna Pillai Rajasekharam Nair Vs. Padmanabha Pillai

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and others, AIR 2004 SC 1206;

(
3) Raghunath Das Vs. Gokal Chand and another
, AIR 1958 SC

827;

(
4) Saraswatiben Kantilal Patel and others Vs. Jivanlal Chunilal

Patel and others
in Special Civil Application No.12040 of

2014 dated 31.03.2015;

(
5) Hasmat Ali Vs. Amina Bibi and others
, 2021 14 Scale

2022;

(
6) Illoth Valappil Ambunhi Vs. Kunhambu Karanavan
, (2020)

18 SCC 317;

(
7) Uma Pandey and another Vs. Munna Pandey and others
,

AIR 2018 SC 1930;

(
8) Abdul Raheem Vs. Karnataka Electricity Board and others
,

(2007) 14 SCC 138;

(
9) Patel Ramanbhai Mathurbhai Vs. Govindbhai Chhotabhai

Patel and others
, 2020 1 GLH 261;

(10) Bankey Bihari Vs. Surya Narain Alias Munnoo, 2004 (11)

SCC 393;

(
11) Sk. Sattar Sk. Mohd. Choudhari Vs. Gundappa Amabadas

Bukate
, AIR 1997 SC 998;

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(
12) Sita Ram Bhama Vs. Ramvatar Bhama
, 2018 (15) SCC

130;

(
13) Krishnaji Anajee Bhute Vs. Ana Dhondajee and others
, ILR

1929 Bombay 4;

7. Mr.Thakore, learned senior counsel for Ms.Jani, learned

counsel appearing for the respondent - original plaintiff. He

submitted that Trial Courts below have not committed any error

while passing the impugned orders. He submitted that

Chhotabhai Amthabhai Patel died in the year 1950, Jibaben Wd/o.

Chhotabhai Patel died in the year 1961 and their legal heirs are

Khushalbhai - original plaintiff and Bhikhabhai - original

defendant. He submitted that the present appeal is against the

concurrent findings recorded by both the Courts and when the

Courts below have, after appreciating the oral as well as

documentary evidence and after considering the arguments

advanced by all the parties passed the orders and, therefore, this

Court cannot go into the question of facts arising in the matter

and interference with such findings of facts is impermissible or

re-appreciation of the evidence and the present appeal is not

required to be entertained and called for any interference. He

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submitted that Lambha Lekh is not a document effecting

partition, but is a document merely recording the oral partition

which had taken place between the parties; the law in this issue

is well settled only a document effecting partition is mandatorily

registerable under
Section 17
of the Registration Act 1908 and

since Lambha Lekh is not mandatorily registerable, the bar

under
Section 49
of the Registration Act, 1908 would not come

into play. Learned senior counsel pointed out that on existence

and execution of Lambha Lekh of 1950 affected in the year 1982

and even the defendant also contended before the concerned

Trial Court that when considering the adverse possession, he

became the owner of the parcel of land by virtue of the adverse

possession as he is cultivating the land since 1950-1952. He

submitted that the defendants have not challenged the same

before any of the authority and it is hit the provisions of the

limitation and barred by law of limitation. He submitted that the

contention with regard to the suit was barred by law of limitation,

the Trial Court has rightly dealt with the said contention in issue

no.3 and issue no.4. He submitted that the family settlement

arrived at in 1950 and it put into force in 1982 and since the

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defendants have forcefully dispossessed the plaintiff from the

parcel of land, he filed the suit in the year 1982 and prayed for

the partition taken place in the year 1950 and the Trial Court has

rightly appreciated and dealt with in issue no.3 and issue no.4.

He also submitted that the first Appellate Court has, while

recording the concurrent findings in with the judgment and

decree of the Trial Court, rightly dealt with the evidence in its

true and proper spirit as observed in paragraph no.28 of the

judgment and order and, therefore, no interference is called for.

7.1 Mr.Thakore, learned senior counsel appearing for the

respondents has relied upon the following decisions:-

(
1) Gurnam Singh and others Vs. Lehna Singh
, (2019) 7 SCC 641;

(
2) Syeda Commissioner of Income Tax Vs. Cynamid India Limited

reported in (1999) 3 SCC 727;

(
3) Rahimunnisa Vs. Malan BI and another
, (2016) 10 SCC 315;

(
4) Panchugopal Barua and others Vs. Umesh Chandra Goswami and

others
, (1997) 4 SCC 713;

(
5) Kondiba Dagadu Kadam Vs. Savitribai Sopan Gujar and others
,

(1999) 3 SCC 722;

(
6) Roshan Singh and others Vs. Zile Singh and others
reported in AIR

1988 SC 881;

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8. It is worthwhile referred to the decisions relied upon by

learned counsel appearing for the respective parties.

9.
In the case of
Ramabhai Shamalbhai Patel
(supra), this

Court (Coram: Hon'ble Mr.Justice N. V. Anjaria) has observed in

paragraphs no.2 and 7.3 as under:-

"2. At the time of admission of this Appeal, the following
substantial questions of law were formulated.

(i) Whether on the facts and circumstances of the
case,
Section 8
of the Limitation Act would override the
provisions of
Sections 6
and
thereof?

(ii) Whether the limitation for the plaintiff's Suit would be
governed by
Article 110
of the
Limitation Act
?

(iii) Whether on the facts and circumstances of the case,
even if the Suit is otherwise time barred the reliefs sought
by the plaintiff in respect of his share in the property of
Ravjibhai-defendant No.1, who died pending the Appeal,
would not be time barred?

7.3 The contention that there is no limitation for partition
suit thus rests here being without any substance. In this
case as the cause of action accrued in the year 1968, the
plaintiffs' partition suit was subjected to three years period

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of limitation under
Article 113
of the
Limitation
Act
and
Section 6
read with
Section 8
of the Limitation Act
would apply."

10.
In the case of
Krishna Pillai Rajasekharam Nair
(supra),

the Hon'ble Supreme Court has observed in paragraph no.22 as

under:-

"22. In our opinion, the suit filed in the present case being
a suit for partition primarily and predominantly and the
relief of redemption having been sought for only pursuant
to the direction made by the High Court in its order of
remand, the limitation for the suit would be governed
by
Article 120
of Limitation Act, 1908. For a suit for
partition the starting point of limitation is - when the right
to sue accrues, that is, when the plaintiff has notice of his
entitlement to partition being denied. In such a suit, the
right of the redeeming co- mortgagor would be to resist the
claim of non-redeeming co- mortgagor by pleading his right
of contribution and not to part with the property unless the
non-redeeming co-mortgagor had discharged his duty to
make contribution. This equitable defence taken by the
redeeming co-mortgagor in the written statement would
not convert the suit into a suit for contribution filed by the
non-redeeming co- mortgagor."

11.
In the case of
Raghunath Das
(supra), the Apex Court

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has observed in paragraph no.9 as under:-

"9. We are unable to accept the decision of the High
Court as correct. The High Court overlooked the fact that
so far as the G. P. Notes were concerned the decree upon
the award only declared the rights of the parties. Under the
decree Raghunath Das was entitled to have G. P. Notes of
the value of Rs. 13,200 endorsed in the names of himself
and Mst. Daropadi out of the G. P. Notes of the value of Rs.
26,500. The award or the decree thereon did not actually
divide the G. P. Notes by specifying which particular G. P.
Notes were to be endorsed in the names of Gokul Chand
and Mst. Daropadi or which of them were to be endorsed in
the names of Raghunath Das and his mother. Until the G.
P. Notes were actually divided, either by consent of parties
or by the decree of the court, neither of the brothers could
claim any particular piece of G. P. Notes as his separate
property or ask for delivery of any particular C. P. Notes in
specie. Gokul Chand not being agreeable to come to an
amicable division of the G. P. Notes, Raghunath Das had
perforce to seek the assistance of the court and pray that
the entire lot of C. P. Notes of the value of Rs. 26,500 be
divided by or under the directions of the court into two lots
and one lot making up the value of Rs. 13,200 be endorsed
in favour of him (Raghunath Das) and his mother by or on
behalf of Gokul Chand and then delivered to him, the
plaintiff. He could not in his plaint claim that particular
pieces of G. P. Notes making up the value of Rs. 13,200 be
delivered to him in specie. This being the true position, as
we conceive it, Raghunath Das's suit cannot possibly be

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regarded as a suit for a " specific moveable property ".

That expression is apt only to cover a suit wherein the
plaintiff can allege that he is entitled to certain specific
moveable property and/or of which he is presently entitled
to possession in specie and which the defendant has
wrongfully taken from him and/or is illegally withholding
from him. That is not the position here. It should be
remembered that the two brothers were entitled to the G.
P. Notes of the value of Rs. 26,500 originally as joint
coparceners and thereafter, when the decree upon the
award had been passed, as tenants- in-common. Until
actual partition by consent of the parties or by court Gokul
Chand, who held the custody of the G. P. Notes, could not
be said to have taken them wrongfully from Raghunath
Das and his possession of them could not be said to be or
to have become unlawful. These considerations clearly
distinguish this case from the case of
Gopal Chandra Bose
v. Surendra Nath Dutt
on which the High Court relied
because
in that case
the defendant had no right to or
interest in the G. P. Notes in question and had no right to
retain possession thereof. Therefore, to the present
situation the terminus a quo specified in the third column
of
Art. 49
can have no application. It is now well
established that a suit by an heir against other heirs to
recover his share of the moveable estate of a deceased
person is not one for (1) (1908) XII C. W. N. 1010 specific
moveable property wrongfully taken such as is
contemplated by Art 49, but is governed by
Art. 120.
See
Mohomed Riasat Ali v. Mussumat Hasin Banu (1). The only
difference between the facts of that case and those of the
present case is that here the rights of the parties had been

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declared by the decree upon the award but that
circumstance does not appear to us to make any material
difference in the application of the principle laid down by
the Judicial Committee. The substance of the plaintiff's
claims in both cases is for separating his share out of the
estate and for allotment and delivery to him of his share so
separated. In short such a suit is nothing but a suit for
partition or division of the moveable properties held jointly
or as tenants-in-common by the parties and there being no
specific Article applicable to such a suit it must be
governed by
Art. 120.

12.
In the case of
Saraswatiben Kantilal Patel
(supra), this

Court (Coram: Hon'ble Ms.Justice Harsha Devani) has observed in

paragraphs no.23 and 26 as under:-

"23. Thus, the Limitation Act does not prescribe any period
of limitation for a suit for partition. The Supreme Court in
the case of
Krishna Pillai Rajasekharan Nair v. Padmanabha
Pillai
(supra) was of the opinion that the suit filed in the
said case being a suit for partition, the limitation for the
suit would be governed by
Article 120
of the Limitation Act,
1908. For a suit for partition, the starting point of limitation
is - when the right to sue accrues, that is, when the
plaintiff has notice of his entitlement to partition being
denied. Therefore,
Article 110
of the
Schedule to the
Limitation Act, 1963
which prescribes the period of
limitation in case of a suit by a person excluded from a
joint family property to enforce a right to share therein

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would not be applicable to a suit for partition. In the light of

the above decision
of the Supreme Court, the applicable
provision would be
Article 113
of the
Schedule to the
Limitation Act, 1963
which corresponds to
Article 120
of
the Limitation Act, 1908 and provides for a limitation of
three years from the date when the right to sue accrues.
Accordingly, in the case at hand, the limitation would start
running from the date of the plaintiffs' knowledge of denial
of entitlement to partition.

26. 26. As discussed hereinabove, the limitation in the
present case for instituting a suit for partition would be
three years from the date of knowledge of the plaintiffs of
denial of their entitlement to partition, which may be taken
to be the date of filing of the present suit. As noticed
earlier, the suit was instituted in the year 2008 whereas
the application under rule 17 of Order VI of the Code was
filed on or about 28th July, 2014, that is, after a period of
more than five years. Testing the facts of the present case
in the light of the law
laid down by
the Supreme Court in

Krishna Pillai Rajasekharan Nair v. Padmanabha Pillai

(supra), the amendment application which has been filed
after a period of more than five years from the date of the
plaintiffs' knowledge of the denial of their entitlement to
partition, is clearly barred by limitation.

In
Revejeetu
Builders & Developers v. Narayanaswamy & Sons
, (2009)
10 SCC 84, the Supreme Court has inter alia held that as a
general rule, the court should decline amendments if a
fresh suit on the amended claims would be barred by the
limitation on the date of application."

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13.
In the case of
Illoth Valappil Ambunhi
(supra), the Apex

Court has observed in paragraphs no.14, 21 to 27 as under:-

"14. It is now well settled that perversity in arriving at a
factual finding gives rise to a substantial question of law,
attracting intervention of the High Court under
Section 100

CPC.

"21. The High
Court further held
: (Chuzhali raman

Karnavan v. Illoth Valappil Ambunhi
, 2009 SCC Online Ker
6802 para 8)

8. In the decisions relied on by the learned counsel for
the respondent it has been held that there cannot be a
presumption regarding acceptance of the gift, be it not
onerous and that there must be some evidence to show
that the gift was accepted during the life time of the donor
but, what is stated in those decision is concerning the
presumption as to the acceptance of the gift. But when the
document itself recited that the possession of the property
was given to the donee, then, a presumption of acceptance
of gift would arise in favour of the donee.

22. The proposition of law that when the document of
transfer by gift records delivery of possession, a
presumption of acceptance would arise, in the absence of
overt repudiation of the gift, by and/or on behalf of the
donee, is unexceptionable. As held by the High Court,
when the deed itself said that the possession of the
property was given to the donee, the burden of proving,

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that the said recital was not correct, lay on the party who
asserted so. In our view, the law has correctly been
appreciated and enunciated by the High Court.

23. The High Court took note of the recital to the effect
that Karnavan (Malingan Chuzhali Ashari) acting on behalf
of the Bhandaram was to enjoy the property from the date
of the gift, which was strong evidence of transfer of
possession.

24. The High Court rightly found that there was no
direction in the gift deed which made the gift onerous as
understood in
Section 127
of the Transfer of Property Act.
In all fairness to the appellants, this has not even been
argued before the High court. The gift not being onerous,
there was no reason why Malingan Chuzhali Ashari should
not have accepted the gift on behalf of the Bhandaram.

25. The High Court held: (Chuzhali raman
Karnavan v.
Illoth Valappil Ambunhi
, 2009 SCC Online Ker 6802 para 6)

6.......It is indisputable that an idol is to be treated as a
minor for all legal purposes. Hence, the acceptance of the
gift as per Ext. A1 could be by any person on behalf of the
donee. It is not disputed that Malingan Chuzhali Ashari was
the Karnavan of the Tharawad during the time of Ext.A1
and that along with Malingan Chuzhali Ashari, the donor
(Raman Aithan Ashari) was also a trustee of the
Bhandaram.

26. As noted by the High Court, there is no dispute that

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Malingan Chuzhali Ashari and the donor Raman were
trustees of the Bhandaram (donee) at the time of
execution of deed of gift. The fact that nothing was done
by Raman or any other trustee of the Bhandaram to
repudiate the gift in itself shows that the deed of gift was
duly accepted by the Bhandaran.

27. The High Court rightly held that the Courts below had
proceeded on the wrong assumption that even in spite of
the recitals in Exh. A1, being the deed of gift and the
admitted facts of the case, the burden of proof was on the
respondents to show that the gift had been accepted. The
findings of the Trial Courts and the First Appellate Court
were based on a wrong assumption of law regarding the
possession of an idol in the eye of law and the relevant
recitals in Exh. A1 (deed of gift)."

14.
In the case of
Uma Pandey
(supra), the Apex Court has

observed in paragraph no.12 to 18 as under:-

"12. In our considered opinion, the High Court erred in
dismissing the second appeal in limine on the ground that
it did not involve any substantial question(s) of law.

13. In our view, the appeal did involve substantial
question(s) of law within the meaning of
Section 100
of the
Code of Civil Procedure, 1908 (hereinafter referred to as
'the Code') and, therefore, it should have been admitted
for final hearing on the substantial question(s) of law
arising in the case.

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14. It is not in dispute that the defendants (respondents)
filed one document(EX-A)-(Annexure-P-1 of SLP). This
document was relied on and appreciated by the two Courts
below for deciding the rights of the parties. The Trial Court
decreed the suit and the First Appellate Court reversed it
on appreciating the evidence including EX-A.

15. It is a settled principle of law that interpretation of
any document including its contents or its admissibility in
evidence or its effect on the rights of the parties to the Lis
constitutes a substantial question(s) of law within the
meaning of Section 100 of the Code.

16. Whenever such question arises in the second appeal
at the instance of the appellant, it deserves admission on
framing appropriate substantial question(s) on such
questions to enable the High Court to decide the appeal on
merits bi-party.

17. In this case, it was all the more reason for the High
Court to have admitted the appellants' second appeal
because the Trial Court and the First Appellate Court had
taken into consideration the document - Ex-A for deciding
the Lis involved in the case.

18. In the light of the foregoing discussion, we cannot
concur with the reasoning and the conclusion arrived at by
the High Court as, in our view, it wrongly dismissed
appellants' second appeal in limine."

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15.
In the case of
Abdul Raheem
(supra), the Apex Court has

observed in paragraphs no.10 to 12 as under:-

"10. A substantial question of law ordinarily would not
arise from the finding of facts arrived at by the trial court
and the first appellate court. The High Court's jurisdiction
in terms of Section 100 of the Code is undoubtedly limited.

11. The question as to whether the plaintiff was ready
and willing to perform its part of contract by itself may not
give rise to a substantial question of law. Substantial
question of law should admittedly be formulated relying on
or on the basis of findings of fact arrived at by the trial
court and the first appellate court.

12. However, there cannot be any doubt whatsoever that
consideration of irrelevant fact and non-consideration of
relevant fact would give rise to a substantial question of
law. Reversal of a finding of fact arrived at by the first
appellate court ignoring vital documents may also lead to a
substantial question of law. In vidhyadhar v. Manikrao,
(1999) 3 SCC 573 this court held: 9SCC p.586, para 23)

"23. The findings of fact concurrently recorded by the trial
court as also by the lower appellate court could not have
been legally upset by the High court in a second appeal
under
Section 100
CPC unless it was shown that the
findings were perverse being based on no evidence or that
on the evidence on record, no reasonable person could
have come to that conclusion."

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16.
In the case of
Patel Ramanbhai Mathurbhai
(supra), the

Apex Court has observed in paragraphs no.27 to 37 as under:-

"27.
Section 100
CPC provides for a second appeal only on
the substantial question of law. Generally, a Second Appeal
does not lie on question of facts or of law.

28.
In
State Bank of India & Ors. v. S. N. Goyal
, 2008 Air
(SC) 2594, the Supreme Court explained the terms
"substantial question of law" and observed as under:

"The word 'substantial' prefixed to 'question of law' does
not refer to the stakes involved in the case, nor intended to
refer only to questions of law of general importance, but
refers to impact or effect of the question of law on the
decision in the lis between the parties. 'Substantial
questions of law' means not only substantial questions of
law of general importance, but also substantial question of
law arising in a case as between the parties. ....... any
question of law which affects the final decision in a case is
a substantial question of law as between the parties. A
question of law which arises incidentally or collaterally,
having no bearing on the final outcome, will not be a
substantial question of law. There cannot, therefore, be a
straitjacket definition as to when a substantial question of
law arises in a case"

Similarly, in
Sir Chunilal V. Mehta & Sons Ltd. V. Century
Spinning and Manufacturing Co. Ltd.
, 1962 AIR (SC) 1314,

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this Court for the purpose of determining the issue held:

"The proper test for determining whether a question of law
raises in the case is substantial, would, in our opinion, be
whether it is of general public importance or whether it
directly and substantially affects the rights of the parties.."

29.
In
Vijay Kumar Talwar v. Commissioner of Income
Tax, New Delhi
, 2011 1 SCC 673, this Court held that, a
point of law which admits of no two opinions may be a
proposition of law but cannot be a substantial question of
law. To be 'substantial' a question of law must be
debatable, not previously settled by law of the land or a
binding precedent, and must have a material on the
decision of the case, if answered either way, insofar as the
rights of the parties before it are concerned. To be a
question of law 'involving in the case' there must be first a
foundation for it laid in the pleadings and the question
should emerge from the sustainable findings of fact arrived
at by court of facts and it must be necessary to decide that
question of law for a just and proper decision of the case. It
will, therefore, depend on the facts and circumstances of
each case, whether a question of law is a substantial one
or not; the paramount overall consideration being the need
for striking a judicious balance between the indispensable
obligation to do justice at all state and impelling necessity
of avoiding prolongation in the life of any lis." (See also:

Rajeshwari v. Puran Indoria
, 2005 7 SCC 60).

30. The Court, for the reasons to be recorded, may also
entertain a second appeal even on any other substantial

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question of law, not formulated by it, if the Court is
satisfied that the case involves such a question. Therefore,
the existence of a substantial question of law is a sine qua
non for the exercise of jurisdiction under the provisions of

Section 100
CPC. The second appeal does not lie on the
ground of erroneous findings of facts based on
appreciation of the relevant evidence.

There may be a question, which may be a "question of
fact", "question of law", "mixed question of fact and law".
Question means anything inquired; an issue to be decided.
The "question of fact" is whether a particular factual
situation exists or not. A question of fact, in the Realm of
Jurisprudence, has been explained as under:"

"A question of fact is one capable of being answered by
way of demonstration. A question of opinion is one that
cannot be so answered. As answer to it is a matter of
speculation which cannot be proved by any available
evidence to be right or wrong." (Vide: Salmond, on
Jurisprudence, 12th Edn. Page 69, cited in
Gadakh
Yashwantrao Kankarao v. E. V. Alias
balasaheb Vikhe Patil
& ors., 1994 AIR (SC) 678)."

31.
In
Smt. Bibhabati Devi v. Ramendra Narayan Roy &
Ors.
[AIR 1947 PC 19], the Privy Council has provided the
guidelines as in what cases the second appeal can be
entertained, explaining the provisions existing prior to the
amendment of 1976, observing as under:

".....that miscarriage of justice means such a departure

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from the rules which permeate all judicial procedure as to
make that which happen not in the proper sense of the
word 'judicial procedure' at all. That the violation of some
principles of law or procedure must be such erroneous
proposition of law that if that proposition to be corrected,
the finding cannot stand, or it may be the neglect of some
principle of law or procedure, whose application will have
the same effect. The question whether there is evidence
on which the Courts could arrive at their finding, is such a
question of law.

'That the question of admissibility of evidence is a
proposition of law but it must be such as to affect
materially the finding. The question of the value of
evidence is not sufficient reason for departure from the
practice......"

32.
In
Suwalal Chhogalal v. Commissioner of Income Tax

[(1949) 17 ITR 269], the Supreme Court held as under:

" A fact is a fact irrespective of evidence, by which it is
proved. The only time a question of law can arise in such a
case is when it is alleged that there is no material on which
the conclusion can be based or no sufficient evidence."

33.
In
Oriental Investment Company Ltd. v. Commissioner
of Income Tax, Bombay
[AIR 1957 SC 852], the Supreme
Court considered a large number of its earlier judgments,
including
Sree Meenakshi Mills Ltd., Madurai v.
Commissioner of Income Tax, Madras
[AIR 1957 SC 49],
and held that where the question of decision is whether

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certain profit is made and shown in the name of certain
intermediaries, were, in fact, profit actually earned by the
assessee or the intermediaries, is a mixed question of fact
and law. The
Court further held
that inference from facts
would be a question of fact or of law according as the point
for determination is one of pure fact or a "mixed question
of law and fact" and that a finding of fact without evidence
to support it or if based on relevant or irrelevant matters,
is not unassailable.

34. There is no prohibition to entertain a second appeal
even on question of fact provided the Court is satisfied that
the findings of the courts below were vitiated by non-
consideration of relevant evidence or by showing
erroneous approach to the matter and findings recorded in
the court below are perverse. (Vide: Jagdish Singh v. Nathu
Singh, AIR 1992 SC 1604; Smt. Prativa Devi (Smt.) v. T.V.
Krishnan, (1996) 5 SCC 353;
Satya Gupta (Smt.) @ Madhu
Gupta v. Brijesh Kumar
, (1998) 6 SCC 423;
Ragavendra
Kumar v. Firm Prem Machinary & Co.
, AIR 2000 SC 534;
Molar Mal (dead) through Lrs.

v. M/s. Kay Iron Works Pvt.
Ltd., AIR 2000 SC 1261;
Bharatha Matha & Anr. v. R. Vijaya
Renganathan & Ors.
, AIR 2010 SC 2685; and
Dinesh Kumar
v. Yusuf Ali
, (2010) 12 SCC 740).

35.
In
Jai Singh v. Shakuntala
[AIR 2002 SC 1428], the
Supreme Court held that it is permissible to interfere even
on question of fact but it may be only in "very exceptional
cases and on extreme perversity that the authority to
examine the same in extenso stands permissible it is a
rarity rather than a regularity and thus in fine it can thus

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be safely concluded that while there is no prohibition as
such, but the power to scrutiny can only be had in very
exceptional circumstances and upon proper
circumspection."

Similar view has been taken in the case
of
Kashmir Singh v. Harnam Singh & Anr.
, AIR 2008 SC
1749.

36. Declaration of relief is always discretionary. If the
discretion is not exercised by the lower court "in the spirit
of the statute or fairly or honestly or according to the rules
of reason and justice", the order passed by the lower court
can be reversed by the superior court. (See:
Mysore State
Road Transport Corporation v. Mirja Khasim Ali Beg & Anr.
,
AIR 1977 SC 747).

37. There may be exceptional circumstances where the
High Court is compelled to interfere, notwithstanding the
limitation imposed by the wording of
Section 100
CPC. It
may be necessary to do so for the reason that after all the
purpose of the establishment of courts of justice is to
render justice between the parties, though the High Court
is bound to act with circumspection while exercising such
jurisdiction. In second appeal the court frames the
substantial question of law at the time of admission of the
appeal and the Court is required to answer all the said
questions unless the appeal is finally decided on one or
two of those questions or the court comes to the
conclusion that the question(s) framed could not be the
substantial question(s) of law. There is no prohibition in law
to frame the additional substantial question of law if the
need so arises at the time of the final hearing of the

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appeal.

17.
In the case of
Gurnam Singh
(supra), the Apex Court has

observed in paragraphs no.14 an 15 as under:-

"14. When a substantial question of law can be said to
have arisen, has been dealt with and considered by this
Court in the case of Ishwar Dass Jain (Supra). In the
aforesaid decision, this Court has specifically observed and
held :

Under
Section 100
CPC, after the 1976 amendment,
it is essential for the High Court to formulate a substantial
question of law and it is not permissible to reverse the
judgment of the first appellate court without doing so.
There are two situations in which interference with findings
of fact is permissible. The first one is when material or
relevant evidence is not considered which, if considered,
would have led to an opposite conclusion. The second
situation in which interference with findings of fact is
permissible is where a finding has been arrived at by the
appellate court by placing reliance on inadmissible
evidence which if it was omitted, an opposite conclusion
was possible. In either of the above situations, a
substantial question of law can arise.

15. Applying the law laid down by this Court in the
aforesaid decisions to the facts of the case on hand, we are
of the opinion that the High Court has erred in re
appreciating the evidence on record in the second appeal

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under
Section 100
of the CPC. The High Court has
materially erred in interfering with the findings recorded by
the First Appellate Court, which were on re-appreciation of
evidence, which was permissible by the First Appellate
Court in exercise of powers under
Section 96
of the CPC.

Cogent reasons, on appreciation of the evidence, were
given by the First Appellate Court. First Appellate Court
dealt with, in detail, the so called suspicious circumstance
which weighed with the learned Trial Court and thereafter
it came to the conclusion that the Will, which as such was a
registered Will, was genuine and do not suffer from any
suspicious circumstances. The findings recorded by the
First Appellate Court are reproduced hereinabove.
Therefore, while passing the impugned judgment and
order, the High Court has exceeded in its jurisdiction while
deciding the second appeal under
Section 100
CPC."

18.
In the case of
Syeda Rahimunnisa
(supra), the Apex

Court has observed in paragraphs no.25 to 28 as under:-

"25. A three-judge Bench of this Court in the case of

Santosh Hazari v. Purushottam Tiwari
speaking through
R.C. Lahoti, J. (as his Lordship then was) examined the
scope of
Section 100
CPC in detail and laid down the
following propositions in paras 9, 10, 12 and 14 as under:

(SCC pp.185-88)

"9. The High Court cannot proceed to hear a second appeal
without formulating the substantial question of law
involved in the appeal and if it does so it acts illegally and

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in abnegation or abdication of the duty cast on Court. The
existence of substantial question of law is the sine qua non
for the exercise of the jurisdiction under the amended
Section 100 of the Code. (See Kshitish Chandra Purkait v.

Santosh Kumar Purkait (1997) 5 SCC 438, Panchugopal
Barua v. Umesh Chandra Goswami
(
1997) 4 SCC 413
and Kondiba Dagadu Kadam v. Savitribai Sopan
Gujar
(1999) 3 SCC 722)

10. At the very outset we may point out that the memo of
second appeal filed by the plaintiff-appellant before the
High Court suffered from a serious infirmity. Section 100 of
the Code, as amended in 1976, restricts the jurisdiction of
the High Court to hear a second appeal only on
"substantial question of law involved in the case". An
obligation is cast on the appellant to precisely state in the
memorandum of appeal the substantial question of law
involved in the appeal and which the appellant proposes to
urge before the High Court. The High Court must be
satisfied that a substantial question of law is involved in
the case and such question has then to be formulated by
the High Court. Such questions or question may be the one
proposed by the appellant or may be any other question
which though not proposed by the appellant yet in the
opinion of the High Court arises as involved in the case and
is substantial in nature. At the hearing of the appeal, the
scope of hearing is circumscribed by the question so
formulated by the High Court. The respondent is at liberty
to show that the question formulated by the High Court
was not involved in the case In spite of a substantial
question of law determining the scope of hearing of second

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appeal having been formulated by the High Court, its
power to hear the appeal on any other substantial question
of law, not earlier formulated by it, is not taken away
subject to the twin conditions being satisfied: (i) the High
Court feels satisfied that the case involves such question,
and (ii) the High Court records reasons for its such
satisfaction.

12. The phrase "substantial question of law", as occurring
in the amended Section 100 is not defined in the Code. The
word substantial, as qualifying "question of law", means --
of having substance, essential, real, of sound worth,
important or considerable. It is to be understood as
something in contradistinction with -- technical, of no
substance or consequence, or academic merely. However,
it is clear that the legislature has chosen not to qualify the
scope of "substantial question of law" by suffixing the
words "of general importance" as has been done in many
other provisions such as Section 109 of the Code or
Article
133(1)(a)
of the Constitution. The substantial question of
law on which a second appeal shall be heard need not
necessarily be a substantial question of law of general
importance. In Guran Ditta v. T. Ram Ditta (AIR 1928 PC

172), the phrase "substantial question of law" as it was
employed in the last clause of the then existing
Section
CPC (since omitted by the
Amendment Act, 1973
)
came up for consideration and their Lordships held that it
did not mean a substantial question of general importance
but a substantial question of law which was involved in the
case as between the parties.
In Sir Chunilal V. Mehta &
Sons Ltd. v. Century Spg. and Mfg. Co. Ltd.(AIR 1962 SC

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1314) the Constitution Bench expressed agreement with
the following view taken by a Full Bench of the Madras
High Court in
Rimmalapudi Subba Rao v. Noony
Veeraju
(AIR 1951 Mad 969): (
Chunilal V. Mehta
case, AIR
p. 1318 para 5)

5....when a question of law is fairly arguable, where there
is room for difference of opinion on it or where the Court
thought it necessary to deal with that question at some
length and discuss alternative views, then the question
would be a substantial question of law. On the other hand
if the question was practically covered by the decision of
the highest court or if the general principles to be applied
in determining the question are well settled and the only
question was of applying those principles to the particular
facts of the case it would not be a substantial question of
law."

And laid down the following test as proper test, for
determining whether a question of law raised in the case is
substantial: (AIR p. 1318, para 6)

6....The proper test for determining whether a question of
law raised in the case is substantial would, in our opinion,
be whether it is of general public importance or whether it
directly and substantially affects the rights of the parties
and if so whether it is either an open question in the sense
that it is not finally settled by this Court or by the Privy
Council or by the Federal Court or is not free from difficulty
or calls for discussion of alternative views. If the question is
settled by the highest court or the general principles to be

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applied in determining the question are well settled and
there is a mere question of applying those principles or
that the plea raised is palpably absurd the question would
not be a substantial question of law."

14. A point of law which admits of no two opinions may be
a proposition of law but cannot be a substantial question of
law. To be "substantial" a question of law must be
debatable, not previously settled by law of the land or a
binding precedent, and must have a material bearing on
the decision of the case, if answered either way, insofar as
the rights of the parties before it are concerned. To be a
question of law "involving in the case" there must be first a
foundation for it laid in the pleadings and the question
should emerge from the sustainable findings of fact arrived
at by court of facts and it must be necessary to decide that
question of law for a just and proper decision of the case.
An entirely new point raised for the first time before the
High Court is not a question involved in the case unless it
goes to the root of the matter. It will, therefore, depend on
the facts and circumstance of each case whether a
question of law is a substantial one and involved in the
case, or not; the paramount overall consideration being the
need for striking a judicious balance between the
indispensable obligation to do justice at all stages and
impelling necessity of avoiding prolongation in the life of
any lis".

26. Again in the case of
Thiagarajan And Others vs. Sri
Venugopalaswamy B. Koil And Others
reported in 2004 (5)
SCC 762, a two Judge Bench of this Court in paragraphs 17,

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24, 25 and 26 observed as under:

"17. Sub-section (5) of
Section 100
CPC says that the
appeal shall be heard on the question so formulated and
the respondent shall at the hearing of the appeal be
allowed to argue that the case does not involve such a
question. The proviso states that nothing in this sub-
section shall be deemed to take away or abridge the power
of the Court to hear, for reasons to be recorded, the appeal
on any other substantial question of law not formulated by
it if it is satisfied that the case involves such question. In
the instant case, the High Court at the time of final hearing
formulated five more questions of law as extracted above
after hearing the counsel for both sides having miserably
failed to record the reasons for formulating the other
substantial questions of law.

24. In our opinion, the High Court has erred in holding that
the appellants have failed to establish their title to the suit
property evidently without appreciating the evidence on
record in its proper perspective by making only reference
to portions of evidence having once decided to
reappreciate the evidence. The High Court, in our opinion,
ought to have examined the entire evidence both oral and
documentary instead of only a portion thereof especially
while deciding to look into and reappreciate the evidence
despite the limited scope under
Section 100
CPC. In our
view, the learned Single Judge of the High Court has
exceeded his jurisdiction in reassessing, reappreciating
and making a roving enquiry by entering into the factual
arena of the case which is not the one contemplated under

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the limited scope of jurisdiction of a second appeal under

Section 100
CPC.

25. In the present case, the lower appellate court fairly
appreciated the evidence and arrived at a conclusion that
the appellants' suit was to be decreed and that the
appellants are entitled to the relief as prayed for. Even
assuming that another view is possible on a reappreciation
of the same evidence, that should not have been done by
the High Court as it cannot be said that the view taken by
the first appellate court was based on no material.

26. To say the least the approach of the High Court was
not proper. It is the obligation of the courts of law to
further the clear intendment of the legislature and not
frustrate it by excluding the same. This Court in a catena of
decisions held that where findings of fact by the lower
appellate court are based on evidence, the High Court in
second appeal cannot substitute its own findings on
reappreciation of evidence merely on the ground that
another view was possible". (emphasis in original)

27. Reverting to the facts of the case at hand and
keeping in view the aforesaid principles of law in mind, we
find that the High Court while admitting the second appeal
had formulated the following questions:

1. Whether the finding of the Court below, that the suit
site on O.S.No.53/93 in S.No.35/5, Ex.C.I AI and the leased
site, surrendered by P.W.6 in S.No.35/5 CI A 19 arc one and
the same, is vitiated by its failure to consider the

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admissions of D.W.I and the relevant documentary
evidence, which establish that there was a sub-division of
S.No.35/5, the suit site is S.No.35/5, CI Ex.A.I being a
Government poramboke land and the site of the defendant
classified as a "Darga Burial Ground Mosque", each distinct
and different from the other? Admissions of D.W. 1:

2 Whether the Court below have failed to see that
Ex.A.2 (Gift deed being a thirty year old document, the
presumption under
Section 90
of Evidence Act applies,
both with regard to execution and attestation, and as such
the opinion of the trial Court that it is suspicious document,
is untenable and unsustainable in law?

3. Whether the lower appellate Court erred in law in not
framing proper points for consideration, on the validity of
Ex.A.2 gift deed and the sub- division of suit property
S.No.35/5 C1A1, as required under Order 41 Rule 31 C.P.C.

and as such the Judgment of the lower appellate Court as a
final Court of fact is vitiated by errors of law?

4. Whether the lower appellate Court has erred in law,
in holding that Ex.A2 gift deed is invalid, because the
property gifted is poramboke, when the Government itself
(second defendant) has not disputed either the long
possession or possessory title of the plaintiff of the suit
property?

5. Whether the lower appellate Court has erred in law
on the question of title, merely by adverting to Ex.A.3,
Ex.A.4, Ex.A.5 - tax receipts, and the entire reasoning is

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based on mere guess work ignoring the relevant and
clinching documentary evidence?

6. Whether the finding of the lower appellate Court that
P.W.6 (plaintiff's son) did not vacate the site even after the
lease period of the site S.No.35/5 C1A19 of D.I is not based
on any evidence except the word of D.W.2 (no witnesses
wee examined) and the conclusion reached by it that the
suit site in O.S.No.53/93 and the leased site are the same,
is contrary to the evidence on record?

7. Whether the lower appellate Court has erred in law in
its failure to consider the admission of D.W.2 himself that
his father encroached into the plaintiff's site and was
issued B-Memos and paid the penalty, which conclusively
establishes that the two sites are different and not one and
the same?

8. Whether the very approach of the lower appellate
Court is essentially erroneous and its findings are liable to
be set aside (
Jagdish Singh v. Natthu Singh
AIR 1992 S.C.,
1604)?

28. In our considered opinion, the aforementioned
questions cannot be regarded as satisfying the test of
being a "substantial questions of law" within the meaning
of
Section 100
of CPC. These questions, in our view, are
essentially questions of fact. In any event, the second
appeal did not involve any substantial questions of law as
contemplated under
Section 100
of CPC and lastly no case
was made out by the respondents before the High Court

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for remanding of the case to the trial court for de novo trial
in all the civil suits. This we say for following reasons.

19.
In the case of
Panchugopal Barua
(supra), the Apex

Court has observed in paragraphs no.7 and 8 as under:-

"7. A bare look at Section 100.
Code of Civil
Procedure
shows that the jurisdiction of the High Court to
entertain a second appeal after the 1976 amendment is
confined only to such appeals as involve a substantial
question of law, specifically set out in the memorandum of
appeal and formulated by the High Court. Of course, the
proviso to the Section shows that nothing shall be deemed
to take away or abridge the power of the Court to hear, for
reasons to be recorded, the appeal on any other
substantial question of law, not formulated by it, if the
Court is satisfied that the case involves such a question.
The proviso presupposes that the Court shall indicate in its
order the substantial question of law which it proposes to
decide even if such substantial question of law was not
earlier formulated by it. The existence of a "substantial
question of law" is thus, the sine qua non for the exercise
of the jurisdiction under the amended provisions of Section
100, C. P. C.

8. Generally speaking, an appellant is not to be allowed
to set up a new case in second appeal or raise a new issue
(otherwise than a jurisdictional one ), not supported by the
pleadings or evidence on the record and unless the appeal

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inovles a substantial question of law, a second appeal shall
not lie to the High Court under the amended provisions. In
the present case, no such question of law was formulated
in the memorandum of appeal in the High Court and
grounds (6) and (7) in the memorandum of the second
appeal on which reliance is placed did not formulate any
substantial question of law. The learned single Judge of the
High Court also, as it transpires from a perusal of the
Judgement under appeal, did not formulate any substantial
question of law in the appeal and dealt with the second
appeal, not on any substantial question of law, but treating
it as if it was a first appeal, as of right, against the
Judgement and decree of the subordinate Court. The
intendment of the legislature in amending
Section
, Code of Civil Procedure was, thus, respected in its
breach. Both the trial Court and the lower Appellate Court
had decided the case only on questions of fact, on the
basis of the pleadings and the evidence led by the parties
before the trial Court. No pure question of law nor even a
mixed question of law and fact was urged before the trial
Court or the First Appellate Court by the respondent. The
High Court was, therefore, not justified in entertaining the
second appeal on an altogether new point, neither pleaded
nor canvassed in the subordinate Courts and that too by
overlooking the changes brought about in
Section
, Code of Civil Procedure by the Amendment Act of
1976 without even indicating that a substantial question of
law was required to be resolved in the second appeal. To
say the least, the approach of the High Court was not
proper. It is the obligation of the Courts of law to further
the clear intendment of the legislature and not to frustrate

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it by ignoring the same.

20.
In the case of
Kondiba Dagadu Kadam
(supra), the Apex

Court has observed in paragraphs no.3 to 7 as under:-

"3. After the amendment a second appeal can be filed
only if a substantial question of law is involved in the case.
The memorandum of appeal must precisely state the
substantial question of law involved and the High Court is
obliged to satisfy itself regarding the existence of such
question. If satisfied, the High Court has to formulate the
substantial question of law involved in the case. The
appeal is required to be heard on the question so
formulated. However, the respondent at the time of the
hearing of the appeal has a right to argue that the case in
the court did not involve any substantial question of law.
The proviso to the Section acknowledges the powers of the
High Court to hear the appeal on a substantial point of law,
though not formulated by it with the object of ensuring
that no injustice is done to the litigant where such question
was not formulated at the time of admission either by
mistake or by inadvertence.

4. It has been noticed time and again that without
insisting for the statement of such substantial question of
law in the memorandum of appeal and formulating the
same at the time of admission, the High Courts have been
issuing notices and generally deciding the second appeals
without adhering to the procedure prescribed
u/s. 100
,
Code of Civil Procedure. It has further been found in a

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number of cases that no efforts are made to distinguish
between a question of law and a substantial question of
law. In exercise of the powers under this Section the
findings of fact of the 1st appellate Court are found to have
been disturbed. It has to be kept in mind that the right of
appeal is neither a natural nor an inherent right attached
to the litigation. Being a substantive statutory right, it has
to be regulated in accordance with law in force at the
relevant time. The conditions mentioned in the Section
must be strictly fulfilled before a second appeal can be
maintained and no court has the power to add to or
enlarge those grounds. The second appeal cannot be
decided on merely equitable grounds. The concurrent
findings of facts howsoever erroneous cannot be disturbed
by the High Court in exercise of the powers under this
Section. The substantial question of law has to be
distinguished from a substantial question of fact. This
Court in Sir Chunilal V. Mehta and Sons Ltd. V/s. Century
Spinning and Manufacturing Co. Ltd., AIR 1962 SC 1314
held that :-

"The proper test for determining whether a question of law
raised in the case is substantial would, in our opinion, be
whether it is of general public importance or whether it
directly and substantially affects the rights of the parties
and if so whether it is either an open question in the sense
that it is not finally settled by this Court or by the Privy
Council or by the Federal Court or is not free from difficulty
or calls for discussion of alternative views. If the question is
settled by the highest Court or the general principles to be
applied in determining the question are well settled and

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there is a mere question of applying those principles or
that the plea raised is palpably absurd the question would
not be a substantial question of law."

5. It is not within the domain of the High Court to
investigate the grounds on which the findings were arrived
at, by the last court of fact, being the first appellate Court.
It is true that the lower appellate Court should not
ordinarily reject witnesses accepted by the trial Court in
respect of credibility but even where it has rejected the
witnesses accepted by the trial court, the same is no
ground for interference in second appeal when it is found
that the appellate Court has given satisfactory reasons for
doing so. In a case where from a given set of
circumstances two inferences are possible, one drawn by
the lower appellate Court is binding on the High Court in
second appeal. Adopting any other approach is not
permissible. 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.

6. If the question of law termed as substantial question
stands already decided by a larger bench of the High Court
concerned or by the Privy Council or by the Federal Court
or by the Supreme Court, its merely wrong application on
facts of the case would not be termed to be a substantial

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question of law. Where a point of law has not been pleaded
or is found to be arising between the parties in the
absence of any factual format, a litigant should not be
allowed to raise that question as substantial question of
law in second appeal. The mere appreciation of the facts,
the documentary evidence or the meaning of entries and
the contents of the document cannot be held to be raising
a substantial question of law. But where it is found that the
first appellate Court has assumed jurisdiction which did not
vest in it, the same can be adjudicated in the second
appeal, treating it as substantial question of law. Where
the first appellate Court is shown to have exercised its
discretion in a judicial manner, it cannot be termed to be
an error either of law or of procedure requiring interference
in second appeal. This Court in Reserve Bank of
India V/s. Ramakrishna Govind Morey, AIR 1976 SC 830 :

(1976 Lab IC 575) held that whether trial Court should not
have exercised its jurisdiction differently is not a question
of law justifying interference."

21.
In the case of
Roshan Singh
(supra), the Apex Court has

observed in paragraph no.12 as under:-

"12. Partition, unlike the sale or transfer which consists in
its essence of a single act, is a continuing state of facts. It
does not require any formality and therefore if parties
actually divide their estate and agree to hold in severally,
there is an end of the matter."

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22. Let me give a fair idea about the family pedigree:

Chhotabhai Amthabhai Patel Jibaben Chhotabhai Patel
(Date of Death 1950)-----------------------(Date of Death 31.01.1961)
|
|
| | |
Khushalbhai Bhikhabhai Umedbhai
(Ori. Plaintiff / (Ori. Defendant
Respondent herein) Appellant herein)

23. I have considered the submissions canvassed by the

learned counsel appearing for the respective parties and after

thoughtful consideration, first of all, the present second appeal is

filed under Section 100 of the Civil Procedure Code. The

requirement of Section 100 is that the memorandum of appeal

shall precisely state the substantial question or questions of law

involved in the appeal as required under sub-section (3) of

Section 100. Where the High Court is satisfied that in any case

any substantial question of law is involved it shall formulate that

question under sub-section (4) and the second appeal has to be

heard on the question so formulated as stated in sub-section (5)

of Section 100. Meaning thereby unless there is substantial

question involved in the present appeal or it is framed by the

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Court, the appeal cannot be entertained or heard by the High

Court.

24. Considering the proviso of Section 100 is to the effect that

nothing in this sub-section shall be deemed to take away or

abridge the power of the Court to hear, for reasons to be

recorded, the appeal on any other substantial question of law,

not formulated by it, if it is satisfied that the case involves such

question. It is abundantly clear that when a question of law is

fairly arguable, where there is room for difference of opinion on it

or where the Court thought it necessary to deal with that

question at some length and discuss alternative views, then the

question would be a substantial question of law. On the other

hand if the question was practically covered by the decision of

the highest court or if the general principles to be applied in

determining the question are well settled and the only question

was of applying those principles to the particular facts of the

case it would not be a substantial question of law. In the present

appeal, learned counsel has suggested the following questions of

law:

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1. Whether the Lambha Khat in question is admissible in
evidence without the same being registered as
required under law?

2. Whether the Courts below have materially erred in
construing the documents on record, more
particularly the Lambha Khat in question?

3. Whether the reliefs as granted by the Courts below
could have been granted in view of the frame of the
suit and the documents on record?

4. Whether the decree as passed by the Courts below
without firstly adjudicating the exact shares of parties
and exactly demarcating the properties in question, is
in violation of the provisions of law?

5. Whether the alleged sale deed, Exh.84 is valid under
law and binding to the Appellants?

6. Whether the suit of the Plaintiff is barred by law of
limitation?

7. Whether the Courts below have materially erred in
recording various findings on the basis of the
proceedings before the Revenue authorities, without
independently appreciating the evidences tendered
on record?

8. Whether the Appellant can be considered to have
perfected their title by adverse possession against
the Respondents?

25. It is profitable to referred to the decision of the Apex Court

in the case of
K.Arumuga Velaiah Vs. P. R. Ramasamy and

another
, reported in (2022) 3 SCC 757 wherein the Apex

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Court, while referring to its earlier decision in the case of
Kale

Vs. Director of Consolidation
reported in (1976) 3 SCC 119,

has observed in paragraphs no.33, 34, 35, 36, 44, 46 and 48 as

under:-

"33.
Kale and Ors. v. Deputy Director of Consolidation
, is
a case which had a checkered history in which a discussion
on the effect and value of family arrangements entered
into between the parties with a view to resolve disputes
once and for all, came up for consideration. It was
observed that in the case of a family settlement, usually
there would be an agreement which is implied from a long
course of dealing, but such an agreement would be
embodied or effectuated in a deed to which the
term family arrangement is applied. Such a family
arrangement is not applicable to dealings between
strangers but is in the context of maintaining the interest
and peace of the members of the family.

34.
In paragraph 10 of
the said judgment
, this Court has
adumbrated on the essentials of a family settlement which
could be usefully extracted as under: (
Kale
case, SCC pp.
126-27)

"10. In other words to put the binding effect and the
essentials of a family settlement in a concretized form, the
matter may be reduced into the form of the following
propositions:

(1) The family settlement must be a bona fide one so as to

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resolve family disputes and rival claims by a fair and
equitable division or allotment of properties between the
various members of the family;

(2) The said settlement must be voluntary and should
not be induced by fraud, coercion or undue influence;
(3) The family arrangements may be even oral in which
case no registration is necessary;

(4) It is well settled that registration would be necessary
only if the terms of the family arrangement are reduced
into writing. Here also, a distinction should be made
between a document containing the terms and recitals of a
family arrangement made under the document and a mere
memorandum prepared after the family arrangement had
already been made either for the purpose of the record or
for information of the Court for making necessary
mutation. In such a case the memorandum itself does not
create or extinguish any rights in immoveable properties
and therefore does not fall within the mischief of
Section
17(2)
[sic (
Section 17(1)(b)
?] of the
Registration Act
and is,
therefore, not compulsorily registrable;
(5) The members who may be parties to the family
arrangement must have some antecedent title, claim or
interest even a possible claim in the property which is
acknowledged by the parties to the settlement.

Even if one of the parties to the settlement has no title but
under the arrangement the other party relinquishes all its
claims or titles in favour of such a person and
acknowledges him to be the sole owner, then the
antecedent title must be assumed and the family
arrangement will be upheld, and the Courts will find no
difficulty in giving assent to the same;

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(6) Even if bona fide disputes, present or possible, which
may not involve legal claims are settled by a bona fide
family arrangement which is fair and equitable the family
arrangement is final and binding on the parties to the
settlement. (emphasis in original)

35. After reviewing several judgments of this Court, the
Privy Council and other High Courts, this Court in
paragraph 20 indicated the following propositions: (
Kale

case, SCC p. 130)

"20....We would, therefore return the reference with a
statement of the following general propositions:

(1) A family arrangement can be made orally.

(2) If made orally, there being no document, no question
of registration arises.

(3) If though it could have been made orally, it was in
fact reduced to the form of a "document" registration
(when the value is Rs. 100 and upwards) is necessary.

(4) Whether the terms have been "reduced to the form of
a document" is a question of fact in each case to be
determined upon a consideration of the nature and
phraseology of the writing and the circumstances in which
and the purpose with which it was written.

(5) If the terms were not "reduced to the form of a
document", registration was not necessary (even though

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the value is Rs. 100 or upwards); and, while the writing
cannot be used as a piece of evidence for what it may be
worth, e.g. as corroborative of other evidence or as an
admission of the transaction or as showing or explaining
conduct.

(6) If the terms were "reduced to the form of a
document" and, though the value was Rs. 100 or upwards,
it was not registered, the absence of registration makes
the document inadmissible in evidence and is fatal to proof
of the arrangement embodied in the document.

36. Ultimately, this Court held that the family
arrangement in the nature of a compromise which was
considered
in that case
did not require registration. It was
further held that since the existence of the family
arrangement was admitted
in that case
, the same was
binding on the principle of estoppel. Also, even if the family
arrangement could not be registered it could be used for
collateral purpose, i.e. to show the nature and character of
possession of the parties in pursuance of the family
settlement and also for the purpose of applying the rule of
estoppel which flowed from the conduct of the parties,
who, having taken benefit under the settlement for seven
years, later tried to resile from the settlement.

44. For a better understanding of the same it would be
useful to refer to
section 17 (1) (e)
and
17 (2) (v)
as under:

17. Documents of which registration is compulsory. (l) The
following documents shall be registered, if the property to

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which they relate is situate in a district in which, and if
they have been executed on or after the date on which,
Act No. XVI of 1864, or the
Indian Registration Act, 1866
, or
the
Indian Registration Act, 1871
, or the
Indian
Registration Act, 1877
, or this Act came or comes into
force, namely:-

* * *

(b) other non testamentary instruments which purport or
operate to create, declare, assign, limit or
extinguish, whether in present or in future, any right, title
or interest, whether vested or contingent, of the value of
one hundred rupees and upwards, to or in immovable
property;

* * *

(2) Nothing in clauses (b) and (c) of sub section (l)
applies to:

(v) any document other than the documents specified in
sub section (1-A) not itself creating,

declaring, assigning, limiting or extinguishing any right,
title or interest of the value of one hundred rupees and
upwards to or in immovable property, but merely creating
a right to obtain another document which will, when
executed, create, declare, assign, limit or extinguish any
such right, title or interest."

46. In the instant case exhibit B 13 award is more in the

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nature of a memorandum of understanding, a mere
agreement of the steps to be taken in future for the
division of the properties. Hence, the said document did
not require registration under
Section 17 (1) (b)
of the Act
as under the said document no creation of rights in any
specific joint family property was effected. Hence the
second limb of the contention of the appellant is
accordingly answered.

48. In our view, Ext. B-13 did not require registration.

26. It is profitable to referred to the decision of the Apex Court

in the case
Kashmir Singh Vs. Harnam Singh
reported in

(2008) 12 SCC 786 wherein the Apex Court has observed in

paragraphs no.9, 10, 11, 12, 13 and 15 as under:-

"9. It has been noted time and again that without insisting for
the statement of such a substantial question of law in the
memorandum of appeal and formulating the same at the time of
admission, the High Courts have been issuing notices and generally
deciding the second appeals without adhering to the procedure
prescribed u/s. 100 of the Code. It has further been found in a
number of cases that no efforts are made to distinguish between a
question of law and a substantial question of law. In exercise of the
powers under this section in several cases, the findings of fact of
the first appellate court are found to have been disturbed. It has to
be kept in mind that the right of appeal is neither a natural nor an
inherent right attached to the litigation. Being a substantive
statutory right, it has to be regulated in accordance with law in
force at the relevant time. The conditions mentioned in the section

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must be strictly fulfilled before a second appeal can be maintained
and no court has the power to add or to enlarge those grounds. The
second appeal cannot be decided on merely equitable grounds. The
concurrent findings of facts will not be disturbed by the High Court
in exercise of the powers under this section. Further, a substantial
question of law has to be distinguished from a substantial question
of fact. This Court in Sir Chunilal V. Mehta and Sons Ltd. V/s.
Century Spg. & Mfg. Co. Ltd., AIR 1962 SC 1314 held that :

"The proper test for determining whether a question of law
raised in the case is substantial would, in our opinion, be
whether it is of general public importance or whether it
directly and substantially affects the rights of the parties and
if so whether it is either an open question in the sense that it
is not finally settled by this Court or by the Privy Council or
by the Federal Court or is not free from difficulty or calls for
discussion of alternative views. If the question is settled by
the highest court or the general principles to be applied in
determining the question are well settled and there is a
mere question of applying those principles or that the plea
raised is palpably absurd the question would not be a
substantial question of law."

10. It is not within the domain of the High Court to
investigate the grounds on which the findings were arrived
at, by the last court of fact, being the first appellate court. It
is true that the lower appellate court should not ordinarily
reject witnesses accepted by the trial court in respect of
credibility but even where it has rejected the witnesses
accepted by the trial court, the same is no ground for
interference in second appeal when it is found that the
appellate court has given satisfactory reasons for doing
so. In a case where from a given set of circumstances two
inferences of fact are possible, one drawn by the lower
appellate court will not be interfered by the High Court in
second appeal. Adopting any other approach is not

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permissible. The High Court will, however, interfere where 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 by ignoring
material evidence.

11. The question of law raised will not be considered as a
substantial question of law, if it stands already decided by a
larger Bench of the High Court concerned or by the Privy
Council or by the Federal Court or by the Supreme Court.
Where the facts required for a point of law have not been
pleaded, a litigant should not be allowed to raise that
question as a substantial question of law in second
appeal. Mere appreciation of facts, the documentary
evidence or the meaning of entries and the contents of the
documents cannot be held to be raising a substantial
question of law. But where it is found that the first appellate
court has assumed jurisdiction which did not vest in it, the
same can be adjudicated in the second appeal, treating it as
a substantial question of law. Where the first appellate court
is shown to have exercised its discretion in a judicial
manner, it cannot be termed to be an error either of law or
of procedure requiring interference in second appeal. This
Court in Reserve Bank of India V/s. Ramkrishna Govind
Morey, 1976 1 SCC 803 held that whether the trial court
should not have exercised its jurisdiction differently is not a
question of law justifying interference.(See: Kondiba Dogadu
Kadam V/s. Savitribai Sopan Gujar and Others, 1999 3 SCC

722).

12. The phrase "substantial question of law", as occurring
in the amended Sec. 100 is not defined in the Code. The
word substantial, as qualifying "question of law", means of
having substance, essential, real, of sound worth, important

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or considerable. It is to be understood as something in
contradistinction with technical, of no substance or
consequence, or academic merely. However, it is clear that
the legislature has chosen not to qualify the scope of
"substantial question of law" by suffixing the words "of
general importance" as has been done in many other
provisions such as
Art. 133(1)(a)
of the Constitution. The
substantial question of law on which a second appeal shall
be heard need not necessarily be a substantial question of
law of general importance. In Guran Ditta V/s. T. Ram Ditta,
AIR 1928 PC 172, the phrase 'substantial question of law' as
it was employed in the last clause of the then existing Sec.
100 (since omitted by the
Amendment Act, 1973
) came up
for consideration and their Lordships held that it did not
mean a substantial question of general importance but a
substantial question of law which was involved in the case.

In
Sri Chunilal
's case (supra), the Constitution Bench
expressed agreement with the following view taken by a full
Bench of the Madras High Court in Rimmalapudi Subba Rao
V/s. Noony Veeraju, AIR 1951 Mad 969:

"When a question of law is fairly arguable, where there is
room for difference of opinion on it or where the Court
thought it necessary to deal with that question at some
length and discuss alternative views, then the question
would be a substantial question of law. On the other hand if
the question was practically covered by the decision of the
highest court or if the general principles to be applied in
determining the question are well settled and the only
question was of applying those principles to the particular
facts of the case it would not be a substantial question of
law."

13. This Court laid down the following test as proper test,
for determining whether a question of law raised in the case
is substantial as quoted in
Sir Chunilal
's case (supra).

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15. To be "substantial" a question of law must be
debatable, not previously settled by law of the land or a
binding precedent, and must have a material bearing on the
decision of the case, if answered either way, insofar as the
rights of the parties before it are concerned. To be a
question of law "involving in the case" there must be first a
foundation for it laid in the pleadings and the question
should emerge from the sustainable findings of fact arrived
at by court of facts and it must be necessary to decide that
question of law for a just and proper decision of the case. An
entirely new point raised for the first time before the High
Court is not a question involved in the case unless it goes to
the root of the matter. It will, therefore, depend on the facts
and circumstance of each case whether a question of law is
a substantial one and involved in the case, or not; the
paramount overall consideration being the need for striking
a judicious balance between the indispensable obligation to
do justice at all stages and impelling necessity of avoiding
prolongation in the life of any lis. (See :Santosh Hazari V/s.
Purushottam Tiwari (deceased) by Lrs., 2001 3 SCC 179).

27. Considering the questions suggested by the learned

counsel appearing for the appellants, it does not require any

further hearing or re-determination. The question is practically

covered by the decision of the highest court and/or there is no

further determination of any of the questions suggested by the

learned counsel is required. Considering the test which is

enumerated by the Hon'ble Apex Court in
Sir Chunilal
's case

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(supra) for determining whether a question of law raised in a

given case is substantial question. The substantial question of

law must be debatable, not previously settled by law of the land

or a binding precedent, and must have a material bearing on the

decision of the case, if answered either way, insofar as the rights

of the parties before it are concerned. To be a question of law

"involving in the case" there must be first a foundation for it laid

in the pleadings and the question should emerge from the

sustainable findings of fact arrived at by court of facts and it

must be necessary to decide that question of law for a just and

proper decision of the case. An entirely new point raised for the

first time before the High Court is not a question involved in the

case unless it goes to the root of the matter. It will, therefore,

depend on the facts and circumstance of each case whether a

question of law is a substantial one and involved in the case, or

not; the paramount overall consideration being the need for

striking a judicious balance between the indispensable obligation

to do justice at all stages and impelling necessity of avoiding

prolongation in the life of any lis.

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28. The principles relating to Section 100 relevant for this case

may be summarized thus:-

(i) An inference of fact from the recitals or contents of a
document is a question of fact. But the legal effect of
the terms of a document is a question of law.

Construction of a document involving the application
of any principle of law, is also a question of law.
Therefore, when there is misconstruction of a
document or wrong application of a principle of law in
construing a document, it gives rise to a question of
law.

(ii) The High Court should be satisfied that the case
involves a substantial question of law, and not a mere
question of law. A question of law having a material
bearing on the decision of the case (that is, a
question, answer to which affects the rights of parties
to the suit) will be a substantial question of law, if it is
not covered by any specific provisions of law or
settled legal principle emerging from binding
precedents, and, involves a debatable legal issue. A
substantial question of law will also arise in a contrary
situation, where the legal position is clear, either on
account of express provisions of law or binding
precedents, but the court below has decided the
matter, either ignoring or acting contrary to such legal
principle. In the second type of cases, the substantial
question of law arises not because the law is still
debatable, but because the decision rendered on a

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material question, violates the settled position of law.

29. Therefore, in the general rule, High Court will not interfere

with concurrent findings of the Courts below. But it is not an

absolute rule. Some of the well recognized exceptions are where

(i) the courts below have ignored material evidence or acted on

no evidence; (ii) the courts have drawn wrong inferences from

proved facts by applying the law erroneously; or (iii) the courts

have wrongly cast the burden of proof. When we refer to

'decision based on no evidence', it not only refers to cases where

there is a total dearth of evidence, but also refers to any case,

where the evidence, taken as a whole, is not reasonably capable

of supporting the finding.

30. In view of the aforesaid settled principles, it appears that

the both the Courts below have not committed any error either

on facts or on law. As per the decision of the Apex Court in the

case of
Gurnam Singh
(supra), framing of substantial question

of law is a sine qua non for the exercise of the jurisdiction under

Section 100 of the Code. Considering the issue involved in the

present appeal and the contentions raised on the basis of the

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factual aspects of the matter, this Court not thought it fit to enter

into the factual aspects which does not involved any substantial

question of law.
It is also relevant to note here that the re-

appreciation of the evidence is impermissible by this court while

exercising the jurisdiction under Section 100 of the Code.

31. Considering all the contentions raised in the appeal, this

Court has no hesitation to show that in the present appeal no

substantial question is involved as the question suggested by the

appellants with regard to more or less re-appreciation of the

evidence recorded by the Trial Court which is permissible under

the jurisdiction of Section 100 of the Code.

32. Considering the facts and circumstances of the case,

submissions canvassed by the learned counsel for the respective

parties and the decisions cited at the Bar, I find no reason to

entertain the present appeal.

33. For the foregoing reasons, the appeal fails and it is

accordingly dismissed. The Trial Court shall direct to implement

the impugned judgment and decree in its true spirit and hand

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over the possession to the original plaintiffs within three months

from the date of receipt of the copy of the order, if it is not

handed over by the defendants by metes and bounds.

34. In view of the disposal of the main appeal, connected civil

applications shall stand disposed of. Interim relief, if any, granted

earlier shall stand vacated forthwith.

Sd/-

(HEMANT M. PRACHCHHAK,J)

FURTHER ORDER

After pronouncement of the judgment, the learned counsel

appearing for the appellants has requested to stay the

implementation and operation of the judgment. However, it

seems that the stay is operating since 1982 and they are fighting

for the cause and, therefore, the request made by learned

counsel appearing for the appellants is not just and proper.

Hence, the request is not accepted.

Sd/-

(HEMANT M. PRACHCHHAK,J)
V.R. PANCHAL

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