Case Note & Summary
The appellant, original plaintiff, filed a Second Appeal under Section 100 of the Code of Civil Procedure, 1908, challenging the judgment and decree dated 13.11.2025 passed by the learned Principal District Judge, Khambhaliya in Regular Civil Appeal No. 15 of 2023, which upheld the judgment and decree dated 12.05.2023 passed by the learned Principal Senior Civil Judge, Khambhaliya in Regular Civil Suit No. 74 of 2009. The plaintiff had filed a suit for declaration, cancellation of a registered sale deed dated 28.02.2007, and permanent injunction concerning agricultural land bearing Revenue Survey No. 288/P-1. According to the plaintiff, defendant Nos. 3 and 4 executed an agreement to sell with possession on 31.05.2005 for a total consideration of Rs.1,15,281/-, out of which Rs.15,281/- was paid in cash and possession was handed over. The plaintiff alleged that despite requests, defendant Nos. 3 and 4 did not execute the sale deed, and later defendant No. 1 claimed to have purchased the property via a registered sale deed dated 28.02.2007 through a power of attorney holder. The trial court framed issues and, after trial, dismissed the suit. The first appellate court confirmed the dismissal. In the Second Appeal, the High Court heard the appellant's counsel and perused the record. The court noted that the plaintiff failed to prove the payment of consideration and delivery of possession. The agreement to sell was not proved, and the plaintiff did not examine any independent witness. The courts below concurrently found that the plaintiff had no right or interest in the property. The High Court held that no substantial question of law arose, as the findings were based on evidence and were not perverse. The Second Appeal was dismissed, and the civil application for stay was also dismissed.
Headnote
A) Civil Procedure - Second Appeal - Substantial Question of Law - Section 100 Code of Civil Procedure, 1908 - The court examined whether the concurrent findings of fact by the trial court and first appellate court were perverse or based on no evidence. Held that the plaintiff failed to prove payment of consideration and possession, and the findings were not perverse; hence no substantial question of law arose (Paras 1-19). B) Transfer of Property Act - Agreement to Sell - Ownership - Section 54 Transfer of Property Act, 1882 - The court reiterated that an agreement to sell does not confer ownership or title in the property. The plaintiff's claim based on an unregistered agreement to sell was insufficient to challenge a subsequent registered sale deed (Paras 3-19). C) Evidence - Burden of Proof - Consideration and Possession - The plaintiff failed to discharge the burden of proving payment of Rs.15,281/- as part consideration and delivery of possession. The courts below correctly held that the plaintiff did not prove the agreement to sell or possession (Paras 3-19).
Issue of Consideration
Whether the Second Appeal under Section 100 of the Code of Civil Procedure, 1908 raises any substantial question of law warranting interference with the concurrent findings of the courts below.
Final Decision
The Second Appeal is dismissed. The judgment and decree dated 13.11.2025 passed by the learned Principal District Judge, Khambhaliya in Regular Civil Appeal No. 15 of 2023 is confirmed. The civil application for stay also stands dismissed.
Law Points
- Agreement to sell does not create title
- Section 54 of Transfer of Property Act
- 1882
- Section 100 of Code of Civil Procedure
- 1908
- Concurrent findings of fact not interfered with in second appeal unless perverse
- Burden of proof on plaintiff to prove consideration and possession
