Holding

The second appeal under Section 100 CPC is dismissed because it does not raise a substantial question of law and amounts to a third trial on facts.

Summary

The plaintiff Hansaben filed a suit seeking declaration and cancellation of a 1990 sale deed, asserting she became the owner of a one‑acre land after purchasing it from defendant No.1 in 2009. The trial court dismissed the suit, and the first appellate court affirmed the dismissal. The plaintiff then filed a second appeal under Section 100 of the CPC, raising six substantive legal questions concerning the necessity of a registered deed, the evidentiary value of revenue mutation entries, and the effect of a withdrawn suit. The High Court examined the appellant’s arguments, noting that the alleged family settlement and revenue mutation were never pleaded or proved, and that mutation entries do not create or extinguish title. Relying on Supreme Court precedents that mutation entries have no presumptive title value and that a second appeal must involve a substantial question of law, the Court held that the appeal was a “third trial on facts.” Consequently, the appeal was dismissed at the admission stage.

Issues considered

Whether a registered deed/document is mandatory for relinquishment/waiver of right
Whether the courts below erred in heavily relying on a revenue entry judgment in determining title
Whether a revenue entry of family settlement/waiver of right has evidentiary value
Whether the withdrawal of a previous suit by Defendant 2 precludes any title dispute for Defendant 1
Whether the plaintiff is a bona‑fide purchaser of the suit land
Whether the lower appellate court failed to frame proper issues and mechanically upheld the trial court’s judgment

Legislation cited

Code of Civil Procedures. 100, s. 103
Hindu Succession Acts. 14, s. 15
Registration Acts. 17
Transfer of Property Acts. 5, s. 54, s. 6, s. 8

Subjects

property lawtitle disputerevenue mutationtransfer of property actregistration actsecond appealsubstantial question of lawestoppelbona fide purchaser

Judgment

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

Reserved On : 27/01/2026
Pronounced On : 04/02/2026

IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

R/SECOND APPEAL NO. 222 of 2022

With
CIVIL APPLICATION (FOR STAY) NO. 1 of 2022
In R/SECOND APPEAL NO. 222 of 2022

FOR APPROVAL AND SIGNATURE:

HONOURABLE MR. JUSTICE J. C. DOSHI

==========================================================

Approved for Reporting Yes No

==========================================================
HANSABEN W/O JIVAN BARIYA
Versus
SAKARBHAI RAMBHAI SOLANKI & ORS.
==========================================================
Appearance:
MR. BHAUMIK DHOLARIYA(7009) for the Appellant(s) No. 1
MR TUSHARKUMAR R UPADHYAY(9812) for the Respondent(s) No. 1
MS SNEHA A JOSHI(2156) for the Respondent(s) No. 1
NOTICE SERVED for the Respondent(s) No. 2,3,4
==========================================================

CORAM:HONOURABLE MR. JUSTICE J. C. DOSHI

CAV JUDGMENT

1. This second appeal u/s 100 of the Code of Civil
Procedure, 1908 (in short “the Code”) at the instance of the
original plainti challenges concurrent ndings of fact arrived
at by the learned Courts below, whereby rstly, the learned
Addl. Senior Civil Judge, Una by judgment and decree dated

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3.4.2021 dismissed the suit. Regular Civil Appeal No.7 of
2021 led by the appellant – plainti was also dismissed by
the learned 2nd Additional District Judge, Una by judgment
and decree dated 9.3.2022. Both the judgment and decree
have been questioned by the appellant – plainti inter alia
raising following questions as substantial questions of law.

“i. Whether the Court(s) below erred in holding
that registered deed / document is mandatory for
relinquishment / waiver of right?

ii. Whether in the facts and circumstances of the
case, while deciding the title of the property in the
civil suit, the Courts below erred in heavily relying
upon the Judgment passed by the High Court in
revenue entry proceedings?

iii. Whether the revenue entry of family
settlement / waiver of right has no evidentiary value?

Iv Whether in the facts and circumstances of the
case, the Court(s) below erred in holding that on
account of withdrawal of previous suit by the
Defendant No.2, the Defendant No.1 has no dispute
with respect to title of the suit land and therefore the
Plainti) is not entitled to get the reliefs as prayed in
the plaint?

v. Whether the Court(s) below erred in holding
that the Plainti) is not the bona*de purchaser of the
suit land?

vi. Whether the Id. Lower Appellate Court has
erred in not framing proper issues for determination
and has mechanically upheld the Judgment of Id. Trial
Court without appreciating the evidences on record
in its true perspective?”

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

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referred to as per their original status before the learned trial
Court.

3. The factual matrix required notice in nutshell are that
the plainti led suit for declaration and cancellation of sale
deed executed on 7.5.1990 registered at Sr No.556 by Rajiben
Jadav through her irrevocable power of attorney Vasantlal
Gokalbhai in favour of defendant No.1 Sakarbhai Solanki and
to declare that the plainti is the owner and occupier of the
land bearing survey No. 179/1 admeasuring 1 acre 3 guntha
of Tal: Una (in short “suit land”). The plainti ‘s case is based
on the fact that previously, the suit land was in name of
Rajiben. Defendant No.2 Valabhai Jadav is son of Rajiben. The
revenue entry was mutated in favour of Valabhai Jadav on
5.9.1975 being mutation entry No.672, which assigned the
title in favour of Valabhai Jadav, It is further the case of the
plainti that the plainti being bona *de purchaser of the suit
land purchased the same on 18.4.2009 by executing
registered sale deed No.1005 from defendant No.1 Valabhai
and on the premises of the said execution of the sale deed, the
plainti became the owner and occupier of the suit land.

3.1 The aforesaid suit was tried by the learned trial Court,
who, after xing the issues and permitting both the parties to
lead evidence, ultimately dismissed the suit by judgment and
decree impugned in this second appeal.

3.2 Being aggrieved, the plainti preferred the Regular Civil
Appeal before the learned appellate Court. The learned
appellate Court after hearing both the parties dismissed the

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Regular Civil Appeal.

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

4. I have heard learned advocate Mr. Bhaumik Dholariya
for the plainti and learned advocate Ms. Sneha Joshi for the
respondent No.1. Rest of the respondents though served, did
not remain present.

5. To swell up the questions of law framed by the plainti ,
learned advocate Mr. Dholariya, referring to the judgment in
case of Subraya M.N. Vs. Vittala M.N. and others, (2016)
8 SCC 75, would submit that the promulgation entry of the
suit land and other parcels of land were mutated in the
revenue records in name of deceased Ahir Bai Sona Bhagvan
vide promulgation entry No.2 on 21.1.1951. He would further
submit that deceased Bai Sona gave the suit land and other
parcels of land to her daughter Rajiben, whereby two other
sisters namely, Chhavarben and Puniben relinquished their
right over the suit land and other parcels of land. Said fact is
recorded in Mutation Entry No.665 dated 27.6.2025. He
would further submit that likewise, Rajiben in her lifetime,
assigned the suit land and other parcels of land in favour of
her son Valabhai and entry No.672 is mutated in the revenue
records on 5.9.1975. He would further submit that this
mutation entry No.672 was pursuant to family settlement took
place between the parties. The family settlement since was to
ally the dispute between the parties has to be adhered to in its
true sense by the Court of law. He would further submit that
after 5.9.1975, vide mutation entry No.672, Valabhai Jadav

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became the absolute owner of the suit land. Thus, subsequent
thereto, Rajiben had no right or authority whatsoever in the
suit land to sell the same through power of attorney and
therefore, such sale has no legality value in the eyes of law.

5.1 Learned advocate Mr. Dholariya would further submit
that the learned Courts below failed to consider this issue
being survived on the ground that revenue entry mutated in
favour of defendant No.1 pursuant to the registered sale deed
executed by Rajiben has been approved by this Court in writ
proceedings. He would further submit that revenue
entries/mutation entries admittedly are for scal purpose.
Revenue entry/mutation entry does not create nor extinguish
title. It is only civil Court which has authority to decide the
title of the immovable property and the revenue authority has
to follow the decision of the civil Court.

5.2 Stretching argument further, learned advocate Mr.
Dholariya would submit that in view of above, since the year
1975, the suit land stands in name of defendants Valabhai
Jadav, Rajiben, who has relinquished her right from the suit
land and thus, she had no whatsoever right, authority or title
to execute sale deed. This aspect has been totally ignored by
the learned Courts below.

5.3 Lengthening the argument further, learned advocate Mr.
Dholariya would submit that the learned appellate Court erred
in considering that the registered deed or document is
mandatory requirement of the right as well as failed to
consider the evidentiary value of the revenue entry decided

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since 1975 in favour of the plainti and further failed to mark
that the plainti is a bona de purchaser of the suit land.

5.4 Upon above submissions, learned advocate Mr.
Dholariya requests the Court to admit the second appeal on
the aforestated substantial questions of law or any other
substantial questions of law as this Court deems t and proper.

6. In contrast, learned advocate Ms. Sneha Joshi supports
the concurrent ndings of fact of the learned Courts below
and assails the questions of law framed by the plainti by
arguing that these questions are questions of fact and not the
questions of law. She would further submit that the
jurisdiction of this Court u/s 100 of the Code is limited to
examine whether the substantial question of law exists or not.
The ndings of fact given by the learned Courts below if are
on no evidence or on misrepresentation of the evidence, then
this Court certainly can entertain the second appeal, but
otherwise, the Court cannot disturb the concurrent ndings of
fact arrived at by the learned Courts below.

6.1 Learned advocate Ms. Sneha Joshi would further submit
that entry No.672 does not confer title in favour of Vala Jadav.
She would further submit that it is not a relinquishment by
Rajiben, but it is conveyance or assignment, whereby,
according to entry No.672, Rajiben conveyed property to Vala
Jadav, who had no pre-existing right in the suit land. She
would further submit that Rajiben received the suit land from
her maternal side and therefore, u/s 14 and 15 of the Hindu
Succession Act, the Rajiben became absolute owner of the suit

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land and her son cannot claim any right in the immovable
property until the immovable property is conveyed by way of
instrument recognized by law. Mere revenue entry would be
insu icient to convey the title. She would further submit that
the learned Courts below have discussed this issue at length
and breath. Therefore, present second appeal being an
attempt to convert dispute in third trial is not maintainable.

6.2 Upon above submissions, learned advocate Ms. Sneha
Joshi requests the Court to dismiss the second appeal at
threshold.

7. I have heard learned advocates for both the sides and
perused the paper book, along with record and proceedings,
as well as the judgment and decree impugned in the second
appeal.

8. Learned trial court xed the issue at Exh. 29, which
reads as under:-

“1). Whether the plainti) proves that he has
purchased the suit property from deft.no.1 by
registered sale. deed ?

2). Whether the plainti) proves that he become
owner and occupier of suit property by virtue of regd.
sale deed по.1005 dt. 18/04/09 ? of

3) Whether the plainti) proves that he is a bona*de
purchaser of suit property ?

4) Whether the plainti) proves that sale deed no.556
of dated 07/05/1990 is false, bogus and null and
void ?

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5) Whether the plainti) is entitled to get the relief as
prayed for ?

6.) What order and decree ?”

8.1 Issue No. 1 is answered in a irmative, whereas rest of
the issues are in negative and suit was dismissed as answer of
issue No.6.

9. It is noticeable that the plainti , who has propogated
theory of family settlement, did not plead a whisper of word in
the pleadings that revenue entry No.672 was mutated
pursuant to the family settlement between the parties. In
absence of the pleadings, no issue is framed qua and
obviously, no evidence to that e ect was led. The theory is
propagated rst time in second appeal with a view to come
out from the operation of the impugned judgment and decree.
Nonetheless, the family settlement must be between the
parties and not between family members and not mother and
son. Raising of the issue rst time in second appeal duly
related to facts of the case is totally impermissible.

10. Learned advocate, Mr. Dholariya, was put to question
that whether defendant No.2 has obtained any share pursuant
to any family settlement ever took place. He was not in a
position to answer this question, as there is no document
produced on record to show that at any point of time, the
family settlement was taken place and was reduced in writing
between the parties and subsequently acted upon. Thus,
theory of family settlement argued by learned advocate Mr.
Dholariya is deceptive and proved to be ctitious and dummy.

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The entire case of the plainti is based upon revenue entry
No.672. It is between Rajiben and Vala Jadav, where mother
conveyed/assigned the title of the suit land in favour of Vala
Jadav.

11. Section 5 of the transfer of property act de nes transfer
of property; section 6 de nes what may be transfer; section 8
de nes operation of transfer. Reading harmoniously all these
provisions along with section 54 of the transfer of property
Act, it indicates that instrument is required, and if value of the
involved property is more than Rs.100/-, it requires
registration as per section 17 of the Registration Act to
convey the title from one person to another person.

12. The copy, upon which the plainti relied upon to claim
title of the suit land i.e. by way of mutating entry by mother in
favour of without registering any instrument, is not
recognized copy of transfer under law. By revenue entry
No.672, the defendant Vala Jadav did not get any title in his
favour, as the revenue entry apparently are for the scal
purpose except in case otherwise is proved.

13. In case of Sawarni Versus Inder Kaur, 1996 (6) SCC
223, the Hon’ble Apex Court held that mutation of name in
the revenue records does not create or extinguish title nor has
it any presumptive value on title. It only enables the person in
whose favour mutation is ordered to pay the land revenue.

14. The aforestated ratio has been reiterated by the Hon’ble
Apex Court in case of Balwant Singh Versus Daulat Singh,

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1997 (7) SCC 137, wherein it is held that mutation of entry
in revenue records neither creates nor extinguishes title to
the property nor has it any presumptive value on title.

15. In the present case, the plainti , except revenue entry
No.672 dated 5th September 1975 failed to establish that
defendant No.2 Vala Jadav was holding any title in the suit
land. In view of above settled legal position, the revenue
entry by itself, does not create title or even presumption to
the title.

16. Another aspect is noticeable that Rajiben through her
power of attorney executed sale deed in the year 1990,
precisely on 7th May 1990 vide Sr No.556 in favour of
defendant No.1 and revenue entry to that e ect was mutated
in the revenue records. This Court in SCA No.9254 of 2009, by
judgment dated 3rd November 2009, noted that there is no
dispute in regards to title exist between the parties and
further noted that the revenue authority is bound to post
revenue entry pursuant to the registration and execution of
the sale deed. In para 9, the Coordinate Bench of this Court
observed as under:-

“9. In view of the aforesaid facts, the present petition
is required to be considered. As per the decision
rendered by this Court in the case of Jhaverbhai
Savjibhai Patel Thro' POA Holder Ashok J. Patel
(Supra) entry posted on the basis of the registered
sale deed is required to be re>ected in the revenue
record. As held by learned Single Judge in the case of
Agricultural Produce Market Committee, Khambhat
(Supra), once there is a right acquired in the
property by a registered document, it must be

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re>ected in the revenue record unless the objector
contends that the sale deed is bogus or not executed
at all or the executor of the sale deed was lacking
inherent jurisdiction or authority to execute the sale-
deed. In the present case, such is not the situation as
Civil Suit *led by respondent No.5 against the
petitioner has been withdrawn and there is no
dispute now pending with respect to title of the
petitioner and challenging the sale deed in favour of
the petitioner. Therefore, it was required for the
revenue authority to mutate the name of the
petitioner on the basis of the registered sale deed.
The Collector, Junagadh as well as the Secretary
(Appeals), Revenue Department, State of Gujarat has
materially erred in cancelling the mutation entry
No.998, which was in favour of the petitioner on the
basis of the registered sale deed and in quashing and
setting aside the order passed by the Deputy
Collector, Veraval. Under the circumstances and
considering the aforesaid two decisions of this Court,
the present petition deserves to be allowed and the
order passed by the Collector, Junagadh as well as
the Secretary (Appeals), Revenue Department, State
of Gujarat cancelling the mutation entry No.998,
which was in favour of the petitioner, are required to
be quashed and set aside and the order passed by
the Deputy Collector, Veraval dated 26/09/2005
deserves to be restored.”

17. Thus the revenue entry in name of purchaser i.e.
defendant No.1 was posted thereon and it was within the
knowledge of defendant No.2 Vala Jadav. Vala Jadav initially
led a suit in a civil court, Una, but then withdrew it without
reserving any right /liberty or without giving any reason, in
other words, has conditionally withdrawn the suit and thus,
revenue entry No.998, which was posted pursuant to the
order passed by this Court, is thus con rmed. The sale deed in
favour of the plainti was executed on 18th April 2009 by Vala

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Jadav. There is yawning gap in the execution of the sale deed
by Rajiben Jadav through her power of attorney in the year
1990 and another one is in 2009 by Vala Jadav in favour of the
plainti . Thus, it is evident that the plainti having seen
revenue entry No.672 has taken a chance and got executed
sale deed with a view to disturb the title of the suit land in
favour of the defendant No.1. It is a speculative litigation and
led with a view to grab the land. The title of the suit land
changed in the year 2009 when Rajiben executed sale deed
precisely on 7.5.1990. The revenue entry mutated pursuant to
the registered sale deed has been con rmed by this Court in
the order of the SCA. Thus, when sale deed was executed in
2009 by Vala Jadav in favour of the plainti , Vala Jadav was
not holding any title or interest in the immovable property and
therefore, he had no right to transfer the suit land in favour of
the plainti . It is famous principle that a person cannot
transfer immovable property which he does not possess on the
date of executing sale deed and recipient or purchaser cannot
get better title than title of seller.

18. Once Vala Jadav predecessor in title of the plainti has
withdrawn the suit from the civil Court, the plainti has no
locus to le any civil litigation. Principle of estoppel squarely
applies. The plainti , thus, is stated to have taken chance by
got executing sale deed from Vala Jadav without noticing the
fact that at the same time, Vala Jadav was holding just a
revenue entry of the suit land in his favour. The title of this
suit land was transferred in 1999 by Raji Jadav through her
power of attorney in favour of defendant No.1 and thus, in the
year 2009, Vala Jadav was not holding any legal title. Qua suit

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land and thus the sale deed, which the plainti claims to be an
instrument of transferring title, is just an eye wash and
remains as piece of paper.

19. It is also to be borne in mind that the concurrent
ndings of the learned court below have been challenged in
this appeal. The scope of second appeal has been speci cally
discussed by the Hon’ble Apex Court along with the ndings
that what are the substantial question of law.

20. Recently, the Hon’ble Apex Court in the case of
Jaichand (dead) through LRs v. Sahanulal, 2024 INSC
996 with regard to what could be considered a substantial
question of law and what is the scope of a second appeal, in
para 23 to 31 read as under:-

“23. We are thoroughly disappointed with the manner in
which the High Court framed the so-called substantial
question of law. By any stretch of imagination, it cannot
be termed even a question of law far from being a
substantial question of law. How many times the Apex
Court should keep explaining the scope of a second
appeal under Section 100 of the CPC and how a
substantial question of law should be framed? We may
once again explain the well-settled principles governing
the scope of a second appeal under Section 100 of the
CPC.

24. In Navaneethammal v. Arjuna Chetty reported in
AIR 1996 S.C. 3521, it was held by this Court that the
High Court should not reappreciate the evidence to
reach another possible view in order to set aside the
*ndings of fact arrived at by the *rst appellate Court.
25. In Kshitisn Chandra Purkait v. Santhosh Kumar
Purkait reported in (1997) 5 S.C.C. 438 , this Court
held that in the Second Appeal, the High Court should be

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satis*ed that the case involves a substantial question of
law and not mere question of law.
26. In Dnyanoba Bhaurao Shemade v. Maroti
Bhaurao Marnor reported in 1999 (2) S.C.C. 471,
this Court held:-
Keeping in view the amendment made in 1976, the High
Court can exercise its jurisdiction under Section 100,
C.P.C. only on the basis of substantial questions of law
which are to be framed at the time of admission of the
Second Appeal and the Second Appeal has to be heard
and decided only on the basis of such duly framed
substantial questions of law. A judgment rendered by the
High Court under Section 100 C.P.C. without following
the aforesaid procedure cannot be sustained.

27. This Court in Kondira Dagadu Kadam v.
Savitribai Sopan Gujar reported in AIR 1999 S.C.
2213 held:-
The High Court cannot substitute its opinion for the
opinion of the *rst appellate Court unless it is found that
the conclusions drawn by the lower appellate Court
were erroneous being contrary to the mandatory
provisions of law applicable or its settled position on the
basis of pronouncements made by the Apex Court, or
was based upon inadmissible evidence or arrived at
without evidence.

28. It is thus clear that under Section 100, C.P.C., the
High Court cannot interfere with the *ndings of fact
arrived at by the *rst Appellate Court which is the *nal
Court of facts except in such cases where such *ndings
were erroneous being contrary to the mandatory
provisions of law, or its settled position on the basis of
the pronouncement made by the Apex Court or based
upon inadmissible evidence or without evidence.
29. The High Court in the Second Appeal can interfere
with the *ndings of the trial Court on the ground of
failure on the part of the trial as well as the *rst
appellate Court, as the case may be, when such *ndings
are either recorded without proper construction of the
documents or failure to follow the decisions of this Court
and acted on assumption not supported by evidence.

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Under Section 103, C.P.C, the High Court has got power
to determine the issue of fact. The Section lays down:-

Power of High Court to determine issue of fact: In any
Second Appeal, the High Court may, if the evidence on
the record is su)icient to determine any issue necessary
for the disposal of the appeal,-

(a) Which has not been determined by the lower
Appellate Court or both by the Court of *rst instance
and the lower Appellate Court, or

(b) Which has been wrongly determined by such Court
or Courts by reason of a decision on such question of law
as is referred to in Section 100.

30. In Bhagwan Sharma v. Bani Ghosh reported in
AIR 1993 S.C. 398 , this Court held:-
The High Court was certainly entitled to go into the
question as to whether the *ndings of fact recorded by
the *rst appellate court which was the *nal court of fact
were vitiated in the eye of law on account of non-
consideration of admissible evidence of vital nature. But,
after setting aside the *ndings of fact on that ground the
Court had either to remand the matter to the *rst
appellate Court for a rehearing of the *rst appeal and
decision in accordance with law after taking into
consideration the entire relevant evidence on the
records, or in the alternative to decide the case *nally in
accordance with the provisions of Section 103(b). If in
an appropriate case the High Court decides to follow the
second course, it must hear the parties fully with
reference to the entire evidence on the records relevant
to the issue in question and this is possible if only a
proper paper book is prepared for hearing of facts and
notice is given to the parties. The grounds which may be
available in support of a plea that the *nding of fact by
the court below is vitiated in law does not by itself lead
to the further conclusion that a contrary *nding has to
be *nally arrived at on the disputed issue. On a
reappraisal of the entire evidence the ultimate
conclusion may go in favour of either party and it cannot

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be prejudged.

31. In the case of Hero Vinoth v. Seshammal
reported in (2006) 5 SCC 545 this Court explained
the concept in the following words:

It must be tested whether the question is of general
public importance or whether it directly and
substantially a)ects the rights of the parties.

Or whether it is not *nally decided, or not free from
di)iculty or calls for discussion of alternative views.”

21. In the aforesaid circumstances, the appeal fails to bring
any substantial question of law. It is found to be ‘third trial’ on
facts and ‘one more dice in the gamble’, as held by the Apex
Court in the case of Gurdev Kaur & Ors. v. Kaki & Ors.,
reported in (2007) 1 SCC 546 of the Supreme Court, wherein it
is observed that:-

“The legislative intention was very clear that legislature
never wanted second appeal to become ‘third trial on facts’
or ‘one more dice in the gamble’.”

22. Applying the aforesaid ratio to the facts of the present
case, no case is made out for admission of the second appeal.

23. Accordingly, second appeal fails and stands dismissed at
admission stage. Notice discharged.

24. Consequently, CA does not survive and stands disposed
of accordingly. Notice discharged.

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Registry is directed to return back the R & P, if any, to the
concerned Court forthwith.

(J. C. DOSHI,J)
SHEKHAR P. BARVE

Original copy of this order has been signed by the Hon'ble Judge.
Digitally signed by: SHEKHAR PRAFULBHAI BARVE(HC00200), Principal Pvt. Secretary, at High Court of Gujarat on 04/02/2026 14:28:45

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