1. The present Second Appeal is filed under Section 100 of the Code of Civil Procedure, 1908 (hereinafter, referred to as "the Code") by the appellant - original defendant No.1 assailing the judgment and decree dated 06.01.2026 passed by 6th Additional District Judge, Bhuj-Kachchh in Regular Civil Appeal No. 36 of 2024 upholding the judgment and decree dated 30.01.2024 passed by the learned Additional Senior Civil Judge, Mundra in Regular Civil Suit No. 27 of 1998.
2. Heard learned advocate Mr. Adil R Mirza with learned advocate Mr. Jay R. Shah for the appellant and learned advocate Mr. B. Y. Mankad for the respondent.
3. For the sake of convenience, parties are referred to as per their original status in the suit. Appellants herein are heirs of original defendant No.1 and respondent No. 1 is original plaintiff. Respondent Nos.2 and 3 are original defendant Nos.2 and 3 in the suit.
4. Brief facts of the present case are as under- 4.1. Plaintiff has filed suit for a relief of declaration, permanent injunction and for cancellation of registered sale- deed inter alia, alleging that the land bearing R.S. No.173, admeasuring Acre 08-13 Guntha situated at village Mota Kapaya, Tal. Mundra (suit land) was of the ownership of late Shri Damji Harshi who was husband of original defendant No.2 and father of original defendant No.3. After the death of Shri Damji Harshi, a mutual family partition amongst the heirs of Shri Damji Harshi was arrived at on 15.09.1997 and the disputed land came to the share of the defendant No.3. A mutation entry was effected in revenue record in the name of defendant No.3 on 05.01.1998 vide entry No.1323. Vide sale- deed dated 20.04.1998, disputed land was sold by defendant No.3 to plaintiff for sale consideration of Rs.60,000/-. 4.2. Defendant No.2 sold the land admeasuring Acre 04-50 Guntha out of total land of Acre 8-13 Guntha to defendant No.1 on 05.02.1998. Entry of sale deed dated 05.02.1998 was cancelled by Mamlatdar, Mundra. Defendant No.1 filed RCS No.25/1998 before Civil Court, Mundra. Hence, the plaintiff filed the present suit. Defendant Nos. 2 and 3 appeared and filed written statement vide Exh-38. Defendant No.1 appeared and filed written statement vide Exh-42. Following issues were framed by the learned Trial Court vide Exhibit - 91:
"1. Whether the Plaintiff proves that the suit property was the ancestral property of Defendant Nos. 2 and 3, and that this property came to the share of Defendant No. 3 by virtue of a family partition?
2. Whether the Plaintiff proves that they have legally purchased the suit property from Defendant No. 3 for consideration by way of a registered sale deed?
3. Whether the Plaintiff proves that Defendant No. 2, despite having no right, illegally executed a sale deed for 4 Acres and 5 Gunthas of land out of the suit property in favor of Defendant No. 1?
4. Whether Defendant No. 1 proves that the suit property has been in their possession and enjoyment for the last 30 years?
5. Whether Defendant No. 1 proves that they have legally purchased the suit property from Defendant No. 2 for consideration and that they are the legal owner of this property?
6. Whether Defendant No. 1 proves that Defendant Nos. 2 and 3 colluded with each other and committed a breach of trust against Defendant No. 1?
7. Whether Defendant No. 1 proves that Defendant No. 3 was only entitled to half of the land by way of a release deed, and the remaining half of the land, i.e., 4 Acres and 5 Gunthas, came to the share of Defendant No. 1?
8. Whether the Plaintiff is entitled to receive the relief as prayed for?
9. What order and decree?"
Vide judgment and decree dated 30.01.2024 learned Additional Senior Civil Judge, Mundra decreed the suit.
Original defendant No.1 filed Regular Civil Appeal before the learned 6th Additional District Judge, Bhuj-Kachchh, which came to be on 06.01.2026.
4.3. Being aggrieved and dissatisfied with the judgment and decree the appellant - original defendant No.1 is before this Court by way of the present Second Appeal.
Following substantial questions of law are proposed by the learned advocate for the appellant which are reproduced as under:-
"(i) Whether the courts below have committed a grave error of law in holding that Defendant No. 3 acquired valid title to the suit property on the basis of an unregistered relinquishment deed, in contravention of Sections 17 and 49 of the Registration Act, 1908?
(ii) Whether the courts below failed to appreciate that an unregistered relinquishment deed does not convey or extinguish any right, title or interest in immovable property, and therefore, could not form a lawful foundation for transfer of title in favour of the plaintiff?
(iii) Whether the finding of the courts below that the plaintiff acquired valid title is vitiated in law, inasmuch as Defendant No. 3, having no transferable title, could not convey any right, title or interest to the plaintiff?
(iv) Whether the courts below erred in law in ignoring the mandatory statutory priority under Section 48 of the Transfer of Property Act, 1882, whereby the prior registered sale deed executed in favour of Defendant No. I ought to prevail over a subsequent sale deed?
(v) Whether a suit for cancellation of a registered sale deed is maintainable in law at the instance of a plaintiff who has failed to establish a valid and lawful root of title to the suit property?
(vi) Whether the findings recorded by the courts below are perverse in law for having conferred legal effect upon an unregistered relinquishment deed, despite an express statutory bar, thereby resulting in an erroneous decree?
(vii) Whether the courts below have misdirected themselves in law by wrongly shifting the burden of proof upon Defendant No. 1, instead of requiring the plaintiff to prove a valid subsisting title prior to seeking cancellation of the registered sale deed?
(viii) Whether the court below has erred by ignoring the aspect that there was already a sale deed executed in favour of the appellant and despite that, subsequently, another sale deed for the same land was executed in favour of the plaintiff which was not correct?
(ix) Whether the judgment passed by the Ld. lower appellate court is perverse in nature as it has not considered the facts of the case properly?"
No other Substantial Questions of law are proposed by learned advocate for appellant for consideration.
5. Learned advocate for the appellant would submit that the learned Courts below, in complete disregard of the mandatory provisions contained under Sections 17 and 49 of the Registration Act, 1908, concluded that Defendant No. 3 acquired title to the suit property on the basis of an unregistered relinquishment deed. It is submitted that the said document does not bear the signatures of the daughters of Defendant No. 2, who are co-sharers. Hence, such an unregistered document cannot legally convey or extinguish any right, title, or interest in the suit property.
6. It is further submitted that the learned Courts below have failed to consider Section 48 of the Transfer of Property Act, 1882, which provides that earlier rights will prevail over later rights. In the present case, the registered sale deed dated 05.02.1998 executed in favour of the Appellant Orig. Defendant No. 1 is prior in time. Therefore, the subsequent sale deed dated 20.04.1998 relied upon by the Plaintiff could not have been given preference or validity in law.
7. It is further submitted that the learned Courts below have failed to consider the conduct of Defendant Nos. 2 and 3, who have never challenged the sale deed executed by Defendant No. 2 in favour of the Appellant. Instead, they have jointly contested the case against the Appellant along with the Plaintiff, which indicates collusion. Ignoring this aspect amounts to an error of law and fact.
8. It is further submitted that the sale deed in favour of the Appellant was executed earlier and was valid and in existence. Once the property was already transferred, any subsequent sale deed in favour of the Plaintiff could not have been validly executed to the extent of the same property.
9. The Plaintiff was required to verify the title of the property before purchasing suit property. Plaintiff cannot challenge prior registered sale deed in favour of the Appellant. The findings of the Courts below, therefore, suffer from errors of law and fact. Except above, no other submissions are made by learned advocate for the appellant.
10. Per contra learned advocate for the respondent No. 1 - original plaintiff has supported the judgment and decree passed by both the Courts below and the preliminary contention raised by learned advocate for the respondent is regarding the scope of Second Appeal under Section 100 of the Code. It is submitted by learned advocate for respondent that both the Courts below have concurrently found that the plaintiff has proved his case and has also proved that the suit land was an ancestral property and by family partition, the suit land came in the share of defendant No. 3. It is contended that the suit land bearing Survey No. 173 was owned by the husband of defendant No. 2 and father of defendant No. 3, Damji Harshi and upon death of Damji Harshi, a family partition took place which was reduced into writing by way of a partition deed dated 15.09.1997. Pursuant to the partition amongst the heirs of deceased Damji Harshi, the suit land came in the share of defendant No. 3 and name of defendant No. 3 was mutated in revenue record vide Entry No. 1323. Defendant No. 2, being mother of defendant No. 3, having no right in the suit land, without any authority and title executed registered sale deed of 4 acre 5 gunthas out of the total land ad measuring about 8 acres and 13 gunthas of survey No. 173 in favour of defendant No. 1 on 21.04.1998. Defendant No. 3, having a title, sold Survey No. 173 ad measuring about 8 acres 13 gunthas by a registered sale deed dated 20.04.1998. An entry of sale deed dated 05.02.1998, mutating name of defendant No. 1 in the revenue record was rejected by Revenue Authority on the ground that the sale by defendant No. 2 Maniben was without any title. The rejection of the entry of sale has attained finality. Defendant No. 1 had also filed the Regular Civil Suit No. 25 of 1998 against present respondent No. 3 - original defendant No. 3 for relief of declaration and permanent injunction. Defendant No. 1, sought a declaration against present respondent No. 3 that defendant No. 3 Kantilal Damji Bhai has no right or interest in the land ad measuring about 4 acres and five gunthas. The suit came to be dismissed for default on 25.08.2006. Until today, the said suit has not been restored to its original file.
11. It is submitted by learned advocate for the respondent No. 3 that the partition dated 15.09.1997 does not require any registration as the document of partition deed only reflects the understanding amongst the heirs of deceased Damji Harshi. The partition was given effective in the revenue records. The deed of partition is mere record of an understanding and, therefore, such document does not require registration under the provisions of Indian Registration Act, 1908. It is submitted that before the execution of a registered sale deed dated 05.02.1998, partition had already taken place among the heirs of deceased Damji Harshi, and therefore, merely because defendant No. 1 is having a registered sale prior to the registered sale deed of plaintiff, is of no importance.
12. Learned advocate for respondent has further contended that the present Second Appeal is not maintainable as there are no substantial questions of law involved in the present case. There are findings of fact by both the Courts below that the defendant No. 2 Maniben had no right to sell the suit property to defendant No.1 as she was not the owner of the suit land. Except above, no other submissions have been made by learning advocate for the respondent.
13. I have considered the submissions canvassed by learned advocates for the respective parties and also perused the paper- book. The plaintiff - respondent No. 1 herein has asserted his ownership with regard to a land bearing Revenue Survey No. 173 of village Mota Kapaya, Taluka: Mundra. Defendant No. 3 Kantilal Damji executed a registered sale in favour of plaintiff on 20.04.1998. As per plaint measurement of survey No. 173 is 8 Acres and 13 Gunthas. The suit land was originally owned by Damji Harshi. Upon his death an understanding in the form of a partition deed dated 15.09.1997 was arrived at between defendant No. 2 - widow of Damji Harshi, defendant No. 3, Dipakbhai Damji Harshi, and Nemjibhai Damji Harshi, who are sons of deceased Damji Harshi. The partition deed also refers to an understanding that the suit land comes in the share of defendant No. 3. Whereas 1/3 each share from a farm bearing survey No. 36/2 comes in the share of Nemji Damji Harshi and Dipakbhai Damji Harshi. It was also decided amongst the heirs of deceased Damji Harshi that daughters of Damji Harshi would not get any share in the properties belong to Damji Harshi. It is not coming out on record whether daughters of deceased Damji Harshi have challenged the partition deed dated 15.09.1997. Revenue entries also indicate that by entry No. 1322, names of defendant No. 2, 3, Nemji Damji Harshi and Dipakbhai Damji Harshi well mutated and confirmed on 12.03.1998 on the same day by entry No. 1323, the effect of partition deed has been given in the revenue record, whereby the suit property came to be mutated in the name of defendant No. 3. Thus, there is a satisfactory evidence coming out on record that the partition has been given effective amongst the legal heirs of deceased Damji Harshi, and there is no dispute with regard to the mode and nature of partition. Despite a partition being effected between the heirs of deceased Damji Harshi, widow of Damji Harshi executed a registered sale deed of 4 acres and five gunthas of land in favour of defendant No. 1 on 5.2.1998. On the date of aforesaid sale deed, wife of Damji Harshi had no interest or title in the suit land. Defendant No. 3 executed a registered sale deed of entire suit land admeasuring about 8 acres and 13 gunthas in favour of plaintiff on 20.4.1998 the entry of sale in favour of plaintiff also got mutated in the revenue records and the name of plaintiff runs in the revenue record. Pursuant to the registered sale deed, defendant No. 1 also filed a suit for declaration and permanent injunction against Kantilal Damji, the present plaintiff as well as against Maniben being Regular Civil Suit No. 25/1998. The said suit came to be dismissed for default on 25.8.2006. The suit never came to be revived the declaration sought for by defendant No. 1 in his suit was to the effect that defendants have no right or interest in the land ad measuring about 4 acres and 5 gunthas and the possession of plaintiffs be protected. Defendant No. 1, in suit question regarding partition dated 15.09.1997. There was no challenge against the partition deed being unregistered document.
14. The core contention raised by learned advocate for the appellant in the present Second Appeal is acquisition of title by defendant No. 3 on the basis of an unregistered relinquishment deed, which contrast the provisions of Section 17 and Section 49 of Registration Act, 1908. Section 17 and Section 49 of the Registration Act are reproduced herein below.
"17. Documents of which registration is compulsory.--(1) The following documents shall be registered, if the property to 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:--
(a) instruments of gift of immovable property;
(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;
(c) non-testamentary instruments which acknowledge the receipt or payment of any consideration on account of the creation, declaration, assignment, limitation or extinction of any such right, title or interest; and
(d) leases of immovable property from year to year, or for any term exceeding one year, or reserving a yearly rent;
(e) non-testamentary instruments transferring or assigning any decree or order of a Court or any award when such decree or order or award purports or operates 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."
"49. Effect of non-registration of documents required to be registered.--No document required by section 17 1[or by any provision of the Transfer of Property Act, 1882 (4 of 1882)], to be registered shall--
(a) affect any immovable property comprised therein, or
(b) confer any power to adopt, or
(c) be received as evidence of any transaction affecting such property or conferring such power, unless it has been registered."
15. The determinative question would be whether the said partition deed was creation of any right title and interest in the property. This has to be decided on the basis of evidence adduced by parties and from interpreting the deed itself. To determine whether such deed requires registration or not, the Court must ascertain from the document by itself whether any right is created, declared, assigned, limited or extinguished in an immovable property? If yes, registration is compulsory. If the document merely records of a past completed transaction of partition, registration is not compulsory. The substance of the document is decisive factor and not the nomenclature of the document. If the document itself effects division of property, it is a deed of partition and is compulsorily registrable.
16. In the case of Thulasidhara v/s Narayanappa reported in (2019) 6 SCC 409, the Honourable Apex Court held that an unregistered partition deed can be used for collateral purpose of proving the fact of partition and severance of status but cannot be used to prove title to specific shares. As held in the case of Kale v/s Deputy Director of Consolidation reported in (1976) 3 SCC 119, a family arrangement may be oral. If the terms are reduced to writing as a memorandum of what had been agreed upon, it does not require registration. Registration is compulsory only if the writing itself is a document by which the family arrangement is made. A party who sets up a claim of title to the property on the basis of unregistered deed, such document requires registration and the unregistered partition deed is inadmissible in evidence. However, such unregistered partition deed can be relied up for collateral purposes.
17. In the present case, the document of partition is undisputedly an unregistered document. On critical evaluation of the document of partition, it appears that the heirs of Damji Harshi have agreed to distribute various properties of Damji Harshi amongst themselves. The distribution of properties have been given effect in the revenue records way back in the year 1998. The deed of partition has remained unchallenged all throughout. The assertion of plaintiff in the suit is not on the basis of the said partition deed, but plaintiff is asserting his right, title and interest in the suit land pursuant to a registered sale deed executed in his favour by defendant No. 3. Thus, plaintiff is not setting up the claim of title to the property on an unregistered partition deed. Moreover, defendant No. 1, in his suit being Regular Civil Suit No. 25 of 1998 has not questioned title of defendant No. 3 and has also not raised any dispute with regard to either execution of partition deed or the document of partition being an unregistered document is non- enforceable document.
18. It would be apposite to refer the decision in the case of "Jaichand (Dead) through Lrs. And Others vs. Sahnulal and Another" reported in 2024, SCC OnLine SC 3864 , wherein, in paragraph Nos. 27, 28 and 29, the Hon'ble Apex Court has observed as under:
"27. This Court in Kondira Dagadu Kadam v. Savitribai Sopan Gujar, (1999) 3 SCC 722: AIR 1999 SC 2213 held:-
"The High Court cannot substitute its opinion for the opinion of the first appellate Court unless it is found that the conclusions drawn by the lower appellate Court were erroneous being contrary to the mandatory provisions of law applicable or its settled position on the basis of pronouncements made by the Apex Court, or was based upon inadmissible evidence or arrived at without evidence."
"28. It is thus clear that under Section 100, CPC, the High Court cannot interfere with the findings of fact arrived at by the first Appellate Court which is the final Court of facts except in such cases where such findings were erroneous being contrary to the mandatory provisions of law, or its settled position on the basis of pronouncement made by the Apex Court or based upon inadmissible evidence or without evidence"
"29. The High Court in the Second Appeal can interfere with the findings of the trial Court on the ground of failure on the part of the trial as well as the first appellate Court, as the case may be, when such findings are either recorded without proper construction of the documents or failure to follow the decisions of this Court and acted on assumption not supported by evidence. Under Section 103, C.P.C, the High Court has got power to determine the issue of fact. The Section lays down:-
"Power of High Court to determine issue of fact : In any Second Appeal, the High Court may, if the evidence on the record is sufficient to determine any issue necessary for the disposal of the appeal,-
(a) Which has not been determined by the lower Appellate Court or both by the Court of first instance and the lower Appellate Court, or
(b) Which has been wrongly determined by such Court or Courts by reason of a decision on such question of law as is referred to in Section 100."
In the said case, the Hon'ble Apex Court has referred the decision in the case of Navaneethammal Vs. Arjuna Shetty reported in 1996 (6) SCC 166, wherein it was held that the High Court, should not re-appreciate the evidence to reach another possible view in order to set aside the findings of fact arrived at by the First Appellate court. Further, it was made clear by Hon'ble Apex Court that under Section 100 of the Code, the High Court cannot interfere with the findings of fact arrived at by the First Appellate Court which is the final Court of facts except in such cases where such findings were erroneous being contrary to mandatory provisions of law or its settled position on the basis of the pronouncement made by the Hon'ble Apex Court or based upon inadmissible evidence or without evidence. It was further held by the Hon'ble Apex Court that the High Court in the Second Appeal can interfere with the findings of the Trial Court on the ground of failure on the part of Trial as well as the First Appellate Court, as the case may be, when such findings are either recorded without proper construction of the documents or failure to follow the decisions of this Court and acted on assumption not supported by evidence.
19. Considering the facts and circumstances of the case, I do not find any reason to interfere in the conclusion arrived at by both the Courts below. Resultantly, the Second Appeal fails and accordingly dismissed. No order as to costs. Interim relief, if any, stands vacated. Record and Proceedings to be sent back to the concerned Court forthwith.
20. In view of disposal of the main matter, the connected Civil Application does not survive and is disposed of accordingly.
