Judgment Rajesh H. Shukla, J.—Present Second Appeal has been filed by the Appellants - Plaintiffs posing the substantial question of law as follows: (1) Whether the Appellate Court can reverse a decree on grounds and facts which are not a part of defence before the Trial Court? (2) Can the Appellate Court travel beyond the orders which are challenged before the Trial Court? (3) Can the Appellate Court impose conditions in a document which is more than 100 years old and insert conditions without any basis of any law of any rules; (4) When there is no condition in the document of transfer of not selling the land or of not transferring the land, or even obtaining any prior permission from any authority, inspite of there being no such condition can the Appellate Court or any Revenue authority insist upon the same without any statutory force? (5) When there was no question of title of land before the Revenue authority, as this was not the dispute, then can the Appellate Court travel beyond the scope of Section 96 of Civil Procedure Code and add its findings without there being any prior adjudication on the issue? (6) Can the Appellate Court disbelieve a document which is more than 100 years old as otherwise it carries a presumptive value under Section 96 of the Evidence Act? (7) Can the finding of fact the reversed by the Appellate Court, without there being any basis or statutory force behind it and can the Appellate Court travel beyond the scope Section-96 of the Civil Procedure Code? 2. However, only one question has been formulated as follows: “Whether, upon reading document dated 23rd November 1994 (Exh. 97), it was necessary for late Shri Pitambar Vasta or his legal heirs or the present appellant to obtain any permission from the Collector before transferring the land in question in favour of any other person?” 3. The facts of the case briefly stated are that the Appellant No. 1 is the Power of Attorney of the Appellant Nos. 2, 3 and 4. Therefore, Regular Civil Suit No. 1003 of 1986 was filed before the Court of learned Civil Judge (SD), Junagadh for declaration and permanent injunction against the Respondents with regard to the suit land bearing Survey No. 165 of Sardargadh and claiming the declaration for the ownership of the Appellant. 2, 3 and 4. Therefore, Regular Civil Suit No. 1003 of 1986 was filed before the Court of learned Civil Judge (SD), Junagadh for declaration and permanent injunction against the Respondents with regard to the suit land bearing Survey No. 165 of Sardargadh and claiming the declaration for the ownership of the Appellant. It was also filed challenging the order of revenue authorities, including the order passed by Secretary, Revenue Department and the Collector, Junagadh. The said Suit was decreed by the learned Civil Judge (SD), Junagadh vide judgment and order dated 31.3.1999 declaring the order passed by the Collector, Junagadh as well as Secretary, as illegal and unconstitutional and also granting the declaration regarding the ownership of the suit land of the Appellants - Original Plaintiffs. Therefore, Regular Civil Appeal No. 14 of 2000 came to be filed by the original defendants before the District Court, Junagadh on the grounds set out in detail in the memo. 4. After appreciating the evidence and considering the rival submissions as discussed in detail in the judgment, the lower appellate Court allowed the Appeal filed by the Respondents - Original Defendants and set aside the judgment and order passed by the learned Civil Judge (SD), Junagadh in Regular Civil Suit No. 1003 of 1986 dated 31.7.1999. Therefore the present Second Appeal has been preferred. 5. As it is evident from the discussion in the judgment of both the courts below, the suit land bearing Survey No. 165 of village of Sardargadh, Taluka Manavadar was allotted to one Pitambar Vasta by Deed No. 156 dated 23.11.1994. Thereafter, the plaintiffs have applied to the Collector for the change of use of the land on permanent basis, which resulted in initiation of proceedings and show-cause notice. It lead to the revenue proceedings before the Collector as well as before the Secretary (Appeals), Ahmedabad. The Appellants - original plaintiffs having failed in those revenue proceedings filed the aforesaid Regular Civil Suit No. 1003 of 1986, which was resisted by the Respondents - Original Defendants by filing a written statement (Exh.19). 6. The main contention was that the plaintiff - Pitambar Vasta, who was originally allotted the land, cannot claim the change of use. However, he has entered into the partnership and subsequently the defendant Nos. 6. The main contention was that the plaintiff - Pitambar Vasta, who was originally allotted the land, cannot claim the change of use. However, he has entered into the partnership and subsequently the defendant Nos. 4 and 5, who joined subsequently as a party and who are the original allottee of the land, also filed written statement (Exh.74) and supported the case of the government. It was specifically contended that the land in question was allotted to Pitambar Vasta and transaction of the plaintiffs is not according to the law and procedure. It is also contended that neither Pitambar Vasta nor his heirs have claimed any change of use of the land and the Plaintiffs have no right, title or interest to claim any change of use. It is also contended that the entry has been closed and therefore the interest of the land would vest in the government by operation of law. The contention was sought to be raised that the land in question which was originally allotted to Pitambar Vasta was taken on lease as per the lease deed exh.97. The partnership deed was executed which was produced at exh.114 to exh.121 and the present Respondents had applied for regularising the land. It was contended that as per Exh.97 the suit land was leased to Pitambar Vasta on certain terms under Section 79 of the Bombay Land Revenue Code and the Collector was empowered to forfeit land. It was submitted that the Plaintiffs have no right, title or interest, whatsoever in the suit land and the heirs of Pitambar Vasta had not applied for regularising the land. Therefore, after the orders passed by the revenue authorities, the same could not have been challenged by way of Civil Suit. After the detail discussion earlier, the appellate court therefore allowed the appeal filed by the Respondents, which is challenged in the present Second Appeal posing the substantial question of law as stated above. 7. Party-in-person Dr. Gopalbhai has remained present and has referred to the papers at length and in detail to emphasize that the land in question was given on lease to Pitambar Vasta in 1894 for the purpose of establishing the Ginning and Oil Mill. 7. Party-in-person Dr. Gopalbhai has remained present and has referred to the papers at length and in detail to emphasize that the land in question was given on lease to Pitambar Vasta in 1894 for the purpose of establishing the Ginning and Oil Mill. Thereafter he referred to the entries and submitted that a partnership deed was executed (Exh.114) in the year 1967 by the heirs of the original allottee - Pitambar Vasta, and on that basis the entries were made by the order of the Collector (Exh.112). Party-in-person Dr. Gopalbhai therefore submitted that again thereafter new partners were added and some partners had retired, for which, he referred to Exh.117 as well as the entry No. 4158 dated 5.1.1981. Therefore, referring to different entries, he tried to submit that the Deputy Collector vide judgment and order dated 16.12.1981 set aside the order of Mamlatdar and had confirmed the entry No. 4158. Thereafter, the alleged breach of condition No. 12 is referred to. Party-in-person Dr. Gopalbhai has submitted that though such entry is made about breach of condition No. 12, it is erroneous as there is no breach of any condition. He referred to the notice (Exh.145) and submitted that there is no breach of any condition and therefore appeal was preferred before the Secretary (Appeals). Party-in-person Dr. Gopalbhai has therefore submitted that the order passed by the Secretary (Appeals) is erroneous, and therefore, Regular Civil Suit No. 1003 of 1986 was preferred and it has culminated into the present Second Appeal. Party-in-person Dr. Gopalbhai has therefore submitted that the present Second Appeal may be allowed. 8. Learned AGP Mr. H.K. Patel referred to the details and submitted that the order passed by the Collector at Exh.147 dated 15.1.1986 has been modified by a corrigendum (Exh.150). He submitted that the Appellants have taken the proceedings under the revenue proceedings and right upto the Secretary (Appeals). The orders have been passed by the Collector. He submitted that therefore, once the order has been passed by the Secretary (Appeals) concluding the revenue proceedings, it was not open for the Appellants herein to challenge by way of Civil Suit No. 1003 of 1986 before the Civil Court. 9. Learned AGP Mr. H.K. Patel submitted that the present Second Appeal may not be entertained. 10. He submitted that therefore, once the order has been passed by the Secretary (Appeals) concluding the revenue proceedings, it was not open for the Appellants herein to challenge by way of Civil Suit No. 1003 of 1986 before the Civil Court. 9. Learned AGP Mr. H.K. Patel submitted that the present Second Appeal may not be entertained. 10. In view of the rival submissions, it is required to be considered whether the present Second Appeal can be entertained or not. 11. It is well settled that scope of exercise of discretion under Section 100 of the Civil Procedure Code in Second Appeals is very limited and unless it has been shown that there is a substantial question of law, which can be said have been involved, normally, concurrent findings of fact could not be interfered with. 12. The Hon’ble Apex Court in a judgment reported in (2007) 1 SCC 546 in case of Gurdev Kaur & Ors. vs. Kaki & Ors. has clearly observed that :- “Now, High Courts can interfere thereunder only where substantial questions of law are involved and have been formulated in the memorandum of appeal – The amendment clearly indicates that the legislature never intended the second appeal to become a third trial on facts.” 13. The Hon’ble Apex Court has laid down the guidelines with regard to scope of discretion under Section 100 of the Civil Procedure Code and in para 17 of the said judgment, what could be considered as a substantial question of law in light of the amendment in 1976 has also been discussed. 13. 14. Therefore, what is required to be considered is the substantial question of law involved and whether the courts below have committed an error in its approach in appreciation of evidence or in application of the correct law. As is evident from the facts of this case that Civil Suit No. 1003 of 1986 was allowed by the trial Court and it was decreed. Therefore, Regular Civil Appeal No. 14 of 2000 came to be preferred by the State, Revenue Department challenging the findings. It was also contended that the entries and the matters, which are required to be decided by the authorities were also challenged by way of Civil Suit No. 1003 of 1986. Therefore, Regular Civil Appeal No. 14 of 2000 came to be preferred by the State, Revenue Department challenging the findings. It was also contended that the entries and the matters, which are required to be decided by the authorities were also challenged by way of Civil Suit No. 1003 of 1986. The moot question therefore is that, on the one hand it is contended that there was no question of title of land before the revenue authority, the civil court is only required to decide about the title and the findings arrived at by the revenue authorities are not valid. Infact as it could be evident from the judgment of the lower appellate court having failed before the revenue authorities, the plaintiff tried to file a civil suit by way of one extended inning inspite of the findings given by the revenue authorities against him. The basic issue involved was with regard to the document (Exh.97) and whether there was any breach of the condition. Originally, Pitambar Vasta was granted this land and it was not to be transferred and yet as can be seen from the facts of the case which have been discussed in detail by the lower appellate court, it was transferred indirectly by way of partnership. The heirs of Pitambar Vasta brought in the other members by way of partnership and thereby indirectly sought to transfer the land in question to the firm and then it was so manipulated that it could be then transferred to individual partners. However, it is well accepted that any right, title or interest in the immovable property can be transferred only by way of a document or a registered document as provided under the Transfer of Property Act. Admittedly, there is no such document executed for transfer (Exh.97). The document (Exh.97) is a lease deed. The land was allotted to the allottee Pitambar Vasta in the year 1994 for the purpose of establishing a ginning factory subject to the conditions. It clearly stated that it was only for such purpose. Thereafter, as discussed in both the judgments of the lower courts, the partnership deeds were executed and different persons were inducted and infact the respondents had applied for regularising the land. It clearly stated that it was only for such purpose. Thereafter, as discussed in both the judgments of the lower courts, the partnership deeds were executed and different persons were inducted and infact the respondents had applied for regularising the land. As a matter of fact, as per the provisions of Bombay Land Revenue Code, particularly Section 79, the Collector was empowered to forfeit after the Land Revenue Code came into force. The heirs of Pitambar Vasta had not even applied for regularising the land and they have not made any claim. The order passed by the Collector as well as Secretary (Appeals) have been considered and discussed by the lower appellate court and it has been clearly observed that the heirs of deceased Pitambar Vasta had not applied for regularising the land and the plaintiffs have no locus standi to file the suit. It has been observed: “14. . . . . . . . . Thereafter, 4 partners retired from firm by deed of dissolution dated 26.7.84 w.e.f. 15.7.1984 and only present plaintiff remains am partner of the firm M/s. Pitambar Vastabhai. Copy of deed of dissolution produced at Exh.120. Plaintiff executed new partnership firm in the name of “ASIAN CEREMICS INDUSTRIES” and name of firm changed by this way with effect from 26.7.84, copy produced at Exh.121. So, prior to suit, original firm M/s. Pitambar Vastabhai was dissolved and present plaintiff started business in the name and style of “Asian Ceramics Industries”. Hence, it is required to take note that plaintiff has stated in plaint para-1 that plaintiff is a firm registered under the provisions of Indian Partnership Act and copy of extract from Registrar at Firms produced at Mark 4/1 i.e. Exh.96. But, in fact, suit is not filed by Firm or in the name of Firm or by the partners in the name of firm. Exh.96 is copy of extract from Registrar of Firm but, it is for the Firm “MESSRS PITAMBAR VASTABHAI” but shows entries 15.9.81. And as shown above, firm M/s. Pitambar Vastabhai dissolved on 26.7.84 w.e.f. 15.7.84. Copy of which is produced at Exh.120 and new firm in the name and style of “Asian Ceramics Industries” came in picture by partnership deed dated 26.7.84. Copy of which is produced at Exh.121. Plaintiff has not stated in whole suit for which firm they have filed suit. Copy of which is produced at Exh.120 and new firm in the name and style of “Asian Ceramics Industries” came in picture by partnership deed dated 26.7.84. Copy of which is produced at Exh.121. Plaintiff has not stated in whole suit for which firm they have filed suit. Anyhow, at the time of filing the suit, firm “M/s Pitambar Vastabhai” was not in existence. But, plaintiff relied upon all this partnership deed for establishing ownership, right, title and interest in the suit lands. 15. Now admittedly, suit land originally belongs to estate of Shri Darbarkhan Shri Shahamat (subsequently vest in state Government of Gujarat). As per say of plaintiff, the said lend let to firm at Pitambar Vasta. Plaintiff relied upon Exh.97. Copy of deed dated 23.11.1894. If we go through this deed, it transpires from deed that land let to Mistri Pitambar Vasta in his personal capacity as license on confession to erect Ginning Factory and Press which was given by Pitambar Vasta and land not let to firm. Only Pitambar Vasta permitted to start factory on land. So, deceased Pitambar Vsta was licence and deed No. 156 dated 23.11.1894 is license which does not create any right, title or interest in the land and hence, licence is not entitled to transfer assign the land to third party without previous permission of ower or successor-in-title.” 15. Thus, it is evident that what has been sought to be done is by forming such partnership the land is sought to be transferred different individual partners, which is not permissible without executing any document. As discussed above for transfer of any right title or interest in the immovable property the document is required to be executed as required under the Transfer of Property Act, only then the right, title, interest in the property / immovable property can be transferred. Admittedly, there is no such writing or the document for transfer of any such interest over the disputed land. Infact the lease which was granted to Pitambar Vasta (Exh.97) would be subject to the conditions therein and it would at the most devolve upon heirs. However, the heirs have never applied for regularising the land and infact it would therefore revert and vested back to the government under the Bombay Land Revenue Code. Infact the lease which was granted to Pitambar Vasta (Exh.97) would be subject to the conditions therein and it would at the most devolve upon heirs. However, the heirs have never applied for regularising the land and infact it would therefore revert and vested back to the government under the Bombay Land Revenue Code. These aspects have been discussed in the revenue proceedings and the plaintiffs having failed in the revenue proceedings right up to the appeal before the Special Secretary (Revenue) as then challenged in a civil court by way of aforesaid Civil Suit No. 1003 of 1986. Therefore, the Government had preferred aforesaid Regular Civil Appeal No. 14 of 2000 before the lower appellate court and the judgment and decree passed in favour of the plaintiff by the trial court was quashed and set aside on the basis of the material and evidence on record. Infact it has been clearly observed in the judgment of the lower appellate court: “21. .............The copy of the letter of Mamlatdar is produced at Exh.157 which shows Mamlatdar took over the possession of whole land on 12.2.86. Anyhow, considering the order of Collector dated 15.1.86 which is produced at Ex.103, original order modified by the Collector, clarified to read measurement as Acre 7-05 Guntha land. Hence, there is no order for lend admeasuring Acre 2-21 Guntha land is concerned which is converted for residential purpose. But for this land also, unless plaintiff establish by producing Registered sale deed as per provisions of Section-54 of the Transfer of Property Act, it cannot be held that plaintiffs are the owners of land. By mentioning the property in partnership deed, ownership cannot pass on from one to another. Otherwise the provisions regarding sale end ownership made in Transfer of Property Act, will have no meaning and every person like to enter in partnership, with a view to pass on ownership of immovable property. And while considering the point of ownership, the provisions of Transfer of Property Act, cannot be passed on.” 16. Otherwise the provisions regarding sale end ownership made in Transfer of Property Act, will have no meaning and every person like to enter in partnership, with a view to pass on ownership of immovable property. And while considering the point of ownership, the provisions of Transfer of Property Act, cannot be passed on.” 16. Thus, this aspect has also been discussed by the lower appellate court that there is no document executed for the purpose of transfer of any right, title or interest by the original allottee or his heirs to the partnership firm, and when partner or any one of the singe partner is not having any right, title, interest, the same cannot be passed on by way of forming a partnership, then getting it dissolved, then again forming a partnership so as to create an impression that the land belong to the firm and then partners have changed and ultimately it would vest in subsequent partners of the subsequent firm. This is only a modality or the method adopted to subvert the provisions of Transfer of Property Act. Therefore, in light of the aforesaid discussion it can hardly be said that there is any substance in the submissions made by party-in-person Dr. Gopalbhai. The contention raised with regard to the fact that whether the appellate court can impose the condition in a document which is more than 100 years old and in a condition without basis of any law or rule is misconceived. 17. Another point which has been formulated that when there is no condition in the document of transfer of not selling the land or of not transferring the land, or even obtaining any prior permission from any authority, inspite of there being no such condition, can the appellate court or any revenue authority insist upon the same without any statutory force. This point is also without any basis inasmuch as the document or a writing between the parties cannot be of a law like Transfer of Property Act or the Land Revenue Code. Even in the transfer of land the document is required to be executed as provided under the Transfer of Property Act. No right, title or interest can be transferred in any manner other than what is provided in Transfer of Property Act. 18. Even in the transfer of land the document is required to be executed as provided under the Transfer of Property Act. No right, title or interest can be transferred in any manner other than what is provided in Transfer of Property Act. 18. Similarly, when it is provided under the Land Revenue Code for taking any permission, then merely referring to any document of any partnership or anything, it cannot be said that additional condition is imposed or the revenue authority cannot insist for prior permission for any such transfer or any such entry reflecting transfer of the land in the name of anybody. The submissions with regard to the document (Exh.97) that it is more than 100 years old and it carries the presumptive value under the Evidence Act is required to be considered and infact there is no doubt with regard to the presumptive value of the document. Infact the said document (Exh.97) refers to a creation of some interest in favour of original allottee Pitambar Vasta, and admittedly his heirs have not made any attempt to regularise, and therefore, the land by operation of law like Land Revenue Code would vest in the Government. The persons like plaintiff who claims any right, title or interest as to establish that, by any document, such right title or interest in the immovable property like disputed land has been transferred. Admittedly, there is no such document. It is in these circumstances, the present Second Appeal deserve to be dismissed and accordingly stands dismissed. Interim relief, if any, shall stand vacated. Further Order: After the order was pronounced, the party-in-person Dr. Gopalbhai requests for stay of the operation of the order, as he desires to approach the Hon’ble Apex Court. In the facts and circumstances, the operation of the order is stayed till 25.7.2011. P P P P P