JUDGMENT : 1. The present appeal under Section 100 of the Civil Procedure Code, 1908 (hereinafter referred to as “the Code”) is filed by the present appellants by challenging the judgment and decree dated 18.06.2013 passed in Regular Civil Suit No.59 of 2023 by the learned Principal Senior Civil Judge, Chikali, which was preferred for specific performance of the contract and declaration and injunction and the judgment and decree dated 02.01.2019 passed in Regular Civil Suit No.38 of 2013 by the learned 2nd Addl. District Judge, Navsari, whereby the same was dismissed by confirming the judgment of the trial court. 2. Brief facts of the case are as such that the plaintiffs Nos.1,2 are the successor and defendants of Pistabhai Mangabhai and Koldhabhai pistabhai being the elder son of the family has acted as a karta of joint family and in that capacity he and one person namely Bavlabhai Bodabhai (defendant No,2) has purchased a property bearing Block no.590, survey No.320, ofv illage Donja, Taluka: Chikhali, Dist : Navsari, from the predecessor of the defendant No,4, to, 7, the deceased Asmalji Fakir Lunat, in the years of 1965 out of the property plaintiff is concerned with the land admeasuring at 1-14 acre, which according to appellants was given to their share and they are holding possessions too and rest of the property was went to the share of defendant No.2, Bavlabhai Bodabhai Ahir and possessions on that he part is holding of property wherein defendant No.3, is cultivating said land in short in such property neither of opponents are having any rights interest or title and only defendant no.1 & 3, are in collusion raising dispute, with regards to possessions of the suit property It is further the case of the appellants in this appeal that the Koldhabhai Pistabhai and Bavlabhai Bodabhai Ahir was purchased entire property bearing block no.590, survey no. 320 after making payment of sale consideration but as defendant no.4, to 7 have settled at abroad and they are not intending to execute registered sale deed, through they have often been requested but not taken into consideration then present plaintiffs preferred suit for specific performance of contract i.e possession receipt dated 29/10/1965 against the defendant no.4 to 7, and further declaration and permanent injunction has been sought against all the defendants and said suit has been dismissed and against impugned order of suit, the plaintiffs has preferred regular civil appeal and the same was also dismissed by confirming the order passed by civil court chikhali. Hence, the present appeal is preferred. 3. It is relevant to note that the present Second Appeal is pending for admission, which is yet not admitted. 4. Heard Mr. V.B. Malik, the learned counsel for the appellants and Ms. Tejal A. Vashi, learned counsel for the respondents. 5. The suggested substantial questions of law as framed in paragraph 3 of the memo of this appeal are under: i. Whether the Lower Appellate Court right in Koldhabhai holding that the Pistabhai, and was deceased Bavlabhai Bodabhai Ahir was not purchased the land by way of contract and in possession of land bearing survey no.320, block No.590, admesuring 1-14, hactor in village Dolnja, Ta Chikhali, Dist: Navsari. ii. Whether the Lower plaintiffs Court was consider that the plaintiffs was cultivating said land since 1965, and holding possession. iii. Whether the Courts below were right in denying the plaintiffs have not legal right as per the specific performance of the contract dated 29/6/1965 in defendants no, 4, to 7, land. iv. Whether the Courts below were right in ignoring the evidence regarding the appellants having no any legal rights by virtue of specific performance. v. Whether the Courts below were right in ignoring the produced by evidence and judgment appellant and defendant having legal right on suit property. vi. In the aforementioned premises appellant most humbly prays this Hon'ble Court that. 6.1 Mr. V.B. Malik, the learned counsel for the appellants has submitted that the impugned judgment and decree is illegal, unjust, arbitrary, unconstitutional, and against the facts, circumstances and evidence on record and is in violation of the principal of natural justice and equity and suffers from the vice of total non-application of mind. 6.1 Mr. V.B. Malik, the learned counsel for the appellants has submitted that the impugned judgment and decree is illegal, unjust, arbitrary, unconstitutional, and against the facts, circumstances and evidence on record and is in violation of the principal of natural justice and equity and suffers from the vice of total non-application of mind. Furthermore, he has submitted that the court below while passing impugned judgment and decree has failed to exercise the direction vested in him and thereby has committed an illegality and/or irregularity and if the impugned order would be allowed to stand the same will cause miscarriage of the justice. Furthermore, he has submitted that the courts below have committed grave error in not appreciating the evidence of prime witness who is purely support the case of appellants. Furthermore, he has submitted that the courts below have committed grave error not examine any evidence regarding the property of appellants father was holding possession on land and doing agricultural work since last four decade and passed impugned judgment. Furthermore, he has submitted that the courts below have committed grave error not taken in to consideration that appellants father has not made any sale transaction with the defendants. Furthermore, he has submitted that the courts below committed grave error in replying the issue framed by in negative was and against the interest of the justice. 6.2 Furthermore, he has submitted that the Learned lower appellate Court ought to have appreciated the fact that the plea raised by the appellants before the appellate court goes to the root of the mater that they are not getting any title on land, which shown by prima facie in the suit but only disadvantage defendants on has the taking taken all proper in their possession, only statement does not mean that the plea raised by the appellant is not important and only oral evidence accepted in to and consider it's against appellant. Furthermore, he has submitted that the court below ought to have considered that witnesses examine before court those not legally supported the case of defendant. Furthermore, he has submitted that the court below ought to have considered that witnesses examine before court those not legally supported the case of defendant. Furthermore, he has submitted that the court below ought to have considered that the deceased Sukhabhai was got land from father of defendant no.4 to 7, and agreement in his favour and said land was not belonging to Gauchar land, but it was belonging to Kharaba land and was in possessions to Sukhabhai way back since the transaction, but his name was not entered in revenue record and entry was not mutated in his favourand, therefore, he has submitted that the present appeal is requited to be admitted and also thereafter, required to be allowed. 7. Per contra, Ms. Tejal A. Vashi, learned counsel for the respondents has submitted that the courts below have rightly decided the suit proceeding as well as appeal proceeding and has rightly decided and dismissed the same by giving cogent and convincing reasons. Furthermore, she has submitted that no question of law more particularly substantial question of law involves in the present appeal and therefore, no interfere is required to be called for under Section 100 of the Code, and therefore, the present Second Appeal is required to be dismissed. 8.1 I have considered the rival submissions made at the bar by the respective parties. I have also considered the fact that the suit is filed before the trial court by the present appellants for declaration, injunction and specific performance of the agreement. Thereafter, the summons were served and defendant Nos.1 to 3 have filed their written statements as well as reply to the injunction application at Exh.25 by denying for granting the prayers made in the suit. It is also denied that no prayers for specific performance can also be granted and, therefore, in the written statement, it is prayed that the suit is required to be dismissed. The issues were framed at Exh.35 in the suit. The oral evidence as well as documentary evidence on behalf of the plaintiffs are also produced, which are referred in paragraph 8 of the judgment of the trail court. The issues were framed at Exh.35 in the suit. The oral evidence as well as documentary evidence on behalf of the plaintiffs are also produced, which are referred in paragraph 8 of the judgment of the trail court. Thereafter, the Court has considered the suit and came to the conclusion after considering all the issues that though the plaintiffs are claiming that though they are upholding possession receipt at Exh.67 pursuant to the agreement executed on 29.06.1965 by the ancestor of the defendant Nos.4 to 7, yet the said document is disputed by the defendants in the written statement and, therefore, the burden of proof the said document is on the plaintiffs. Thereafter, from the oral evidence, more particular at Exh.101 in the cross-examination, the witness said that he has neither seen the execution of the document at Exh.67 nor seen anyone, who has connected with the said document. Therefore, the Court has come to the conclusion that that document is not proved by the plaintiffs and plaintiffs have failed to discharge his burden of prove. The plaintiffs have also relied upon Section 90 of the Indian Evidence Act by saying that the said documents are 30 years old documents as the same are execution in the year 1965, but when the plaintiffs have failed to prove in discharging their duty and the parties to the said contract is disputing about the execution of the said contract, then the duty is cast on the plaintiffs to prove such document. But they have failed to discharge their duty by leading cogent and convincing evidence. Therefore, that presumption cannot be made under Section 90 of the Indian Evidence Act and the Court has given findings to that extent. 8.2 Hence, it transpires that the trial court has considered all the submissions made at the bar by detailed scrutinizing the evidence i.e. oral as well as documentary evidence available on the record in detail. The trial court has rightly come to the conclusion that though the revenue receipt is produced at Exh.62 to 65, but the revenue record is not a conclusive proof for any ownership or possession of that particular person in absence of any independent evidence and such document can be considered for the purpose of corroboration. The trial court has rightly come to the conclusion that though the revenue receipt is produced at Exh.62 to 65, but the revenue record is not a conclusive proof for any ownership or possession of that particular person in absence of any independent evidence and such document can be considered for the purpose of corroboration. The trial court has also considered the cross-examination of Talati; Chandubhai Naranbhai, who is examined at Exh.117, and he has admitted in his cross-examination that if a person, who is coming for payment of such amount of revenue or education cess, then he is only issuing receipt on the name given by that person. These documents cannot independently establish the factum that the plaintiff is holding one of share and he was in occupation of that premises. The Court has also perused the Panchnama prepared at Exh.113 and sketch at Exh.114 and also scrutinized the oral examination of the Court Commissioner – Urmilaben at Exh.111 and has come to the conclusion that there is no material available on the record by which it can be said that there is two part of the land of block no. 590. Whether 1.08 Gutha on north side or 1.08 Gutha on north west side and that is not reflected in that Panchnama. Therefore, from the Panchnama also, the case of the plaintiffs are not supported in any manner. The Court has also perused the deposition of witnesses, Maganbhai Chaturbhai at Exh.122, whereby he has stated that he was having his agricultural land next to the suit land, but he has stated that he was not aware of what is stated in Exh.122 the affidavit filed by him as he is an illiterate person, therefore, he is not aware about the contents of the affidavit. Furthermore, he has submitted that therefore, the Court has rightly not believed the version stated in the affidavit by that witness in absence of his unawareness about the contents of the said affidavit. The trial court has on the contrary found that the defendant No.3 is having his residential house on the suit land and has come to the conclusion by considering the revenue record and revenue proceeding, more particularly, which is discussed pursuant to the issue No.5 in para 25 of the judgment, that the possession of the entire suit land block no. 590 is in the possession of defendant Nos.1 to 3 and that is also established from the report of the Court Commissioner – Urmilaben, who has mentioned about the fact that the house of the defendant No.3 is situated on the suit land. The trial court has also found by considering the fact that after 1957-58, no where in the revenue record, the name of the forefather of the plaintiff as well as defendant Nos.1 to 3 – Sri Gordhabhai Pistabhai was mentioned as protected tenant. Considering all these aspects, the Court has come to the conclusion that plaintiff has miserably failed in proving his case. 8.3 The lower appellate court has also considered the various submissions made at the bar and has framed the points of determination as under: 1. Whether the property bearing Block No.590 admeasuring at 1-14 hector Village: Donja, Taluka : Chikhli was purchased by Koldhabhai Pistabhai and Bavlabhai Bodabhai Ahir from the power of attorney holder of its owner Asmalji Fakir Lunat? 2. Whether specific performance of the contract dated 29/6/1965 can be allowed ? 3. Whether the division of Block No.590 has been done and accordingly suit property was went to the share of plaintiffs? 4. Whether the plaintiffs are having any right or interest in the suit property? 5. Whether the judgment and decree passed by the learned trial judge is erroneous and same needs intervention, modification or reversal? 6. What order? (6) My findings of the aforesaid points for determination are as under: 1. In negative 2. In negative 3. In negative 4. In negative 5. In negative 6. As per final order 8.4 Thereafter, considering the material available on the record, the lower appellate court has re-appreciated the entire evidence and had come to the conclusion that the appeal is required to be dismissed. The learned lower appellate court has rightly framed the point of determination as required under the provisions of Order 41 Rule 31 of the Civil Procedure Code, and has given the findings, which is reflected from paragraph 7 onward in the judgment of the lower appellate court. 8.5 I have also considered the findings. The learned lower appellate court has rightly dealt with the aspect of Section 90 of the Indian Evidence Act, as under: “Section 90 in The Indian Evidence Act, 1872:- 90. Presumption as to documents thirty years old. 8.5 I have also considered the findings. The learned lower appellate court has rightly dealt with the aspect of Section 90 of the Indian Evidence Act, as under: “Section 90 in The Indian Evidence Act, 1872:- 90. Presumption as to documents thirty years old. Where any document, purporting or proved to be thirty years old, is produced from any custody which the Court in the particular case considers proper, the Court may presume that the signature and every other part of such document, which purport to be in the handwriting of any particular person, is in that person's handwriting, and, in the case of a document executed or attested, that it was duly executed and attested by the persons by whom it purports to be executed and attested. Explanation. - Documents are said to be in proper custody if they are in the place in which, and under the care of the person with whom, they would naturally be; but no custody is improper if it proved to have had a legitimate origin, or if the circumstances of the particular case are such as to render such an origin probable. 8.6 It transpires that the Court has rightly come to the conclusion that the presumption under Section 90 of the Indian Evidence Act is not mandatory presumption, but it is within the discretion of the Court by considering the facts and circumstances of each case. In the present case, the Court has come to the conclusion that document produced at Exh.67 is executed in favour of original defendant Nos.1 & 2, who are party to the suit and that document produced from the custody of the plaintiffs. The plaintiffs has failed to establish that how this document come to their custody. In such circumstances, the document produced by the plaintiffs cannot be said to be produced from the proper custody and, therefore, the first requirement for laying down presumption under Section 90 of the Indian Evidence Act has not been fulfilled in the present case. Moreover, before the learned trial Court, one document is produced at Exh.56, which is a mutation entry No.950 dated 01.06.1965 and having considering that mutation entry, it is transpires that Asmalji Fakir Lunat was died before 4 years and his legal heirs stated in that entry were entered in the Revenue Records. Moreover, before the learned trial Court, one document is produced at Exh.56, which is a mutation entry No.950 dated 01.06.1965 and having considering that mutation entry, it is transpires that Asmalji Fakir Lunat was died before 4 years and his legal heirs stated in that entry were entered in the Revenue Records. Meaning thereby, when the said entry was made on 01.06.1965, original owner of the suit property, Asmalji Fakir Lunat was died before four years. That leads to believe that Asmalji Fakir Lunat would have died somewhat in the year 1961. That means when the alleged agreement/possession receipt was executed by power of attorney holder of Asmalji Fakir Lunat, the principal/original owner Asmalji Fakir Lunat was died and, therefore, any power of attorney given by him became ineffective. Hence, any document executed by power of attorney after the death of Asmalji Fakir Lunat is void-ab-initio and has no legal impact. Therefore, when the possession receipt was executed on 29.06.1965, nothing was brought on the record by the plaintiffs to show at that point of time that the original owner Asmalji Fakir Lunat was alive. The learned lower appellate court has also relied upon the Panchnama drawn by the Court Commissioner as well as deposition of the Court Commissioner and affidavits of the otherwise witnesses Balwabhai Bodabhai Ahir and his son Naranbhia Bavlabhai also, which is sought to be produced at the appellate stage, but these two witnesses have rightly been observed by the learned lower appellate court and that were there right from the inception of suit as a defendant and therefore, such affidavit is afterthought. Moreover, the affidavits simplicitor cannot be considered as an evidence unless an opportunity of cross-examination of deponent is given to the rival parties. 8.7 In my view, all these observations made by the learned lower appellate court are in consonance with the materials available on the record and trial court as well as the learned lower appellate court has not committed any error in misreading any of the documentary or oral evidence or misinterpreting any provisions of law. On the contrary, as discussed, both the courts below have given detailed and cogent reasons for dismissing the suit as well as appeal of the present appellant. On the contrary, as discussed, both the courts below have given detailed and cogent reasons for dismissing the suit as well as appeal of the present appellant. Therefore, considering the fact that in the present case also, no substantial question of law is born out, hence, the present appeal is required to be dismissed by considering the recent judgment of the Hon’ble Apex Court in the case of Gurbachan Singh (Dead) Through Lrs. vs. Gurcharan Singh (Dead) Through Lrs and Others reported in (2023) SCC OnLine SC 875, more specifically, paragraph 7, 14 & 15 are relevant, as under: “7. The parameters of an appeal under Section 100, CPC passing muster are well established. The section itself dictates that such an appeal shall only be maintainable when the case involves a substantial question of law or that the appellate decree has been passed ex parte. the latter, obviously is not the case. This court has, in a multitude of decisions, expounded on what may be termed as a substantial question of law to satisfy the requirements of section 100. In Nazir Mohamed v. J. Kamala( 2 Judge Bench), it was observed: “27. In HeroVinoth v. Seshammal, (2006) 5 SCC 545 , this Court referred to and relied upon Chunilal V. Mehta & Sons Ltd. v. Century Spg. & Mfg. Co. Ltd., AIR 1962 SC 1314 and other judgments and summarised the tests to find out whether a given set of questions of law were mere questions of law or substantial questions of law. The relevant paragraphs of the judgment of this Court in Hero Vinoth [Hero Vinoth v. Seshammal, (2006) 5 SCC 545 ] are set out hereinbelow : (SCC p. 554, para 21) “21. The phrase “substantial question of law”, as occurring in the amended Section 100 CPC 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. 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. Ram Ditta, 1928 SCCOnLine PC 31 : (192728) 55 IA 235 : AIR 1928 PC 172 ] the phrase “substantial question of law” as it was employed in the last clause of the then existing Section 100 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. In Chunilal case [Chunilal V. Mehta & Sons Ltd. v. Century Spg. & Mfg. Co. Ltd., AIR 1962 SC 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, 1951 SCC OnLine Mad 100 : AIR 1951 Mad 969 ] : (Chunilal case [Chunilal V. Mehta & Sons Ltd. v. Century Spg. & Mfg. Co. Ltd., AIR 1962 SC 1314 ], 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.’ 28. To be “substantial”, a question of law must be debatable, not previously settled by the law of the land or any binding precedent, and must have a material bearing on the decision of the case and/or the rights of the parties before it, if answered either way.” (Emphasis supplied) 14. To be “substantial”, a question of law must be debatable, not previously settled by the law of the land or any binding precedent, and must have a material bearing on the decision of the case and/or the rights of the parties before it, if answered either way.” (Emphasis supplied) 14. As already noted above, another ground of objection taken by the Appellant is the fact of the impugned judgment entering into a reappreciation of evidence. While it is true that ordinarily, in second appeal, the court must not disturb facts established by the lower court or the first appellate court. However, it is also equally well recognised that this rule is not an absolute one or in other words, it is not a rule set in stone. In Nazir Mohamed (supra) this Court has recognised three conditions in which a court in such jurisdiction, may disturb findings of fact. They are: “(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. A decision based on no evidence, does not refer only to cases where there is a total dearth of evidence, but also refers to case, where the evidence, taken as a whole, is not reasonably capable of supporting the finding.” 15. A Bench of three learned Judges, recently in Balasubramanian and Anr. v. M. Arockiasamy (Dead) Through LRs., had referred to, with approval judgment rendered in Ramathal v. Maruthathal & Ors (two Judge Bench) wherein it was observed that the restraint in interfering with questions of fact under the jurisdiction of second appeal, is not an absolute rule. Where the court is of the view that the conclusions drawn by the court below do not have a basis in the evidence led or it is of the view that the appreciation of evidence “suffers from material irregularity” the court will be justified in interfering with such findings.” 8.8 It is also relevant to refer the judgment of the Hon’ble Apex Court in the case of M.B. Ramesh vs K.M. Veeraje reported in 2013 (7) SCC 490 , more specifically, paragraphs 16 & 17 are relevant, as under: “14. We may, however, note in this behalf that as held by a Constitution bench of this Court in Chunilal Mehta Vs. We may, however, note in this behalf that as held by a Constitution bench of this Court in Chunilal Mehta Vs. Century Spinning and Manufacturing Company reported in AIR 1962 SC 1314 , it is well settled that the construction of a document of title or of a document which is the foundation of the rights of parties, necessarily raises a question of law. That apart, as held by a bench of three judges in Santosh Hazari Vs. Purushottam Tiwari reported in 2001 (3) SCC 179 , whether a particular question is a substantial question of law or not, depends on the facts and circumstances of each case. When the execution of the will of Smt. Nagammanni and construction thereof was the subject matter of consideration, the framing of the question of law cannot be faulted. Recently, in Union of India Vs. Ibrahim Uddin reported in 2012 (8) SCC 148 , this Court referred to various previous judgments in this behalf and clarified the legal position in the following words:- “67. 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.” 15. At the same time we cannot accept the submission on behalf of the respondents as well that merely because the will was more than 30 years old, a presumption under Section 90 of the Indian Evidence Act, 1872 (‘Evidence Act’ for short) ought to be drawn that the document has been duly executed and attested by the persons by whom it purports to have been executed and attested. As held by this Court in Bharpur Singh Vs. Shamsher Singh reported in 2009 (3) SCC 687 , a presumption regarding documents 30 years old does not apply to a will. A will has to be proved in terms of Section 63 (c) of the Succession Act read with Section 68 of the Evidence Act.” 9. In view of the above discussions, the present Second Appeal filed under Section 100 of the Code does not involve any substantial question of law, which should be considered by this Court- and accordingly, the appeal is found meritless and is required to be dismissed. 10. Resultantly, the present Second Appeal is dismissed.