SHANKARBHAI RAMSINGBHAI PARMAR Vs. PURUSHOTAMBHAI MATHURBHAI SAPRA

JUDGEMENT

(1.) The present Second Appeal has been filed by the appellants under section 100 of the Civil Procedure Code being aggrieved with the impugned judgment and order in Regular Civil Appeal No.95 of 2003 by the Principal District Judge, Kheda vide judgment and order dated 21.08.2015 confirming the judgment and decreed in Special Civil Suit No.52/2011 passed by the 5th Additional Sr. Civil Judge, Kheda dated 27.09.2013 on the grounds stated in the memo of appeal posing substantial questions of law as under:-

(2.) Heard learned Senior Counsel, Shri Mehul Shah appearing with learned advocate, Shri G.P. Baghel for the appellants and learned advocate, Shri M.T.M. Hakim appearing with learned advocate, Shri M.I. Mansuri for the respondent.

(3.) Learned Senior Counsel, Shri Shah referred to the papers at length and submitted that both the Courts below have misdirected in reading and construing the document viz., power of attorney. He emphasized that the observation that the power of attorney did give power to sell, is thoroughly misconceived. Learned Senior Counsel, Shri Shah referred to both the documents and tried to submit that it is evident from the power of attorney that the powers were given as the respondent-original plaintiff was leaving for abroad. Learned Senior Counsel, Shri Shah, therefore, submitted that there is no dispute raised with regard to the existence of the power of attorney and if there is valid power of attorney, the documents on the basis of such power of attorney executed, would make it vulnerable or illegal. He submitted that since the document is required to be executed in favour of the wife of the appellant, there is no mention of consideration. Learned Senior Counsel, Shri Shah submitted that at the time of power of attorney, the appellant had made payment towards the sale consideration and, therefore, since it was the document executed in the name of the wife, there may be any consideration and, therefore, both the Courts below have failed to appreciate the material and evidence and have totally misdirected in construing the power of attorney. He, therefore, referred to the substantial question of law posed and submitted that the present Second Appeal may be entertained. He has also made feeble attempt to refer to the background of the fact to contend that suit itself would have been time barred by limitation as the suit is filed in the year 2011 challenging the sale deed executed on 30.03.2008 on the basis of the power of attorney dated 26.08.1985. He has also referred to and relied upon the judgment of the Hon'ble Apex Court in case of Municipal Committee, Hoshiarpur v. Punjab State Electricity Board &Ors., reported in (2010) 13 SCC 216 and emphasized the observation made in Paragraph No.28, which reads as under:-