JAIVIR Vs. DARSHAN KUMAR AND OTHERS

JUDGEMENT

(1.) Suit for declaration filed by the plaintiff-appellant has been dismissed by both the Courts below. He is now before this Court in a second appeal filed under Section 100 of the Code Of Civil Procedure, 1908.

(2.) Learned counsel for the appellant has submitted that no issue regarding limitation was framed by the trial Court. Even the suit filed by the appellant was not dismissed by the trial Court on the ground of limitation. It was the lower appellate Court which for the first time took up the issue of limitation and non-suited the appellant on that ground. Relying upon the judgment of the Hon'ble Supreme Court in the case of Viswanatha Achari Vs. Kanakasabapathy, 2005 AIR(SC) 3109, learned counsel contends that in such a situation the matter requires to be remitted to the lower appellate Court for fresh consideration. It is no doubt true that the trial Court did not frame any issue qua limitation nor the appellant was denied the relief of declaration on the said ground. It was only at the stage of hearing of the first appeal that the appellant has been non-suited on the ground of limitation. However, a perusal of the judgment passed by the lower appellate Court would reveal that after considering all the facts and circumstances of the case, the said Court came to the conclusion that it was the appellant, who had executed power of attorney Ex. P1 in favour of his brotherrespondent No.1. The same was not for a limited purpose.

(3.) Rather, it was the General Power of Attorney and a registered document. After coming to the aforementioned conclusion, the lower appellate Court also considered another aspect of the controversy, i.e. limitation for challenging the execution of the General Power of Attorney dated 28.11.1988 as the suit was filed by the appellant only on 18.3.2006. It was held that though there was no issue of limitation framed by the trial Court yet in view of the provisions of Section 3 of the Limitation Act, the Court is not powerless to dismiss the suit on the ground of limitation. Even if the finding of the lower appellate Court qua dismissal of the suit on the ground of limitation is kept out of consideration, still this Court holds that the appellant has rightly been denied the relief of declaration on facts. In the case of Viswanatha Achari , the Hon'ble Supreme Court was seized of the issue regarding allowing of the appeal by the first appellate Court for the reason that the plaintiff therein had perfected his title by adverse possession whereas no such issue was framed by the trial Court.