Rajasthan High Court
Smt. Dhapu Widow Of Late Shri ... vs Smt. Kamla Devi W/O Shri Kishanlal ... on 7 December, 2022
Bench: Sudesh Bansal
HIGH COURT OF JUDICATURE FOR RAJASTHAN
BENCH AT JAIPUR
S.B. Civil First Appeal No. 620/2020
Smt. Dhapu Widow Of Late Shri Mewaram & Ors.
----Appellant-Plaintiffs
Versus
Smt. Kamla Devi W/o Shri Kishanlal Meena & Ors.
----Respondent-Defendants
Connected With
S.B. Civil First Appeal No. 616/2020
Smt. Bhuli Devi Widow Of Shri Shrila
----Appellant-Plaintiff
Versus
Smt. Kamla Devi W/o Shri Kishanlal Meena
----Respondent-Defendants
For Appellant(s) : Mr. O.P. Mishra
For Respondent(s) : Mr. Gaurav Sharma Saraswat
HON'BLE MR. JUSTICE SUDESH BANSAL
Order
07/12/2022
1. Instant first appeals have been filed by appellant-plaintiffs
challenging the judgment and decree dated 22.01.2020 passed by
the Additional District Judge No.19, Jaipur Metropolitan (Head
Quarter Sanganer) whereby and whereunder while dismissing
plaintiffs' suit for declaration of sale deed dated 22.06.2004 as
null and void, learned trial judge has suo moto granted liberty to
plaintiffs to challenge the power of attorney dated 14.06.2004.
2. Heard and perused the record.
3. From perusal of the record and having heard learned counsel
for both parties, it is clear that plaintiffs challenged the sale deed
dated 22.06.2004 stating inter alia that the same was executed by
the respondent-defendant No.2 Deepak Sharma alleging himself to
(2 of 3) [CFA-620/2020]
be power of attorney holder of plaintiffs and power of attorney
dated 14.06.2004 was procured by playing fraud. It is not in
dispute that in the sale deed dated 22.06.2004, there is a recital
about the power of attorney nevertheless while challenging the
sale deed dated 22.06.2004, plaintiffs have not chosen to
challenge the power of attorney in their suits, which is the basic
document under challenge, for the reason best known to plaintiffs.
It has also been informed that plaintiffs have separately initiated
criminal proceedings in respect of the said power of attorney but
criminal proceedings were finally dropped.
From the record, it stands clear that specific issue No.1 was
framed in respect of power of attorney being forged or not and in
statements of plaintiff No.2-Nanagram (PW-1), he admitted that
power of attorney was executed, however later on he deposed
that the power of attorney was got procured/executed by playing
fraud. Meaning thereby, the existence and execution of power of
attorney is not in question at all since inception, and the challenge
made by plaintiffs is only to the fact that the power of attorney
was procured/executed by playing fraud yet plaintiffs did not
choose to challenge that power of attorney in the present suit.
4. In aforestated facts which are not in dispute and arise from
the record, there was no occasion for the trial judge to grant any
liberty to plaintiffs to challenge the power of attorney dated
14.06.2004, while dismissing the suit vide impugned judgment
dated 22.01.2020. Counsel for appellant-plaintiffs states that no
such prayer was made by plaintiffs before the trial court.
5. In the opinion of this Court, granting such a liberty to
plaintiffs by the trial judge on its own is unwarranted and not in
(3 of 3) [CFA-620/2020]
consonance with the civil law, rather travels against law of
limitation as well as other relevant factors.
6. Issue notice.
On behalf of respondent-defendant No.2, the counsel has put
in appearance. Hence, notice be issued to respondents No.1
and 3.
7. Stay application shall be considered after service of notice
upon respondents No.1 and 3.
8. In the meanwhile, Registrar General is directed to call for
explanation from the concerned trial judge, as to why and under
which provision of law, the liberty to challenge the power of
attorney dated 14.06.2004 has been granted to plaintiffs while
dismissing the suit vide judgment dated 22.01.2020 on its own,
ignoring all relevant provisions of law.
9. List these first appeals again on 20.01.2023 alongwith the
report.
(SUDESH BANSAL),J
TN/14-15
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