IMPORTANT POINT
The main legal point established in the judgment is the authority of a power of attorney to depose on behalf of the principal, the duty of the plaintiff to prove his case, and the requirements for establishing adverse possession.

JUDGMENT :

1. This second appeal is filed under Section 100 of the Code of Civil Procedure, 1908 (`CPC’ for short) being aggrieved and dissatisfied with the judgment and decree dated 25.11.2023 passed by the learned 3rd Additional District Judge, Gondal in Regular Civil Appeal No.12 of 2024 whereby the judgment and decree dated 30.7.2014 passed by the learned 2nd Additional Senior Civil Judge, Gondal in Regular Civil Suit No.581 of 2002 is set aside, for the following substantial questions of law?

“1. Whether the judgment and decree of the lower appellate court is perverse and ex-facie illegal in view of the settled legal position that power of attorney can’t depose for the plaintiff in respect of the acts done by the plaintiff and not by him; and that too for the acts done before execution of POA?

2. Whether the appeal can be allowed in absence of deposition of the plaintiff himself who is the executor of the power of attorney; as in the POA at Mark 21/9 in favour of Pruthvish S Parmar, it is specifically mentioned that plaintiff-Jyotindrasinhji Vikramsinhji Jadeja is doing administration of the suit property and when another POA holder, who is examined, has no personal knowledge about the transaction between the plaintiff and the forefather of the defendants; and as such by way of said POA, no power was given for deposition in court proceedings?

3. Whether suit can be decreed without examination of plaintiff himself and without cross examination of POA – Pruthvish S Parmar, who has presented the plaint and who has issued pre-suit notice?

4. Whether the judgment and decree of the lower appellate court is perverse and ex-facie illegal as it has not followed the decisions of the Hon’ble Supreme Court mentioned in ground (M) of the present appeal memo?

5. Whether it is permissible for the lower appellate court to substitute his own findings, though the detailed findings and reasoning of the trial court are totally valid based on evidence on record?

6. Whether the lower appellate court is right in not believing the case of adverse possession, though possession of the defendants was uninterrupted, continuous and hostile to the original owner since more than 12 years and therefore suit is time barred?

7. Whether the judgment and decree of the lower appellate Court is perverse and ex-facie illegal as it had allowed the suit on the weakness of the defendants and totally ignored the settled legal position and that it is the duty of the plaintiff to prove his case?

8. Whether the lower appellate court is right in deciding the appeal, when it was brought to the notice of the lower appellate court that in another suit except quarter number, the subject matter, nature and place of the property, including one of the issue as to whether POA can depose the same, which has gone up to the Hon’ble High Court and Second Appeal is admitted and interim relief is granted?

9. Whether the finding of the lower appellate is totally perverse and contrary to the evidence on record?”

2. Heard learned advocates for the parties.

2.1 Learned advocate Mr.Sheth for the appellant has assailed the order of the learned lower appellate court by submitting that the learned lower appellate court has set aside the detailed and well reasoned order of the learned trial court which is illegal, perverse and contrary to the evidence on record; that the lower appellate court has failed to appreciate that initially the notice for vacating the suit property dated 13.9.1994 was issued by the power of attorney holder (POA)-Pruthvish Shirishbhai Parmar, on behalf of former ruler Jyotindrasinhji Vikramsinhji Jadeja and he filed the suit on 23.11.1994, but the said POA was not brought to cross-examination to prove the case of the plaintiff, but another POA-Khengarbhai H Rathod having POA dated 13.4.1992, who was aged 90 years was examined on the premise that earlier POA who has filed examination-in-chief at Exh.23 is retired and therefore the contents of the plaint are not proved in view o