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2025 DIGILAW 2560 (KER)

T. Oommen Panicker v. John Mathew

2025-09-24

EASWARAN S.

body2025
JUDGMENT : Easwaran S., J. This appeal arises on a preliminary point decided by the trial court, dismissing the suit for recovery of possession and also adjudging a document of sale as void on the ground of the limitations. 2. The brief facts necessary for the disposal of the appeal are as follows:- The plaintiff derived right title and interest over the plaint A schedule property by virtue of partition deed No.1500/1992. On 21.05.2005, he executed Power of Attorney in favour of the 1 st defendant. The 1 st defendant is stated to have executed a sale deed immediately after 4 days of execution of Power of Attorney in favour of the 2nd defendant. The plaintiff contended that since he was not residing in the station and that the Power of Attorney was entrusted only to manage the property, the sale infavour of the 2 nd defendant is void. Further, the 1 st defendant having failed to account for the management of the property, on 20.07.2009, the Power of Attorney was revoked. A notice send to the 1 st defendant regarding the cancellation of the Power of Attorney was met with a reply stating that the 1 st defendant had conveyed the property to the 2 nd defendant on 25.05.2005 and hence the suit was instituted with the prayer to adjude the sale deed No.1663/2005 dated 25.05.2005 as void and to have the plaintiff’s title to the plaint schedule property declared, excluding the area covered by the revenue sale and to restore the plaint schedule property too. During the pendency of the suit, the defendant, filed I.A No.2647/2018, seeking to decide maintainability of the suit as preliminary issue, contending that the suit is barred by limitation. The trial court by order dated 03.11.2018 allowed the I.A and found the suit to be not maintainable and dismissed the suit by Interlocutory order. In view of the order in I.A No.2647/2018, the judgment was rendered, dismissing the suit. Aggrieved, the plaintiff carried forward the challenge in A.S No.23/2020, which was also dismissed by the judgment dated 29.01.2024 and hence the appeal. Aggrieved by the judgment of the First Appellate Court confirming the dismissal of the suit on the preliminary issue, the plaintiff has come up with the present appeal by raising the following substantial questions of law.:- (i) Whether the findings that the suit is barred by limitation is legally sustainable? Aggrieved by the judgment of the First Appellate Court confirming the dismissal of the suit on the preliminary issue, the plaintiff has come up with the present appeal by raising the following substantial questions of law.:- (i) Whether the findings that the suit is barred by limitation is legally sustainable? (ii) Whether merely because one of the reliefs sought is for declaration the outer limit of 12 years to recover possession is lost? (iii) Whether the Courts below were justified in determining the question of limitation under Order XIV Rule 2 (2) as a preliminary issue. 3. Heard, Shri.S.Abdul Rasak, the learned counsel appearing for the appellants and Smt.C.Vijayakumari, the learned counsel appearing for the defendants. 4. Shri.S.Abdul Rasak, the learned counsel for the appellants submitted that the trial court erred egregiously in allowing I.A No.2647/2018 by tying the issue of maintainability of the suit as a preliminary issue. According to the appellants, the question as to whether the suit is barred by limitation is not a pure question of law, but a question of fact as well as the law, this could be ultimately decided after a fully fledged trial. The specific case of the plaintiff is that the Power of Attorney did not confer any right on the 1 st defendant to sell the property to the 2 nd defendant and if that be so, a prayer for recovery of possession has a larger period of limitation as prescribed under Article 65 of the Limitation Act. The plaintiff is entitled to ignore a void sale deed, in which event, Article 65 of the Limitation Act is the provision which applies and therefore, the courts below erred erroneously in dismissing the suit as not maintainable, without even permitting the plaintiff to adduce evidence to show the void nature of the sale deed, for absence of power under the Power of Attorney. 5. Per contra, Smt.C.Vijayakumari, the learned counsel for the defendants would assert before this Court that the trial court, was justified in dismissing the suit by invoking the power under Order XIV Rule 2(2) (b) of the Code of Civil Procedure, 1908. According to the learned counsel for the defendants, the suit is per se not maintainable, is barred by limitation. Per contra, Smt.C.Vijayakumari, the learned counsel for the defendants would assert before this Court that the trial court, was justified in dismissing the suit by invoking the power under Order XIV Rule 2(2) (b) of the Code of Civil Procedure, 1908. According to the learned counsel for the defendants, the suit is per se not maintainable, is barred by limitation. The plaintiff had given evidence that on 22.05.2009, he became aware of the execution of the sale deed and that the suit having been instituted only in the year 2013, was clearly barred by limitation. She would further submit that the plea of the plaintiff that the sale deed is void cannot be sustained because the Power of Attorney granted sufficient power to the 1st defendant to sell the property. 6. I have considered the rival submissions raised across the Bar and perused the records and the judgments rendered by the courts below. 7. At the outset itself, this Court finds that the trial court has committed great error in allowing I.A No.2647/2018 and trying the issue as a preliminary issue on the maintainability without permitting the plaintiff to adduce evidence. The travesty of justice, which has happened in the case of the plaintiff, is evident from the fact that the trial court even refused to mark the documents produced on the side of the parties. It must be noted that the suit was pending on the files of the trial court from 2013 onwards and all of a sudden, after a lapse of the 5 years, the defendant came up with an application to decide the issue of maintainability. 8. It is trite law that the question of limitation is not a pure question of law, but is a mixed question of fact and law. Therefore, without going into the question as to whether the sale deed was void for want of power under the Power of Attorney executed by the plaintiff, the trial court could not have decided the question of limitation in the suit. 9. In Shanti Devi (Since Deceased) Through Legal heirs Goran v. Jagan Devi [2025 KHC OnLine 6790], the Supreme Court considered the similar question, when an impugned sale deed is alleged to be void ab initio due to fraud. 9. In Shanti Devi (Since Deceased) Through Legal heirs Goran v. Jagan Devi [2025 KHC OnLine 6790], the Supreme Court considered the similar question, when an impugned sale deed is alleged to be void ab initio due to fraud. It was held that Article 59 of the Limitation Act, will not apply in such circumstances and that the plaintiff need only to seek recovery of possession and in which case, Article 65 of the Limitation Act, 1963 is the relevant Article which applies in such circumstances. When a relief sought for is covered by a larger period of limitation, it is the larger period of limitation, that will apply and therefore the defendant cannot raise a question that the suit is barred by limitation because of Article 59 of the Limitation Act, 1963. 10. In Cherian K.M. v. Ammini [2025 KHC OnLine 746], a Single Bench of this Court reiterated the the said principle and held that in a suit for recovery of possession, the plaintiff can maintain a prayer for recovery without seeking to set aside the documents which are void. 11. In Sopanrao and another v. Syed Mehmood and others [(2019 ) 7 SCC 76], the Hon'ble Supreme Court considered the very same issue and held as follows:- 9. It was next contended by the learned counsel that the suit was not filed within limitation. This objection is totally untenable. Admittedly, the possession of the land was handed over to the Trust only in the year 1978. The suit was filed in the year 1987. The appellants contend that the limitation for the suit is three years as the suit is one for declaration. We are of the view that this contention has to be rejected. We have culled out the main prayers made in the suit hereinabove which clearly indicate that it is a suit not only for declaration but the plaintiffs also prayed for possession of the suit land. The limitation for filing a suit for possession on the basis of title is 12 years and, therefore, the suit is within limitation. Merely because one of the reliefs sought is of declaration that will not mean that the outer limitation of 12 years is lost. Reliance placed by the learned counsel for the appellants on the judgment of this Court in L.C. a Hanumanthappa v. H.B. Shivakumar² is wholly misplaced. Merely because one of the reliefs sought is of declaration that will not mean that the outer limitation of 12 years is lost. Reliance placed by the learned counsel for the appellants on the judgment of this Court in L.C. a Hanumanthappa v. H.B. Shivakumar² is wholly misplaced. That judgment has no applicability since that case was admittedly only a suit for declaration and not a suit for both declaration and possession. In a suit filed for possession based on title the plaintiff is bound to prove his title and pray for a declaration that he is the owner of the suit land because his suit on the basis of title cannot succeed unless he is held to have some title over the land. However, the main relief is of possession and, therefore, the suit will be governed by Article 65 of the Limitation Act, 1963. This Article deals with a suit for possession of immovable property or any interest therein based on title and the limitation is 12 years from the date when possession of the land becomes adverse to the plaintiff. In the instant case, even if the case of the defendants is taken at the highest, the possession of the defendants became adverse to the plaintiffs only on 19-8-1978 when possession was handed over to the defendants. Therefore, there is no merit in this contention of the appellants. 12. A Full Bench of this Court in Mathew v. Ayyappankutty [1962 KHC 12], held that the expression ' is void' denotes a nullity, a thing which is void must be nullity for all. Paragraph 10 of the judgment is extracted for reference as under:- 10. The expression is often used: 'void as against' a person or persons. In strict terminology, a thing cannot be void and valid at the same time. As 'void' denotes a nullity, a thing which is void must be a nullity for all. It is totally non existent. Therefore 'void as against A' can mean only that A can treat it as void; or, in other words, A can avoid it. It is, strictly speaking, voidable at the option of A. 13. As 'void' denotes a nullity, a thing which is void must be a nullity for all. It is totally non existent. Therefore 'void as against A' can mean only that A can treat it as void; or, in other words, A can avoid it. It is, strictly speaking, voidable at the option of A. 13. In the present case, a reading of the averments in the plaint shows that the specific case pleaded by the plaintiff is, the fraud practiced by the 1st defendant and his intention to execute title deed based on Power of Attorney dated 21.05.2005. The thrust of the case set up in the plaint hinges on the fraud played by the 1 st defendant against the plainti deed executed in favour of the 2 nd defendant. Therefore, the trial court had no authority to dismiss the suit, merely because the 2 nd defendant came up with an Interlocutory Application. Thus, the trial court has committed a grave dereliction of duty in not adjudicating the suit on merits. 14. Resultantly, this Court is inclined to answer the substantial questions of law framed in the appeal in favour of the appellants and it is held that the suit is not barred by limitation. The plaintiffs need not seek for setting aside a void document and since they have claimed recovery of possession, the relevant Article applicable is Article 65 of Limitation Act and therefore the suit is within the period of limitation. Since the trial court has not gone into the merits of the case, it is only appropriate that, the suit be restored back to the files of the Munsiff Court, Kottarakara for fresh consideration by enabling the parties to adduce further evidence, if so advised. Accordingly, the order dated 03.11.2018 and consequently, the judgment and decree dated 03.11.2018 in O.S No.337/2013 as affimed in A.S No.23/2020 by the Sub Court, Kottarakkara, in the judgment and decree dated 29.01.2024 are set aside. O.S No.337/2013 is restored back to the files of the Munsiff Court, Kottarakara. The Munsiff Court, Kottarakara, shall complete the trial of the case and dispose the suit as expeditiously as possible at any rate before the closure of the court for summer recess. The parties shall appear before the Munsiff Court on 08.10.2025. O.S No.337/2013 is restored back to the files of the Munsiff Court, Kottarakara. The Munsiff Court, Kottarakara, shall complete the trial of the case and dispose the suit as expeditiously as possible at any rate before the closure of the court for summer recess. The parties shall appear before the Munsiff Court on 08.10.2025. On appearance, the Munsiff Court shall afford further opportunity for the plaintiff as well as the defendants, if so advised, to adduce further evidence, if any. The parties are directed to suffer respective cost. The Registry shall refund the entire court fee paid on the appeal to the appellant.