JUDGMENT

S.B. Sinha, J.—The first defendant in the suit is in appeal before us being aggrieved by and dissatisfied with the judgment and order dated 17th June, 1998, passed by a learned Single Judge of the Kerala High Court in Second Appeal No. 8/1991.

2. The basic fact of the matter is not in dispute. One Kunhahammad was the owner of the property in question. He died in 1960 leaving behind the second defendant as his widow and defendants 3 to 8 as also the plaintiff of the suit are his children. The land in question was purported to have been sold by defendant Nos. 2 to 8, not only on their own behalf but also on behalf of the plaintiffs, by a registered sale deed dated 30.8.1963, in favour of the father of the first defendant Moosa Haji. It is not in dispute that Moosa Haji was father of defendant No. 2 i.e. maternal grandfather of the plaintiff and defendant Nos. 3 to 8. In the said deed of sale, plaintiff was represented by his father - defendant No. 4.

3. Moosa Haji sold half share in the said purchased property, in favour of the appellant by a registered sale deed dated 2.5.1970. As noticed hereinbefore the appellant before us is son of the said Moosa Haji. By reason of a partition which took place in the family of Moosa Haji, another half share of the property in question was allotted in favour of the appellant. The appellant thus became the full owner thereof. The plaintiff attained majority on 30th July, 1974. On or about 18.3.1981, he filed a suit in the Court of Subordinate Judge, Calicut, praying inter for the following reliefs :

“(A)To allot 4 shares exclusively to the plaintiff’s possession on division of the plaint schedule property ito 94 equal shares but by discarding the sale deed executed by defendants 2, 3 and 4 on 30.8.63 for their on behalf and on behalf of the minor defendants 5 to 8 and the plaintiff.

(B)To permit the plaintiff to recover the mesne profits of the plaint-schedule properties for the last 3 years at the rate of Rs. 10,000/- per annum from the first defendant or other defendants.

(C)To recover the cost of the suit by the plaintiff from the defendants.”

4. One of the issues which arose for consideration before the learned Trial Judge was as to whether the suit was barred by limitation being issue No. 3 thereof.

5. The learned Trial Judge opined that Article 60 of the Schedule appended to the Limitation Act, 1963 being applicable, the suit was barred by limitation. The plaintiff filed an appeal thereagainst. The appellate Court was of the opinion that the plaintiff could have instituted the suit within a period of 12 years from the date of execution of the sale deed i.e. till the year 1986, thus, and the suit was not barred by limitation. The appellant herein carried the matter in second appeal before the High Court. By reason of the impugned judgment, a learned Single Judge of the Kerala High Court although opined that in terms of Sections 6 & 8 of the Limitation Act, 1963, the suit was required to be filed by the plaintiff-respondent within 3 years from the date of his attaining majority or 12 years from the date of execution of the sale deed, but dismissed the second appeal of the appellant herein inter alia on the premise that he as also his predecessor in interest having become co-owner in the suit property with the plaintiff-respondent, the provisions of Article 65 of the Limitation Act, 1963 would be applicable. Having held so, it was further opined that as the defendant No.1- appellant had failed to plead and prove ‘ouster’ as against the plaintiff, the suit was bound to fail.

6. Mr. Krishnamurthy, learned senior counsel appearing on behalf of the appellant would submit that the findings of the learned Single Judge are contrary to the pleadings of the parties inasmuch as the plaintiff-respondent in his plaint clearly averred that the interest of the appellant and his predecessor in interest was adverse to that of the plaintiff and in that view of the matter the question of the appellant and/or