Point of Law: Suit for declaration and recovery of possession - Decreed - Suit for declaration and recovery of possession on strength of title is maintainable, still it is duty of court to peruse evidence regarding all issues and pass a decree touching all issues involved.

JUDGMENT :

This second appeal is filed against the divergent findings in a suit for declaration that Ext.A1 Sale Deed is void ab initio and for recovery of possession of the plaint schedule property having an extent of 30.35 ares in Thalavoor Village, Kollam district. The appellant is the defendant. The suit was dismissed by the Munsiff's court, Punalur (hereinafter referred to as 'the trial court') finding that the suit for declaration was not filed within the period of three years during which the right to sue first accrues as provided under Article 58 of the Limitation Act, 1963 (for short 'the Limitation Act'). The plaintiff preferred an appeal before the Sub Court, Punalur (hereinafter referred to as 'the first appellate court'). In reversal of the finding, the first appellate court held that the suit for declaration and recovery on the strength of title was filed within 12 years as provided under Article 65 of the Limitation Act. Accordingly, the suit was decreed. Challenging the judgment and decree of the first appellate court, the defendant filed this second appeal. For the sake of convenience and clarity, the parties are hereinafter referred to as 'the plaintiff' and 'the defendant' according to their status in the trial court.

2. On 8.3.2019, this Court admitted the appeal on the following substantial questions of law :

(a) Whether the finding of the first appellate court that the right to sue first accrued only on 12-05-2013 and that the suit is not barred by limitation is correct?

(b) Whether Exhibit B1 sale deed is valid?

(c) What is the effect of not filing a suit for Specific Performance based on Exhibit A2?

(d) Whether respondent could claim any right over the Plaint Schedule property ignoring Exhibit A2?

3. The plaintiff filed O.S. No. 232/2013 before the trial court claiming that Ext.A1 Sale Deed was executed as a security for a loan when she borrowed an amount of Rs.1,50,000/- from the defendant on 20.8.2001. According to her, Ext.A2 agreement for re-conveyance dated 20.8.2001 was also executed simultaneously whereby the defendant had agreed to sell the property purchased as per Ext.A1, to the plaintiff for a sum of Rs.10,00,000/-. The plaintiff claimed that the defendant had agreed to return the property when the sum of Rs.1,50,000/- borrowed by her is repaid with interest. She maintained that she never intended to convey any title over the property to the defendant and the sale deed was executed only as a security for a debt. She would claim that she approached the defendant with a sum of Rs.1,00,000/- on 5.1.2012, but the amount was not accepted by the defendant, saying that he would only accept the whole amount with interest. She would further contend that she approached the defendant with a sum of Rs.3,62,000/- on 12.5.2013 in full and final settlement of the amount due to the defendant. However, the defendant refused to accept the amount. Thereafter, the plaintiff came to know that the defendant had no intention to return the property. Hence the suit was filed.

4. The defendant filed written statement contending that the defendant purchased the property on payment of consideration to the plaintiff. According to him, he had taken possession of the property on the date of sale itself and has been in possession and enjoyment of the property since 20.8.2001. The property lies within specified boundaries. After the execution of the sale deed, the plaintiff requested the defendant that the property may be sold to her if the defendant intends to sell it later. Accordingly, the defendant informed the plaintiff that the property was not purchased for sale. However, he agreed that if it is being sold within a year, he is ready to sell the property to the plaintiff. The plaintiff did not approach him with money on 5.1.2012 and 12.5.2013 as alleged. It is specifically contended that the attempt of the plaintiff is to grab the property, which is owned and possessed by the plaintiff for more than 13 years. He contended that