Point of Law: Suit for declaration and for recovery of possession or for recovery of possession alone is maintainable within 12 years from the date, when the possession of the defendant becomes adverse to the plaintiff.

JUDGMENT :

The present regular second appeals are directed against the impugned common judgment and decree dated 15.02.2013 in A.S.Nos.180/2007 and 181/2007 of the Sub Court, Perumbavoor (hereinafter referred to as 'the first appellate court') arising from the judgment and decree dated 10.10.2002 in O.S.Nos. 44/1997 and 112/1997 of the Munsiff's Court, Perumbavoor (hereinafter referred to as 'the trial court').

2. O.S.No.112/1997 was filed by the plaintiff praying for a decree for cancellation of Ext.A2 sale deed No.1480/1991 executed by the second defendant in favour of the first defendant and for recovery of possession of 62 cents of land devolved upon the plaintiff and the second defendant equally and other consequential reliefs. O.S.No.44/1997 was filed by the first defendant in O.S.No.112/1997 seeking damages and consequential permanent prohibitory injunction, restraining the plaintiff in O.S.No.112/1997 from interfering with his possession over the plaint schedule property.

3. Both the suits were tried together treating O.S.No.112/1997 as the leading case. The parties are hereinafter referred to as referred in O.S.No.112/1997 unless otherwise stated.

4. The trial court found that the evidence available on record are not sufficient to prove the damages alleged in O.S.No.44/1997 and that the plaintiffs have failed to locate the exact boundaries, lie and extent of the plaint schedule property in O.S.No.44/1997. Thus, the trial court dismissed the suit for permanent prohibitory injunction and damages. At the same time, the trial court found that the plaintiff in O.S.No.112/1997 was aware of the execution of Exts.A2, B3 and B4, when he came back to his native place in the year 1993. The trial court further held that the dispute with respect to the property including the plaint schedule property was settled in mediation and on the basis of such settlement, Ext.B1 partition deed was executed. The trial court took the view that the plaintiff has relinquished his claim over the plaint schedule property by accepting Exts.A2, B3 and B4.

5. Assailing the common judgment and decree passed in O.S.Nos. 44/1997 and 112/1997, the plaintiff and the defendants filed A.S.Nos. 181/2007 and 180/2007 respectively before the first appellate court. The first appellate court held that the execution of Ext.A2 sale deed without taking recourse through the due process of law is void and the same cannot confer any title upon the first defendant. Hence, the first appellate court passed a decree setting aside Ext.A2 sale deed. Consequential recovery of possession of the plaint schedule property was also granted. Accordingly, the decree passed by the trial court in O.S.No. 112/97 was set aside. A.S.No.181/2007 was allowed and A.S.No.180/2007 was dismissed.

6. The plaintiff's case was that he was the owner to the extent of one-half share of the land in dispute along with his brother-the second defendant. The plaintiff was not in station for a long time. He was residing at Mananthavady. In 1993, when he visited his native place, in order to get share over his property, he came to know that the second defendant had already executed Ext.A2 sale deed in favour of the first defendant. In Ext.A2, it is stated that when the whereabouts of the plaintiff have not been known for several years, he is presumed to be dead. According to the plaintiff, he had never sold the land. The sum and substance of his contention is that the sale to the extent of his share did not confer any right on the first defendant. Hence, O.S.No.112/1997 was filed for cancellation of Ext.A2 sale deed executed by the second defendant in favour of the first defendant and consequential recovery of possession of 62 cents of land devolved upon the plaintiff and second defendant jointly.

7. The main contention of the first defendant is that he purchased the plaint schedule property from the second defendant for valuable consideration and he was a bona fide purchaser for the value. The plea of limitation