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IN THE HIGH COURT OF KERALA AT ERNAKULAM
Easwaran S.
T.Oommen Panicker – Appellant
Versus
John Mathew – Respondent
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 1st defendant. The 1st 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 2nd defendant is void. Further, the 1st defendant having failed to account for the management of the property, on 20.07.2009, the Power of Attorney was revoked.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 1st defendant regarding the cancellation of the Power of Attorney was met with a reply stating that the 1st defendant had conveyed the property to the 2nd defendant on 25.05.2005 and hence the suit was
A suit for recovery of possession under Article 65 of the Limitation Act can proceed even if the plaintiff alleges a prior sale is void, as limitation is a mixed question of fact and law.
Sales of minor's property by guardian without court permission are voidable, requiring action within three years post-majority to avoid limitation issues.
The court established that limitation issues can involve mixed questions of law and fact, which cannot be resolved at the preliminary stage of proceedings.
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 regardin....
The main legal point established in the judgment is that a suit challenging a sale deed must be filed within the limitation period prescribed by the Limitation Act, and suppression of material facts ....
Parties cannot waive the defense of limitation; a suit filed beyond the statutory limit must be dismissed, regardless of any concession from opposing parties.
(1) Questions of fact can be decided only by recording evidence and a decision on such disputed questions is possible only in final judgment of trial Court and not earlier to final judgment.(2) Preli....
The rejection of a plaint under Order VII Rule 11 CPC on grounds of limitation requires a full trial when the issue involves mixed questions of law and fact.
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