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.

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the 1^st defendant having failed to account for the management of the property, on 20.07.2009, the Power of Attorney was revoked.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?

(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 a