A lawful owner may recover possession of property within three years of the cause of action arising, irrespective of previous invalid sales, provided such claims do not establish adverse possession.

JUDGMENT :

(R.N. MANJULA, J.)

The appellant is the plaintiff and the respondents are the defendants 2 and 3. The plaintiff has filed a suit against the defendants for seeking the relief of recovery of possession and to pay the past and future damages for the unlawful use and occupation of the schedule mentioned property. The trial Court had dismissed the suit and the appeal preferred by the plaintiff in A.S.No.9/2001 has been allowed by setting aside the decree and judgment of the trial Court and the suit has been remitted back to the trial Court for fresh disposal. The defendants 2 and 3 have filed a Civil Miscellaneous Appeal in C.M.A.No.2819/2006 before the High Court by challenging the judgment of the first appellate Court in remitting the matter back to the trial Court. In the said Civil Miscellaneous Appeal the lower appellate Court was directed to receive the findings from the trial Court on the additional issues and then dispose the first appeal. In view of the same the judgment and decree passed by the first appellate court got set aside. Thereafter, the first appellate Court has passed a judgment on 08.06.2010 by dismissing the first appeal. Aggrieved over that the plaintiff has filed the present second appeal.

2. The facts pleaded in the plaint by the plaintiff in short :

The suit property is a joint family property of one Devaraja Chetty and his four sons. The suit property was purchased by Devaraja Chetty on 27.07.1929 from the income of the joint family properties and hence the suit property has been treated as joint family property of Devaraja Chetty. After the demise of Devaraja Chetty, his wife was enjoying the property till her life. Devaraja Chetty executed a Will dated 12.08.1940 in respect of the suit property. As per the judgment of the High Court held in A.S.No.465/1969 dated 10.10.1974, it has been declared that the Will executed by Devaraja Chetty is not valid. It is further held that the suit property is a joint family property in which the four sons of Devaraja Chetty have also got share and the wife of Devaraja Chetty has got right to enjoy the suit property till her lifetime and the four sons can divide after her demise. The wife of Devaraja Chetty, Kamalammal died on 27.05.1985.

2.1 The plaintiff has purchased the suit property on 24.10.1985 from the four sons born to Devaraja Chetty and Kamalammal. At the instigation of the first defendant's husband Palani Chetty, Kamalammal executed a sale deed in favour of Palani Chetty on 25.07.1967 in respect of the suit properties. The sons of the Kamalammal are not parties to the said sale deed. The plaintiff came to know about the sale deed only on 08.01.1986 when he had taken the encumbrance certificate. The sale deed executed by Kamalammal in favour of Palani Chetty is not supported by any consideration and in this regard a suit in O.S.No.109/1963 was then pending. Palani Chetty died in the year 1968 without issues. The first defendant who is the wife of Palani Chetty had executed a settlement deed on 22.07.1975 in favour of defendants 2 and 3. The first defendant also died in the year 1990. Her husband's brother Thiruvengadam Chetty had filed a impleading petition and he has been impleaded as a party to the proceedings.

2.