Court must dismiss time-barred suits under Section 3 Limitation Act suo motu, even without defendant plea.

JUDGMENT :

N. ANAND VENKATESH, J.

This second appeal has been filed challenging the judgment and decree passed in AS No.33/2006 dated 31.08.2006 on the file of the Sub Court, Sivakasi, confirming the judgment and decree passed in OS No. 35/2002 dated 15.12.2004 on the file of the District Munsif Court, Sivakasi.

2. The appellant is the first defendant in the suit.

3. The case of the plaintiff is that the suit property was purchased by one Akkammal in a Court auction sale on 26.09.1933 and sale certificate was also issued to Akkammal on 29.11.1934 and possession was also handed over to her on 30.12.1953. The said Akkammal executed a registered release deed in respect of the suit property in favour of her two sons, namely, Srinivasan and Narayanasamy (Plaintiff). From the execution of the release deed, the plaintiff and his brother were in joint possession of the property. According to the plaintiff, the undivided half share in the suit property belongs to the plaintiff and the other half share belonged to defendants 2 to 4, who are the legal heirs of Srinivasan.

4. The further case of the plaintiff is that the first defendant's father was given permissive possession of the suit property and the first defendant, without the knowledge of the plaintiff, transferred the property tax assessment in his name fraudulently. On coming to know of the same, the plaintiff filed the suit seeking for the relief of declaration and for delivery of vacant possession and also for payment of damages.

5. The first defendant, who is the appellant, took a stand that late Appayanayakkar purchased the suit property in the year 1953 for the benefit of the joint family. The property was handed over to the first defendant. From 1953 onwards, the suit property was in possession and enjoyment of the father of the first defendant and after his demise, the first defendant continued to be in possession and enjoyment of the property. On 03.06.1968, the first defendant father and his brothers divided the property by means of a partition deed and the suit property was specifically allotted to the first defendant's father. He died on 21.03.1986 leaving behind the first defendant and his mother. The first defendant and his mother filed a suit in OS No.195/1997 questioning the transfer of patta in favour of the plaintiff without issuing notice to them. Later the suit was withdrawn. The first defendant also took a stand that the suit is barred by limitation.

6. The trial Court, on considering the facts and circumstances of the case and on appreciation of oral and documentary evidence, decreed the suit as prayed for by judgment and decree dated 15.12.2004 and the same was confirmed by the appellate Court by judgment and decree dated 31.08.2006. Aggrieved by the same, the present second appeal has been filed before this Court.

7. When the above second appeal was admitted, this Court framed the following substantial questions of law:

“1.Whether a sale certificate issued to the Court auction purchaser would be deemed to be a title deed and on that basis the auction purchaser got the title conveyed to him by the Court?

2.When there was no evidence showing the delivery of property by the Executing Court to the Court auction purchaser, whether any presumption could be drawn that the Court auction purchaser got possession of the property in accordance with law.

3.When the Court auction purchaser did not apply for the delivery of the suit property as provided under Order XXI Rule 95 of the Code of Civil Procedure, within the period of one year from the date of sale as provided under Article 134 of Lim