Limitation for suit declaring forged document void requires evidence on date of knowledge as mixed fact-law issue.

J U D G M E N T

This appeal is filed by the defendants in a suit for declaration and recovery of possession, aggrieved by the order of remand by the First Appellate Court on the issue of limitation.

2. The brief facts necessary for the disposal of the appeal are as follows:-

The plaintiffs filed the suit for a declaration that the document No.628/1994 dated 07.03.1994 is null and void, since the same is forged. Consequential relief in the form of fixation of boundary was also sough for. The defendants entered appearance and resisted the suit on a preliminary ground that the suit is barred by limitation. It was further contended that the property in question was assigned in favour of the 1^st defendant in the year 1994 and subsequently in the year 1996, yet another property was executed by the 1^st plainti plaintiff had specifically spelt out that one of the boundaries is the property of the predecessor of defendants 1 and 2. Pending the suit, the plaintiffs had filed an application for appointment of an Advocate Commissioner for measuring out the property. The same was dismissed by the trial court holding that the relief of declaration being the primary relief and that the entitlement of the plaintiffs to the said relief must be considered in order to enable the plaintiffs to maintain the prayer for fixation of boundary. Accordingly, the application was dismissed on 11.08.2017. Aggrieved, the plaintiffs filed O.P.(C) No.2600/2017, which was disposed of by judgment dated 26.07.2018. This Court, while disposing of the original petition found that inasmuch as the preliminary issue of maintainability of the suit qua the period of limitation is a primary issue to be considered, interfered with the order passed by the trial court and ordered the trial court to consider the issue of limitation as a preliminary issue within a period of two weeks from the date of receipt of the copy of the judgment. This Court further ordered that the suit is found to be raised on false and fictitious grounds and the mandate under Section 35A of the Code of Civil Procedure, also followed besides the cause. Based on this judgment, the trial court undertook the exercise of deciding the suit on the preliminary issue and found that the suit is barred by limitation, since the document in question was instituted in the year 1994 and whereas the suit was filed in the year 2015. Aggrieved, the plaintiffs preferred A.S No.65/2018 and the Sub Court, Punalur, interfered with the findings rendered by the trial court and remanded the matter back to the trial court to enable the plaintiffs to adduce evidence for a fresh disposal, in compliance with the judgment of the Kerala High Court. Aggrieved by the order of remand, the present appeal is preferred.

3. Though a second appeal against an order of remand is not per se maintainable, this Court by order dated 27.11.2019, admitted the appeal and framed the following substantial question of law for further consideration:-

Is the finding of the lower appellate court on the issue of limitation sustainable in law?

Hence at this point of time, this Court is not prepared to non-suit the appellants on the ground of maintainability of the appeal and thus the matter is taken on board for final hearing.

4. Heard Shri.Jayapradeep V., the learned counsel appearing for the appellants and Shri.G.P.Shinod, the learned counsel appearing for the respondents.

5. The learned counsel appearing for the appellants submitted that the mandate of this Court in the judgment in O.P.(C) No.2600/2017 having been complied by the trial court, the First Appellate Court erred egregious