Civil Appeal – Property Dispute – Limitation – Void and Voidable Documents – Recovery of Possession – Partition – Injunction – Succession Act, 1925 – Limitation Act, 1963, Articles 58, 59, 65 – Code of Civil Procedure, 1908 – Order 41 Rule 27 – If the sale deeds were void ab initio, no declaration or setting aside was necessary for recovery of possession.
(2025) 7 KCC 73 : 2025 KER 49425 : 2025 KLT OnLine 2295
HIGH COURT OF KERALA
Coram: Hon’ble Mr. Justice M.A. Abdul Hakhim
AS No. 34 of 2003; July 7, 2025
Appeal against the judgment and decree dated 16.11.2002 in O.S. No. 596/1999 of the First Additional Sub Court, Ernakulam, dismissing the suit as barred by limitation. The suit sought to declare sale deeds (Exts. A3, A4, A5) of 1993 null and void, set them aside, recover possession of plaint A and B schedule properties, and obtain injunction and damages.
The appellants, legal heirs of original plaintiffs, challenged the validity of sale deeds executed by the first defendant, who sold properties to defendants 2 and 3. The High Court held that the suit for declaration and setting aside the sale deeds was barred by limitation under Articles 58 and 59, as it was filed in 1999, beyond three years from the execution of the documents.
However, relying on Supreme Court precedents, the Court held that if the sale deeds were void ab initio, no declaration or setting aside was necessary for recovery of possession.
The first defendant, as the sole legal heir of Annamma, had a 1/2 share in plaint A schedule property (1 acre 2 cents) under Section 33 of the Indian Succession Act, 1925, as Annamma had life interest with limited rights under Ext. A1 Settlement Deed of 1969. Thus, Ext. A5 was valid to the extent of this 1/2 share, and recovery of plaint A schedule property was not maintainable.
For plaint B schedule property (3.48 acres), covered by Ext. A2 decree and Ext. A6 judgment in O.S. No. 113/1982, the first defendant had no share, rendering Exts. A3, A4, and A5 void for this property. The appellants, as co-owners, were entitled to recover possession of plaint B schedule property under Article 65, as defendants’ possession was not adverse.
The Court granted a permanent prohibitory injunction restraining defendants 2 and 3 from committing waste on both properties but denied injunction against their entry, as they were in possession. The claim for Rs. 25,000/- towards soil excavation was dismissed for lack of proof. The Court allowed additional evidence (Ext. A6) under Order 41 Rule 27, clarifying that no share was allotted to the first defendant in plaint B schedule property.
The appeal was partly allowed, permitting recovery of plaint B schedule property and injunction against waste, while dismissing other reliefs.
