E. Subbammal vs R. Rajendran and S. Mahalakshtni

A. Selvam, J.—Challenge in this Second Appeal is to the Judgment and decree dated 31.08.2006 passed in Appeal Suit No. 117 of 2006

by the First Additional Sub Court, Tirunelveli, wherein the Judgment and decree dated 28.10.2005 passed in Original Suit No.540 of 2004 by the

Second Additional District Munsif Court, Tirunelveli are reversed. The first respondent herein as plaintiff has instituted Original Suit No.540 of

2004 on the file of the trial Court praying to declare that the plaintiff is having right of pre-emption in respect of suit property and for directing the

defendants to execute a sale deed in favour of the plaintiff after receipt of Rs.45,000/- and also for directing them to hand over vacant possession

of the suit property to the plaintiff, wherein the present appellant and the second respondent have been shown as defendants.

The nubble of the averments made in the plaint are that the suit property and its adjacent property are originally belonged to two brothers

namely C.M.Ramadoss and Lakshmana Doss. The plaintiff is the son of C.M.Ramadoss. In the year 1982 a partition has taken place in between

the plaintiff, his brother and the son of Lakshmana Doss viz., Sundara Ganesan. In the said partition, the suit property has been allotted to the said

Sundara Ganesan. The northern portion has been allotted to the share of the plaintiff. On 18.07.1983 an agreement has come into existence

between the plaintiff and the said Sundara Ganesan, whereby it is agreed to alienate the suit property in favour of the plaintiff. The said Sundara

Ganesan has executed a usufructuary mortgage in favour of the wife of the plaintiff viz. Lakshmi Ammal in respect of the suit property. By virtue of

the same, the wife of the plaintiff has been put in possession and enjoyment of the suit property. The said Sundara Ganesan has become a

psychiatric patient and in fact he has led a wavered life. The first defendant and her husband have very well known about the condition of the said

Sundara Ganesan and they fraudulently obtained a sale deed dated 23.05.1984 in respect of the suit property in the name of the first defendant.

The first defendant has instituted Original Suit No. 153 of 1986 on the file of the Principal Sub Court, Tirunelveli so as to redeem usufructuary

mortgage. In Original Suit No.153 of 1986, an ex parte decree has been passed and subsequently the same has been set aside and ultimately a

decree has been passed and the same has been put into execution in E.P.No.309 of 1996. By virtue of the same, possession of the wife of the

plaintiff is being disturbed. The first defendant has got delivery of the suit property on 25.03.1998. Since the plaintiff is having right of pre-emption

over the suit property, the present suit has been instituted for the reliefs sought for in the plaint.

In the written statement filed on the side of the first defendant it is averred that the present suit is not legally maintainable and the same is also

barred. It is false to say that the suit property and its adjoining property are nothing but a single unit. It is also equally false to say that there is an

agreement between the plaintiff and Sundara Ganesan with regard to suit property and thereby the said Sundara Ganesan has agreed to sell the

same in favour of the plaintiff. It is also false to contend that the said Sundara Ganesan has led a wavered life. Since the plaintiff is the husband of

usufructuary mortgagee, he cannot claim any right over the suit property. The vendor of the first defendant has executed a usufructuary mortgage

deed for a sum of Rs.10,000/- in favour of the wife of the plaintiff on 18.07.1983. The first defendant has been directed to settle the same. The

period of redemption expires on 17.07.1986. Under the said circumstances, the first defendant has not been able to discharge the amount

mentioned in usufructuary mortgage deed. The suit property is in possession and enjoyment of a tenant. The first defendant has instituted a suit and

after a lapse of six years, she obtained a preliminary decree. The plaintiff has filed an Interlocutory Application in I.A.No.58 of 1988 so as to

implead him in the suit instituted by the first defendant and the same has been dismissed. At the time of instituting the suit, a tenant by name P.

Subramanian has resided in the suit property. Under the said circumstances no possibility has arisen for taking actual possession. The present suit is

nothing but abuse of process of law and there is no merit in the suit and the same deserves to be dismissed.

On the basis of the divergent pleadings raised on either side, the trial Court has framed necessary issues and after analysing both the oral and

documentary evidence has dismissed the suit. Against the Judgment and decree passed by the trail Court, the plaintiff as appellant has preferred

Appeal Suit No.117 of 2006 on the file of the first appellate Court.

The first appellate Court after hearing both sides and upon reappraising the evidence available on record has allowed the Appeal and thereby

set aside the Judgment and decree passed by the trial Court and ultimately decreed the suit as prayed for. Against the Judgment and decree passed

by the first appellate Court, the present Second Appeal has been preferred at the instance of the first defendant as appellant.

At the time of admitting the present Second Appeal, the following substantial question of law has been formulated for consideration: Whether the

Judgment and decree of the first appellate Court is perverse on account of its misconstruction of documents exhibited on the side of the parties,

especially Exs.A1, A3 and Exs.B15?

Before considering the rival submissions made on either side, the Court has to narrate the following admitted facts on the basis of the averments

made in rival pleadings. In the plaint it is averred that the suit property and its adjacent property are nothing but a single unit and the same is

originally belonged to two brothers namely C.M.Ramadoss and Lakshmana Doss and both of them have passed away. The plaintiff is the son of

C.M.Ramadoss and one Sundara Ganesan is the son of the said Lakshmana Doss. In the year 1982 a partition has taken place between the

plaintiff, his brother and the said Sundara Ganesan in respect of the property mentioned supra, wherein the suit property has been allotted to the

share of Sundara Ganesan and the said Sundara Ganesan has executed a usufructuary mortgage deed dated 18.07.1983 in favour of one Lakshmi

Ammal who is none other than the wife of the plaintiff. The first defendant has purchased the suit property on 23.05.1984 and thereafter the first

defendant as plaintiff has instituted Original Suit No.153 of 1986 against the wife of the plaintiff and one P. Subramanian for the reliefs of directing

the first defendant to receive Rs. 10,000/- from the plaintiff and also for directing the first defendant to deliver possession of the suit property and

also for directing the second defendant to make symbolic delivery of the portion which is in his occupation and also for directing the first defendant

to pay Rs.769/- to the plaintiff towards house tax. Further it is prayed to direct the first defendant to pay a sum of Rs.5,000/- towards damages. In

Original Suit No. 153 of 1986 both preliminary as well as final decrees have been passed and the same has been put into execution in E.P.No.306

of 1996. In E.P.No.306 of 1996, actual delivery has been made on 25.03.1998 and the present suit has been instituted on 15.09.1997.

The trial Court has dismissed the suit by way of holding that the present suit is barred by limitation. But the first appellate Court has decreed the

suit on the ground that the present suit has been instituted within one year from the date of taking possession of the suit property.

The learned counsel appearing for the appellant/first defendant has attacked the Judgment and decree passed by the first appellate Court on the

following grounds:

(a) In between the plaintiff, his brother and vendor of the appellant/first defendant, a registered partition has taken place in the year 1982, wherein

the suit property has been allotted to the share of vendor of the appellant/first defendant and the portion which situates immediately on the northern

side of the suit property has been allotted to the share of the plaintiff and in the partition deed, no recital is found place with regard to the alleged

right of pre-emption and therefore, the plaintiff is not entitled to get the reliefs sought for in the plaint and the first appellate Court has failed to

consider the same.

(b) On the side of the plaintiff, Ex.A1 has been filed and the same is nothing but the alleged agreement which has come into existence in between

the plaintiff and vendor of the first defendant via. Sundara Ganesan and no agreement has come into existence and therefore, Ex.A1 is not a

genuine document and the same is nothing but concoction and no relief can be granted in favour of the plaintiff on the basis of Ex.A1.

(c) The appellant/first defendant has purchased the suit property under a registered sale deed dated 23.05.1984 and the same has been marked as

Ex.B2 and the present suit has been instituted on 15.09.1997. The appellant/first defendant has taken possession of the suit property through

Court in E.P.No.306 of 1996 on 25.03.1998 and therefore, the present suit is barred by limitation and the trial Court has rightly dismissed the suit.

But the first appellate Court has erroneously come to the conclusion that possession of the suit property has been taken in the year 1997 and the

same is recorded on 25.03.1998 and since the present suit has been instituted on 15.09.1997, the same is not barred by limitation and therefore,

the Judgment and decree passed by the first appellate Court are liable to be set aside. 11. As a repartee, the learned counsel appearing for the

respondent/plaintiff has vehemently contended that in the year 1982 a partition has taken place between the plaintiff, his brother and vendor of the

first defendant viz. Sundara Ganesan and he executed a usufructuary mortgage in favour of the wife of the first respondent/plaintiff and by virtue of

the same, the wife of the first respondent/plaintiff has obtained possession of the suit property and subsequently the appellant/first defendant has

fraudulently obtained a sale deed on 23.05.1984 from the said Sundara Ganesan and thereafter, the appellant/first defendant has filed Original Suit

No. 153 of 1986 on the basis of usufructuary mortgage, wherein both preliminary and final decrees have been passed and in pursuance of the

same, E.P.No.306 of 1996 has been instituted, wherein the suit property has been delivered on 25.03.1998 in favour of the appellant/first

defendant. Under the said circumstances the present suit is not barred by limitation in view of the first part of Article 97 of the Limitation Act, 1963

and the trial Court without considering the actual facts which are in existence in the present case, has erroneously dismissed the suit. But the first

appellate Court has rightly applied the first part of the said Article and consequently decreed the suit as prayed for and therefore, the Judgment and

decree passed by the first appellate Court do not warrant interference.

Before contemplating the rival submissions made on either side, the Court has to look into the petition filed in MP(MD)No.1 of 2012 under

Order 41 Rule 27 of the Code of Civil Procedure, 1908. On the side of the first respondent/plaintiff MP(MD)No.1 of 2012 has been filed for the

purpose of marking the document mentioned therein as additional evidence on his side. Along with MP(MD)No.1 of 2012 the partition deed

which has been accepted by both parties has been annexed with. Considering the fact that the suit property and its adjoining northern property are

nothing but a single unit and the same is originally belonged to the two brothers namely C.M.Ramadoss and Lakshmanadoss and also considering

that the same has been partitioned in the year 1982, wherein the northern portion has been allotted to the share of the plaintiff and the southern

portion that is, the suit property has been allotted to the share of the vendor of the appellant/first defendant, this Court is of the view that the

document filed along with MP(MD)No.1 of 2012 is very much essential for deciding the present lis and therefore, the same is allowed and the

document filed along with the same is marked as Ex.A5.

The first attack made on the side of the appellant/first defendant is that in the partition deed which has come into existence in the year 1982, no

recital is found place with regard to the alleged right of pre-emption. The second attack made on the side of the appellant/first defendant is that

Ex.A1 is a concocted document and no right of pre-emption can be exercised by the first respondent/plaintiff on the basis of Ex.A1.

In fact, this Court has perused Ex.A5, partition deed which has come into existence in the year 1982, wherein no recital is found with regard to

right of pre-emption. But on the side of the first respondent/plaintiff, Ex.A1 has been filed and the same has come into existence on 18.07.1983,

wherein it is recited to the effect that the vendor of the appellant/first defendant has agreed to sell the suit property in favour of the first

respondent/plaintiff, in case he decides to sell the same. On the side of the appellant/first defendant a specific denial has been made with regard to

existence of Ex.A1. In order to prove the same, on the side of the first respondent/plaintiff, he has been examined as PW1 and the witness found in

Ex.A1 has been examined as PW2. Both of them have stated in their evidence about the execution of Ex.A1 in between the plaintiff and the said

Sundara Ganesan. Therefore, on the basis of the evidence given by PWs.1 and 2 coupled with Ex.A1, the Court can easily come to a conclusion

that right of pre-emption has been created by virtue of Ex.A1, in favour of the first respondent/plaintiff.

Even assuming without conceding that Ex.A1 is a concocted document and no right of pre-emption has come into existence on the basis of

Ex.A1, the Court has to look into as to whether, the first respondent/plaintiff is having right of pre-emption founded on law.

In Smt. Mattoo Devi Vs. Damodar Lal (dead) by Lrs and Others, the Honourable Apex Court has held as follows: Right of pre-emption is the

right which the owner of immovable property possess to acquire by purchase of any immovable property which had been sold to another person.

The right of pre-emption is an incidence of property and attaches to the land itself. It is not a mere personal right.

Even a cursory look of the dictum given by the Honourable Apex Court, it is pellucid that the right of pre-emption is attached to the land itself

and it is not a mere personal right.

It is an everlasting principle of law that a right of pre-emption can be exercised on the following grounds:

(a) A right is founded on law

(b) A right created on the basis of general usage

(c) A right created on the basis of special contract.

In the instant case, the first respondent/ plaintiff is having right of pre-emption on the basis of first and third grounds. Even assuming that on the

basis of third ground the first respondent/plaintiff is not entitled to exercise the right of pre-emption, since the right of pre-emption is attached to

property, on the basis of the first ground, the first respondent/plaintiff can exercise his right of pre-emption over the suit property. Therefore, the

first and second grounds of attack made on the side of the appellant/first defendant are of no use.

In the present case, the learned counsel appearing on either side have advanced their rival arguments mainly with regard to Limitation.

Article 97 of the Limitation Act, 1963 reads as follows:

Description of suitperiod of Time from which

limitation period begins to run

To enforce a right One year When the purchaser

of preemption takes under the sale

whether the right is sought to be

founded on law or impeached, physical

general usage or possession of the

on special contract whole or part of the

property sold, or,

where the subject

matter of the sale does

not admit of physical

possession of the

whole or part of the

property, when the

instrument of sale is

registered.

The provision of the said Article can be dissected as follows:

(a) A suit, to enforce right of pre-emption should be filed within one year from the date on which the purchaser takes physical possession of the

whole or part of the property sold.

(b) A right of pre-emption can be enforced within one year from the date of registration of sale deed, if the same does not admit physical

possession of the whole or part of the property.

To put it in nutshell, a suit, to enforce right of pre-emption should be filed within one year from the date of physical possession of whole or part

of the property in question or the same should be filed within one year from the date of registration of sale deed if the same does not admit physical

possession of the whole or part of the property in question.

The present suit has been instituted on 15.09.1997 and the appellant/first defendant has taken possession of the suit property on 25.03.1998

as per order passed in E.P.No.306 of 1996 in Original Suit No. 153 of 1986. Therefore, it goes without saying that the present suit has been filed

on 15.09.1997 before taking delivery of the suit property that is, on 25.03.1998.

The learned counsel appearing for the appellant/first defendant has befittingly contended that since the present suit has been instituted on

15.09.1997, the second part of Article 97 of the Limitation Act, 1963 is applicable to the present case and since the appellant/first defendant has

purchased the suit property on 23.05.1984 the present suit should be filed within one year from 23.05.1984 and since the same has been filed on

15.09.1997 the same is barred by limitation.

In support of the contention raised on the side of the appellant/first defendant the following decisions have been accited:

(a) The first and foremost decision is reported in Sukhnandan Singh, etc. Vs. Jamiat Singh and Others, , wherein the Honourable Apex Court has

dealt with similar question of law and in paragraph - 8 of the Judgment, it is observed as follows:

The next point relates to the plea of limitation. Article 10 of the Second Schedule of the Indian Limitation Act provides a period of one year to

enforce a right of pre-emption whether founded on law or general usage or on special contract, the terminus a quo being the date when the

purchaser takes under the sale, sought to be pre-empted, physical possession of the whole of the property sold or where the subject of the sale

does not admit of physical possession, the date when the instrument of sale is registered. Section 30 of the Punjab Pre-emption Act applies only

when the case does not fall within Article 10. On the finding of the District Judge and of the High Court it is obvious that physical possession of the

whole of the property sold was not taken by the vendees, on the date of sale. Therefore, the first part of article does not apply. According to the

appellants'' counsel the land sold does admit of physical possession and if a part of the land has been taken into possession by the vendees then

Article 10 would be inapplicable and Section 30 of the Punjab Pre-emption Act would be attracted. In that case the terminus a quo according to

Shri Gosain would be the date on which the vendees took under the sale physical possession of any part of such land. The argument in our view is

misconceived. The second part of Article 10, in our opinion, covers cases where the subject of the sale, which means the whole of the property

sold, does not admit of physical possession and that would be so when a part of the land is in the possession of the tenants. The argument that use

of the expression ""subject of the sale"" suggests that this article would apply only if the entire and not only a part of the land is in the possession of

the tenants is not acceptable. The expression ""physical possession"" came up for consideration before the Privy Council in Batul Begam v. Mansur

Ali Khan, (1902) ILR 24 All 17 (PC). Lord Robertson speaking for the Judicial Committee said:

What has to be considered is has the High Court accurately formulated, the question. Does the property admit of physical possession? The word

''physical'' is of itself a strong word, highly restrictive of the kind of possession indicated; and when it is found, as is pointed out by the High Court,

that the Legislature has in successive enactments about the limitation of such suits gone on strengthening the language used -first in 1859 prescribing

''possession'', then in 1871 requiring ''actual possession'' and finally in 1877 substituting the word ''physical'' for ''actual'', it is seen that that word

has been very deliberately chosen and for a restrictive purpose. Their Lordships are of opinion that the High Courts are right in the conclusion they

have stated. Their Lordships consider that the expression used by Stuart, C.J., in regard to the words ''actual possession'' is applicable with still

more certainty to the words ''physical possession'' and that what is meant is a ''personal and immediate'' possession.

This view has ever since then been followed by the High Courts in India. No decision holding to the contrary was brought to our notice. Indeed,

Shri Gosain virtually conceded that there was none to his knowledge. The properties in possession of tenants have on this reasoning to be held to

be incapable of physical possession which means personal and immediate possession. It was so held in Ghulam Mustafa v. Shahabuddin, 1908 PR

49 (FB). In that case the Full Bench of the Punjab Chief Court approved of some of its earlier decisions overruling the dictum in one of the earlier

decisions of that Court. This view has consistently held the field in the Punjab and we do not find any cogent reason for disagreeing and upsetting it.

If the date of registration of the sale deed be the terminus a quo then indisputably the suit must be held to be'' within limitation. These being the only

two points agitated before us this appeal must fail and is dismissed with costs.

(b) The second decision is reported in AIR 1985 Del 307 (Ramesh Chand Gupta and others V. Kanwar Sen and another), wherein in paragraph -

9, it is held as follows:

A house is occupation of a tenant when sold does not admit of immediate physical possession. The words ''does not admit of physical possession''

in this Article mean ''does not for the time being, admit of physical possession'', and in such cases time will begin to run from the date of the

registration of the sale deed. The terminus a quo for a suit for pre-emption, whether the right is founded on law or general usage or of special

contract prescribed under the first part of Art.97 is the date when the purchaser takes, under the sale, ''physical possession of the whole or a part

of the property''. It is thus obvious that if the physical possession is not taken ''under the sale'' it would not apply. In such a case, the second part of

Art.97 would apply, if the sale is effected by a registered deed. The property, as in the present case, which is in possession of tenants is not

capable of immediate and personal possession on the date of sale. In cases where a part of the property sold is tenanted, the entire property which

is the subject matter of sale will not admit of physical possession. Even symbolic possession will not tantamount to physical possession. Under

these circumstances the second part of Art.97 will apply to this case, and the present suit must be held barred by time.

From a cumulative reading of the decisions referred to supra, it is easily discernible that a suit to enforce right of preemption should be filed

within one year from the date of taking possession of the whole or part of the subject matter of the suit and if the concerned sale deed does not

admit physical possession of whole or part of the subject matter of the suit, a suit should be filed within one year from the date of registration of the

sale deed which is sought to be impeached.

In order to controvert the decisions accited on the side of the appellant/first defendant, the learned counsel appearing for the first

respondent/plaintiff has drawn the attention of the Court to the following decisions:

(a) In 2002 (4) CTC 641 : 2002-3-L.W. 768 (B. Ramasubbu Chettiar (died) and six others V. N. Ganesan (died) and ten others), the Division

Bench of this Court has held that ""the facts mentioned therein would not come within the contour of Article 97 of the Limitation Act, 1963 and it

would come within the purview of Article 54 of the said Act.

(b) In Jagamaya Dasi Vs. Tulsa and Others, it is held that ""limitation for a pre-emption suit against the vendee began to run from the date of actual

possession obtained by vendee under the decree.

As pointed out earlier, the first respondent/plaintiff has taken shelter under the first part of Article 97 of the Limitation Act, 1963. Even at the

risk of jarring repetition the Court would like to point out that by invoking first part of the said Article, a suit to enforce right of pre-emption should

be filed within one year from the date of taking actual possession of whole or part of the property.

In the instant case, the first respondent/plaintiff has instituted the suit on 15.09.1997. On the date of filing of the suit, possession of the suit

property has not at all been delivered to the appellant/first defendant. Therefore, it is very clear that the present suit has been instituted before

taking delivery of possession. Under the said circumstances, the first respondent/plaintiff cannot take umbrage under the first part of the said Article

and since the present suit has been instituted on 15.09.1997 that is, before taking delivery of possession of the suit property, the second part

would squarely applicable to the facts and circumstances of the present case. Since the second part of the said Article is applicable to the facts and

circumstances of the present case, as per the decisions referred to on the side of the appellant/first defendant, the present suit is barred by

limitation, since the sale deed in question that is, Ex.A2 has come into existence on 23.05.1984.

At this juncture, reliance can be placed on the recent decision reported in (2012) 1 SC Cases 690 (Disha Constructions and others V. State of

Goa and another) wherein in paragraph-15, the Honourable Apex Court has observed that ""under section 2(j) of the Limitation Act, 1963, ""period

of limitation"" means, the period prescribed for any suit, or other proceeding by the Schedule and the ""prescribed period"" means, the period of

limitation computed in accordance with the provisions of the Act."" Therefore, it is quite clear that every suit or legal proceeding must be within a

period of limitation.

The learned counsel appearing for the first respondent/plaintiff has drawn the attention of the Court to the decision reported in Vithalbhai Pvt.

Ltd. Vs. Union Bank of India, wherein at paragraph 22, the Honourable Apex Court has observed as follows:

A suit of a civil nature disclosing a cause of action even if filed before the date on which the plaintiff became actually entitled to sue and claim the

relief founded on such cause of action is not to be necessarily dismissed for such reason. The question of suit being premature does not go to the

root of jurisdiction of the court; the court entertaining such a suit and passing decree therein is not acting without jurisdiction but it is in the judicial

discretion of the court to grant decree or not. The court would examine whether any irreparable prejudice was caused to the defendant on account

of the suit having been filed a little before the date on which the plaintiff''s entitlement to relief became due and whether by granting the relief in such

suit a manifest injustice would be caused to the defendant. Taking into consideration the explanation offered by the plaintiff for filing the suit before

the date of maturity of cause of action, the court may deny the plaintiff his costs or may make such other order adjusting equities and satisfying the

ends of justice as it may deem fit in its discretion. The conduct of the parties and unmerited advantage to the plaintiff or disadvantage amounting to

prejudice to the defendant, if any, would be relevant factors. A plea as to non-maintainability of the suit on the ground of its being premature should

be promptly raised by the defendant and pressed for decision. It will equally be the responsibility of the court to examine and promptly dispose of

such a plea. The plea may not be permitted to be raised at a belated stage of the suit. However, the court shall not exercise its discretion in favour

of decreeing a premature suit in the following cases: (i) when there is a mandatory bar created by a statute which disables the plaintiff from filing the

suit on or before a particular date or the occurrence of a particular event; (ii) when the institution of the suit before the lapse of a particular time or

occurrence of a particular event would have the effect of defeating a public policy or public purpose; (iii) if such premature institution renders the

presentation itself patently void and the invalidity is incurable such as when it goes to the root of the court''s jurisdiction; and (iv) where the lis is not

confined to parties alone and affects and involves persons other than those arrayed as parties, such as in an election petition which affects and

involves the entire constituency. (See Samar Singh Vs. Kedar Nath alias K.N. Singh and Others, One more category of suits which may be added

to the above, is: where leave of the court or some authority is mandatorily required to be obtained before the institution of the suit and was not so

obtained.

A cursory look of the decision referred to supra, it is made clear that a suit of civil nature disclosing a cause of action has been filed before the

date on which the plaintiff is actually entitled to sue. The relief founded on such cause of action need not be necessarily negatived. In fact, the

Honourable Apex Court has not dealt with plea of limitation.

As observed by the Honourable Apex Court in the recent decision reported in (2012) 1 SC Cases 690 (Disha Constructions and others V.

State of Goa and another), every suit or other legal proceedings must by within the period of limitation and that too inconsonance with the

provision of Limitation Act, 1963. Since every suit or other legal proceedings must be within the prescribed period of Limitation and since the

present suit has been instituted after a lapse of 13 years from the date of Ex.B2, (23.05.1984) and since the first respondent/plaintiff has also taken

part in Original Suit No. 153 of 1986 and since the same has been instituted against his wife, it is very clear that the present suit is barred by

limitation.

The trial Court has dismissed the suit on the ground of limitation. But the first appellate Court in paragraph - 13 of its Judgment has observed

that the first defendant has taken possession of the suit property in the year 1997 and the same has been recorded on 20.03.1998 and the present

suit has been instituted on 15.09.1997 and therefore, the same is not barred by limitation and ultimately decreed the suit as prayed for. The

observations made in paragraph - 13 of the Judgment rendered by the first appellate Court is totally against the actual factual aspects available in

the present case. It has already been pointed out in many places that the present suit has been instituted on 15.09.1997 and the appellant/first

defendant has taken possession on 25.03.1998. Therefore, on the date of filing of the suit, question of taking delivery of possession has not at all

arisen. Under the said circumstances, the reasoning given by the first appellate Court for decreeing the suit is totally against the factual aspects

available in the present case and also totally contra to the second part of Article 97 of the Limitation Act, 1963. Further it has already been pointed

that the present case would come within the purview of the second part of the said Article. Under the said circumstances, the present suit is barred

by limitation. Therefore, viewing from any angle, this Court is of the view that the Judgment and decree passed by the first appellate Court are

totally erroneous and the same are liable to be set aside and the contention put forth on the side of the appellant/first defendant is really having

subsisting force and the substantial question of law formulated in the present Second Appeal is having substance and the argument advanced on the

side of the first respondent/plaintiff is sans merit and altogether the present Second Appeal is liable to be allowed. In fine, this Second Appeal is

allowed without cost and the Judgment and decree passed in Appeal Suit No. 117 of 2006 by the First Additional Sub Court, Tirunelveli are set

aside and the Judgment and decree passed in Original Suit No.540 of 2004 by the Second Additional District Munsif Court, Tirunelveli are

restored. Connected Miscellaneous Petition is closed.