9911796707
TMI Blog2014 (7) TMI 1332X X X X Extracts X X X X X X X X Extracts X X X X ..... ras in OSA No. 229 of 2006 whereby it has affirmed the judgment dated 24.07.2003 passed by the learned single Judge in S.C. No. 673 of 1997 whereunder he, after framing of issues on the basis of prayer being made by the Defendant, has dealt with the issue No. 1 as a preliminary issue and dismissed the suit. 3. The factual expose' which arise for disposal of the present appeal are that the Plaintiff instituted a suit for declaration seeking that the three settlement deeds dated 27.3.1978 executed by the former trustee in favour of his two daughters and a granddaughter as null and void, and for the relief of recovery of possession of the land to the trust. 4. The Defendant filed the written statement resisting the claim of the Plaintiff ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ndant that in view of the limitation provided Under Articles 56 to 59 of the Limitation Act, the suit was enormously barred by limitation and, therefore, deserved to be dismissed. There was also a reference to Article 26 of the Limitation Act and the learned single Judge referring to the same opined that even under the said Article the suit for recovery of possession was also barred by time. The learned single Judge also referred to Section 27 of the Limitation Act, 1963 and ruled that the Defendants or their legal representatives had acquired right, title and interest by adverse possession and, therefore, the suit was not tenable being barred by limitation. 8. On an appeal being preferred against the aforesaid judgment the Division Bench ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... taken up the question of limitation as a preliminary issue and question of limitation is a mixed question of law and facts and the Appellant ought to have been given an opportunity to establish that the suit property is a trust property and also the circumstances under which the Plaintiff could not bring the suit within the stipulated time and also to show as to how the suit is well within the time. Being of this view, the Division Bench dismissed the appeal. 9. We have heard Mr. R. Basant learned senior counsel appearing for the Appellant and Mr. Himanshu Munshi, learned Counsel for the Respondent. 10. Mr. Basant, learned senior counsel appearing for the Appellant, has drawn our attention to Section 10 of the Limitation Act. It reads as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t the said Article is not applicable to the present case. Article 59 reads as follows: 13. The learned Counsel for the Respondent would contend that the Plaintiff is not a trust as understood within the parameters of Section 10 of the Limitation Act and, therefore, the learned single Judge has rightly opined that Article 59 would be applicable. The learned Counsel further submits that assuming Article 59 is not attracted and any other Article contained in Chapter VIII would be applicable and suit would be barred by limitation inasmuch as it was filed after nineteen years. 14. The core question that emerges for consideration is whether an issue of limitation could at all have been taken up as a preliminary issue. 15. In Ramrameshwari Devi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... id pronouncement was made before the amendment of the Code of Civil Procedure in 1976. 18. In Ramesh D. Desai and Ors. v. Bipin Vadilal Mehta and Ors. (2006) 5 SCC 638, while dealing with the issue of limitation, the Court opined that a plea of limitation cannot be decided as an abstract principle of law divorced from facts as in every case the starting point of limitation has to be ascertained which is entirely a question of fact. The Court further proceeded to state that a plea of limitation is a mixed question of fact and law. On a plain consideration of the language employed in Sub-rule (2) of Order 14 it can be stated with certitude that when an issue requires an inquiry into facts it cannot be tried as a preliminary issue. In the sai ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d trial of the suit. Though there has been a slight amendment in the language of Order 14 Rule 2 Code of Civil Procedure by the amending Act, 1976 but the principle enunciated in the above quoted decision still holds good and there can be no departure from the principle that the Code confers no jurisdiction upon the court to try a suit on mixed issues of law and fact as a preliminary issue and where the decision on issue of law depends upon decision of fact, it cannot be tried as a preliminary issue. 19. In the case at hand, we find that unless there is determination of the fact which would not protect the Plaintiff Under Section 10 of the Limitation Act the suit cannot be dismissed on the ground of limitation. It is not a case which will ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
