TMI Blog2014 (7) TMI 1332X X X X Extracts X X X X X X X X Extracts X X X X ..... f 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 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 come within the ambit and sweep of Order 14, Rule 2 which would enable the court to frame a preliminary issue to adjudicate thereof. The learned single Judge, as it appears, has remained totally oblivious of the said facet and adjudicated the issue as if it falls under Order 14, Rule 2. We repeat that on the scheme of Section 10 of the Limitation Act we find certain facts are to be established to throw the lis from the sphere of the said provision so that it would come within the concept of limitation. The issue of consideration has not yet emerged. This settlement made by the father was whether for consideration or not has to be gone i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... his individual capacity? (3) Whether there existed a hereditary trust in the name of Satti Paradesi Samadhi and Pillayar Temple Trust? (4) Whether the Plaintiff owns the schedule properties? (5) Whether the Defendants are the owners of the Schedule Properties and in possession and occupation from the date of settlement in the year 1978? (6) Whether the Plaintiff is entitled to mesne profits? (7) To what relief the parties are entitled? 6. The plaint presented by the Plaintiff showed that the suit for declaration of the settlement deeds by the Defendant in favour of daughters and granddaughter which were executed was done 19 years earlier, the Defendant made a submission before the learned single Judge that the suit was barred by limitation. Accepting the submission of the Defendant, the learned single Judge thought it appropriate to take up the issue No. 1 as a preliminary issue. 7. Before the learned single Judge it was contended by the Defendant 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 follows: 10. Suits against trustees and their representatives - Notwithstanding anything contained in the foregoing provisions of this Act, no suit against a person in whom property has become vested in trust for any specific purpose, or against his legal representatives or assigns (not being assigns for valuable consideration), for the purpose of following in his or their hands such property, or the proceeds thereof, or for an account of such property or proceeds, shall be barred by any length of time. Explanation-For the purpose of this Section any property comprised in a Hindu, Muslim or Buddhist religious or charitable endowment shall be deemed to be property vested in trust for a specific purpose and the manager of the property shall be deemed to be the trustee thereof. 11. He has also ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ermined. The jurisdiction to try issues of law apart from the issues of fact may be exercised only where in the opinion of the Court the whole suit may be disposed of on the issues of law alone, but the Code confers no jurisdiction upon the Court to try a suit on mixed issues of law and fact as preliminary issues. Normally all issues in a suit should be tried by the Court: not to do so, especially when the decision on issues even of law depends upon the decision of issues of fact, would result in a lop-sided trial of the suit. 17. Be it stated, the aforesaid 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 w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sweep of Order 14, Rule 2 which would enable the court to frame a preliminary issue to adjudicate thereof. The learned single Judge, as it appears, has remained totally oblivious of the said facet and adjudicated the issue as if it falls under Order 14, Rule 2. We repeat that on the scheme of Section 10 of the Limitation Act we find certain facts are to be established to throw the lis from the sphere of the said provision so that it would come within the concept of limitation. The Division Bench has fallen into some error without appreciating the facts in proper perspective. That apart, the Division Bench, by taking recourse of Articles 92 to 96 without appreciating the factum that it uses the words transferred by the trustee for a valuable consideration in that event the limitation would be twelve years but in the instant case the asseveration of the Plaintiff is that the trustee had created three settlement deeds in favour of his two daughters and a granddaughter. The issue of consideration has not yet emerged. This settlement made by the father was whether for consideration or not has to be gone into and similarly whether the property belongs to the trust as trust is understoo ..... X X X X Extracts X X X X X X X X Extracts X X X X
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