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IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO.        5954    2014   (Arising out of S.L.P. (Civil) No. 33200 of 2014)

Satti Paradesi Samadhi & Philliar Temple … Appellant

Versus  

M. Sankuntala (D) Tr. Lrs. & Ors. …Respondents

J U D G M E N T

Dipak Misra

Leave granted.

2. In this appeal by special leave the plaintiff-appellant has  

called in question the legal sustainability of the judgment and  

order  passed  by  the  Division  Bench  of  the  High  Court  of  

Judicature at Madras 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.

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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 on many a ground and one of the grounds  

was that the suit was barred by limitation and, therefore, did  

not deserve any adjudication.

5. The learned single Judge framed the following issues for  

consideration: -

“(1) Whether the suit for declaration that the three  settlement  deeds,  all  dated  27.3.1978  and  registered as Document Nos. 248, 249 and 443 of  1978 with the Sub Registrar’s Office, Royapuram, is  barred by limitation of time?

(2) Whether the suit  properties had ever been in  the  possession  of  Sri  B.S.  Ramalingam  in  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?

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(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 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

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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 took note of Articles 92 and 96  

and came to hold as follows: -

“22. Taking the property as a trust property, under  Article  92,  the  suit  for  recovery  of  possession  of  immovable property conveyed or bequeathed in the  Trust out to have been filed within twelve years from  the  time  when  transfer  becomes  known  to  the  plaintiff.  Under Article 92, the plaintiff should have  filed the suit  within twelve years from 1978 when  the settlement became known to the plaintiff.

23. In  the  plaint,  at  paragraph  No.  4,  the  appellant/plaintiff  has  clearly  alleged  that  immediately  after  the  death  of  settler,  on  24.12.1978, the settlement were questioned by the  appellant and the mother of the appellant and the  defendants – Vijaya Saradambal, who was the earlier  trustee, promised to settle the disputes recovering  the scheduled properties  to  the plaintiff  trust;  but  only  the  defendants  influenced  her  and  did  not  deliver the schedule properties to the plaintiff.  By a  reading  of  plaint  averments,  it  is  clear  that  the  plaintiff had known about the settlement deeds even  in 1978.  Having known about the settlement deeds,  way back in 1978, the plaintiff ought to have filed  the  suit  to  set  aside  the  settlement  deeds  within  twelve years from the date of his knowledge.  When  plaintiff had chosen to file the suit only in the year  1977, the learned single Judge rightly held that the  suit is barred by limitation.

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24. The only grievance of the appellant is that after  framing  the  issues,  the  learned  single  Judge  had  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 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

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and the manager of the property shall be deemed to  be the trustee thereof.”

11. He has also drawn our  attention to  Articles  92 and 96  

occurring in part VIII of the Schedule of the Limitation Act.  He  

has emphasized on both the Articles, namely, Articles 92 and  

96.  The said Articles read as under: -

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To  recover  possession  of  immovable  property  conveyed  or  bequeathed  in  trust  and  after- wards  transferred  by the trustee for  a  valuable  consideration

Twelve  years

When  the  transfer  becomes  known  to  the plaintiff

9 6 By  the  manager  

of  a  Hindu,  Muslim  or  Buddhist religious  or  charitable  endow-ment  to  recover  possession  of  movable  or  immoveable  property  comprised  in  the  endowment which  has  been  transferred  by  a  previous manager  for  a  valuable  consideration

Twelve  years

The  date  of  death,  resignation  or  removal  of  the  transfer  or  the  date  of  appointment  of  the  plaintiff  as  manager  of  the  endowment,  whichever is later

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12. Learned senior  counsel  has  emphatically  put  forth  that  

the  learned single  Judge as  well  as  the  Division  Bench has  

committed grave error by taking recourse to the principle of  

acquisition of knowledge by the plaintiff and other aspects.  It  

is  absolutely  limpid  that  if  there  is  a  transfer  by  previous  

manager for a valuable consideration then only the limitation  

of twelve years or any other article would come into the play.  

As far as Article 59 is concerned, it is urged by him that the  

said Article is not applicable to the present case.  Article 59  

reads as follows: -

Description  of  suit

Period  of  limitation

Time  from  which  period  begins  to  run

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To  cancel  or  set  aside  an  instrument  or  decree or for the  rescission  of  a  contract

Three  years

When  the  facts  entitling  the  plaintiff  to  have  the  instrument  or  decree  cancelled  or set aside or the  contract  rescinded  first  become  known to him

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,

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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 and others v. Nirmala Devi  

and others1,  while dealing with Order 14, Rule 2, observed  

that sub-rule (2) of Order 14 refers to the discretion given to  

the  court  where  the  court  may try  an  issue relating to  the  

jurisdiction of the court or the bar to the suit created by any  

law for the time being in force as a preliminary issue.   

16. The controversy pertaining to the provisions contained in  

Order  14 Rule  2  had come up for  consideration before this  

Court in  Major S.S. Khanna  v.  Brig. F.J. Dillon2 wherein it  

has been ruled thus: -

1

(2011) 8 SCC 249 2  AIR 1964 SC 497 : (1964) 4 SCR 409

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“Under O 14, r 2 where issues both of law and of fact  arise in the same suit, and the Court is of opinion  that the case or any part thereof may be disposed of  on the issue of law only, it shall try those issues first,  and for that purpose may, if it thinks fit, postpone  the settlement of the issues of fact until  after the  issues  of  law  have  been  determined.   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  others  v.  Bipin  Vadilal  

Mehta and others3, 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  

3  (2006) 5 SCC 638

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certitude that when an issue requires an inquiry into facts it  

cannot be tried as a preliminary issue.  In the said judgment  

the Court opined as follows: - “13. Sub-rule (2) of Order 14 Rule 2 CPC lays down  that where issues both of law and of fact arise in the  same suit, and the court is of the opinion that the  case or any part thereof may be disposed of on an  issue of law only, it may try that issue first if that  issue relates to (a) the jurisdiction of the court, or (b)  a  bar to the suit  created by any law for  the time  being in force. The provisions of this Rule came up  for  consideration  before  this  Court  in  Major  S.S.  Khanna v.  Brig. F.J. Dillon and it was held as under:  (SCR p. 421)

“Under Order 14 Rule 2, Code of Civil Procedure  where issues both of law and of fact arise in the  same suit, and the court is of opinion that the  case or any part thereof may be disposed of on  the issues of law only, it shall try those issues  first, and for that purpose may, if it thinks fit,  postpone the settlement of the issues of fact  until  after  the  issues  of  law  have  been  determined. 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 the  issues in a suit should be tried by the court; not  to do so, especially when the decision on issues  even of law depend upon the decision of issues  of fact,  would result in a lopsided trial  of the  suit.”

Though there has been a slight amendment in the  language of Order 14 Rule 2 CPC by the amending  Act,  1976  but  the  principle  enunciated  in  the  abovequoted decision still holds good and there can

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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  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 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

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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 understood within the meaning of Sectin10 of  

the Limitation Act has also to be gone into.  Ergo, there can be  

no shadow of doubt that the issue No. 1 that was framed by  

the learned single Judge was an issue that pertained to fact  

and  law  and  hence,  could  not  have  been  adjudicated  as  a  

preliminary  issue.   Therefore,  the  impugned order  is  wholly  

unsustainable.

20. We have not expressed any opinion with regard to the  

issue of limitation except saying that the present issue could  

not have been taken up as a preliminary issue.  As the suit is  

pending since 1997 we would request the learned single Judge  

of  the  High  Court  of  Madras  to  dispose  of  the  suit  as  

expeditiously as possible.

21. Resultantly,  the  appeal  is  allowed  and  the  impugned  

judgments are set aside without any order as to costs.

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……………………….J. [Dipak Misra]

……………………….J. [V. Gopala Gowda]

New Delhi; July 03, 2014.

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