SATTI PARADESI SAMADHI & PHILLIAR TEMPLEversusM. SANKUNTALA (D) TR. LRS. & ORS.

                    [2014] 9 S.C.R. 221


    SATTI PARADES! SAMADHI & PHILLIAR TEMPLE                       A
                              v.
          M. SANKUNTALA (D) TR. LRS. & ORS.
              (Civil Appeal No. 5954 of 2014)
                       JULY 03; JULY
                                                                   B
      [DIPAK MISRA AND V. GOPALA GOWDA, JJ]

    CODE OF CIVIL PROCEDURE, 1908:

    0. 14, r. 2(2) - Court to prono1,mce judgment on all           c
issues - Disposal of suit on issue of limitation taking it as
preliminary issue - Propriety of - Suit for declaration that
settlement deeds executed by former trustee in favour of his
daughters and grand daughter were null and void and for
recovery of possession - Single Judge of High Court framing 0
issues and taking Issue No. 1 relating to limitation, as
preliminary issue and dismissing the suit - Held: A plea of
limitation is a mixed question of fact and law - The language
employed in sub-r. (2) of r. 2 of 0. 14 makes it clear that when
an issue requires an inquiry into facts, it can be stated with E
certitude that when an issue requires an inquiry into facts it
cannot be tried as a preliminary issue - In the instant case,
 unless there is determination of the fact which would not
protect the plaintiff u/s 10 of 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 0. 14, r. 2 which would
                                                                   F
enable the court to frame a preliminary issue for adjudication
- Issue No. 1 was an issue that pertained to fact and law and,.
 as such, could not have been adjudicated as a preliminary.
issue - Therefore, impugned judgments· are set aside and
 the matter is remitted to single Judge of High Court to dispose G
 of the suit as expeditiously as possible - Limitation Act, 196:3
-s. 10.
     The plaintiff-appellant filed, in the year 1997, a suit for
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    222       SUPREME COURT REP.ORTS            [2014] 9 S.C.R.


A declaration that three settlement deeds dated 27 .3.1978
  executed by the former trustee in favour of his two
  daughters and a grand-daughter were null and void, and
  for recovery of ·possession of the land to the trust. The
  defendant filed written statement raising one of the
B grounds that the suit was barred by limitation and, as
  such, did not desenie any adjudication. The single Judge
  of the High Court while framing the issues framed Issue
  No. 1 pertaining to limitation and taking it as a preliminary
  issue held that the defendants or• their legal
c representatives had acquired right, title and interest by
  adverse possession and, therefore, the suit was not
  tenable being barred by limitation. The Division Bench of
  the High Court dismissed appellant's appeal.

       In the instant appeal, the question for consideration
D before the Court was: whether an issue of limitation cold
  at all have been taken up as a preliminary issue.

          Allowing the appeal, the Court

E      HELD: 1.1. A plea of limitation is a mixed question of
  fact and 1aw. On a plain consideration of the language
  employed in sub-r. (2) of r. 2 of 0.14, CPC (as ins~rted by
  amendment in 1976) it can be stated with certitude that
  when an issue requires an inquiry into facts it cannot be
F tried as a preliminary issue. [para 18] [230-G]
        Ramrameshwari Devi and others v. Nirma/a Devi and
    others 201.1 (8). SCR 992 = 2011 (8) SCC 249; Ramesh D.
    Desai and others v. Bipin Vadi/a/ Mehta and others 2006
    Suppl. (3) SCR.414 = 2006 (5) sec 638 - relied on.
G
          Major S.S. Khanna v. Brig. F.J. Dillon (1964) 4 SCR 409
    =AIR 1964 SC 497 - referred to.
         1.2. In the case at hand, unless there is determination
    of the fact which would not protect the plaintiff u/s 10 of
H
 SATTI PARADES! SAMADHI & PHILLIAR TEMPLE v. M. 223
            SANKUNTALA (D) TR. LRS.

the Limitation Act the suit cannot be dismissed on the          A
ground of limitation. It is not a case which wilLcome within
the ambit and sweep of 0. 14, r.2 wh.ich would enable the
court to frame a preliminary issue for aBjudication. The
single Judge has remained totally oblivious of th.e said
facet and adjudicated th& issue as if it falls under O. 14,     B
r.2. On the scheme of s.10 of the Limitation Act, 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 the same error without appreciating the facts in           c
proper· perspective. [para 19] [231-H; 232-A-C]

     1.3. Besides, the Division Bench, by taking recourse
of Arts. 92 to 96 of the Limitation Act, without appreciating
the factum that it uses the words "transferred by the
trustee for a valuable consideration" in that event the         D
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         E·
by the father was whether for consideration or not has
to be gone into and similarly whether the property
belongs to the trust as tnrst is understood within the
meaning of s.10 of the Limitation Act has also to be gone
into. Ergo, there can be no shadow of doubt that issue          F
No. 1 that was framed by the single Judge was an issue
that pertained to fact and law and, therefore, coµld not
have been adjudicated as a preliminary issue. Therefore,
the impugned order is wholly unsustainable. [para 19]
[232-C-F]                                                       G
     2. The impugned judgments are set aside and the
matter is remitted to the single Judge of the High Court
to dispose of th~ suit as expeditiously as possible. [para
20-21] [232-G-H]
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    224       SUPREME COURT REPORTS                  [2014) 9 S.C.R.


A                          Case Law Reference:
      2011 (8) SCR 992                   relied on        para 14
      (1964) 4 SCR 409                   referred to      para 16
      2006 (3) Suppl. SCR 414            relied on        para 17
B
        CIVIL APPELLATE JURISDICTION : Civil Appeal No.
    5954 of 2014.

          From the Judgment and Order dated 09.11.2011 in OSA
c No. 229 of 2006. of the High Court of Madras.
       R. Basant, P.B. Suresh, Vipin Nair, U. Banerjee (For
    Temple Law Firm) for the Appellant.

      Himanshu Munshi, Manish Garoni, Dinesh Rajpurohit,
D Durga Dutt for the Respondents.

          The Judgment of the Court was delivered by

          DIPAK MISRA, J. 1. Leave granted.

E         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 <;>f
    Judicature at Madras in OSA No. 229 of 2006 whereby it has
    affirmed the judgment dated 24.07.2003 passed by the learned
F   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 suif.

       3. The factual expose' which arise for disposal of the
G 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.
H
 SATTI PARADES! SAMADHI & PHILLIAR TEMPLE v. M.                225
    SANKUNTALA (D) TR. LRS. [DIPAK MISRA, ·J.]
     4. The defendant filed the written statement resisting the      A
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         8
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        C
    time?

    (2) Whether the suit properties had ever been in the
    possession of Sri S.S. Ramalingam in his individual
    capacity?                                                        D

    (3) Whether there existed a hereditary trust in the name of
    Satti P'aradesi Samadhi and Pillayar Temple Trust?

     (4) Whether the plaintiff owns the schedule properties?
                                                                     E
    (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?
                                                                     F
     (7) To what relief the parties are entitled?"

     6. The plaint presented by the plaintiff showed that the suit
for declaration of the settl13ment deeds by the defendant in
favour of daughters and granddaughter which were executed            G
was done 19 years earlier, the defendant made a submission
before the learned sjngle Judge that the suit was barred by
limitation. Accepting the submission of the defendant, the
learned single Judge thought it appropriate t6 take up the issue
No. 1 as a preliminary issue.
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    226       SUPREME COURT REPORTS                  [2014] 9 S.C.R.


A      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
B 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
c 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: -
D
          "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
E         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
F
          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
G         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
H         the suit to set aside the settlement deeds within twelve
 SATTI PARADES! SAMADHI & PHILLIAR TEMPLE v. M.             227
    SANKUNTALA (D} TR. LRS. [DIPAK MISRA, J.]

    years from the date of his knowledge. When plaintiff had . A·
    chosen to file the suit only in the year 1977, the learned
    single Judge rightly held that the suit is barred by limitation.

    24. The only grievance of the appellant is that after framing
    the issues, the learned single Judge had taken up the
                                                                    B
    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     C
    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.
                                                                    D
    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             E
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        F
    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     G
    or pro~eeds, 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
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    228       SUPREME COURT REPORTS              [2014] 9 S.C.R.


A         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 drawn our attention to Articles 92 and 96
  occurring in part VIII of the Schedule of the Limitation Act. He
B has emphasized on both the Articles, namely, Articles 92 and,
  96. The said Articles read as under: -

     92     To recover               Twelve    When the transfer
            possession of            years     becomes known to
            immovable                          the plaintiff
c           property conveyed
            or bequeathed in
            trust and after-wards
            transferred by the
            trustee for a valuable
D           consideration

      96    By the manager of        Twelve    The date of death,
            a Hindu, Muslim or       years     resignation or
            Buddhist religious or              removal of the
            charitable endow-                  transfer or the
E
            ment to recover                    date of
            possession of                      appointment of the
            movable qr                         plaintiff as manager
            immovea.ble _property              of the endowment,
            comprised in the                   whichever is later
F           endowment which
            has been transferred
            by a previous
            manager for a
            valuable consideration
G
       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
H is absolutely limpid that if there is a transfer by previous
 SATTI PARADES! SAMADHI & PHILLIAR TEMPLE v. M.                229
    SANKUNTALA (D) TR. LRS. [DIPAK MISRA, J.]

manager for a valuable consideration then only the limitation          A
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: -
                                                                       8
         Description of    Period of     Time from which
         suit              limitation     period begins to run

     59 To cancel or set Three            When the facts entitling
         aside an          years          the plaintiff to have the
         instrument or              -     instrument or decree         c
         decree or for                    cancelled or set aside
         the rescission                 . or the contract
         of a contract                    rescinded first become
                                          known to him
                                                                       D
      13. The learned counsel for the respondent would contend
that the plaintiff is not a trust as unperstood within the
parameters of Section 10 of the Limitation Act and, therefore,
the learned single Judge has ri~htly opined that Article 59 would
be applicable. The learned counsel further submits that                E
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            F
whether an issue of limitation could at all have been taken up
as a preliminary issue.

     15. In Ramrameshwari Devi and others v. Nirma/a Devi
and others 1, whi113 dealing with Order 14, Rule 2, observed that      G
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



1.   (2011) a sec 249.                                                 H
    230         SUPREME COURT REPORTS                  [2014] 9 S.C.R.


A 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. Di//on 2 wherein it has
B   been ruled thus: -
          "Under 0 .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,
c         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
D         alone, but the Code confers no jurisdiction upon the Court
          to try a suit on mixed issues of Jaw 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 issue$
          even of law depends upon the decision of issues of fact,
E         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
F 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 1
  that a plea of limitation is a mixed question of fact and law. On
G 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 jiS a preliminary
  issue. In the said judgment the Court opined as follows: -
    2.    AIR 1964 SC 497 : (1964) 4 SCR 409.
H   3.    (2006) s sec 638
SATTI PARADES! SAMADHI & PHILLIAR TEMPLE v. M.                  231
   SANKUNTALA (D) TR. LRS. [DIPAK MISRA, J.]

   "13. Sub-rule (2) of Order 14 Rule 2 CPC lays down that              A
   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        B
   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            c
           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           D
           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                E
           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."                                 F
         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 be no departure
   from the principle that the Code confers no jurisdiction upon        G
   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                H
      232       SUPREME COURT REPORTS                 [2014] 9 S.C.R.


  A 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
  8
    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
  C 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
  D 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 ~nd similarly whether
  E the property belongs to the trust as trust is u·nderstood 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
I F 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
  G High Court of Madras to dispose of the suit as expeditiously as 1
    possible.
          21. Resultantly, the appeal is allowed and the impugned
      judgments are set aside without any order as to costs.
  H   Rajendra Prasad                                     Appeal allowed.