TaxTMI 
TaxTMI 
2014 (7) TMI 1332
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....ff 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? (5) Whether the Defendants are the owners of the Schedule Properties and in possession....
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....o 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. 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. ....
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....i Devi and Ors. v. Nirmala Devi and Ors. (2011) 8 SCC 249, 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. Dillon AIR 1964 SC 497 : (1964) 4 SCR 409 wherein it has been ruled thus: Under Order 14, Rule 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 t....
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....e 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 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 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 fall....