IMPORTANT POINTS
Issue of fact on which all other issues depend should be decided as preliminary issue.
Questions of fact and law both cannot be taken up as preliminary issue.
Articles 92, 96 of Schedule VIII of the Limitation Act, 1963 apply only when a trust transfers a property for consideration.

Judgment

Dipak Misra, J.

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.

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?

(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 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 r