This second appeal is filed by the plaintiff in a suit for settlement of accounts and realization of share of profits of a partnership firm. The plaintiff and the 1st defendant were partners of a registered firm, which was dissolved on 3-1-1984. The 2nd defendant is the brother-in-law of the plaintiff. The case of the plaintiff is that he was away on account of his employment and the 1st defendant was conducting the business on behalf of the firm and that he amassed wealth by using funds of the firm and purchasing property in the name of his wife, the 2nd defendant. The plaint schedule shows 16 items of properties out of which 14 items are immovable properties which according to the plaintiff the defendants purchased out of the funds from the partnership firm. Defendants 1 and 2 filed separate written statements. Both of them contended that the suit is barred by limitation. The allegation that the properties were purchased by making use of the partnership fund was denied. It was contended that the 1st defendant had other business also.

2. The trial court considered the question of limitation as a preliminary issue and found that the suit is barred by limitation and dismissed the suit on that short ground. The appellate court confirmed the judgment and decree of the trial court.

3. In this second appeal, it is contended that the trial court went wrong in considering the question of limitation as a preliminary issue. It was contended that only after the trial of the case it could be decided whether the suit is barred by limitation or not. The further contention was that the defendants are on the position of trustees and the suit cannot be dismissed on the ground of limitation in view of S. 10 of the limitation act.

4. If on the basis of the allegations in the plaint, the suit is found to be barred by limitation, there is no necessity to look into the written statement or to receive evidence and spent time for the trial of the suit. It is so held by the Supreme Court in Saleem Bhai v. State of Maharastra (2003) 1SCC 557). In that case the trial court had directed the defendant to file a written statement when the defendant filed an application under Order 7 Rule11. The Supreme Court found fault with the trial court and held that for the purpose of deciding an application under Rule 11 of Order 7, the averments in the plaint are germane and the pleas taken by the defendant in the written statement would be irrelevant. Therefore, there is nothing wrong in the courts below disposing of the suit on the basis that the suit is barred by limitation without entering any finding on the merits. In this case, the firm was dissolved by notice dated 3-1-1984 and the suit was filed on 2-11-1987. Therefore, it was filed after the period of 3years as provided under Article 5 of the Limitation Act. Therefore, by a mere reading of the Article, it can be seen that the suit is barred by limitation.

5. The learned counsel for the appellant put forward three contentions is support of the appeal. The first is that the 1st defendant is in the position of a trustee, being the partner of the firm and by virtue of s.10 of the Limitation Act, there is no limitation applicable for filing the suit. I do not think that it is possible to accept the above contention since Section 10 specifically states that no suit against a person in whom property has become vested in trust for any specific purpose shall be barred by any length of time because the 1st defendant is only a partner of the firm. The appellant sought assistance from section 88 of the Trusts Act which says that where a trustee, executor, partner, agent, director of a company who is bound in a fiduciary character to protect the interests of another person by availing himself of his character gains for himself any pecuniary advantage he must hold it for the benefit of such other person the advantage so gained. Illustration (d) specifically says about a partner buying land in his own name wit