Tarun Chatterjee, J. - (1.) THIS is an appeal at the instance of the defendant/ appellant from the judgment of the High Court of Judicature at Madras passed in a second appeal whereby the concurrent judgments of the courts below were set aside and the suit for injunction filed by the plaintiff/respondent in respect of the 'C' schedule property of a partition deed dated 9th December, 1949 (hereinafter referred to as the "suit property") executed by one Manickam Ammal, widow of Narayanswami Mudaliar, who was the original owner of the suit property, and Thailammal, his widowed daughter-in-law, was Appeal against.
(2.) THE case made out by the plaintiff/respondent in the courts below may briefly be stated as follows:- By the partition deed, as noted hereinabove, the suit property was set apart for performing charities relating to performance of guru puja every year at Sri Kumbeswara Swamy Temple at Kurinjipadi Kuppam village in the State of Tamil Nadu. THE partition deed also contained a clause that income from the suit property shall be spent for the aforesaid charity. One Adhanamozhi Mudliar, son of Verappa Mudliar, was appointed the trustee of the suit property. THE said deed also contained that after the death of Adhanamozhi Mudliar, his descendants would continue to be in possession of the suit property and perform the charities. As per the pedigree filed by the counsel for the appellant the plaintiff/respondent is the grandson of the original owner and the defendant/appellant is the great-grandson of the brother of the deceased trustee's grandfather. THE trustee, Adhamanozhi Mudliar, put Manickasami, father of the defendant/appellant into possession of the suit property, as he was unable to perform his duties as trustee. THE said Manickasami entrusted the defendant/appellant with the trust and on his death, the defendant/appellant continued to perform the charities. Even after the death of Adhamanozhi Mudaliar, the defendant/appellant continued to be in possession of the suit property and also continued to perform the charities. In the plaint, the plaintiff/respondent as a grandson of the original owner claimed to be entitled to enjoy the suit property and perform the charities. It was also pleaded that the defendant/appellant had no right to be in possession of the suit property or to perform charities out of the income of the suit property. When the defendant/appellant failed to deliver possession of the suit property in spite of repeated requests, the plaintiff/respondent was constrained to file the suit for injunction. The defendant/appellant filed his written statement denying the material allegations made in the plaint. It was stated specifically in the written statement that Adhamanozhi Mudaliar, the original trustee was not taking care of the suit property and was not performing the charities, and on the other hand, the defendant/appellant was performing the charities out of the income of the suit property and, therefore, the suit for injunction filed against the defendant/appellant must be dismissed. It was also stated in the written statement that the suit was not maintainable as the plaintiff/respondent only prayed for possession instead of asking for declaration of the trusteeship in his favour. It was also pleaded that the suit was barred by limitation in view of the fact that the suit property was in possession of the defendant/appellant for more than twelve years and also that the defendant/appellant had been regularly performing the charities, and therefore, he had acquired the title to the suit property by way of adverse possession. Thus, the question of granting a decree in favour of plaintiff/respondent could not arise at all. It was also denied in the written statement that the plaintiff/respondent was a descendent of the original trustee, Adhamanozhi Mudaliar and, therefore, was entitled to perform the charities after the Trust was created. According to the appellant, after the death of Manickaswami in the year 1969, he was performing the charities and, therefore, it was denied that the charities were not performed by him nor was it correct to say that the defendant/appellant had misappropriated the income arising out of the suit property. Accordingly, it was prayed that the suit ought to have been dismissed with costs.
(3.) AFTER framing issues including the issue relating to the maintainability of the suit, the Trial Court dismissed the suit, inter alia, on the ground that the suit had been filed to harass the defendant/appellant due to past enmity and that the plaintiff/respondent could not ask him to render accounts of the suit property. In appeal, the judgment of the trial court was affirmed, inter alia, on the finding that the defendant/appellant was entitled to continue as trustee of the suit property as the plaintiff/respondent could not prove that he was a near relative of the deceased trustee. The appellate court also dismissed the appeal on a finding that defendant/appellant had acquired title over the suit property by way of adverse possession. The appeal was also dismissed on a finding that the suit was barred by limitation. Feeling aggrieved, the plaintiff/respondent filed a second appeal in the High Court of Judicature at Madras challenging the judgments of the courts below by which the suit was dismissed. At the time of admission, the High Court framed the following substantial question of law: "Whether the lower appellate court was right in holding that the suit was barred by limitation contrary to provisions of Section 10 of the Limitation Act, 1963?" The second appeal came up for hearing initially on 9th December 1996 and the same was allowed in the absence of the defendant/appellant. However, on an application made for recall of the said judgment, the High Court again heard the learned counsel for the parties and thereafter allowed the appeal of the plaintiff/respondent again, whereby, the concurrent judgments of the courts below were set aside and the suit was decreed in favour of the plaintiff/respondent.;