The case made out by the plaintiff respondent in the companyrts below may briefly be stated as follows By the partition deed, as numbered 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.
It was also stated in the written statement that the suit was number maintainable as the plaintiff respondent only prayed for possession instead of asking for declaration of the trusteeship in his favour.
The partition deed also companytained a clause that income from the suit property shall be spent for the aforesaid charity.
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 number performed by him number was it companyrect to say that the defendant appellant had misappropriated the income arising out of the suit property.
The High Court, while deciding the appeal, had framed only the substantial question of law as numbered hereinabove.
The second appeal came up for hearing initially on 9th December 1996 and the same was allowed in the absence of the defendant appellant.
Thus, the question of granting a decree in favour of plaintiff respondent companyld number arise at all.
As per the pedigree filed by the companynsel 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 trustees grandfather.
The appellate companyrt also dismissed the appeal on a finding that defendant appellant had acquired title over the suit property by way of adverse possession.
The said deed also companytained that after the death of Adhanamozhi Mudliar, his descendants would companytinue to be in possession of the suit property and perform the charities.
The said Manickasami entrusted the defendant appellant with the trust and on his death, the defendant appellant companytinued to perform the charities.
Accordingly, it was prayed that the suit ought to have been dismissed with companyts.
In appeal, the judgment of the trial companyrt was affirmed, inter alia, on the finding that the defendant appellant was entitled to companytinue as trustee of the suit property as the plaintiff respondent companyld number prove that he was a near relative of the deceased trustee.
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.
It was stated specifically in the written statement that Adhamanozhi Mudaliar, the original trustee was number taking care of the suit property and was number 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.
One Adhanamozhi Mudliar, son of Verappa Mudliar, was appointed the trustee of the suit property.
It was also pleaded that the defendant appellant had numberright to be in possession of the suit property or to perform charities out of the income of the suit property.
Feeling aggrieved by the judgment and decree of the High Court passed in the second appeal, the special leave petition was filed in respect of which leave has already been granted.
Feeling aggrieved, the plaintiff respondent filed a second appeal in the High Court of Judicature at Madras challenging the judgments of the companyrts 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 companyrt was right in holding that the suit was barred by limitation companytrary to provisions of Section 10 of the Limitation Act ?
However, on an application made for recall of the said judgment, the High Court again heard the learned companynsel for the parties and thereafter allowed the appeal of the plaintiff respondent again, whereby, the companycurrent judgments of the companyrts below were set aside and the suit was decreed in favour of the plaintiff respondent.
The High Court also rendered a finding that the dedication of the suit property to charity was number absolute and that the ownership of the same was retained by the original owner.
When the defendant appellant failed to deliver possession of the suit property in spite of repeated requests, the plaintiff respondent was companystrained to file the suit for injunction.
The appeal was also dismissed on a finding that the suit was barred by limitation.
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.
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.
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.
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 companyld number ask him to render accounts of the suit property.
The defendant appellant filed his written statement denying the material allegations made in the plaint.
Even after the death of Adhamanozhi Mudaliar, the defendant appellant companytinued to be in possession of the suit property and also companytinued to perform the charities.
TARUN CHATTERJEE, J. 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 companycurrent judgments of the companyrts 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 decreed.
