Prakash Chand (deceased) through LRs & Ors. vs Amar Nath (deceased) through LRs & Ors.

1.

Whether the plaintiff is the sole owner in possession of the suit land, as alleged? OPP.

2.

Whether Rupa s/o Lakhu had adopted the defendant as a son from Dulo according to custom, as alleged? OPP.

3.

Whether the revenue entries, as alleged by the plaintiff, are factually incorrect, illegal, null and void, and if so, its effect? OPP

4.

Whether the plaintiff is entitled for the consequential relief of an injunction? OPP

5.

Whether in the alternative, the plaintiff is entitled for vacant possession of the suit land? OPP

6.

Whether the suit is within time? OPP

7.

Whether the suit is not maintainable in the present form? OPD

8.

Whether the plaintiff is estopped by his act and conduct from filing the present suit? OPD

9.

Whether the suit is bad for non-joinder of necessary parties? OPD

10.

Whether the plaintiff has no enforceable cause of action? OPD

11.

Whether this Court has no jurisdiction to try the present suit? OPD

12.

Relief.

1.

Whether the finding of the two Courts below that the appellant-defendant was adopted by one Rupa is not supported by evidence on record and hence not sustainable?

2.

Whether the suit was barred by time when filed, and the finding to the contrary, returned by the two Courts below, is illegal?

Substantial Question of Law No.1:

13….The statement made by the testator in the will about the adoption is certainly a piece of admissible evidence as observed in Chandreshwar Prasad Narain Singh v. Bisheshwar Pratab Narain Singh [AIR 1927 Pat 61] cited by learned counsel for Defendant 1 but there is no rule of law or prudence laying down the principle that such a statement must be regarded as conclusive, and this was also the view taken in that case….”

“6.

The word “entry” as appearing in section 44 is not limited to the fact of devolution of a right, interest or liability only, but also covers in its ambit the other facts mentioned in the record-of-rights, which will include the relationship of parties as stated in such records. The presumption about the devolution or transfer of an interest in land will be meaningless without reference to the parties in whose favour such devolution or transfer has taken place. I am, therefore, of the view that it must be presumed under section 44 that a person shown in the record-of-rights as having a particular relationship with another person interested in the estate does possess that relationship unless the contrary is proved. The Courts below committed no illegality in raising the presumption that the plaintiffs were daughters of Uttami, as shown in the revenue records, and it was for the defendants to rebut that presumption, which they failed to do.

“Question 76- What formalities are necessary for adoption? State expressly whether the omission of any customary ceremonies will vitiate the adoption?

Ans- The Rajputs, Brahmans, Khatris, Thakars, Rathis, Ghirths and Mahajans of Nurpur, the Rajputs Rathis, Sainis, Jats and Gaddis or Kangra, the Rajputs, Brahmans, Rathis, Jats, Sainis, Gaddis and Kanets of Palampur say no formalities are required for adoption.”

“Question 77- Is an adopted son entitled to succeed to his natural father in case of the latter having no other lineal issue?

Answer- Except the Gosains of Kangra and the Gaddis and Kanets of Palampur Tehsil, all the tribes say the adopted son is not entitled to succeed to his natural father.”

Substantial Question of Law No.2:

18.

Unlike the Limitation Act, 1908, the Limitation Act, 1963, contains only three Articles in respect of suits relating to declarations, i.e., Articles 56, 57 and 58. Undoubtedly, the relief of declaration sought in the suit does not fall under Article 56 or under Article 57. Therefore, it has to necessarily fall under Article 58, which is a residuary article insofar as the suits relating to declarations are concerned. Article 58 of the Limitation Act, 1963, is equivalent to Article 120 of the Limitation Act, 1908, with the difference that the limitation begins to run in the case of Article 58 when the right to sue first accrues, whereas in the case of Article 120 of the Limitation Act, 1908, the limitation begins when the right to sue accrued. Therefore, the word “first” contained in Column No. 3 of Article 58 after the words ‘right to sue’ is not found in Article 120 of the Limitation Act, 1908. The contention of the learned Government Advocate is that the right to sue first accrued to the plaintiffs when the entries in the revenue records were changed from redeemed to unredeemed in the year 1918 and continued till the date of filing of the suit; that the plaintiffs were also aware of this fact of changing the description of the land from redeemed to unredeemed when they purchased the suit property on 21st June 1965 as per Exs. P-1 to P-3. There is no doubt that P.W. 1 stated in the cross-examination that when they purchased the suit property, the revenue record described the suit property as an unredeemed estate. The learned Government Advocate also brought to our notice the averments made in the plaint as to how the cause of action arose. In Para-12 of the plaint, the plaintiff has stated thus:

“12.

The cause of action for this suit accrued to the plaintiffs against the Defendant on and from 17-8-1966, 18-8-1966, 30-11-1966, 9-10-1967, 9-9-1969, 14-1-1971, 18-1-1971, 2-6-1973 and subsequently at Kundacherry Village, Bhagamandala Nadu, Mercara Taluk, Coorg District and at Mercara, Coorg District, within the jurisdiction of this Honourable Court.” It is not each and every entry in the Record of Rights that would give rise to a cause of action. As to when a cause of action would accrue to the plaintiffs has been the subject of interpretation in several decisions. In Mt. Bolo v. Mt. Koklan [AIR 1930 PC 270], their Lordships considered the meaning and effect of the right to sue in Column No. 3 of Article 120 of the Limitation Act, 1908 and held thus:

“There can be no 'right to sue' until there is an accrual of the right asserted in the suit and its infringement or at least a clear and unequivocal threat to infringe that right by the defendant against whom the suit is instituted.”

This was again reaffirmed in Annamalai Chettiar v. A.M.K.C.T. Muthukaruppan Chettiar. [AIR 1931 PC 9.] The Supreme Court in Mst. Rukhmabai v. Lala Laxminarayan [AIR 1960 SC 335.] after referring to the decisions of the Privy Council in A.I.R. 1930 P.C. 270 [AIR 1930 PC 270.] and A.I.R. 1931 P.C. 9 [AIR 1931 PC 9.] has held that if there are successive invasions or denials of a right, then it can be held that a person's right has been clearly and unequivocally threatened so as to compel him to institute a suit to establish that right. The Supreme Court has also further held thus:

“The legal position may be briefly stated thus: The right to sue under Article 120 of the Limitation Act accrues when the defendant has clearly and unequivocally threatened to infringe the right asserted by the plaintiff in the suit. Every threat by a party to such a right, however ineffective and innocuous it may be, cannot be considered to be a clear and unequivocal threat so as to compel him to file a suit. Whether a particular threat gives rise to a compulsory cause of action depends upon the question whether that threat effectively invades or jeopardises the said right.” (Emphasis supplied)

It may be relevant to notice the facts of Rukmabai's case [AIR 1960 SC 335] as stated in Para-34 of the very Judgment, which are as follows:

“The facts relevant to the question of limitation in the present case may be briefly restated: The trust deed was executed in 1916. The suit house was constructed in 1920. If, as we have held, the trust deed as well as the construction of the building were for the benefit of the family, its execution could not constitute any invasion of the plaintiff's right. Till 1926, the plaintiff's father, Ratanlal, was residing in that house. In 1928, when Daga challenged the trust deed, the family compromised the matter and salvaged the house. From 1936 onwards, the plaintiff has been residing in the suit house. It is conceded that he had knowledge of the litigation between Rukmabai and Chandanlal claiming the property under the trust deed; but, for that suit, he was not a party and the decision in that litigation did not in any way bind him or affect his possession of the house. But in the execution of the decree, the Commissioner appointed by the Court came to the premises on February 13, 1937, to take measurements of the house for effecting partition of the property, when the plaintiff raised an objection, and thereafter, in 1940, filed the suit. From the aforesaid facts, it is manifest that the plaintiff's right to the property was not effectively threatened by the appellant till the Commissioner came to divide the property. It was only then that there was an effectual threat to his right to the suit property, and the suit was filed within six years thereafter. We, therefore, hold that the suit was within time.”

From the aforesaid facts, it is clear that the mere adverse entry in the Record of Rights in respect of the property in possession of the plaintiff cannot be taken as a real threat to the right of the plaintiff to the property in his possession. Rukhamabai was not a party to the proceeding. Her right to the property came to be threatened only when the order was tried to be executed, and she was tried to be dispossessed. Their Lordships further held that even if it was considered that Laxminarayan had the knowledge of the litigation between Rukhmabai and Chandanlal claiming the property under the trust deed, but, for that suit, he was not a party and the decision in that litigation did not in any way bind him or affect his possession. In the instant case, it may be relevant to notice that the entries on which the reliance was placed changing the suit land from redeemed to unredeemed to form a basis for a starting point of limitation, even if it were in the knowledge of the plaintiffs the same could not affect the right of the plaintiffs adversely because those entries were not made in accordance with law, after due notice to the plaintiffs. As such as held by the Supreme Court in Khader's case [(1990) 2 SCC 271: AIR 1990 SC 1225], they were void and non est. Therefore, they cannot be of any value as it cannot be held that the same affected the rights of the plaintiffs in any manner. In C. Mohammad Yunus v. Syed Unnissa [AIR 1961 SC 808], it has been further reiterated that ‘there could be no right to sue until there is an accrual of the right asserted in the suit and its infringement or at least a clear and unequivocal threat to infringe that right’. There is no such clear and unequivocal infringement of the right of the plaintiffs or real threat to the right of the plaintiffs by the entries which have no legal effect in the eyes of the law. Further, the very order dated 17th August 1966 - Ex. P-9 itself shows that the Government was not sure whether the suit-scheduled property was redeemed sagu or unredeemed sagu. They also did not assert in the Government Order dated 17^th August 1966 that the suit schedule property was redeemed sagu only. This conduct on the part of the Government would also show that the entries made from the year 1918 till the date relied upon by the learned Government Advocate to non-suit, the plaintiffs were not treated even by the State Government as final and conclusive and affecting the right of the plaintiffs. We may also refer to two more decisions of the Supreme Court having a bearing on the point. In Gannon Dunkerley and Co. Ltd. v. The Union of India [(1969) 3 SCC 607: AIR 1970 SC 1433.] It has been held thus:

“In our Judgment, there is no right to sue until there is an accrual of the right asserted in the suit, and its infringement, or at least a clear and unequivocal threat to infringe that right by the defendant against whom the suit is instituted.”

Thus, in Gannon's case [(1969) 3 SCC 607: AIR 1970 SC 1433.] the decision of the Privy Council in A.I.R. 1930 P.C. 270 [AIR 1931 PC 9.] was again restated. In Raghubir Jha v. State of Bihar [1986 Supp SCC 372: AIR 1986 SC 508], the Supreme Court held that the limitation would begin to commence only on the communication of the termination of the proceedings and not on the date the order was passed by the first authority. In the instant case, there is no evidence adduced by the defendant, nor is there any material brought on record in the cross-examination of P.W. 1 that the right to sue accrued much earlier than the date of the suit. As in the instant case, the entries in the record of rights, being non-est, cannot be held to affect the right, title and interest of the plaintiffs and their predecessors-in-title in possession of the suit property. Such entries cannot also be held to be a threat to the title of the plaintiffs who are in possession of the suit property so as to give rise to the cause of action sufficient for the commencement of the period of limitation. However, the learned Government Advocate has placed reliance on a decision of this Court in Dada Jinnappa Khot v. Shivalingappa Ganapati Bellaniki ILR 1989 Kar 993. That was a case in which a learned single Judge of this Court recorded a specific finding that, in the light of the application filed by the defendant before the Tahsildar in the year 1967 denying the title of the plaintiff, there was a real threat to the plaintiff's right and therefore on that date the right to sue accrued because the plaintiff was also a party to that application. Thus, it is clear that the Decision in D.J. Khot's case [ILR 1989 Kar 993] is confined to the facts of that case. Therefore, the contention of the learned Government Advocate that the change of entries from redeemed to unredeemed in the year 1918 and the continuation of the same in the subsequent years was a real threat to the rights of the plaintiffs cannot be accepted, because those entries are held to be void and non est. Therefore, the contention based on the change of entries from redeemed to unredeemed is rejected.

7.

It may be observed at the outset that the word ‘first’ occurring in Article 58 of the Act is of no significance at all for deciding the issue of limitation so far as the facts of the case in hand are concerned as the main point that requires determination is whether mere entry of a mutation in the name of the defendant would furnish a cause of action to the plaintiff to file a suit for declaration or not. There is no dispute that mutation was sanctioned in favour of the defendant after the death of Akbar, and in case such an entry furnishes a cause of action, then certainly the suit would be barred by limitation. Even Mr Aggarwal very fairly conceded this proposition. But what was argued by him was that mere entry of a mutation did not furnish any cause of action, and in support of his contention, he relied on a Division Bench judgement of this Court in Niamat Singh v. Darbari Singh etc., (1956) 58 PLR 461. In our view, the contention of the learned counsel has considerable force. The plaintiff continued to be in possession of the entire property even after the sanction of the mutations in the name of the defendant after the death of her father, Akbar or her mother, Smt. Nanhi or her uncle Bhiku. The defendant was never given any share in the rent, nor was she given any produce out of the land of her share. In this situation, no cloud was cast on the title of the plaintiff by the mere entry of the mutation in the name of the defendant. Further, there is no proof on the record to show that before April 1969, by any act or assertion of the defendant, the right of the plaintiff was ever actually jeopardised. The defendant is occupying a house in the village.

8.

The assertion of the plaintiff is that it was given by him to her out of compassion, while the plea of the defendant is that she occupied it as of right. Be that as it may, the fact remains that so far as the agricultural land is concerned, the defendant, after the sanction of the mutations, never asserted her right to her share in the land in dispute; nor did she ever get any rent or produce, and it was in the year 1969 that she tried to assert her right and interfere with the possession of the plaintiff. In this situation, mere entry of a mutation in the name of the defendant would not furnish any cause of action to the plaintiff. This view of ours finds full support from the judgment of the Division Bench in Niamat Singh's case. Thus, we do not agree with the learned single Judge that the cause of action arose when the mutation was entered in the name of the defendant and consequently, reverse the finding on issue No. 4 and hold that the suit filed by the plaintiff is within limitation.

12.

Article 58 of the Limitation Act, 1963 provides for a limitation of three years to obtain a declaration, and the period begins to run "when the right to sue first accrues". Article 58 is a residuary Article under the Limitation Act, 1963. The suit for declaration, which was not governed by any other Article in the Act, was covered by residuary Article 120 of the 1908 Act, and such a suit now indeed is governed by Article 58 of the 1963 Act.

13.

It may be noticed that the limitation period of three years commences from the date when the right to sue first accrues, but the question is when the right to sue accrues. In my view, the right to sue would accrue when the right in respect of which a declaration is sought is denied or challenged. A mere entry in the revenue papers of the name of the defendants as co-owner of the property, without any act of denial on the part of such defendant(s), will not provide a cause of action. There is no scope of dispute that the mutation of a l/4th share of Chuhru was wrongly attested in favour of the defendants, and it is only because of this illegal attestation of mutation that entries in the revenue record showing the defendants as co-sharers to the extent of l/4th share of Chuhru were incorporated. In these circumstances, the right to sue would accrue to the plaintiffs only when their possession was threatened or an application for partition on the basis of these entries was filed in the Revenue Court.

14.

As far back as 1930, in Mst Bolo appellant v. Aft. Koklan and others, respondents, AIR 1930 Privy Council 270, a Judicial Committee interpreting the provisions of Article 120 of the 1908 Act observed:

"There can be no 'right to sue' until there is an accrual of the right asserted in the suit and its infringement, or at least a clear and unequivocal threat to infringe that right by the defendant against whom the suit is instituted. No doubt Mt. Koklan's right to the property arose on the death of Tara Chand, but in the circumstances of this case, their Lordships are of the opinion that there was no infringement of, or any clear and unequivocal threat to her rights till the year 1922, when the suit, as stated above, was instituted" (Emphasis supplied)

15.

This principle was re-stated and followed in Annamalai Ct-ieitiar v. Muttukaruppan Chettiar, AIR 1931 PC 9. In Mst Rukhmabai, appellant v. Lal Laxminarayan and others, respondents, AIR 1960 Supreme Court 335, a contention was raised that plaintiff respondent had knowledge of fraudulent character of the trust deed for 10 years, during the pendency of the partition suit instituted in the year 1929, but the suit was filed in the year 1940 much after the limitation of six years under the 1908 Act from the date of knowledge and therefore, the suit would be barred under Article 120 of the 1908 Act. The Apex Court, interpreting the provisions of Article 120 of the Limitation Act of 1908 and heavily relying upon Mt Bolo, held:

"33.

The legal position may be briefly stated thus: The right to sue under Article 120 of the Limitation Act accrues when the defendant has clearly and unequivocally threatened to infringe the right asserted by the plaintiffs in the suit. Every threat by a party to such a right, however ineffective and innocuous it may be, cannot be considered to be a clear and unequivocal threat so as to compel him to file a suit. Whether a particular threat gives rise to a compulsory cause of action depends upon the question whether that threat effectively invades or jeopardises the said right" (Emphasis supplied)

16.

In Zorawar Singh and another Appellants v. Dip Chand and others, respondents, AIR 1929 Allahabad 331, it was observed that a suit for declaration may be a repeated cause of action and each new cause would give a fresh right to sue.

17.

In Faqira and another, plaintiffs-appellants v. Hardewa and others, defendants-respondents, AIR 1928 Allahabad 172, the Full Bench of the Allahabad High Court had occasion to interpret Article 120 of the Limitation Act, 1908. In that case, there was a wrong entry in the khewat, and the advantage of that wrong entry was likely to be taken by the defendants. The fact of such an entry was never brought to the notice of the plaintiffs. In this background, the Full Bench speaking through Mukerji, J. held :

"The right to sue, within the meaning ot Article 120 of the Limitation Act, accrued to the plaintiff on the filing of the application for partition and not earlier," (Emphasis supplied)

"If a plaintiff is in possession or enjoyment of the property in suit, he is not obliged to sue for a declaration of title on the first or each succeeding denial of his title by the defendant. He may look upon each denial with complacency or, at his option, may institute a suit to falsify the assertions of the other side. But when he finds that his rights are being actually jeopardised by the action or assertion of the defendant, then he must take proceedings within six years from the date of such actions or assertions: AIR 1922 Lah. 94, AIR 1925 Lah. 391 and 140 P.R. 1907; Dist."

17.

Article 58 of the Limitation Act specifically provides a limitation of three years to obtain a declaration that is not provided under any other Article. Under this Article, the limitation period of three years commences from the date when the right to sue first accrues. However, the question would be when a right to sue accrues. In my view, the right to sue accrues when the right in respect of which a declaration is sought is denied or challenged. A mere entry in the revenue papers, in the name of appellants, in the column of possession, without any act of denial of the possession of the respondent on the part of appellants, will not provide a cause of action.

18.

The Supreme Court in Mst. Rukhmabai v. Lala Laxminarayan and others, AIR 1960 SC 335, interpreting the provision of Article 120 of the Limitation Act of 1908 and relying upon Mt. Bolo v. Mt. Koklan and others, AIR 1930 Privy Council 270, held:

'There can be no "right to sue" until there is an accrual of the right asserted in the suit and its infringement, or at least a clear and unequivocal threat to infringe that right by the defendant against whom the suit is instituted. No doubt Mt. Koklan's right to the property arose on the death of Tarn Chand, but in the circumstances of this case, their Lordships are of the opinion that there was no infringement of, or any clear and unequivocal threat to her rights till the year 1922, when the suit, as stated above, was instituted".(Emphasis supplied)

19.

In Fateh AH Shah and others v. Muhammad Bakhsh and others, AIR 1928 Lahore 516, a Division Bench of the Lahore High Court held that the plaintiff in possession need not bring a suit on the first denial of his title, and he needs to take proceedings within six years (under the old Act) from the time when his rights are actually jeopardised. The Division Bench observed:

"If a plaintiff is in possession or enjoyment of the property in suit, he is not obliged to sue for a declaration of title on the first or each succeeding denial of his title by the defendant. He may look upon each denial with complacency or, at his option, may institute a suit to falsify the assertions of the other side. But, when he finds that his rights are actually being jeopardised by the action or assertion of the defendant, then he must take proceedings within six years from the date of such actions or assertions: AIR 1922 Lah 94, AIR 1925 Lah. 391 and 140 RR. 1907: Dist".

20.

It is no longer res-integra that persons continuing in possession in spite of adverse entry in the revenue papers need not seek any declaration until their possession is threatened. Reference may be made to Ghulam Mohammad Khan and others v. Sammundar Khan and others, AIR 1936 Lahore 37. In that case, the adverse entry was made in the year 1905-06. The suit was filed much after the period of limitation under Article 120 of the 1908 Act. In the plaint, it was urged that the entry was made in the jamabandi behind the back of the plaintiffs, and they learnt about these entries for the first time in the year 1929-30. The defendants traversed the allegations. In this background, the Division Bench held that the cause of action in all such cases "would accrue when the plaintiff feels aggrieved, and in these circumstances, on the plaintiff's allegations, these suits will be within time."

21.

Otherwise, also, entries in the revenue record for which there is no foundation do not create any title (See Jattu Ram v. Hakam Singh and others, JT 1993 (5) SC 423; Guru Amarjit Singh v. Rattan Chand and others, AIR 1994 SC 227; Guru Amarjit Singh v. Rattan Chand and others, (1993) 4 SCC 349).

22.

It was next contended on behalf of the defendant that even if Art. 113 is applied, the suit having been filed beyond three years of the order of mutation would be barred by time.

23.

There is no merit in the contention; it is well settled that mutation does not confer title. A cause of action would accrue to the plaintiffs only when there is an invasion of or a threat to his rights and title. The order of mutation, even otherwise, having been passed by an authority having no jurisdiction, was a nullity and capable of being ignored.

24.

In Ghulam Mohammad Khan and others Vs. Samundar Khan and others [1936 Lahore 37] dealing with a suit filed under Section 45, Punjab Revenue Act, 1887, which provision is para material to Section 46 of the HP. Land Revenue Act, 1953, it has been held that to such suits Article 120, Limitation Act, 1908 (corresponding to Article 113, Limitation Act, 1963) applies and the terminus a quo in such cases is when the cause of action accrues and that reading Article 120, Limitation Act 1908 with Section 45, Punjab Land Revenue Act, 1887, the cause of action would accrue when the plaintiff feels aggrieved.

25.

It has been held in Kewal Krishan Purl and another vs. The State of Punjab and others [1977 P&H 347] that the right to sue will accrue only where there is an unequivocal threat to infringe the right of the plaintiff.

26.

Taking into consideration the averments in the plaint as to the threat to infringe the rights of the plaintiff, the suit is well within time under Article 113, Limitation Act, 1963.

14.

In support of the contention that the suit was filed within the period of limitation, the learned Senior Counsel appearing for the appellant-plaintiffs before us submitted that there could be no right to sue until there is an accrual of the right asserted in the suit and its infringement or at least a clear and unequivocal threat to infringe that right by the defendant against whom the suit is instituted. In support of this contention, the learned Senior Counsel strongly relied on a decision of the Privy Council in Bolo v. Koklan [(1929-30) 57 IA 325: AIR 1930 PC 270]. In this decision, Their Lordships of the Privy Council observed as follows: (IA p. 331)

“… There can be no ‘right to sue’ until there is an accrual of the right asserted in the suit and its infringement, or at least a clear and unequivocal threat to infringe that right, by the defendant against whom the suit is instituted.”

15.

A similar view was reiterated in C. Mohammad Yunus v. Syed Unnissa AIR 1961 SC 808, in which this Court observed: (AIR p. 810, para 7)

“7.

… The period of six years prescribed by Article 120 has to be computed from the date when the right to sue accrues, and there could be no right to sue until there is an accrual of the right asserted in the suit and its infringement or at least a clear and unequivocal threat to infringe that right.” In C. Mohammad Yunus [AIR 1961 SC 808], this Court held that the cause of action for the purposes of Article 58 of the Act accrues only when the right asserted in the suit is infringed or there is at least a clear and unequivocal threat to infringe that right. Therefore, the mere existence of an adverse entry in the revenue records cannot give rise to a cause of action.

16.

Keeping these principles in mind, let us consider the admitted facts of the case. In Para 16 of the plaint, it has been clearly averred that the right to sue accrued when such right was infringed by the defendants about a week back, when the plaintiffs had for the first time come to know about the wrong entries in the record-of-rights and when the defendants had refused to admit the claim of the plaintiffs. Admittedly, the suit was filed on 21-8-1990. According to the averments made by the plaintiffs in their plaint, as noted hereinabove, if this statement is accepted, the question of holding that the suit was barred by limitation could not arise at all. Accordingly, we are of the view that the right to sue accrued when a clear and unequivocal threat to infringe that right by the defendants was made when they refused to admit the claim of the appellants, i.e. only seven days before the filing of the suit. Therefore, we are of the view that within three years from the date of infringement, as noted in Para 16 of the plaint, the suit was filed. Therefore, the suit, which was filed for declaration on 21-8-1990, in our view, cannot be held to be barred by limitation.

14.

In Mt. Bolo v. Mt. Koklan, AIR 1930 Privy Council 270, the expression “right to sue” has been succinctly explained as under:

“There can be no 'right to sue' until there is an accrual of the right asserted in the suit and its infringement, or at least a clear and unequivocal threat to infringe that right by the defendant against whom the suit is instituted. No doubt Mr Koklan's right to the property arose on the death of Tara Chand, but in the circumstances of this case, their Lordships are of the opinion that there was no infringement of, or any clear and unequivocal threat to her rights till the year 1922, when the suit, as stated above, was instituted.”

15.

In Shiam Lal v. Mohamad Ali Asghar Husain, AIR 1935 Allahabad 174, a learned single Judge has held that a mere entry of names does not debar the person against whom the entry is made for all time to come from suing for a declaration. Any new invasion of rights which amounts to a fresh denial of title confers on the owner in possession a fresh right to sue. The right to sue accrues when there is an accrual of the right asserted in the suit and its infringement, or at least a clear and unequivocal threat to infringe that right by the defendant against whom the suit is instituted.

16.

In Rukhmabai v. Lala Laxminarayan, AIR 1960 SC 332, their Lordships of the Hon'ble Supreme Court have held that there can be “right to sue” until there is an accrual of the right asserted in the suit and its infringement, or at least a clear and unequivocal threat to infringe that right, by the defendant against whom the suit is instituted. Their Lordships have held as under:

“31.

The argument on the question of limitation is put thus: The plaintiff, respondent herein, had knowledge of the fraudulent character of the trust deed as early as 1917 or, at any rate, during the pendency of the partition suit between Rakhmabai and Chandanlal instituted in the year 1929, and the suit filed in 1940, admittedly after six years of the said knowledge, would be barred under Art. 120 of the Limitation Act. Article 120 of the Limitation Act reads:

Description of suit: Period of limitation Time from which period begins to run.

120.

Suit for which no period of Limitation is provided elsewhere in this Schedule.

Six years, when the right to sue accrues.

This Article was subject to judicial scrutiny both by the Judicial Committee as well as by the High Courts of various States. The leading decision on the subject is that of the Judicial Committee in Mt. Bolo v. Mt. Koklan, 57 Ind App 325 at p. 331 : (AIR 1930 PC 270 at p. 272). Therein Sir Benod Mitter observed:

“There can be no ‘right to sue’ until there is an accrual of the right asserted in the suit and its infringement, or at least a clear and unequivocal threat to infringe that right, by the defendant against whom the suit is instituted.”

32.

The said principle was restated and followed by the Judicial Committee in Annamalai Chettiar v. Muthukaruppan Chettiar, ILR 8 Rang 645 : (AIR 1931 PC 9), and in Gobinda Narayan Singh v. Sham Lal Singh, 58 Ind App 125 : (AIR 1931 PC 89). The further question is, if there are successive invasions or denials of a right, when it can be held that a person's right has been clearly and unequivocally threatened so as to compel him to institute a suit to establish that right. In Pothukutchi Appa Rao v. Secy. of State, AIR 1938 Mad 193 at p. 198, a Division Bench of the Madras High Court had to consider the said question. In that case, Venkatasubba Rao, J., after considering the relevant decisions, expressed his view thus:

“There is nothing in law which says that the moment a person's right is denied, he is bound at his peril to bring a suit for declaration. The Government, beyond passing the order, did nothing to disturb the plaintiff's possession. It would be most unreasonable to hold that a bare repudiation of a person's title, without even an overt act, would make it incumbent on him to bring a declaratory suit.”

“It is a more difficult question, what is the extent of the injury or infringement that gives rise to, what may be termed, a compulsory cause of action?”

“7.

The surplus income of the institution is distributed by the trustees, and the plaintiffs are seeking a declaration of the right to receive the income and also an injunction restraining the defendant from interfering with the exercise of their right. The High Court held that plaintiff No. 1 was at the date of the suit 19 years of age and was entitled to file a suit for enforcement of her right even if the period of limitation had expired during her minority within three years from the date on which she attained majority by virtue of Ss. 6 and 8 of the Indian Limitation Act, Apart from this ground which saves the claim of the first plaintiff alone, a suit for a declaration of a right and an injunction restraining the defendants from interfering with the exercise of that right is governed by Art. 120 of the Limitation Act and in such a suit the right to sue arises when the cause of the action accrues. The plaintiffs claiming under Fakruddin sued to obtain a declaration of their rights in the institution, which was and is in the management of the trustees. The trial judge held that the plaintiffs were not “in enjoyment of the share” of Fakruddin since 1921, and the suit filed by the plaintiffs more than 12 years from the date of Fakruddin's death must be held barred, but he did not refer to any specific article in the first schedule of the Limitation Act which barred the suit. It is not shown that the trustees have ever denied or are interested in denying the right of the plaintiffs and defendant No. 2; and if the trustees do not deny their rights, in our view, the suit for declaration of the rights of the heirs of Fakruddin will not be barred under Article. Section 120 of the Limitation Act merely because the contesting defendant did not recognise that right. The period of six years prescribed by Art. 120 has to be computed from the date when the right to sue accrues, and there could be no right to sue until there is an accrual of the right asserted in the suit and its infringement, or at least a clear and unequivocal threat to infringe that right. If the trustees were willing to give a share and on the record of the case it must be assumed that they being trustees appointed under a scheme would be willing to allow the plaintiffs their legitimate rights including a share in the income if under the law they were entitled thereto, mere denial by the defendants of the rights of the plaintiffs and defendant No. 2 will not set the period of limitation running against them.”

‘7. As already noted, Article 58 of the Limitation Act, 1963, which Article learned counsel for the defendant wants to use to apply to the pleas of the plaintiffs, stipulates that the time of three years for a suit to obtain any other declaration would begin to run “when the right to sue first accrues”. The word “first” found in Article 58 could not have a separate or an independent significance, unless the right to sue accrues. It is the element of accrual of the right to sue that is decisive, and only when the right to sue has accrued, then it has got to be found out as to when it “first” accrued. Hence, the pronouncement which has been spoken on Article 120 of the Old Limitation Act, 1908, does form a firm guidance to find out as to when the right to sue accrues for the purpose of Article 58 of the Limitation Act, 1963.

8.

There must be accrual of the right to sue for the plaintiff, in the sense that infringement or at least a clear and unequivocal threat to infringe that right by the defendant should happen. So far, the right of the plaintiff is not infringed, or there is no positive and overt act on the part of the defendant to infringe the right of the plaintiff, there would not be accrual of the right to sue. When the plaintiff states and proves his case that on a particular date there was an infringement or at least a clear and unequivocal threat to infringe the right of the plaintiff, the defendant, if he wants to demonstrate a contrary position, must plead and prove the same. Some overact on the part of the defendant towards infringement or threat to infringe is expected to make it incumbent for the plaintiff to institute the suit. Then only could it be stated that the right to sue has accrued. A hostile attitude remaining dormant in the mind of the defendant and which never got expressed in any overt act of his, by infringing or at least clearly and unequivocally threatening to infringe the right of the plaintiff, will not bring the case within the purview of the set of expressions “right to sue accrues”. The above propositions gleaned from the pronouncements which we have referred to above, though do not require reiteration, yet we have recapitulated them for the purpose of guiding ourselves to assess the facts of the case to find out as to whether the suit of the plaintiffs is barred as contended by the defendant.”

“13.

Reliance upon Section 108 of the Indian Evidence Act is wholly misplaced. This section deals with the burden of proving as to whether a person is alive who has not been heard of for seven years. In view of the fact that Smt. Dhanno is stated to have married Gainda sometime in the year 1943; she automatically stands divested of her right in the land on account of section 59 of the Punjab Tenancy Act. This way, the plaintiffs, along with Punnu, became owners of the extent of l/3^rd share in the joint holding. Admittedly, the land has remained in cultivating possession of the plaintiffs as well as defendants, and so the mere entries in the revenue record specifying certain shares do not cast any doubt on their valuable right, and the plaintiffs are well within their right to seek correction of these revenue entries in the register of mutation, etc., as and when an attempt is made to dispossess them. Thus, a cause of action arises in such like cases when the defendant/defendants threaten the plaintiffs to take forcible possession of the land from him. Mere entry of mutation in the name of the defendant does not furnish any cause of action to the plaintiffs. This precise point came up for consideration in Ibrahim's case (supra), and the Court, after considering the provisions contained in Article 58 of the Limitation Act, held that the use of the word ‘first’ in Article 58 is of no significance at all, and so the plaintiff can file suit as and when a cloud has been cast on the title of the plaintiff. Reliance was placed on the earlier decision of the Division Bench in the case reported as Niamat Singh v. Darbari Singh, (1956) 58 PLR 461, wherein it was held as under:

“If an adverse entry is made against a person who is in actual physical possession of the property and if he continues to retain possession of the said property despite this entry in the revenue papers, he is under no obligation to bring a suit. If, however, his rights are actually jeopardised by the actions or assertions of the defendant, then he must take proceedings within six years from the date of such actions or assertions. In other words, the time begins to run not from the date on which an adverse entry is made but from the date on which there is a fresh denial of the plaintiff's rights.”

“13.

It could not be disputed that the plaintiff is a partner of the firm, and as a partner, he enjoys the benefits of the firm, including the possession of the property purchased by virtue of the conveyance deed dated 29.4.1968, Ext. D1. Since the plaintiff continues to be in possession of the suit land along with the defendant, his suit could not be dismissed on the ground that it is beyond the period of limitation. The cause of action in such a case would arise only when there is a threat to his title. According to the plaintiff, such a threat arose when Improvement Trust, Hansi, served a notice under Section 9 regarding the acquisition of land comprising Khasra No. 1075. At this stage, on inspection of the record, he came to know about the omission of his name in the sale deed and in the mutation.”

11.

I have considered the rival submission and perused the record. There is no serious dispute about the substantive rights of the parties. Even learned counsel for the appellants does not dispute that Mata Chand, having pre-deceased Dalip Chand, the heirs of Mata Chand will not be entitled to the share of Dalip Chand in view of Entry-II of Class II^nd of the Schedule to the Hindu Succession Act read with Section 8 of the said Act. The only question is of limitation. I am of the view that Article 58 of the Schedule to the Limitation Act will govern the limitation, and the lower appellate court was in error in observing that Article 58 of the Act cannot apply. Even so, the contention of the learned counsel for the appellants that the suit is barred by limitation cannot be accepted. Though the limitation is three years, the time from which this period begins to run is when the right to sue first accrues. It is not possible to accept that the right to sue accrued in the year 1966 when mutation was sanctioned, as rightly held by the lower appellate court, nor did it accrue when a gift of part of the land was made. The parties were in joint possession, and it is not shown that their shares were separated. Though learned counsel for the appellants mentioned that there was a separation of joint holding, there is no material on record to indicate the separation of shares and the date of separation, if any. Even if entries in the revenue record are wrong, a party can choose to ignore the same till a real threat to the title is apprehended. Reference in this regard may be made to the decision of a Division Bench of this Court in Ibrahim v. Smt. Sharifan, AIR 1980 P&H 25, it was observed: “it may be observed at the outset that that the word ‘first’ occurring in Article 58 of the Actis of no significance at all for deciding the issue of limitation so for as the facts of the case in hand are concerned as the main point which requires determination is whether mere entry of a mutation in the name of the defendant would furnish a cause of action to the plaintiff to file a suit for declaration or not.” It was further held that where no cloud is cast on the title of the plaintiff, mere entry of mutation in the name of the defendant in the absence of any other act of the defendant, cause of action does not accrue to the plaintiff for the purpose of Article 58 of the Schedule to the Limitation Act.”

“6.

While controverting the aforesaid findings of the learned Single Judge, it was contended by Mr. Aggarwal, learned counsel for the appellant, that cause of action arose to the plaintiff in April, 1969, when the defendant actually threatened to take forcible possession of the land from the plaintiff and that mere sanction of the mutation with respect to half share of the land in dispute in the name of the defendant did not give any cause of action to the plaintiff, especially when he had continued to be in exclusive possession of the land without any interference of any kind by the defendant. ON the other hand, it was contended by Mr. Kapur, learned counsel for the respondent, that a cloud was actually cast on the right of the plaintiff in the year 1957 after the death of Akbar mutation of inheritance was sanctioned in favour of the plaintiff, the defendant and their mother in equal shares; that the right to sue first accrued to the plaintiff, on the date when the said mutation was sanctioned and the suit having been filed beyond the period of three years was clearly barred by time.

7.

After giving our thoughtful consideration to the entire matter, we find that there is considerable force in the contention of the learned counsel for the appellant.

8.

It may be observed at the outset that the word ‘first’ occurring in article 58 of the Act is of no significance at all for deciding the issue of limitation so far as the facts of the case in hand are concerned as the main point that requires determination is whether mere entry of mutation in the name of the defendant would furnish a cause of action to the plaintiff to file a suit for declaration or not. There is no dispute that the mutation was sanctioned in favour of the defendant after the death of Akbar, and in case such an entry furnished a cause of action, then certainly the suit would be barred by limitation. Even Mr Aggarwal very fairly conceded this proposition. But what was argued by him was that mere entry of mutation did not furnish any cause of action, and in support of his contention, he relied on a Division Bench judgment of this Court in Niamat Singh v. Barbari Singh, 1956 P.L.R. 461. In our view, the contention of the learned counsel has considerable force. The plaintiff continued to be in possession of the entire property even after the sanction of the mutations in the name of the defendant after the death of Akbar or her mother, Smt. Nanhi or her uncle Bhiku. The defendant was never given any share in the rent, nor was she given any produce out of the land, her share. In this situation, no cloud was cast on the title of the plaintiff by the mere entry of the mutation in the name of the defendant. Further, there is no proof on the record to show that before April, 1960, by any act or assertion of the defendant, the right of the plaintiff was ever actually jeopardised. The defendant is occupying a house in the village. The assertion of the plaintiff is that it was given by him to her out of compassion, while the plea of the defendant is that she occupied it as of right. Be that as it may, the fact remains that so far as the agricultural land is concerned, the defendant, after the sanction of the mutations, never asserted her right to her share in the land in dispute, nor did she ever get any rent or produce any that it was in the year 1969 that she tried to assert her right and interfere with the possession of the plaintiff. In this situation, mere entry of a mutation in the name of the defendant would not furnish any cause of action to the plaintiff. Our view finds full support from the judgment of the Division Bench in Niamat Singh's case. Thus, we do not agree with the learned Single Judge that the cause of action arose when the mutation was entered in the name of the defendant and consequently, reverse the finding on issue No. 4 and hold that the suit filed by the plaintiff is within limitation.”

“13.

Let us, therefore, consider whether the suit was barred by limitation in view of Article 58 of the Act in the background of the facts stated in the plaint itself. Part III of the schedule, which has prescribed the period of limitation, relates to suits concerning declarations. Article 58 of the Act clearly says that to obtain any other declaration, the limitation would be three years from the date when the right to sue first accrues.

14.

In support of the contention that the suit was filed within the period of limitation, the learned senior counsel appearing for the plaintiffs/appellants before us submitted that there could be no right to sue until there is an accrual of the right asserted in the suit and its infringement or at least a clear and unequivocal threat to infringe that right by the defendant against whom the suit is instituted. In support of this contention, the learned senior counsel strongly relied on a decision of the Privy Council reported in AIR 1930 PC 270 [Mt. Bolo v. Mt. Koklan]. In this decision, their Lordships of the Privy Council observed as follows: “There can be no right to sue until there is an accrual of the right asserted in the suit and its infringement or at least a clear and unequivocal threat to infringe that right by the defendant against whom the suit is instituted.”

15.

A similar view was reiterated in the case of C. Mohammad Yunus v. Syed Unnissa [AIR 1961 SC 808] in which this Court observed: “The period of 6 years prescribed by Article 120 has to be computed from the date when the right to sue accrued, and there could be no right to sue until there is an accrual of the right asserted in the suit and its infringement or at least a clear and unequivocal threat to infringe that right.” In the case of C. Mohammad Yunus (supra), this Court held that the cause of action for the purposes of Article 58 of the Act accrues only when the right asserted in the suit is infringed or there is at least a clear and unequivocal threat to infringe that right. Therefore, the mere existence of an adverse entry into the revenue record cannot give rise to a cause of action.

16.

Keeping these principles in mind, let us consider the admitted facts of the case. In para 16 of the plaint, it has been clearly averred that the right to sue accrued when such right was infringed by the defendants about a week back, when the plaintiffs had for the first time come to know about the wrong entries in the record of rights and when the defendants had refused to admit the claim of the plaintiffs. Admittedly, the suit was filed on the 21^st of August, 1990. According to the averments made by the plaintiffs in their plaint, as noted hereinabove, if this statement is accepted, the question of holding that the suit was barred by limitation could not arise at all. Accordingly, we are of the view that the right to sue accrues when a clear and unequivocal threat to infringe that right by the defendants is made when they refused to admit the claim of the appellants, i.e. only seven days before filing the suit. Therefore, we are of the view that within three years from the date of infringement, as noted in Paragraph 16 of the plaint, the suit was filed. Therefore, the suit which was filed for declaration on 21^st of August, 1990, in our view, cannot be held to be barred by limitation.”

“14.

It is well settled that for a suit for declaration, referred to in Section 46, limitation begins to run not from the date of the entry affecting the right of the person concerned, but from the date when he feels aggrieved by the entry, and it is the satisfaction of such person as to when he feels aggrieved. Defendant cannot be heard to say that he (the plaintiff) felt aggrieved by the entry at some earlier point of time or when the entry was actually made.”

Final Order: