Knox, Blair and Burkitt, JJ.
1. This second appeal which has been referred to us for decision raises the important question by what limitation rule is a suit for a declaration of right to and of actual possession in immovable property governed? The point arises in this way. The plaintiffs, who are respondents before us, allege that they are entitled to possession of and are in possession of certain property in mauza Bataura. They say that by an order dated the 28th of June 1883, the Settlement Officer, who was then conducting settlement proceedings in the Jaunpur district, on the application of the defendant, expunged their names from the village papers in respect of the property in dispute and recorded the name of the defendant as being in possession. They further allege that they were, at the time the Settlement Officer made this entry, in possession, and that they have been in actual possession ever since up to the date of the suit, namely, the 15th of May 1895. Now, when twelve years have almost elapsed since the day when the Settlement Officer made the entry in the village papers of which they complain, and which they set forth as their cause of action, they come forward with this suit, in which they ask for a declaration both of right and of actual possession at the date of the suit in respect of the property in suit. The contention raised before us is that their suit was barred at the time they instituted it. The appellant bases his contention upon this, that there is no article in Schedule II of the Indian Limitation Act of 1877 which would apply to the suit as brought, and that therefore it must fall within the purview of Article 120, an article which provides only six years within which to bring the suit from the date of the cause of action. If this contention is right, the suit is undoubtedly barred. The respondents seek, on the other hand, to bring the suit, though expressly described as a suit for a declaration of right to and of possession in immovable property, under Article 141, which provides for suits for possession of immovable property or of any interest therein. It seems to us that there is the widest possible difference between a suit for a declaration such as is asked for in this suit and a suit for actual possession of immovable property. In a suit to which Article 144 would apply, there must be a prayer, express or implied for the dispossession of some one from the property or from the interest in it which the suit claims. In the present suit the plaintiffs have most distinctly asserted that they are and have all along been in possession, of the property. There is no one to be dispossessed from it or from any interest in it. All that they want removed is a cloud, which they say was cast upon their title almost twelve years before the institution of the suit. We ought to notice that before this contention was laid before us it was contended by the learned vakil for the respondents that this was a suit to which, to use his own words, no limitation applies. He cited in aid Section 23 of the Limitation Act, and contended that this was a case of a continuing wrong; that as long as what he contended to be the wrong entry in the village papers continued on record so long a fresh cause of action accrued every day. In the first place, this is not the allegation in the plaint, which sets forth a distinct cause of action as having accrued and become complete on the 28th of June 1883. Secondly, the act of the Settlement Officer, if it was a wrong to the plaintiffs, was a wrong committed once for all, and was very properly described as being the cause of action upon which the plaintiffs came into Court.
2. With regard to the contention that the suit fell within Article 144, the learned vakil cited as the leading case in his favour Moru Bin Patlaji v. Gopal Bin Satu I.L.R. 2 Bom. 120. That case, if we may so put it, was a very frail reed on which to rest so heavy a contention. The two Judges who were first seised of the case differed in opinion. One of them, it is true, appeared to be in favour of the view now urged upon our notice by the respondents. The Judges being divided in opinion, the plaintiff in that suit preferred an appeal under the Letters Patent, and thereupon it was held that the question of limitation was not one which could properly be raised in the suit. Another case which certainly does favour the respondents' contention is that of Debi Prasad v. Jafar Ali I.L.R. 3 All. 40. We cannot concur in the remarks of Mr. Justice Oldfield in that case, which are set out on page 45. The learned Judge himself must soon have felt considerable doubt as to the view he took in that case, for we find him in Durga v. Haidar Ali I.L.R. 7 All. 167, expressly holding that claims declaratory in their nature were governed by Article 120 of the Indian Limitation Act of 1877. To the same effect is the case of Bhikaji Baji v. Pandu I.L.R. 19 Bom. 43, which was brought to our notice by the learned Counsel for the appellant. The same learned Counsel drew our attention to what the Privy Council had held in Mahomed Riasat Ali v. Hasm Ranu I.L.R. 21 Cal. 157. At page 163 their Lordships discuss the limitation applicable to such a suit, and say that Article 120 should be applied unless it is clear that the suit is within some other article. We can find no such article, and no such article has been pointed out-to us. We hold that the suit when instituted was barred by limitation and could not be maintained. We therefore allow this appeal, set aside the judgment and decree of the Court below and direct that the suit stand dismissed.
3. As regards costs, we think that, as the point was not raised in any of the Courts below, we should make no order, and we make none.