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Mahabir Rai and anr. Vs. Sarju Parsad and anr. - Court Judgment

LegalCrystal Citation
CourtAllahabad
Decided On
Judge
Reported inAIR1918All175; 43Ind.Cas.175
AppellantMahabir Rai and anr.
RespondentSarju Parsad and anr.
Excerpt:
.....before me that inasmuch as the plaintiffs are now held to have been in proprietary possession their claim for a mere de claration of right is barred by the statute of limitation, and that the plaintiffs' action was superfluous. ) 382 the plaintiffs had distinctly set forth their cause of action as having become complete when the entry was made in june 1883. in akbar khan..........1914 on partition of the village and the respondents contend that that was what has been called a fresh invasion of the plaintiffs' right. i should prefer to call it a fresh assertion on the part of the defendants, which amounted to a denial or repudiation of the plaintiffs' title, which gave them an independent cause of action. in the case of francis legge v. rambaran singh 20 a. 33 : m.w.n. (1897) 193 : 9 ind. dec. (n.s.) 382 the plaintiffs had distinctly set forth their cause of action as having become complete when the entry was made in june 1883. in akbar khan v. turaban 1 ind. cas. 557 : 31 a. 9 : 5 a.l.j. 637 : a.w.n. (1908) 252 : 4 m.l.t. 444 there was a finding of fact by the high court that there had been no fresh invasion. mr. justice chamier in sheopher singh v. deo narain.....
Judgment:

Walsh, J.

1. In this case the judgment is perhaps open to criticism on the ground that it does not state the facts with sufficient precision and detail. The First Court clearly held that the plaintiffs were in proprietary possession of sir lind and were entitled to the declaratory decree which they claimed. The defendants appealed, first, on ground No. 1 in the memorandum that the suit was not triable by a Civil Court and, secondly, on grounds Nos. 2, 3 and 4 of the memorandum that the evidence and finding about possession in the First Court were erroneous, that the plaintiffs' witnesses were untrustworthy, and that the claim was time-barred. The learned Judge says that there is no reason for interfering with the finding of the lower Court. I think that that is a complete adoption by the Lower Appellate Court of the findings of the lower Court.

2. There has, however, been an interesting argument before me that inasmuch as the plaintiffs are now held to have been in proprietary possession their claim for a mere de claration of right is barred by the Statute of Limitation, and that the plaintiffs' action was superfluous. In the first place, I am bound by the judgment of this Court in Francis Legge v. Ramharan Singh 20 A. 33 : M.W.N. (1897) 193 : 9 Ind. Dec. (N.S.) 382 that Article 120 of the Schedule to the Limitation Act applies to a suit for a declaration with regard to immoveable property. I think there are two answers to the appellants' contention. In this case the defendants' names were apparently entered in the khewat of 1885 and that entry no doubt gave the plaintiffs a right to sue for a declaration. There was, however, a further dealing with the matter by the Revenue Authorities in April 1914 on partition of the village and the respondents contend that that was what has been called a fresh invasion of the plaintiffs' right. I should prefer to call it a fresh assertion on the part of the defendants, which amounted to a denial or repudiation of the plaintiffs' title, which gave them an independent cause of action. In the case of Francis Legge v. Rambaran Singh 20 A. 33 : M.W.N. (1897) 193 : 9 Ind. Dec. (N.S.) 382 the plaintiffs had distinctly set forth their cause of action as having become complete when the entry was made in June 1883. In Akbar Khan v. Turaban 1 Ind. Cas. 557 : 31 A. 9 : 5 A.L.J. 637 : A.W.N. (1908) 252 : 4 M.L.T. 444 there was a finding of fact by the High Court that there had been no fresh invasion. Mr. Justice Chamier in Sheopher Singh v. Deo Narain Singh 17 Ind. Cas. 675 : 10 A.L.J. 413 held that a fresh order with reference to an entry in the revenue papers made by a Commissioner gave rise to a fresh cause of action, and he said in the case of Allah Jilai v. Umrao Hussain 24 Ind. Cas. 535 : 12 A.L.J. 810 : 36 A. 492, where he and Mr. Justice Rafique took much the same view, that his previous decision in Sheopher Singh v. Deo Narain Singh 17 Ind. Cas. 675 : 10 A.L.J. 413 had been confirmed on appeal under Letters Patent, so that the judgment in Letters Patent Appeal is binding on me. The same view was taken by Mr. Justice Piggott in Rahwatullah v. Shamsuddin 21 Ind. Cas. 609 : 11 A.L.J. 877, where he adopted the view of Mr. Justice Blair in Hahi Bakhsh v. Harnam Singh A.W.N. (1898) 215, where that learned Judge put the point, very neatly that 'as a matter of law a person is entitled to pass by an invasion of right to property and is not by his forbearance debarred from a future suit fur a future invasion.' In the second place, apart from any other consideration I think, the cause of action referred to in Francis Legge v. Rambaran Singh 20 A. 33 : M.W.N. (1897) 193 : 9 Ind. Dec. (N.S.) 382 and Akbar Khan v. Turnbm 1 Ind. Cas. 557 : 31 A. 9 : 5 A.L.J. 637 : A.W.N. (1908) 252 : 4 M.L.T. 444 must be a cause of action for a declaration contemplated by Section 42 of the specifio Relief Act. It has been called a cloud upon the title or an invasion of the plaintiffs' right. I prefer to adopt the language of the Statute: 'Any person entitled to any right as to any property may institute a suit against any person denying his title to such right.' The Court has a discretion to make the declaration, but the denial referred to in Section 42 of the Specific Relief Act must obviously be communicated to the plaintiff, in order to give him a cause of action. It is difficult to see how a claim or a statement denying title not communicated to the owner can set the Statute running against him. The plaintiffs in this case alleged and relied upon the cause of action arising in April 1914. It has been found as a fact. I think they were entitled to sue for a declaration and that the appeal must be dismissed with costs, including fees in this Court on the higher scale.


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