1. This is a second appeal by one Mt. Salamat Begam, defendant 1, against a declaration granted by the lower Courts to the plaintiff. The following pedigree will be relevant:
Mohammad Bakhsh Ilahi Bakhs (died 1902)
| = Mt. Mammo Begam
Mohammad Husain __________________|
Riasat Husain _____________|_________________
Nadir Husain (defen- Ikram Husain (plain-
dant 3) Salamat Be- tiff)=Azizunnissa
gam (defendant 1). (defendant 2).
2. The plaintiff has asked for a declaration that he is the owner of a two biswas odd property in which the names of the contesting defendant, Mt. Salamat Begam and Azizunnissa, the wife of the plaintiff, are fictitiously recorded, and the plaintiff also asked that if he were found out of possession, possession should be awarded to him. The Court of first instance granted the declaration and held that the relief for possession was unnecessary. An appeal was filed and it was dismissed. It is apparent that the lower appellate Court also considered that the plaintiff was in possession. The documents in the case have been set forth in chronological order in the judgment of the Court of first instance and we need not set them forth again. The document in question in this appeal is dated 24th May 1905, and is a sale-deed by the heirs of one Chintaman in favour of these two ladies, the appellant Mt. Salamat Begam and Mt. Azizunnissa, wife of the plaintiff. The contention of the plaintiff was that this document was fictitiously executed in their names and was really intended ti be in favour of their husbands. On the other hand, it is contended by the appellant that the sale-deed was a genuine one and she pleads in para. 3 that the sale-deed was obtained by her husband her own money which her husband had given her in lieu of her dower debt.
3. There was no definite finding by the lower appellate Court on the point of whether this sale-deed was benami or not. We consider that the point was not pressed before the lower appellate Court although it was entered in the grounds of appeal. But as the learned Counsel for the appellant has pressed the matter we have allowed him to lay the evidence on the point before us and to argue the point. Having heard his arguments we consider that the finding of the first Court was correct and that this document was benami in the names of the two ladies, and that the real vendees were their husbands. The situation therefore is that the appellant has never been in possession of the property and that she has no legal title to it. The mere fact that she was not a party to an arbitration in 1917 therefore is of no importance as she had no legal claim to the property. Another point on which this appeal has been argued is that the suit of the plaintiff is barred by limitation. It is conceded that the proper article to apply is Article 120, Limitation Act. That article provides a period of six years from the time when the right to sue accrues. Now, in 1917 the plaintiff made an application for correction of khewat by entry of his name in place of defendants 1 and 2 and that was opposed by the appellant, and the application was dismissed. Again in 1926 the plaintiff made an application for correction of khewat, and the defendant-appellant denied the title of the plaintiff, and the application of the plaintiff was again refused. The suit of the plaintiff was brought on 23rd April 1928. This is within six years from the denial in 1926 but beyond six years from the denial in 1917. The argument of the learned Counsel for the appellant is that the subsequent denial does not' furnish the plaintiff with a fresh cause of action. In support of this learned Counsel relies on Akbar Khan v. Turabah (1909) 31 All 9. In that case there was an entry of the defendant in the khewat in 1895 and the denial of the plaintiff's title in that year. The plaintiff based his suit, which was brought in 1904, on that cause of action. It, is obvious that that cause of action was more than six years before the date of the plaint. It is also mentioned in the ruling that it was contended on behalf of the plaintiffs that a fresh cause of action accrued in 1903 when the defendant objected to the correction of the khewat. But their Lordships considered that that is not a fresh cause of action, and that the refusal to have the entry corrected was a continuation of the original cause of action in 1895. This ruling has been considered in Aftab Ali Khan v. Akbar Alt Khan : AIR1929All529 . In that it was held that the ruling in question:
was a very special case which had certain peculiar features and accordingly that case has been distinguished in numerous subsequent cases.
4. It was there laid down 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 frosh denial of title undoubtedly confers on the owner in possession a fresh right to sue.
5. We consider that this is supported by the provision of Section 42, Specific Relief Act, which states that:
any person entitled to any right as against property may institute a suit against any person' denying his title to such right.
6. There is no limitation here of a cause of action to the first denial. The cause of action arises from a denial and there is no reason whatever to limit the words of the statute. We consider that where an owner is in possession of property he acquires a cause of action on each occasion on which his rights are denied. The plaintiff therefore has a clear cause of action from the denial of his rights in 1926. The suit therefore is within time under Article 120, Limitation Act. Some argument was made on ground No. 6, but we consider that that question cannot be raised in second appeal as it was within the discretion of the Court which awarded damages against the appellant for negligence. Accordingly, we dismiss this second appeal with costs.