1. This second appeal raises two questions namely (1) whether the suit brought by the plaintiff is barred by time, and (2) whether the plaintiff having relinquished his own rights in a certain plot of land is entitled to bring a suit for the restoration thereof.
2. One Naunid Singh, a resident of village Barwala of the Delhi State died in the year 1935 leaving behind him Darbari Singh plaintiff, a son by one wife, and Niamat Singh and Chhotu Ram defendants, sons by another wife. On 14-6-1935 the parties appeared before a revenue officer and the land left by the deceased was mutated equally in the names of each of the three sons.
Shortly thereafter the second wife of the deceased gave birth to a posthumous son by the name of Ehup Singh. The parties again appeared before the revenue officer in the year 1938 and the said officer mutated the land in the names of all the four sons. On 25-8-1949 Darbari Singh brought a suit for a declaration that he was the owner in possession of a one-half share in the estate of his father and that the remaining half share belonged to his step-brothers the defendants. The trial Court granted a decree in favour of the plaintiff and the decree of the trial Court Was upheld by the District Judge in appeal. The defendants are dissatisfied with the order and have come to this Court in second appeal.
3. The first point for decision in the present case is whether the plaintiff's right to bring the suit has been extinguished by efflux of time. It is common ground that the mutations on the basis of which the entries in the jamabandis were made and whereby the property left by Naunid Singh was mutated in equal shares in the names of his sons were attested as long ago as 14-6-1935 and 26-4-1938, that the plaintiff's suit was instituted on 3-10-1949 and that Article 120, Limitation Act which is applicable to this case prescribes a period of six years from the date on which the right to sue accrues.
The defendants contend that the time began to run from 26-4-1938 when the second mutation was sanctioned and consequently that the suit was barred by time as it was instituted in October 1949 long after the expiry of the period of six years prescribed by Article 120.
The plaintiff on the other hand alleges that the suit 'was well within time as the plaintiff was in joint possession of the land in suit and the period of limitation commenced not on the date on which the adverse entry was made but on the date when his rights were actually interfered with. He became aware of his rights in the land on 20-1-1944, for it was on that day that the Punjab High Court held in a suit in which he appeared as a witness that the tribe to which he belonged was governed by the rule of chundawand.
4. The proposition put forward by the defendants that the right to sue accrued to the plaintiff when an adverse entry was made in the revenue papers is supported by certain authorities such as Mahabir Pattak v. Jageshar Pattak, AIR 1927 Oudh 21 (A), Sohawa Singh v. Asa Singh, 66 Ind Cas 117 : (AIR 1925 Lah 417) (B), Akbar Khan v. Turban, 31 All 9 (C) and Ghulam Hussain v. Saifulla Khan, 79 Pun Re 1917 : (AIR 1917 Lah 293) (D); but these authorities do not appear to me to lay down the law correctly.
The language of Article 120 makes it quite clear that the period of six years commenced from the date on which the right to sue accrued, that is the right to bring the particular suit with reference to which the plea of limitation was raised. 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: Allah Jilal v. Umrao Hussain, 36 All 492 : (AIR 1914 All 184) (E), Bhagwan Bakhsh Singh v. Sant Prasad, 64 Ind Cas 317 ; (AIR 1919 Oudli 80) (F) and Riasat All v. Iqbal Rai, 16 Lah 659 : (AIR 1935 Lah 827) (G). To put in a slightly different language, 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 right : Muhammad Hanif v. Ratan Chand, 3 Lah 43 : (AIR 1922 Lah 94) (H).
The plaintiff in the present case was admittedly in possession of the property jointly with his brothers and was under no obligation to sue for a declaration of his title either when the mutation was sanctioned in the year 1935 or when it was sanctioned in the year 1938. He was throughout under the impression that his family was regulated by the rule of pagwand.
On 20-1-1944 the High Court at Lahore held In Second Appeal No. 237 of 1931 (I) that the Jats of Barwala are governed by the rule of chundawand and not by that of pagwand. It is said that the plaintiff came to know of his rights on the said date and consequently that hie right to sue commenced on the said date. There is, in my opinion, considerable force In this argument. In any case the right did not accrue to him on either of the two dates on which the mutations were sanctioned.
5. The only other question which requires determination in the present case is whether the plaintiff can be said to have relinquished his rights in the property for the possession of which he has brought the present suit.
It is said that although the family to which he belongs is governed by the rule of chundawand, he appeared before the revenue officer in the year 1935 and again in the year 1938 and willingly agreed to the property being divided equally amongst the four brothers, although he could have claimed that the property should be mutated in his name and that the remaining half of the property should be mutated in the names of his three brothers. This cannot, however, be regarded as a case of relinquishment of his rights. Nor can the plaintiff be estopped by his conduct from putting forward the plea that he was in fact governed by the rule of chundawand and not by the rule of pagwand.
6. For these reasons I would uphold the orderof the Courts below and dismiss the appeal withcosts. Ordered accordingly.