1. This is an appeal filed by Hazari and another, plaintiffs against the judgment dated January 14, 1972 of the Senior Sub-Judge, Gurgaon dismissing their appeal with costs against the judgment and decree dated April 14, 1971, of Sub-Judge II Class, Gurgaon, whereby he dismissed their suit for declaration against the defendant.
2.The following pedigree table will be useful in understanding the facts of this case:-
Bhiman_________________________|_________________________| | |Hazari (plaintiff No. 1) Kundan alias Kundan Lal Ramji Lal(Plaintiff No. 2)|Roop Narain(defendant-respondent)
3. The facts of this case are that Ramji Lal, who is the father of Rup Narain respondent-defendant was adopted as his son by his material grand-father Rur Mal, resident of Rajasthan about 60 years ago. Bhiman, the common ancestor of the parties to the suit died in or about the year 1910, but in spite of the adoption of Ramji Lal, the revenue authorities mutated the land of Bhiman in equal shares in the names of his three sons, Hazari, Kundan and Ramji Lal on December 17, 1910, vide copy of the mutation order. Exhibit D-6, Ramji Lal died and his shares in this land was mutated in the year 1921 in the names of his two sons, Rup Narain and Shiv Datt vide Exhibit D-8. Shiv Datt son of Ramji Lal died without issue and on his death his share in the land was mutated in the name of his widow Mst. Kaushalya. The death of Mst. Kaushalya took place in the year 1946 and her share in this land was mutated by the revenue authorities in the name of Rup Narain, defendant-respondent, the brother of her husband Shiv Datt, vide copy of the mutation order, Exhibit D-7. The case of the plaintiffs-appellants is that since Ramji Lal was adopted by his material grandfather, therefore, he was transplanted into that family and was not entitled to inherit the land of his father Bhiman along with them and the entries made in the revenue records were not binding on them and that neither Ramji Lal nor any of his sons, including the defendant Rup Narain ever remained in possession of this land and that they have been in possession of this land since the time of the death of their father as owners. During the consolidation of holdings, which took place in this village, the share of Kundan alias Kundan Lal plaintiff was separated. However, the remaining land continued to be recorded as jointly owned in the revenue records by Hazari plaintiff and Rup Narain defendant in equal shares. On the basis of these wrong entries in the revenue records Rup Narain wanted to interfere with their possession. The plaintiffs, therefore, brought this suit for a declaration to the effect that Hazari plaintiff was entitled to 3/4th share in the land in suit while Kundan plaintiff No. 1 was entitled to 1/4th share in this land and Rup Narain had no right in the land in suit and that the entries in the revenue records were wrong and the defendant may be restrained from interfering with their possession. The suit was contested by the defendant on various grounds. He denied that the plaintiffs were the exclusive owners of the land in suit. He pleaded that the suit was barred by limitation and that the plaint was not properly stamped with court-fees and the plaintiffs were estopped from filing this suit. He averred that Kundan plaintiff was a tenant under him of this land. On these pleadings of the parties, the following issues were framed by the trial Court:--
(1) Whether Ramji Lal had been validly adopted by Rur Mal during the life-time of Bhiman?
(2) Whether the plaintiffs are owners of the land in dispute?
(3) Whether the plaintiffs are estopped from filing the present suit?
(4) Whether the suit has been properly valued for purposes of Court-fee?
(5) Whether the suit is within limitation?
(5-A) Whether plaintiff No. 2 is a tenant under the defendant? If so, to what effect?
Subsequently, the defendant made an application for amendment of the plaint, which was allowed. After this amendment, the following additional issues were framed by the trial Court:--
(6) If issue No. 1 proved, whether the adoption was merely a customary appointment of an heir and under what custom, if so, its effect?
(7) If issue No. 2 is proved, whether the defendant has been owner of the suit land by adverse possession?
(8) Whether the parties are governed in the matter of adoption by the customary law prevailed in Rewari Tehsil?
4. The trial Court held that the parties were governed by customary law and Ramji Lal was the adopted son of Rur Mal under the custom and decided issues Nos. 1, 6 and 8 accordingly. Issues Nos. 2 and 5 were decided against the plaintiffs and issue No. 4 was decided in favour of the plaintiffs. Issues Nos. 3, 5-A and 7 were decided against the defendant. As a result, the suit of the plaintiffs was dismissed with no order as to costs. Feeling dissatisfied, Hazari and Kundan Lal plaintiffs filed appeal against this decree in the Court of the Senior Sub-Judge. Before the Senior Sub-Judge, the decision of the trial Court on issues No. 5 and 6 was only contested. The learned Senior Judge held that even if the appointment of Ramji Lal was made under he customary law, he could not succeed to the property of his father Bhiman along with his brothers Hazari and Kundan and, therefore, he reversed the finding of the trial Court on this issue that Ramji Lal could inherit this property of his father along with his brothers. He held that the suit was barred by limitation and affirmed the finding of the trial Court on issue No. 5. As a result, he dismissed the appeal of the plaintiffs with costs. Feeling dissatisfied, they have filed this second appeal.
5. Mr. Chandra Singh, the learned counsel for the appellants contested the decision of the lower appellate Court on issue No. 5 only. It is admitted that this suit is covered by Article 120 of the Limitation Act, 1908 and Article 113 of the Indian Limitation Act, 1963. This article reads as follows:--
Description of suit Period of limitation Time from which period begins to run.
Any suit for which no period of limitation is provided elsewhere in this Schedule Three years When the right to sue accrues.
However, under Article 120 of the old Limitation Act, the period of limitation was six years.
The period of limitation under this article begins to run from the date when the right to sue accrues to the plaintiff. The lower appellate Court held that the defendant Rup Narain applied on April, 3, 1961 vide application Exhibit D. 2 to get his pass-book regarding the land allotted to him and Hazari plaintiff from the authorities of the Consolidation Department and that this act of the defendant jeopardised the interest of the plaintiffs in the land in suit and the time to file suit started running from that date and the present suit which was filed in the year 1969 was barred by limitation. The view taken by the lower appellate Court is incorrect. Application to get pass-book is not such an act of the defendant that would actually jeopardise the rights of the plaintiffs in the land. It is well settled law that if the plaintiff is in possession or enjoyment of the property in suit despite an adverse entry in the revenue papers, 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. 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. Where there are successive invasions or denials of a right, the right to sue under Article 120 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 jeopardizes the said right, vide Mst. Rukhmabai v. Laxminarayan, AIR 1960 SC 335, Fateh Ali Shah v. Muhammad Bakhsh AIR 1928 Lah 516 and Niamat Singh v. Darbari Singh, AIR 1956 Punj 230.
6. The law laid down in the above case is aptly applicable to the present case. The facts of this case, which are given in detail in the earlier part of this judgment, are not disputed. In the instant case, Bhiman, the common ancestor of the parties died in the year 1910 and the mutation of his inheritance was sanctioned in the names of his three sons, Hazari and Kundan plaintiffs and Ramji Lal in equal shares on December 15, 1910, by the revenue authorities, vide Exhibits D-6 and P-11. The plaintiffs admittedly have been in continuos possession of the whole land from that date uptill now. Therefore, they were under no obligation to file this suit for declaration of title to this property. At no time Ramji Lal or his son Rup Narain defendant were in actual possession of any portion of this land. Ramji Lal died and his share in this land was mutated by the revenue authorities in the names of his two sons, Shiv Datt and Rup Narain. On the death of Shiv Datt, his share was mutated by the revenue authorities in the name of his widow Mst. Kaushalya and after the death of Mst. Kaushalya, which took place in the year 1946, her share was mutated in the name of Rup Narain, defendant-respondent, vide Exhibits D-6, D-7 and D-8. Consolidation of holdings took place in this village in the year 1960-61 and during those proceedings, Kundan Lal plaintiff got his share in this land in suit separated. However, the remaining land continued to be recorded as jointly owned by Hazari plaintiff and Rup Narain defendant in equal shares. Rup Narain defendant made an application, whose copy is Exhibit D. 2 to the revenue authorities on April 3, 1961 to get a pass-book of the land allotted jointly to him and Hazari showing the land allotted to him. All these facts were innocuous and ineffective in nature and did not constitute any clear and unequivocal threat to jeopardise the ownership right of the plaintiffs in the land in suit and they were not obliged to file any suit for declaration. Consequently, the time did not start to run against them from the aforesaid acts. However, in or about the year 1969, the defendant openly started denying the title of the plaintiffs to this land and started proclaiming that he was a co-sharer in the land and he would get it partitioned. This was a threat given by the defendant denying the title of the plaintiffs and they filed the present suit in the year 1969. The defendant actually obtained copies of jamabandi and started proceedings for partition of the land before the revenue officers. These acts of the defendant constituted clear and unequivocal threat to the rights of the plaintiffs and the plaintiffs immediately filed this suit. The limitation started running under Article 113 of the Limitation Act from these threats of the defendant denying the title of the plaintiffs and, therefore, the suit was clearly within limitation. It is, therefore, held that the suit of the plaintiffs-appellants is within time and I decide issue No. 5 in their favour and the decision of the lower Courts that the suit is barred by limitation is reversed.
7. No other point was urged.
8. As a result the appeal is accepted, the judgments and decrees of the Courts below are set aside and the suit of the plaintiffs is decreed. In view of the point of law involved, the parties are left to bear their own costs throughout.
9. Appeal allowed.