1. Tulsi Ram was the original owner of the land in suit. He had three sons Sant Lal, Harbans Lal, and Baru. Baru died in 1927 leaving behind his widow Smt. Raji. Harbans Lal died a year or two later leaving behind his widow Smt. Daropadi. Smt. Raji died in 1945 without any issue and the estate of Baru was divided between Sant Lal and Smt. Daropadi half and half. Sant Lal died on August 17, 1956, leaving behind his widow Smt. Ram Piari, four sons, namely Kanti Parshad alias Kanta Parshad, Mani Ram alias Mani Karan, Devi Dayal and Amrit Lal and three daughters, namely Smt. Pushpawati, Smt. Sona Devi and Smt. Savitri Dev. Smt. Daropadi died in 1958 leaving behind one daughter, Smt. Sewti Devi Appellant. The land in suit is situate in three villages and the mutations with regard to the estate of Baru after the death of Smt. Raji were sanctioned in favour of Sant Lal and Smt. Daropadi half and half in June, 1945, in the absence of the parties on the attestation of the Lambardars of the villages. It is the admitted case of the parties that the land in suit was under the tenants and chakotedars and Sant Lal used to realise the batai from them and hand over half of it to Smt. Daropadi during her life time. In 1961, Smt. Sewti filed a suit against Kanti Parshad and others, the heirs of Sant Lal, in the court of Revenue Officer, Ambala, claiming rendition of accounts with regard to the amounts recovered by them from the tenants and payment to her of her one half share.
It was stated in para 1 of the plaint that Santa lal father of defendants 1 to 4 and 6 to 8 and husband of defendant 5 of that suit and Smt. Daropadi widow of Harbans Lal, mother of the appellant, were owners in possession of the land in suit in equal shares. Sant Lal had died on August 17, 1956, and the heirs did not pay one-half share of the rent realised with regard to the land to Smt. Daropadi Devi and after her death to the appellant, that is, Smt. Sewati, Kanti Parshad and other heirs of Sant Lal filed a written statement in which para 1 of the plaint was admitted as correct that is, Sant Lal and Smt. Daropadi Devi were owners in possession of the land in suit in equal shares. It was further pleaded that one-half share of the rent realised from the tenants had been paid to Smt. Daropadi Devi during her life time and Smt. Sewti had no right to file the suit for rendition of accounts. It was further stated that there was no question of rendition of accounts because after the death of Smt. Daropadi Devi the husband of Smt. Sewti had been receiving the produce of her share along with the defendants, that is, Kanti Parshad and others. Kanti Parshad appeared as a witness in that suit and reiterated that he and Smt. Daropadi used to receive the batai from the tenants and the amount of chakota half and half and that the land was being managed by him and Smt. Daropadi Devi.
It is clear from these three documents that is, the plaint, the written statement and the statement of Kanti Parshad in the Revenue Court, that the claim of Smt. Sewti to one-half share of the land in suit had not been denied and it was pleaded that Smt. Daropadi had been paid one-half share of the produce every year. Smt. Sewti filed proceedings for partition before the Revenue Officer in 1961 which prompted Kanti Parshad, Mani Ram, Devi Dayal and Amrit Lal to file the suit, out of which the present appeal has arisen, for a declaration to the effect that the plaintiffs were owners of 2/3rd share of the land in suit and that they had been wrongly recorded as the owners of one-half in the jamabandis. The suit was filed against Smt. Sewti defendant 1, and widow and daughters and Sant lal, defendants 2 to 5. It was claimed that on the death of Smt. Raji on February 5, 1945, her 1/3rd share was succeeded to by Sant Lal alone and not by him and Smt. Daropadi in equal Shares because Harbans lal and pre-deceased Smt. Raji Sant Lal thus became the owner of 2/3rd share, that is 1/3rd his own and 1/3rd of Baru. By mistake the revenue authorities, instead of attesting the mutation of inheritance in favour of Sant Lal exclusively, effected the mutation in favour of Smt. Daropadi and Sant Lal in equal shares in the absence of the parties, which mistake has continued to persist.
2. The suit was resisted by Smt. Sewti who asserted that her mother had succeeded to the estate of Smt. Raji half and half along with Sant Lal and her claim to that one-half share had been accepted by Sant lal. Estoppel and limitation were also pleaded. On the pleadings of the parties, the following issues were framed:--
1. Whether Sant Lal alone was entitled to succeed to the estate of Baru in the hands of Smt. Raji?
2. Whether there was any special custom governing the parties according to which Smt. Daropadi could equally succeed with Sant Lal to the estate of Baru in the hands of Smt. Raji?
3. Whether the plaintiffs are estopped from filing this suit?
4. Whether the suit is barred by limitation?
The learned trial court decided all the issues in favour of the plaintiffs and decreed their suit on August 24, 1963. The appeal of Smt. Sewti was dismissed by the learned first appellate curt on September 14, 1964 and her second appeal was dismissed by the learned Single Judge on March 26, 1970. The present appeal under clause 10 of the Letters Patent has been filed against the judgment and decree of the learned Single Judge with his leave.
3. The learned counsel for the appellant has argued that the decision of all the courts with regard to issues 1, 3 and 4 is erroneous in law. Smt. Raji died on February 5, 1945 and the mutations with regard to the share of her husband Baru were sanctioned in favour of Smt. Daropadi and Sant Lal in equal shares and the entries in the revenue records were made accordingly. Not only that the entries in the revenue records were made but Sant Lal accepted that position and gave her one-half of the produce of the land received from the tenants and chakotedars every year. Thus the right of Smt. Daropadi to succeed to the estate of Baru after the death of his widow Smt. Raji along with Sant Lal in equal shares was recognised by Sant Lal and was never objected to. The respondents admitted the claim of Smt. Daropadi and after her death of Smt. Sewti appellant to one-half of the land in the suit for rendition of accounts which Smt. Sewti filed against the respondents in the revenue court. It was only when she filed the suit for partition on the basis that she was owner of one-half of the land in suit that Kanti Parshad and other plaintiffs filed the suit for declaration that they were entitled to 2/3rd share of the land.
4. The matter can be looked at in two ways, that is, either Smt. Daropadi was entitled to inherit the state of Baru after the death of his widow Smt. Raji equally with Sant Lal or she was not so entitled. If she was entitled to succeed then the plaintiff-respondents have no case. If she was not entitled to succeed and her right to succeed was accepted and acknowledge by Sant lal, then the suit filed by the plaintiff-respondents is clearly barred by time. The challenge to the right of Sant Lal to succeed to the estate of Baru after the death of his widow Smt. Raji to the exclusion of Smt. Daropadi, was made by Smt. Daropadi right from the beginning. Thus there was not only an invasion but an erosion of that right in February, 1945, or in any case in June, 1945 when the mutations were sanctioned. Those mutations and the consequent entries in the revenue records were never challenged by Sant Lal during his lifetime nor were they challenged by the plaintiff-respondents till they filed the present suit. The cause of action for the present suit, therefore, arose to Sant Lal or his successors-in-interest on the first day when Sant Lal's exclusive right was invaded and not when the suit for rendition of accounts was filed or the proceedings for partition of the land were taken by Smt. Sewti. It was not a case in which in spite of the entries in the revenue records Sant Lal continued to enjoy 2/3rd share of the property and not one-half. If that had been the case, every successive invasion of his rights would have given him a cause of action because unless he was deprived of his legitimate share of 2/3rd he had no cause to seek a declaration by filing a suit.
In that case it could be said that the cause of action arose to the plaintiff-respondents when Smt. Sewti filed the proceedings for partition of the land. As I have said above, in this case Sant Lal admitted the right of Smt. Daropadi to one-half of the estate left by Baru after the death of his widow and he curtailed his own right on that day because of the claim put forth by Smt. Daropadi which he did not resist. It cannot, therefore, be said that the suit for rendition of accounts filed by Smt. Sewti in the revenue court or the filing of the partition proceedings gave a fresh cause of action to the plaintiff-respondents. The cause of action had accrued to Sant lal the predecessor-in-interest of the plaintiff-respondents on the death of Smt. Raji, when Smt. Daropadi asserted her right to half of the estate left by her. The various decisions relief upon by the learned counsel for the plaintiff-respondents are, therefore, distinguishable on this basis. These judgments are:--
1. Robert Skinner v. Shanker Lal (1909) 1 Ind Cas 556 (All). In that case defendant's name was entered in the khewat of the property in suit in spite of plaintiffs' objections by order of the Settlement Officer, on the 5th May 1899. On the strength of the entry the defendant, on the 5th May, 1903 instituted a suit for profits of the share in respect of which he had got his name entered. On the 27th of July 1905, plaintiffs brought the suit for declarations of their right to property, It was held that the plaintiffs got a fresh cause of action for asking for a declaratory decree, when the defendant sued for profits n the 5th May, 1903, and the suit was, therefore, within time. It is apparent from the facts that apart from the revenue entry no other damage was done to the right of the plaintiffs. The first damage to their right was done by the suit filed on May 5, 1903, by the defendant for profits of his share.
2. Muhammad Hanif V. Ratan Chand, AIR 1922 Lah 94. In that case, the defendant denied the title of the plaintiff in 1895 which gave him a cause of action to sue for a declaration but he remained in joint possession of the undivided portion of the shamilat and his enjoyment thereof was not interfered with. It was held that when fresh proceedings for partition began and the defendant again denied plaintiff's title to a share, there was fresh invasion of the plaintiff's title which gave him a fresh cause of action. It is apparent that the defendant's denial of plaintiffs's title in 1895 had no effect on the enjoyment of the property by the plaintiff and, therefore, there was no need for him to file a suit till his right was jeopardised.
3. Bhagwan Bakhsh Singh v. Sant Prasad, (1920) 54 Ind Cas 317=(AIR 1919 Oudh 80). In that case, it was held that where a person continues in possession of his property in spite of a contrary entry appearing in the Khewat, no question of limitation or adverse possession can arise in a suit filed by him for declaration of his title.
4. Niamat Singh v. Darbari Singh. AIR 1956 Punj 230, wherein it was held (as per head note A) that- '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. In other words, 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 rights.'
In that case, one Naunid Singh a resident of village Barwala of the Delhi State died in the year 1935 leaving behind him Darbari Singh, a son by one wife and Niamat Singh and Chhotu Ram defendants sons by another wife. On June 14, 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 Bhup 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 August 25, 1949, Darbari Singh brought a suit for a declaration that he was the owner in possession of 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 that decree was upheld by the District Judge in appeal. The defendants were dissatisfied and filed a second appeal in the High Court and it was contended on their behalf that the time began to run from April 26, 1938, when the second mutation was sanctioned and consequently, 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 Art. 120 of the Limitation Act. The plaintiff, on the other hand, alleged that the suit as well within time as he 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 January 20, 1944, on which date 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. From that date the suit was within time, since a great reliance has been placed on this judgment, I have set out the facts in detail in order to show the distinction between them and the facts of the present case.
In the present case, it is nowhere stated that Sant Lal was not aware of his right to inherit the estate of Baru after the death of his widow Smt. Raji to the exclusion of Smt. Daropadi and that the plaintiffs also did not become aware of that position till they filed the suit, it is significant to note that even in 1961 they accepted that Smt. Sewti was entitled to one-half share of the produce of the land received from the tenants and chakotedars in the course of the suit before the Revenue Court for rendition of accounts. The cause of action in the present case had arisen to Sant Lal on the death of Smt. Raji and from that date the suit was clearly barred by time even on the decision in Niamat Singh's case. AIR 1956 Punj 230 on which great reliance has been placed.
5. The learned counsel for the plaintiff-respondents has strongly relied on the observations of their Lordships of the Supreme Court in Mst. Rukhmabai v. Lal Laxminarayan, AIR 1960 SC 335, contained in paras 31 to 33 of the report. In our opinion, however, those observations go against the plaintiff-respondents. In para 33, their Lordships stated the legal position as under:--
'The right to sue under Art. 120 of the Limitation Act 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.'
In the instant case the claim was asserted by Smt. Daropadi in 1945 and her claim was admitted by Sant Lal. Since Sant Lal's right had been effectively invaded or jeopardised by the assertion of her right by Smt. Daropadi, it was at that time that the cause of action accrued to Sant Lal to file a suit for declaration that he alone was entitled to the estate of Baru after the death of his widow Smt. Raji.
6. In Akbar Khan v. Turaban, (1909)1 Ind Cas 557 (All) a decision of a Division Bench of the Allahabad High Court, the facts were that in 1904 the plaintiff sued for a declaration that they were entitled to certain property mentioned in the plaint. In 1895, the name of the defendant was entered in the revenue papers in respect of this property and the title of the plaintiffs was denied. It was held that the limitation applicable to the suit was that prescribed by Art. 120 Schedule II to the Limitation Act, 1877, and should be computed from the date on which the cause of action arose. It was further held that the cause of action arose in that case in 1895, and the suit was consequently barred by time. The fact that in 1903, the defendant successfully resisted the plaintiffs' attempt to have the khewat entries corrected did not give the plaintiffs a fresh cause of action. The refusal to have the entry corrected was a continuation of the original cause of action. These observations squarely apply to the facts of the present case. Every time Smt. Daropadi claimed and received one half of the produce of the land from Sant Lal on account of her share, it was continuation of the original cause of action. The filing of the suit for accounts and the proceedings for partition by Smt. Sewti were also continuation of the original cause of action which had arisen to Sant Lal in 1945. To the same effect is the judgment of a Division Bench of the Lahore High Court in Ghulam Hussain v. Saifullah Khan, AIR 1917 Lah 293.
In that case, the plaintiffs' father sold a certain land to the defendants in 1886. Apart from the sale the plaintiff and defendants were co-sharers in the shamilat. Partition proceedings were commenced in 1899 in respect of the shamilat, and the plaintiffs urged that they were entitled to the share which appertained to the land sold by their father. The defendants alleged that the sale in their favour included the share of the shamilat. In March, 1900, the settlement Officer decided the question in defendants' favour. The partition proceedings were then stayed for some time owing to civil litigation relating to some other land, but in 1907, they were resumed at the instance of the defendants and the plaintiffs then renewed their claim. The defendants replied that the matter had been settled by the Settlement Officer's decision of March 1900. In 1909 the plaintiffs sued for a declaration that they were entitled to the share of the shamilat appertaining to the land sold by their father. It was held-
'(1) that the defendant's act in moving the Revenue authorities in 1907 to proceed with the partition did not constitute an attack on the plaintiff's title in as much as the defendants were co-sharers in the shamilat apart from their purchase from plaintiffs' father and as such had a right to apply for partition;
(2) that the resistance by the defendants in 1907 to the plaintiffs' claim was merely a reiteration of their former resistance and did not constitute a fresh invasion of the plaintiffs' title, so that the plaintiffs' suit was barred by Article 120 of the Limitation Act.'
On the basis of the above discussion, we hold that the suit of the plaintiffs was barred by time as the cause of action for the suit had really arisen in 1945 and the death of Smt. Raji or on the sanctioning of the mutations in favour of Sant Lal and Smt. Daropadi in equal shares with regard to her estate. The suit having been filed in 1962 was clearly barred by time. Issue No.4 is therefore, decided against the plaintiff-respondents.
7. The decision of issue No. 1 has not been challenged before us and, therefore, the decision of the lower Courts on that issue is affirmed.
8. Issue No.3 relates to estoppel and in the facts of this case we are of the opinion that the plaintiffs are estopped from filing the present suit, in view of the conduct of their father Sant Lal during the lifetime and their own conduct till they filed the suit out of which the present appeal has arisen. Sant Lal and the plaintiff-respondent had admitted that Smt. Daropadi and after her death Smt. Sewti as her heir, were entitled to half o the land left by Tulsi Ram. That land had gone to his three sons in equal shares after his death and after the death of Baru and his widow that 1/3rd share was inherited by Smt. Daropadi widow of Harbans Lal and Sant Lal in equal shares. This state of affairs had been brought about by Santa Lal by admitting the claim of Smt. Daropadi to half of the estate of Baru after Smt. Raji's death and the plaintiff-respondents cannot be allowed to change their position after the expiry of 17 years. Issue No.3 is also decided against the plaintiff-respodents.
9. The result is that this appeal succeeds and is accepted. The suit of the plaintiff-respondents is dismissed with costs throughout.
10. Appeal allowed.