Skip to content


Bai Manchha Widow of Nathubhai Bhagwanji and ors. Vs. Sardar SajjadanashIn Saiyad Mahamad Baker-el-edrus - Court Judgment

LegalCrystal Citation
SubjectLimitation
CourtGujarat High Court
Decided On
Case NumberFirst Appeal Nos. 107 and 281 of 1960
Judge
Reported inAIR1963Guj168; (1963)GLR545
ActsLimitation Act, 1908 - Sections 23 - Schedule - Article 120
AppellantBai Manchha Widow of Nathubhai Bhagwanji and ors.
RespondentSardar SajjadanashIn Saiyad Mahamad Baker-el-edrus
Appellant Advocate A.M. Joshi, Adv.
Respondent Advocate S.B. Vakil, Adv.
DispositionAppeal dismissed
Cases ReferredKrishnaji Annajee v. Annajee Dhondajee
Excerpt:
limitation - continuing wrong - section 23 of limitation act, 1908 - section 23 refers to continuing wrong - essence of continuing wrong is act which creates continuing source of injury and renders doer of act responsible and liable for continuance of such injury - if wrongful act causes injury which is complete then there is no continuing wrong even though damage resulting from act may continue - in case wrongful act is of such character that injury caused itself continues then act constitutes continuing wrong. - - maharaj bahadur singh, air 1933 pc 193, the act complained of was an act of removing in a jain temple 'charans' which were impressions of the foot-prints (sic) saints, each bearing a lotus mark and replacing them by 'charans' with the toe-nails which were representations.....miabhoy, j. 1. these two appeals arise from two decrees passed by the learned civil judge (senior division), surat, on 30th of april 1957 in special jurisdiction suit no. 26 or 1951 and regular civil suit no. 1129 of 1952, by which the learned judge dismissed the suits. we may briefly mention the facts which gave rise to the two suits. there is no dispute that the respondent sardar sajjadanashin saiyed mahomed bakar-el-edrus, who is the common respondent in both the appeals, is the inamdar of the village orma situated in the district of surat, with which village we are concerned in these two appeals. there is also no dispute that the plaintiffs or their predecessors were, at all material times, the cultivators of various fields in village. originally, the plaint which was presented in.....
Judgment:

Miabhoy, J.

1. These two appeals arise from two decrees passed by the learned Civil Judge (Senior Division), surat, on 30th of April 1957 in Special Jurisdiction Suit No. 26 or 1951 and Regular Civil Suit No. 1129 of 1952, by which the learned Judge dismissed the suits. We may briefly mention the facts which gave rise to the two suits. There is no dispute that the respondent Sardar Sajjadanashin Saiyed Mahomed Bakar-el-Edrus, who is the common respondent in both the appeals, is the inamdar of the village Orma situated in the district of Surat, with which village we are concerned in these two appeals. There is also no dispute that the plaintiffs or their predecessors were, at all material times, the cultivators of various fields in village. Originally, the plaint which was presented in Special Civil Suit No. 26 of 1951 was signed by the plaintiffs thereof and the predecessor-in-title of the plaintiff of the second suit No. 1129 of 1952. However, the latter died before the presentation of the suit in the court. Therefore, the second suit was brought by the heirs of that person in the Court of the learned Civil Judge at Olpad. Subsequently, as common questions of law and fact arose in both the suits, the suit in Olpad Court was transferred, on 29th December 1952, to the Civil court at Surat and both the suits were tried and disposed off together. In the Special Jurisdiction Suit, the plaintiffs claimed a declaration that the defendant was not the owner of the suit lands and that the plaintiffs were the occupants thereof. In the alternative, the plaintffs therein claimed that they were permanent tenants of the suit-fields. In the second suit, the plaintiffs claimed an injunction only, directing the defendant to recover assessment only from the plaintiffs and nothing more. Briefly speaking, the contention of the plaintiffs in both the suits was that they were the occupants of the suit fields and that the defendant was only an inamdar entitled to recover from them the land revenue. They alleged that the defendant was not an alienee of the soil, but that he was an alienee only of the land revenue; that their predecessors-in-title were cultivating the lands long before the inam grant was made in favour of the predecessorof the defendant, and that, consequently, they had fullrights as occupants of the suit lands even from before the time the Inam grant was made in favour of that predecessor of the defendant. It is common ground that in or about 1923, plaintiffs or their predecessors were paying the defendant at a flat rate of Rs. 3-8-0 per bigha. Plaintiffs alleged that, in or about 1923, the defendant's predecessor demanded from them or their predecessors a payment at double the rate; that, for this purpose, me then Inamdar came to the village and gave a Hobson's choice to the cultivators. He called upon the cultivatorseither to sign a 'Kabuliyat' agreeing to make payment at the rate of Rs. 7/- per bigha or to vacate ths lands. The plaintiffs alleged that they or their predecessors submittedto the threat and coercion of the then inamdar and executed a 'Kabuliyat' as asked for; whereas some other cultivators of the village did not do so and vacated the lands. The plaintiffs further alleged that, in or about 1940 or 1941, the lands which had been vacated by the previous cultivators were given for cultivation to some of the plaintiffs or their predecessors. They also alleged that, in or about 1942, the defendant made them sign one document which was in the form of a rent-note. The plaintiffs alleged that the acts of the Inamdar in both the years 1923 and 1942 and the documents execute by them or their predecessors in those two years were vitiatedby intimidation and coercion and did not create any fights in favour of the Inamdar. On these allegations, the plaintiffs claimed the reliefs already set out.

2. The defendant resisted both the suits on a number of grounds, some of them of a technical nature, in respect ofsome of these defences, preliminary issues were raised by thetrial Court and these issues were taken up for decision at first as preliminary issues. The learned Judge decidedall the preliminary issues in favour of the plaintiffs except the issue of limitation. On the plea of limitation,the learned Judge came to the conclusion that both thesuits of the plaintiffs were barred by the law of limitationunder Article 120 of the Schedule to the Indian LimitationAct. On this ground alone, the learned Judge dismissed the claims of the plaintiffs. It is against this decision thatthe present two appeals have been filed and the onlyquestion which requires determination in the appeal is whether the two suits of the plaintiffs are barred by the law of limitation. As this issue was tried as a preliminary issue and no evidence was taken before deciding this issue, the averments made in the plaint will have to betaken as correct. It is on this basis that the point of limitation appears to have been argued in the trial Court and was argued in this Court. Therefore, in order todispose off the point of limitation, it is necessary toset out the averments made in the plaint on the basis of which the point of limitation has got to be decided. Inthe first six paragraphs, the plaintiffs alleged that they were the occupants of the suit lands and that the defendant was only an Inamdar of the Land-revenue and that there was no relationship of landlord and tenantexisting between the plaintiffs and the defendant, the averments which are material begin from paragraph 7of the plaint. In paragraph 7, the plaintiffs alleged that in 1923 the then Inamdar was in an indebted condition and the extent of his indebtedness was to such an extent that the Court of Wards was not willing to undertake management of his estate. The plaintiffs further alleged that, therefore, in order to increase the income of the estate, the then Inamdar came to the village in that year, armed with a gun and accompanied by armed watchman; that he put up in his bungalow at the village and called each of the cultivators separately; that the Inamdar had kept two documents ready with him; and that one document was for increasing the amount of payment from Rs. 3-8-0 to Rs. 7/- per bigha and the other document was a document of surrender. The plaintiffs further alleged that when each cultivator was called in the presence of the Inamdar, the Inamdar threatened each of them that if he did not execute any of the two documents, he would be forcibly driven away from the lands and that, thereupon, he and his children would have to starve; that all the cultivators submitted to this coercion; that some of them executed a 'Kabuliyat' and continued to cultivate the lands, whereas the others surrendered them and vacated and left the village. The plaintiffs also alleged that, at this time, the then Inamdar had given an oral assurance that, in case the financial position of ma estate improved, the old rates would be restored. It is stated that, thereafter, the management was assumed by the Court of Wards and that an enquiry was made by the authorities of the Court as to whether the documents of 'Kabuliyat' had been executed by the cultivators of their free will; that, at that time, some non-cultivators were appointed as panchas and a show was made as it the documents were executed by the executants of their own free will, and that an assurance was given at this time also that the old rates would be restored after the financial position of the estate improves. In paragraph 8, the plaintiffs alleged that the Inamdar, not only continued to recover the enhanced rate after the cessation of the management, but, again, in 1942, got a common writing executed by all the cultivators under the threat that if they did not do so, they would be evicted from the lands. In paragraph 9, the plaintiffs alleged that, for the aforesaid reasons, the two documents executed in 1923 and 1942 were void ab initio and were without consideration and also void for non-registration. In the same paragraph, the plaintiffs further alleged that inspite of the exacution of the aforesaid two documents; the plaintiffs continued to be the occupants of the lands and were liable to pay to the defendant only the land revenue assessable on the land and payable by the defendant to the Government, and that the present suit was brought by them for a declaration of this right of theirs. In paragraph 10, the plaintiffs alleged, in the alternative that even if they were not the occupants of the lands, they were permanent tenants thereof by reason of the fact that the tenancy was lost in antiquity and that, as such permanent tenants the defendant was entitled to re-cover from them only the amount of land revenue assessment as rent and was not entitled to enhence the same. In paragraph 11, the plaintiffs alleged that they had a right to recover the excess payments which they had made, but they did not claim the return of the excess payments in the present suit. Then comes paragraph 12 which is material and which we have got officially translated and the translation is as follows:

'12. The cause of action had arisen since the 'Agfahakdhari' (i.e. predecessor-in-title) of the defendantstarted recovering wrongly a heavy rate in the year 1923 A.D. and the same has continued to subsist day after day. And, the same has arisen, and had continued to subsist, also on account of the statement lastly made in that behalf, by the defendant in the application made by him, claiming a false right, to the Mamlatdar of Olpad, for recovering the payment (of assessment) for the current year'.

Paragraphs 13, 14 and 15 are formal paragraphs. In paragraph 16, reliefs are claimed which we have already set out above.

3. Now, on the question of limitation, the rival arguments were as follows. The contention of the defendant was that Article 120 applied to the facts of the case; and that the cause-of-action arose in 1923 when the first document was alleged to have been executed. In paragraph 12 of the plaint, there is no reference to any cause-of-action having arisen in 1941 or 1942, bUT, the arguments were advanced in this Court on the basis that a cause-of-action also arose for the plaintiffs in those years. If the cause-of-action arose in those two years, viz. 1923 and 1942, then, it is quite obvious that the present suits which were filed in 1951 were prima facie time-barred. In order to get over this difficulty, the plaintiffs, however, plead that Section 23 of the Limitation Act applied to the facts of the present case. It appears that, in the trial Court, no reference was made in this connection to the applications referred to in paragraph 12 of the plaint. The applications are said to have been presented to the Mamlatdar by the Inamdar for recovering the dues of the previous year. In our Court, however, in the course of the arguments, a reference came' to be made to these applications, However, at that stage, we found that, though there was a reference in the plaint to these applications, the applications were not on the record. Ordinarily, as the matter was decided as a preliminary issue and no evidence was taken, we would not have called for certified copies of the applications which were referred to in the plaint. But, we found that the defendant had not denied in his written statement the factum of his having made such applications, (sic)ere-fore, the contents of the applications were important. From the averments in the plaint, we found difficulty in understanding the exact contents of the applications. Therefore, we thought it necessary, in the interests of justice, to bring the certified copies of the applications on the record and gave an adjournment for the purpose. To-day Mr. Vakil, the learned Advocate for the defendant, produced two certified copies of the applications made by the defendant against two of the plaintiffs. Mr. Joshi does not dispute that the other applications made against the other plaintiffs were similarly worded and that the aforesaid two certified copies should be Taken as samples of similar applications made against all the plaintiffs.

On the basis of the contents of these applications, Mr. Joshi further contended that, in any case, the averments made by the defendant in these applications furnished a fresh cause-of-action and that, therefore, In so far as the plaint was based upon the allegation that the defendant had made a fresh attach in the applications on plaintiffs' title, the suit, was within time. On the other hand, the defendant contended that Section 23 of the Limitation Act did not apply to the facts of the present case, and that the averments made in the applications, dated 8th February, 1951, did not furnish a fresh cause-of-action. The defendant also relied upon Article 91 of the Schedule to the Limitation Act. He contended that the two documents of 1923 and 1942 were of such a nature as required to be set aside by a Court of Law and inasmuch as the plaintiffs had not taken steps to get the documents set aside, they constituted a bar to any (sic) prayed for by the plaintiffs in the present suits. The question of limitation has got to be decided by answering these rival contentions of the parties.

4. Now, in the first suit, as already mentioned, the prayer is for a declaration that the plaintiffs are the occupants and, in the alternative, that they are permanent tenants. In the second suit, the prayer is for a direction restraining the defendant from recovering any amount except the land revenue assessment payable on the land. It is not disputed that, having regard to these two prayers, the Article which is applicable to both the suits Is Article 120 of the Schedule to the Indian Limitation Act. That Article provides for limitation in respect of a suit for which no period of limitation is provided elsewhere in the Schedule. The period of limitation begins from the time when the right to sue accrues and the period of limitation prescribed is six years. Now, in so far as the plaints are based upon the allegations of events which took place in 1923 and 1942, there is no doubt whatsoever that the period of six years expired long before the date of the presentation of the plaints in question and, therefore, as already, staled, the prayers in so far as they are based upon the events alleged to have taken place in 1923 and 1942, they would be barred by the law of limitation. Examining the two plaints, it is quite clear that the acts which are alleged in 1923 and 1942 against the defendant's predecessor and the defendant are acts asserting a title to the suit lands and denying the status of the plaintiffs either as occupants or as permanent tenants. It is this assertion and denial which give a right to the plaintiffs to institute the suits. The expression 'accrual of the right to sue' is to be distinguished from the expression 'cause-of-action'. The latter expression comprises of a bundle of acts which it is necessary for the plaintiffs to prove in order to be entitled to the relief asked for. The former expression does not comprise all these facts, but is restricted only to that particular fact which entitles the plaintiff to institute a suit against the defendant, in the present case, it is quite obvious that in so far as the events alleged to have taken place in 1923 and 1942 are concerned, the right to sue would accrue on an assertion of a hostile title by the defendant or his predecessor and a denial of the title of the plaintiffs and their predecessors. But, as already stated, the plaintiffs seek to get over this particular difficulty by placing reliance upon the provision contained in Section 23 of the Indian Limitation Act. According to them, under this section, a right to sue accrued from day-to-day by virtue of the acts committed in 1923 and 1942 and, therefore, a fresh cause-of-action arose every day or at least every time a demand for payment of higher charges was made and that, therefore, the present suits would not be time-barred. Therefore, the main point which requires determination in the appeals is whether the facts of the case are governed by Section 23 of the Indian Limitation Act. That section provides for two types of cases, (i) the case of a continuing breach of contract, and (ii) the case of a continuing wrong independent of contract We are concerned with the latter type of ease. In respect of this type of cases, the section says that a fresh period of limitation begins to run at every moment of timeduring which the wrong continues. It is quite clear from this provision that, in order that the section may apply, it is necessary that the case must be one of a continuing wrong and the question for determination in the appeals is whether the acts on which the plaints are based are acts which can be called as continuing wrongs. Now, Mr. Joshi cited a number of cases in which Section 23 was applied. The cases cited were those deemed by the Privy Council and by some of the Indian High Courts. In our judgment, no useful purpose would be served by examining those various cases because each case was decided on its own facts and on a determination of the question whether the impugned act in each case was or was not a continuing wrong. In Rajrup Koer v. Abdul Hussein, ILR 6 Cal 394 (PC), the defendants had caused an obstruction to a water course and had thereby diverted the flow of water on to the plaintiff's land. In Hukum Chand v. Maharaj Bahadur Singh, AIR 1933 PC 193, the act complained of was an act of removing in a Jain temple 'charans' which were impressions of the foot-prints (sic) saints, each bearing a lotus mark and replacing them by 'charans' with the toe-nails which were representations of a part of human foot. In Jurawan Singh v. Ramsarenti Singh, AIR 1933 Pat 224, properties were attached by an order of a Magistrate and the attachment continued till sometime before the date of the suit. In Bhagwan Dutt v. Asharfi Lal, AIR 1934 Pat 34, the act complained of was an act of an encroachment on a public way. In each of these cases, it was held that the acts were continuing wrongs and, therefore, the suits were saved (sic) limitation under Section 23 of the Limitation Act. In none of these cases do we find any discussion as to what constitutes a continuing wrong. The tests do not appear to have been discussed or laid down in any of these cases.

But, fortunately, in Balkrishna Savalram Pujari v. Shree Dnyaneshwar Maharaj Sansthan : AIR1959SC798 . Their Lordships of the Supreme Court had directly to deal with a case under Section 23 of the Limitation Act and they have made observations which are of considerable assistance in determining the tests to be applied for deciding as to what constitutes a continuing wrong. The observations at page 195 of the Supreme Court Report are as follows:

'In dealing with this argument it is necessary to bear in mind that Section 23 refers not to a continuing (sic) but to a continuing wrong. It is the very essence of a continuing wrong that it is an act which creates a continuing source of injury and renders the doer of the act responsible and liable for the continuance of the said injury. If the wrongful act causes an injury which is complete, there is no continuing wrong even though the damage resulting from the act may continua. If, however, a wrongful act is of such a character that the injury caused, by it itself continues, then the act constitutes a continuing wrong. In this connection it is necessary to draw a distinction between the injury caused by the wrongful act and what may be described as the effect of the said injury. It is only in regard to acts which can be properly characterised as continuing wrongs that Section 23 can be invoked'.

In view of this authoritative pronouncement, we do not think it useful to consider the above authorities on which Mr. Joshi relied and on the basis of which elaborate arguments were addressed by him. In our judgment, the real task which has got to be performed in the present case is whether the acts complained of by the plaintiffs are acts which satisfy the tests laid down, by Their Lordships of the Supreme Court in the above case as to what constitutes a continuing wrong. Now, analysing the plaints, it is crystal clear that the acts complained of in 1923 were of two kinds; one against the plaintiffs or their predecessors and the other against those persons who ultimately vacated the lands. So far as the plaintiffs or their predecessors are concerned, the act which the defendant's predecessor did was to make a demand for payment of an enhanced charge. This demand implied that the plaintiffs or the predecessors were not the occupants of the lands. This implication was further emphasized by the fact that the attendant's predecessor backed the demand by a threat to evict the plaintiffs or the predecessors in case they did not execute a document acknowledging their liability to pay a higher charge. The question for consideration is whether this act or series of acts are acts which caused an injury, which was complete, or whether it was an act which created a continuing source of injury, or, in other words, whether the act was of such a character that the injury caused by that act continued even alter the commission thereof. Now, in our judgment, the aforesaid acts or series of acts were realty assertions of a title of ownership by the defendant's predecessor and a denial of the status of the plaintiffs either as occupants or as permanent tenants. These acts undoubtedly threw a cloud on the title of the plaintiffs or their predecessors to hold lands as occupants or permanent tenants thereof. These acts undoubtedly caused an injury to the aforesaid titles of the plaintiffs or their predecessors. But, in our judgment, the injury was complete the moment the act or series of ads were committed. The injury cannot be said to have continued because of the commission of these acts. Undoubtedly, because of the aforesaid series of acts, the cloud on the title of the plaintiffs or their predecessors as occupants or permanent tenants would persist. BUT, that, in our judgment, is the effect of the aforesaid series of acts on the part of the defendant's predecessors. That constituted the damnum caused by the acts and, as pointed out by Their Lordships in the above, case, the fact that the damage continues does not make an act a continuing wrong. We shall presently notice the main argument of Mr. Joshi which, according to him, made the aforesaid acts continuing wrongs after we nave mentioned the series of events which took place in 1940, 1941 and 1942. In 1940, some of the plaintiffs or their predecessors were given the lands which had been vacated by the previous cultivators. This grant obviously cannot furnish any cause-of-action to the plaintiffs. But, in 1942, it is alleged that the present defendant got executed from the plaintiffs or their predecessors a common rent-note in which those persons agreed to pay him by way of rent at the rate of the higher charge which had been fixed in 1923. Now, in our judgment, the act commuted by the defendant in 1942 in getting the rent-note executed is of the same character as the acts which were committed by his predecessors in 1923. This act also threw a cloud on the title of the plaintiffs as occupants or permanent tenants of the lands. In dealing with this question, we are assuming for the present a point which we have to resolve later on and which is the subject-matter of another controversy. We are assuming that the plaintiffs would have a fresh right to sue In 1942, although they had such a right in 1923, the remedy in respect of which had been barred by the law of limitation. But, even on this assumption, inour judgment, there is no doubt whatsoever that the act committed in 1942 was an act which was completeby itself and there was no continuing injury. The effect of this particular act may last for a long time, but, that wouldnot make the act a continuing wrong. The main point which was urged by Mr. Joshi, which, according to him, made the above series of acts continuing wrong was this. He contended that, as a result of the aforesaid series of acts, the plaintiffs were required to pay to the defendant a higher charge every year. He contended that, therefore, every year, when a demand for a higher charge was made, the injury continued, and, that being so, the act complained of was of the same kind which Their Lordships of the Privy Council had to deal with in the cases reported in ILR 6 Cal 394 (PC), and reported in . In our judgment, the argument is notvalid. The demands which were made did not constitutecontinuing injuries. The demands were the effects of the execution of the documents which the plaintiffs or their predecessors had executed in 1923 and 1942. They constituted the damage which was done to the interests of the plaintiffs or their predecessors by the series of acts which had been committed by the defendant's predecessor in 1923 and by the defendant in 1942.

In our judgment, therefore, Section 23 of the IndianLimitation Act has no application to the facts of thepresent case.

5. But, Mr. Joshi contended that, even if this be so, the applications, dated 8th February 1951, furnished a fresh cause-of-action and a new period of limitation under Article 120. Mr. Joshi canvassed for the following proposition in support of this contention, He submitted that in the case of a series of denials of the title of a person to a property, each denial was a fresh invasion of the plaintiffs' right and that, therefore, each denial furnished a right to sue within the meaning of Article 120. Mr. Joshi contended that, so long as the right of the plaintiffs to the property in dispute subsisted, the title of the plaintiffs was intact and that, every time, when a person assailed that title, the attack, on every occasion, was a new invasion, and the fact that, in spite of the previous denials, a suit or suits had not been instituted, did not prevent the title holder from bringing a suit, basing his cause-of-action upon the latter (sic). In support of this proposition, Mr. Joshi relied upon the case Ram Lal v. Thakurji Mandir, reported in AIR 1933 Lah 920. In this case, the property in dispute belonged to a temple and the title of the temple was assailed by the defendants on more than one occasion. It was field that as the property in dispute had throughout teen in possession of the temple, each denial of the title of the temple was a fresh invasion of his right and afforded a fresh cause-of-action to establish his title to the property in dispute. This particular proposition is sound in so far as it goes. But, the main question would be as to what is a fresh invasion of one's title or right. Except in the limited class of cases where title to property is extinguished by the law of limitation, the statute of limitation does not purport to extinguish any right. The effect of the bar of limitation is only to bar the remedy which the citizen has to get his right enforced through a Court of Law. In the present case, having regard to the averments in the plaint, we may assume that the right of the plaintiffs as occupants or permanent tenants has remained intact in spite of the series of acts alleged to have been committed by the defendant or his predecessors. When it is said that thepresent suits are barred by the law of limitation, it does not mean that the above rights of the plaintiffs are extinguished. The effect of the decision would be that the plaintiffs' remedy to get a declaration of their rights against the present defendant is barred. But, the fact that the right still subsists can hardly be made a good ground for ignoring the law of limitation and for granting a relief unless one comes to the conclusion that trial right has been assailed in such a way as to furnish a fresh right to sue within the meaning of Article 120. Therefore, in the light of the aforesaid principles, the question which has got to be investigated is whether the aforesaid applications, dated 8th February 1951, constitute a fresh and an independent invasion of the right of the plaintiffs as occupants or permanent tenants, if they do so, then, certainly, the plaintiffs would nave a fresh right to sue and the present suits would be in time. However, if they do not do so, then, in that case, they will not furnish a new right to sue and the action will be barred. Now, in this connection, there are two cases which are of considerable assistance in determining the aforesaid question. The first case is the case of Akbar Khan and Anr. v. Turaban, reported in ILR 31 All 9. In this case, the name of the defendant was entered in the revenue papers in the year 1895 in respect of the suit property. The plaintiffs started proceedings for rectification of the revenue papers in 1903. These proceedings were resisted by the defendant, A suit for declaration that the plaintiffs were the owners of the suit property was instituted in 1904. The defendant resisted the suit on the ground that the right to sue had arisen in 1895 and as the suit was brought after a lapse of six years, it was barred by the law of limitation. On the other hand, the plaintiffs contended that the resistance of the rectification proceedings was a fresh invasion of their right and furnished a new right to sue. This contention was rejected by the learned Judges on the ground that the resistance to the rectification proceedings was, in reality, a continuation of the previous act and did not constitute a fresh invasion of the plaintiffs' right. The second case which is of assistance is the case of Fateh Ali Shah v. Mahomed Bakhsh, reported in ILR 9 Lah 428: (AIR 1928 Lah 516). The observations are to be found at p. 445 (of ILR Lah): (at p. 522 of AIR). They are as follows:

'The principle, however, is fully established that it a plaintiff is in possession or enjoyment of the property in suit he is not obliged to sue for a declaration of title on the first or on each succeeding denial of his title by the defendant; he may look upon each (sic) with complacency or at his option may institute a suit to falsify the assertions of the other side. But when his rights are actually jeopardised by the action or assertion of the defendant then he must take proceedings within six years from the date of such actions or assertions'.

This principle has been approved by Their Lordships of the Supreme Court in Mst. Rukhmabai v. Laxminarayan, AIR 1960 SC 335. The relevant observations are to be found at page 349. In this case, it was urged that the right to sue had begun in 1916, 1920 and 1929 When certain acts were committed. In 1916, a trust deed was executed, in 1920 a house was erected on the suit site, and in or about 1929 a suit was instituted in relation to that particular property. The contention which was urged before their Lordships was that the right to sue had begun in 1916 and the suit which was instituted six years thereafter was barred by the law of limitation. The questionwhich Their Lordships had to examine was whether each of the aforesaid acts gave a right to sue to the plaintiff and their Lordships made the fallowing observations at page 343:

'The legal position may be briefly stated thus: the right to sue under Article 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 a rise to a compulsory cause of action depends upon the question whether that threat effectively invades or jeopardises the said right'.

Examining the case in the light of these observations, Their Lordships came to the conclusion that the cause of action of the trust deed in 1916, the construction of the house in 1920 and the institution of the suit in or about 1929, did not constitute such imminent threats as furnished a compulsory cause-of-action to the plaintiff, and that such an imminent and effective threat was furnished for the first time when a commissioner came to the property to divide it in accordance with the directions of a Court. From these observations, it is quite clear that the cause-of-action or a right to sue arises when the right is effectively threatened. It is also well known that when once the period begins to run, then, it does not stop unless the provisions of Section 23 of the Limitation Act apply. The same principle is to be found embodied In the observations made by Their Lordships of the Privy Council in Gobinda Narayan Singh v. Sham Lal Singh, reported in , in this case, whilst negativing the plea of limitation. Their Lordships made the following observations at p. 895 (of Bom LR): (at p. 94 of AIR):

'Their Lordships find themselves unable to accept any of these conclusions. Assuming that Article 120 applies, they think that the expression 'right to sue' in that Article means the right to bring the particular suit with reference to which the plea of limitation is raised, and that the present suit being in respect of Dendua only, the starting point for limitation must be the date when the appellants' rights of Dendua were first invades.'

Therefore, the question of limitation in so far as it is based upon the applications, dated 8th February 1951, is concerned, has got to be examined with reference to the right which was invaded for the first time in 1923. If the right which was assailed in the applications, dated 8th February 1951, was assailed already in 1923, then, the right must be taken to have been assailed in the latter year for the first time and the challenge on the right in 1951 would be only a repetition or a reiteration of the same challenge which was offered in 1923 and would not furnish a new right to sue. In our judgment, the contents of the aforesaid applications do not leave any doubt that no fresh invasion was made by those contents in 1951. What the defendant was urging in that particular year was based upon what he had urged in 1942 and what his predecessor had urged in 1923, in this application, the defendant averred that the plaintiffs were his protected tenants. Undoubtedly the word 'protected' is not to he found in the previous document, bUT, that is because that nomenclature came to be introduced for the first time and the plaintiffs acquired that status by virtue of the tenancy laws which came to be passedin the State of Bombay in 1939 onwards. But, the main stand of the defendant was the same as was taken up by him and his predecessor in 1942 and 1923. Therefore, in our judgment, the applications do not constitute a fresh right to sue and such a right does not accrue on account of the contents of that application. Consequently, in our judgment, the present suits cannot be said to have been brought within time on account of the fact that the defendant had made the aforesaid averments in the above applications. Mr. Joshi contended that, in, these applications, the defendant had not merely claimed the enhanced charges, but had further purported to claim something more. But, this has not been made a basis for the filing of the present suits. In paragraph 12, already reproduced, the complaint is against the averments regarding the title of the plaintiffs. In addition to this, it is important to notice that the defendant had obtained certain decrees on the basis of certain averments of which reference is made in the applications and he was asking for the assistance of the revenue authorities for the purpose of executing those decrees. From the averments, it is not quite clear whether the defendant was asking for enhancement of the charges or was asking for a higher rate because the land-revenue had been increased. Under the circumstances, in our judgment, the new applications did not furnish a fresh right to sue and in view of our finding that the light to sue accrued for the first time in 1923 and Section 23 of the Indian Limitation Act did not apply, the present suits were rightly held to be time-barred by the learned Civil Judge.

6. Mr. Joshi finally placed a great deal of reliance upon the principle enunciated in Chukkun Lal v. Lolit Mohan Roy, ILR 20 Cal 906 at page 924. According to him, this case decided that a suit for a declaratory relief was not barred so long as the right to the property in respect of which the declaration was sought was a subsisting right. Even assuming that such was the decision, with due respect, it is not possible to follow the decision for more than one reason. In the first instance, no law or authority has been cited in support of the aforesaid proposition. Section 23 of the Indian Limitation Act has not been referred to. It is difficult to see under what principle of law the aforesaid proposition is supported. If support was sought under Section 23 of the Indian Limitation Act or the principle enunciated therein, then, there is high authority for the proposition that that section cannot apply to the case of a continuing, right. This was so held in Krishnaji Annajee v. Annajee Dhondajee, reported in 31 Bom LR 1240: (AIR 1930 Bom 61), In which case the above Calcutta case was expressly dissented from. From the observations quoted by us from the Supreme Court case reported in : AIR1959SC798 , (sic) is also quite clear that the proposition that section 23 deals with a continuing right cannot be accepted. The same result follows from the latest Supreme court case, also above referred to, reported in : [1960]2SCR253 . That case definitely decides that a right to sue accrues when the right is effectively threatened or invaded. In the present case, it is not merely a case of effective threat, but it is a case in which definitely Injurious acts were committed by the defendant's, predecessor in 1923. The plaintiffs or their processors decided to lie by and did not choose to take any steps for the protection of their rights. We have already indicated that it may be that those rights are still intact and may not have been, in any way, effectually extinguished on account of the fact that plaintiffs are in actual and physical possession of the properties. But, in so far as the plaintiffs try to remove the cloud which was thrown upon that title either as occupants or permanent tenants in 1923, there is no doubt whatsoever that the plaintiffs are too late and their suits must be dismissed on the ground of limitation.

7. In view of our aforesaid findings, it is not necessary for us to discuss the applicability or otherwise of Article 91 of the Schedule to the Indian Limitation Act to the facts of the present case.

8. In our judgment, therefore, the appeals fail and must be dismissed with costs.

9. The appeals are dismissed with costs.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //