T.U. Mehta, J.
1. The question which is involved in this appeal is whether putting up of an obstruction on a piece of land which is required to be kept open by a decree of permanent injunction granted by a Civil Court, amounts to a continuing wrong as contemplated by Section 23 of the limitation Act, 1908 or not.
2. Short facts of the case are that the appellant of this appeal is the Kalol District Municipality against whom the present respondents have obtained a decree for perpetual injunction restraining the appellant from alienating 50 feet of public street land situate near Railway Station at Kalol in Mehsana District and directing it to keep the said land open permanently for public road. The said decree was obtained by the respondents in suit No. 61 of 1947-48 from the court of the Civil Judge at Kalol. The decree was passed on 18-4-50. It is found that thereafter several cabins were erected on the disputed land, with the result that the respondents gave a darkhast for their removal. This Darkhast was registered as execution application no 35/50, but it was disposed off as withdrawn on 29-3-1952. Thereafter another Darkhast was given in the year 1957 being execution application no 129/57 but even that darkhast was withdrawn on 31st August, 1959. Thereafter Darkhast No. 142 of 1959 was filed by the respondents on 8th October 1959 for the removal of these cabins. It is this Darkhast out of which the present appeal has arisen.
3. The appellant-municipality has contended in this last Darkhast that the same is barred by limitation in as much as the second darkhast which was No. 129/57 was not preferred within three years from the date on which the cabins were constructed, or within three years from the date on which the first darkhast was disposed off. The learned judge of the executing court accepted this contention of the appellant-Municipality and dismissed the execution application. In appeal which was preferred by the present respondents before the district court the said view of the executing court was upheld, with the result that the present respondents approached this Court in Second Appeal No. 516 of 1965. This second appeal was heard by S.H. Sheth, J. Who took the view that the wrong which was committed by the construction of the cabins on the disputed land was a continuing wrong which was covered by Section 23 of the Indian Limitation Act, 1908, which is hereinafter referred to as the Act, and therefore, no question of limitation arore in this case. Being aggrieved by this decision, the appellant municipality has preferred this letters patent appeal.
4. It is an admitted position that this being an application for executing a decree for permanent injunction, Article 182 of the first schedule of the Act has no application because Section 48 of the Civil Procedure code which bars the execution after the expiration of 12 years from the date of the decree sought to be executed has no application to the cases where a decree granting an injunction has been passed. Article 182 of the first schedule of the Act provides for the limitation of the three years from the date of the decree where the decree of a Civil Court, which is not provided for by Section 48 of the civil procedure code, is passed. It is obvious that in a decree for permanent injunction the right to file the execution application does not necessarily arise or accrue on the date of the decree because it arises only when a breach of the injunction is committed by the judgment-debtor. That being the position, Article 182 would have no application, but Article 181, which is the residuary article, and which contemplates the applications for which no period of limitation is provided elsewhere in the first schedule or by Section 48 of the Civil Procedure Code, applies. The period of limitation in cases where Article 181 applies, runs from the time when right to make an application accrues. Therefore, in cases where a breach of a permanent injunction granted by a decree takes place limitation would run from the date of the breach or the wrong in question. But if the wrong is a continuing wrong, the case would be governed by Section 23 of the Act which is in the following terms:
In the case of a continuing breach of contract and in the case of a continuing wrong independent contract, a fresh period of limitation begins to run at every moment of the time during which the breach or the wrong, as the case May be, continues.
Section 3 of the Act, which contemplates dismissal of suits instituted after the period of limitation, is made specifically subject to the above quoted Section 23, and therefore, if the case falls within the ambit of Section 23, no question of limitation would ordinarily arise to be considered. Section 23 of the Act obviously contemplates the cases of continuing wrongs, and not of continuing rights, and provides that in case of a continuing wrong, limitation begins to run at every moment of time during which the wrong continues. Therefore, if the erection of cabins on the disputed land constitutes a continuous wrong then that wrong must be taken as having been continued upto the date on which the Darkhast out of which this appeal has arisen was filed, in which case, no question of limitation would arise. However, if the said erection consists of a single and a completed as well as self contained Act of tort, limitation would start from the date of that Act and the Darkhast would be time barred, inasmuch as the second Darkhast filed in the year 1957 was not filed within three years after the disposal of the first darkhast. The question, therefore, is whether the erection of cabins on the disputed land in breach of the injunction granted by the court is a single, self contained and a completed wrong or a continuing wrong.
5. The essence of a continuing wrong is that the Act complained of creates a continuing series of injuries and is of such a nature that it renders the doer of that Act responsible for the said continuance. This particular principle is explained by Tek Chand J. In a full bench decision given by Lahore High Court in Khair Mohd. Khan and Anr. v. Mt. Jannat and Ors. A.I.R. 1940 Lahore, 359, wherein it is explained that where the injury complained of is complete on a certain date there is no continuing wrong even though the damage caused by that injury might continue. In such a case the cause of Action to the person injured arises once and for all, at the time when the injury is inflicted, and the fact that the effects of the injury are felt by the aggrieved person on subsequent occasions, intermittently or even continuously, does not make the injury a continuing wrong so as to give him a fresh cause of Action on each such occasion. If, however, the Act is such that the injury itself is continuous, then there is a continuing wrong and the case is governed by Section 23 of the Act. The same principle is accepted by this High Court in Bai Manchha v. Sardar Sajjadanasinh Mahmad Baker-el-Edrus : AIR1963Guj168 . The Supreme Court has reiterated this principle in Balakrishna v. Shree D.M. Sansthan : AIR1959SC798 in the following words:
In dealing with this argument it is necessary to bear in mind that Section 23 refers not to a continuing right 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 continue. 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 these principles, the question which still survives for a debate is when can it be said, that the wrongful Act in question has caused an injury which is complete, and that what continues to have effect is the damage resulting from that injury. An obvious illustration answering this question is a case wherein the wrongful Act consists of causing a bodily injury to a person. Here the wrongful Act is complete and self-contained even though the effect of the injury caused by the said Act lingers on till the life time of the victim. Wrong which is committed in such a case is not a continuing wrong. However, in cases where the wrong committed infringes a right which is of a continuing nature and which can be enjoyed every day and every moment, that wrong is of a continuing character and gives rise to a fresh cause of Action every moment it continues. A single occasion on which such a wrong is committed can not destroy the right which is of a continuing nature. In such cases interference with the right is temporary and the right continues to survive inspite of the interference.
6. The pertinent question which the Court is therefore required to answer in each of such cases is whether the right which is infringed is of a continuing nature and can be enjoyed de the in diem. In our opinion easement right of way, or the right to insist that a certain piece of land should be kept open for certain purposes, is the right of a continuing nature because it is not exhausted by its enjoyment on one single occasion, and can be claimed at all times or at any moment. The wrong committed against such rights on a single occasion would therefore, not be capable of putting an end to that right. Therefore, such wrongs would obviously be continuing wrongs and give rise to a cause of Action de the in diem. Many courts in our country have treated such wrongs as continuing wrongs. In Mt. Masooma Bibi v. Haji Mohammad Said Khan A.I.R. 1942, all. 77, the High Court of Allahabad has held that an obstruction to a public way which prevents some one from exercising a right of way does fall within the scope of the term continuing wrong in Section 23 and a fresh period of limitation begins to run under Section 23 at every moment of the time during which the wrong continues. It was further observed in that case that, consequently, it is incorrect to say that where an obstruction to a public way is caused by an Act which results in complete cessation of the ability to exercise the right of way as for instance by building a high wall or wire fencing or something which clearly prevents passage, there can be no question of a continuing wrong as the wrong has been completed once and for all by a single Act. This view has also been taken by Andhra Pradesh High Court in Kuchibotha Kanakamma v. Tadepalli Ranga Rao reported in A.I.R. 1957 Andhra Pradesh, 419 wherein Viswanatha Sastri J. Has elaborately discussed the scope of Section 23 of the limitation Act, 1908 and the meaning as well as the implications of a wrong which can be termed as a continuing wrong and has observed that the mere fact that obstruction to the enjoyment of an easement of way or of light and air is caused by a wall or other permanent structure does not mean that the wrong is not a continuing one. The facts of a recent Rajasthan decision in Pyarelal v. Santhal AIR 1972 Raj. 103 were in many respects, similar to the facts of this case. There also, the local municipality had permitted erection of wooden stalls on the public way since last 25 to 30 years before the suit was brought. The defendants raised a contention as regards limitation on the ground that by the erection of the stalls as early as 25 to 30 years ago on parts of the public way, the plaintiffs were ousted from those parts of the way by a single and completed Act of tort. The Court, after reviewing several decisions on the point came to the conclusion that the infringement of the right was a continuing wrong. Other cases which can be referred to in support of this view are Dwarkanath Sen v. Taraprasanno Sen A.I.R. 1923 Cal. 356, Wazimulla v. Nazidulla A.I.R. 1923 Cal. 733 and Saratchandra v. Nerodechandra : AIR1935Cal405 . In Moti Ram v. Hans Raj A.I.R. 1936 Lah. 334, a division bench of Lahore High Court considered the easement of light and air. There the judgment debtor built a house in contravention of a courts decree of injunction. The decree-holder sought to execute the decree three years after the completion of the house constructed by the judgment debtor. A plea of limitation was raised by the judgment debtor on the ground that the house causing obstruction to light and air was built once and for all time to come and hence execution should have been sought within three years of its construction. The Court, overruling the decision of a single judge (A.I.R. 1935 lah. 702), held that the breach was a continuing breach within the meaning of Section 23 of limitation Act.
7. Shri Patel appearing on behalf of the appellant, however, invoked the doctrine of ouster and contended that by erection of the cabins on certain specified parts of the land which was required to be kept open as per decree of the civil court, decree-holders right to insist that the said land should be kept open was ousted at least so far as the portion on which the cabins were erected. In support of this contention shri patel put reliance upon two full bench decisions one of lahore High Court in Khair Mohmad Khan v. Mt. Jannat A.I.R. 1940 Lah. 359 and Anr. of Patna High Court in Sheo Narayan v. Ambica Singh : AIR1970Pat246 .
8. Before considering these two decisions on their merits, it is proper to note that no question of an ouster would arise in case of an intangible right of an easement which can be enjoyed every day at any time and moment. Doctrine of ouster would be applicable in cases where the claimant can either be dispossessed of the property over which the right is claimed or where the right itself is destroyed or extinguished. Where the property is in possession of the party against whom the right is claimed, it is difficult to comprehend how the claimant can be said have been ousted from his right if the right continues to have its legal existence. Speaking about the facts of the present case, it is obvious that the land over which the decree holders claim their right was never in their possession. There was, therefore, no question of their ouster from the property. So far as their intangible right to insist that the municipality should keep the disputed land open is concerned, the same was not destroyed or extinguished by the mere fact that in a portion of the disputed land some cabins were erected in breach of the Civil Courts Decree. The erection of these cabins made an infringement of the decree-holders right, but their right under the decree was not destroyed or extinguished. The said infringement was therefore a continuous wrong which could be abated at any time during the course of its continuance. It is in light of these principles, that we shall presently discuss the two decisions on which Shri Patel has put reliance.
9. In Lahore case the suit was for obtaining a decree for permanent injunction directing the defendants to demolish a Chabutara (platform) constructed by them on a portion of the Courtyard which, it was alleged, was the joint property of the mohalladars and was reserved for their common user. The plaintiff in that case complained that the Chabutara, which was constructed by the defandants, obstructed the passage of carts and other vehicles from outer thoroughfare into the courtyard and caused great inconvenience to them. One of the defence which was taken was that the suit was barred by limitation as the Chabutara had been in existence for more than six years before the institution of the suit. The trial judge did not find that the suit was barred by limitation and therefore decreed the suit. But in appeal the district judge held that the suit was barred by Article 120 of the limitation Act under which the plaintiff had six years to sue from the date of the construction. According to the district judge, the suit was barred by time qua the portion of the Chabutara which had been constructed in 1925. The High Court held that so far as the portion of the Chabutara, which was constructed in the year 1925, was concerned, injury was completed at the time of the construction and the Act of the defendants by constructing the Chabutara on the common land and thus appropriating it to their exclusive use, amounted to a complete dispossession and ouster of the plaintiffs and the other mohalladers. In view of this, the High Court came to the conclusion that the wrong in question was not a continuing wrong, but a wrong which was completed at the time the construction was put up. It was further observed by the High Court that the cause of Action to the aggrieved mohalladars arose once and for all at the date of the ouster, and it did not arise a fresh every day that the structure existed and to such a case the provisions of Section 23 of the Act did not apply. From these findings of the High Court it is obvious that it was a case of joint ownerships of the Maholla land wherein one or some of the joint owners, took a portion of the Maholla into their possession and completely dispossessed the other joint owners by raising a construction in form of a Chabutara. It was in view of this finding of complete ouster, resulting in setting up of the claim of an adverse possession in favour of those who made an encroachment by constructing the Chabutara, that the High Court came to the conclusion that the wrong which was done was not a continuing wrong but was a completed and self-contained Act of ouster. In our view, this decision would be of no help to the appellant in this case, because, here we are not concerned with the decree holders ouster from the land which was expected to be kept open by the decree of a permanent injunction passed by the Civil Court at Kalol. Obviously, this land was never in possession of the decree holders. All throughout the relevant period, this land was in possession of the appellant Municipality against whom the decree is passed. This is the case in which the decree holders claim only a right of passage or the right to insist that the disputed land should be kept open for the purpose of passage. Obviously the decree holders have never claimed any right to possess the disputed land. In such cases therefore, there would be no question of their ouster. The right of the decree holders was merely a right of way which continued to remain in existence inspite of the fact that cabins were constructed over a portion of the disputed land. It need not be emphasised that a right of way or a right of passage is not a right in nature of a title or of possession from which there can be an ouster. Under these circumstances we are of the opinion that full bench decision given by the lahore High Court in the above referred case cannot help the appellant.
10. The other decision on which the reliance is placed on behalf of the appellant is the decision given by Patna High Court in Sheo Narayan Singh v. Ambica Singh (supra). That was a case in which the plaintiffs claimed a declaration that plot No. 110 of village Nanhubigha in the District of Gaya was a public path and the defendants had no right to extend the find of ahar in plot. No. 168 of village amarwa into plot No. 110. That was obviously a case in which a right of way was claimed and the wrong which was complained of was the construction of a find which obstructed the right of the public to pass over the disputed path. A point as regards limitation and adverse possession was raised in that case by the State of Bihar. The learned judges of the High Court of patna considered the question whether Section 23 of the limitation Act, 1908 had any application to the facts of that case. They considered the decision given by the Supreme Court in the above referred case of Balakrishna v. Shree D.M. Sansthan : AIR1959SC798 . In this Patna case the lower appellate court had taken the view that by the extension of the pind over a portion of the chhaur, the width of the Chhaur was permanently lessened, and to that extent, there was complete dispossession. The High Court found -that this view could not be said to be wrong because by raising the pind in plot No. 110, the defendant completely obstructed the plaintiffs from using that portion of Chhaur in plot No. 110 over which the pind was extended. In the opinion of the High Court this was therefore a case of complete ouster and hence Section 23 of the Act had no application. Since in this case a question relating of the right of way was involved, it undoubtedly helps the appellant to a certain extent. But we find ourselves unable to accept the ratio of this decision. One important fact which would distinguish this decision is that in that case the enjoyment of an easement right of way over the disputed path was extinguished under Section 47 of the indian Easements Act over the portion over which the pind was constructed because of the fact that the said was constructed over 30 years before the suit was instituted. In view of this fact, it is evident that the easement which was in dispute in that case was not enjoyed continuously for more than 20 years so far as the portion over which the disputed find was constructed under these circumstances this easement right was extinguished over the disputed portion and if the right did not exist there was no question of its infringement. This patna decision can therefore be supported on other grounds. But so far as the bare principle is concerned, we, with due respect to the learned judges who have given that decision, find ourselves unable to accept its ratio. As we have already stated above, the easement right of way is not destroyed or extinguished by a single Act of its infringement hence the wrong arising out of that infringement is a continuing wrong.
11. In this connection we May refer to two decisions of the privy council, the ratio of which has been approved by the Supreme Court in the above referred decision given in Balakrishna v. Shree D.M. Sansthan. The earlier decision of the Privy Council is found in Rajrup Koer v. Abdl Hossein reported in I.L.R. VI Calcutta 394. The plaintiff in that case succeeded in establishing his right to the pyne or an artificial watercourse and to the use of the water flowing through it. The defendant had put several obstructions to the said water course. One of the obstruction interfered with the flow of water to the plaintiffs mehal. With regard to this obstruction the Privy Council held that in asmuch as it interfered with the flow of water to the plaintiffs mehal it was in the nature of a continuing nuisance as to which the cause of Action was renewed de the in diem so long as the obstruction causing such interference were allowed to continue. This decision was based on the footing that plaintiffs right to draw water from the artificial water course was a right of continuing nature and even though obstruction to the enjoyment of that right was put several years before the suit was filed, that obstruction resulted in the prevention of the plaintiffs continuing right to enjoy the water from that water course. Another decision is found in Hukumchand v. Maharaj Bhadur reported in . There the dispute between the parties arose with regard to the worship of shrines in form of charans. The dispute was between the two sects of jains namely, swetambaris and digambaris. Swetambaris made some alteration in the shrine and digambaris felt that it was not possible for them to offer worship to the altered charans of the shrine. The court found that the swetambaris who had evolved another form of charan had made it impossible for the digambaris to offer worship to the shrine because the altered form of shrine represented a detached part of the human body. The court held that the Action of the swetambaris in placing the charans of the said description in three of the shrines was a wrong of which the digambaris were entitled to complain. The question which privy council was required to consider was whether the Action of theswetambaris in altering the said charans in three of the shrines was a continuing wrong or not; the privy council answered this question in favour of the plaintiffs after referring to the above referred decision of Maharani Rajroop Koer and held that the Digambaris right to offer worship to the shrines was a continuing right and therefore, swetambaris Action in altering charans was a wrong of a continuing nature. The commission f such a wrong did not amount to ouster or complete dispossession of the plaintiffs right to offer worship. This decision of the privy council provides a complete answer to the contention raised by the appellant in this appeal. It is obvious that by making alteration in the charans of the shrines, the swetambaris had committed a wrong by a single Act. Now, if the contention which is raised by the appellant in this case is accepted that single Act of the Swetambaris would have completely ousted the Digambaris from offering worship. But the Privy Council has held that there was no question of the ouster of digambaris right to offer worship, and wrong complained of was a continuing wrong as to which under Section 23 of Limitation Act, 1908, a fresh period begins to run at every moment of the day on which the wrong continues.
12. Both the above referred decisions of the privy council have been approved by the Supreme Court in the above referred case of Balakrishna v. Shree D.M. Sansthan : AIR1959SC798 . If the ratio of these two decisions of the Privy Council is applied to the facts of the present case, what we find is that the respondents right to insist that the disputed land should permanently be kept open is not in any manner ousted by the erection of the cabins on it. That right continues day to day and if the respondents are not allowed to enjoy that right on any day, a fresh cause of action arises in favour of the respondents on that day.
13. Shri Patel put reliance upon the decision given by the Supreme Court in the above referred case of Balkrishna and tried to point out that in that case also the Supreme Court has been of the opinion that if the wrong is committed by a single Act then that wrong is complete and the limitation begins to run from the date of the commission of that wrong. We find that the facts which have been appreciated by the Supreme Court in that case were totally different from the facts of this case and therefore, the decision given by the Supreme Court does not in any way help the appellant in this case. Reference to the decision given by the Supreme Court shows that in that case there was a dispute between the dismissed Pujaris of the temple of Dnyaneshwar Maharaj, known as guravs, at alandi, and the trustees of this temple. The facts of the case show that the Pujaris had initially filed a suit for declaration that they were the owners of the temple and not the servants of the temple committee. They failed in that suit. Thereafter, they chose to take the law into their own hands, and obtained forcible possession of the temple premises on July 25, 1922, and began to perform the puja and to take the offerings placed before the deity as they had been doing prior to their dismissal. This resulted into a suit filed by the trustees on September 12, 1922 under Section 9 of the specific relief Act. This suit terminated in a decree in favour of the trustees on November 4, 1922. In pursuance of this decree the committee recovered possession of the temple on November 16, 1922. Thereafter the pujaris filed suits claiming declaration about their rights and an injunction to permanently restrain the trustees from obstructing them in exercise of their rights. It was in this suit that the uestion of limitation was raised by the trustees. The Supreme Court came to the conclusion that the matter was governed by Article 120 of the limitation Act, 1908. One of the questions which arose before the Supreme Court was whether Section 23 of the limitation Act applied to the facts of the case. The Supreme Court answered this question in the negative making the following observations:
Thus considered it is difficult to hold that the trustees Act in denying altogether the alleged rights of the guravs as hereditary worshippers and in claiming and obtaining possession from them by their suit in 1922 was a continuing wrong. The decree obtained by the trustees in the said litigation had injured effectively and completely the appellants rights though the damage caused by the said decree subsequently continued. Can it be said that, after the appellants were evicted from the temple in execution of the said decree, the continuance of their dispossession was due to a recurring Act of tort committed by the trustees from moment to moment? As soon as the decree was passed and the appellants were dispossessed in execution proceedings, their rights had been completely injured, and though their dispossession continued, it cannot be said that the trustees were committing wrongful Acts or Acts of tort from moment to moment so as to give the appellants a cause of Action de the in diem. We think there can be no doubt that where the wrongful Act complained of amounts to ouster, the resulting injury to the right is complete at the date of the ouster and so there would be no scope for the application of Section 23 in such a case. That is the view which the High Court has taken and we see no reason to differ from it.
14. These observations of the Supreme Court show that in the opinion of their Lordships the right of the Pujaris were effectively and completely injured as a result of the execution of the decree which the trustees obtained in the suit which they filed under Section 9 of the specific relief Act in the year 1922. Since the trustees had obtained the possession of the temple in execution of the decree passed by a competent court, their lordships of the Supreme Court found that it was not possible to say that they had committed any wrong which continued from day to day. In our opinion, the facts of the Supreme Court case are completely different from the facts of the case under our consideration, because here we find that the right which the respondents decree holders claim with regard to the disputed land cannot be said to have been completely injured on account of erection of the cabins on that land. The respondents right with regard to the disputed land is an intangible right and it cannot be said that they were at any time ousted from the enjoyment of that right. This Supreme Court decision does not help the appellant in any manner.
15. The question which would naturally arise, in view of the above discussion, is whether in cases which are governed by art 23 of the Limitation Act, 1908 there is a perpetual right to sue. After reviewing the case law on the wrongs which are of continuing nature, we find that there is no perpetual right to sue even in cases which fall within the ambit of Section 23. As we have already pointed out above there are two sets of circumstances under which Section 23 would cease to have any operation in cases wherein the wrongs committed are otherwise continuing wrongs. They are: (1) the cases where the property regarding which wrong is committed is adversely possessed with an openly hostile assertion of title. In such cases there is a complete ouster of the right against which the wrong is committed and hence limitation would begin to run from the date of such ouster, and (2) the cases where the right against which tort is committed is either destroyed or extinguished. For instance, rights of easement are extinguished under Sections 37 to 47 of Chapter V of easements Act for various reasons. In such cases, on extinguishment of the right, the right ceases to exist and there is no question of any wrong which can be committed against it. Therefore, unless the case falls within any of these two types of cases, whenever a right of way or passage is claimed by a person over particular piece of land, that right enures for his benefit from day to day and therefore, if any obstruction is put to the enjoyment of that right on any day, that obstruction would amount to a wrong de the in diem. In such cases Section 23 of the Limitation Act would have full application.
16. In view of this, we are of the option that the respondents-decree holders in whose favour decree for permanent injunction has been passed by the Civil Court at Kalol can claim that the cause of Action in their favour to file execution application against the appellant-judgment debtor had arisen on the last day on which the cabins were found existing on the disputed land, and therefore, no question of any bar of limitation arises. That being the position, we find ourselves in agreement with the view taken by the learned single judge in the Second Appeal. We, therefore, see no point in this appeal which is dismissed with costs.