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Baimanchha Wd/O. Nathurhai Bhagvanji and ors Vs. Sardar SajjadnashIn Saiyad Mahomed Bakar El-edrus - Court Judgment

LegalCrystal Citation
SubjectLimitation
CourtGujarat High Court
Decided On
Judge
Reported in(1963)4GLR545
AppellantBaimanchha Wd/O. Nathurhai Bhagvanji and ors
RespondentSardar SajjadnashIn Saiyad Mahomed Bakar El-edrus
Cases ReferredMs. Rukhmabai v. Lala Laxminarayan and Ors.
Excerpt:
- - the act complained of was an act of removing in a jain temple 'charans which were impressions of the foot-prints of saints each bearing a lotus mark and replacing them by charans with the toe-nails which were representations of a part of human foot. 1934 patna 34 the act complained of was an act of an encroachment on a public way. 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 continues a continuing wrong. now analysing the plaints it is crystal clear that the acts complained of in 1923 were of two kinds: he contended that therefore every year when a demand for a higher charge was made.....n.m. 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 of 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 the village. originally the plaint which was presented in.....
Judgment:

N.M. 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 of 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 the 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 plaintiffs 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 predecessor of the defendant and that consequently they had full rights as occupants of the suit lands even from before the time the Inam grant was made in favour of the predecessor of the defendant. It is a 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 defendants predecessor demanded from them or their predecessors a payment at double the rate; that for this purpose the then Inamdar came to the village and gave a Hobsons choice to the cultivators. He called upon the cultivators either to sign a Kabuliyat agreeing to make payment at the rate of Rs. 7/- per bigha or to vacate the lands. The plaintiffs alleged that they or their predecessors submitted to 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 executed by them or their predecessors in those two years were vitiated by intimidation and coercion and did not create any rights in favour of the Inamdar. On these allegations the plaintiffs claimed the reliefs already set out.

The defendant resisted both the suits on a number of grounds some of them of a technical nature. In respect of some of these defences preliminary issues were raised by the trial Court and these issues were taken up for decision at first as preliminary issues. The learned Judge decided all 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 the suits of the plaintiffs were barred by the law of limitation under Article 120 of the Schedule to the Indian Limitation Act. On this ground alone the learned Judge dismissed the claims of the plaintiffs. It is against this decision that the present two appeals have been filed and the only question 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 be taken 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 to dispose off the point of limitation it is necessary to set out the averments made in the plaint on the basis of which the point of limitation has got to be decided.

2. In the 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 tenant existing between the plaintiffs and the defendant. The averments which are material begin from paragraph 7 of the plaint. In paragraph 7 the plaintiffs alleged that in 192b 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 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. I assurance that in case the financial position of the 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 if 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 improved. 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 execution 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 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 recover from them only the amount of land revenue assessment as rent and was not entitled to enhance 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 refund 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 Agrahakdhari (i e. predecessor-in-title) of the defendant started 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; land 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 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 plaintiff. But we found that the defendant had not denied in his written statement the factum of his having made such applications. Therefore the contents of the applications were important. From the averments in that 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. Today Mr. Vakil the learned Advocate for the defendant produced two certified copies of the application 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 attack 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 relief prayed for by the plaintiffs in the present suit. 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 stated 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 defendants predecessor and the defendant are acts asserting a title to the suit lands and denying the status of 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 a bundle of facts 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 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 case. In respect of this type of cases the section says that a fresh period of limitation begins to run at every moment of time during 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 decided by the Privy Council and by some of the Indian High Courts. In our judgment no useful purpose would be served by examining these 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. Abul Hassein and Ors. 6 Calcutta 394 the defendants had caused an obstruction to a water course and had thereby diverted the flow of water on to the plaintiffs land. In Hukamchand and Ors. v. Maharaj Bahadur Singh and Ors. the act complained of was an act of removing in a Jain temple 'charans which were impressions of the foot-prints of 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 and Ors. v. Ramsarekh Singh and Ors. A.I.R. 1933 Patna 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 Kamat v. Asharfi Lal Mahtha A.I.R. 1934 Patna 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 from 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 and Ors. v. Shree Dhyaneshwar Maharaj Sansthan and Ors. : AIR1959SC798 Supreme Court Reports (Supplement) (2) page 476 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 value for determining the tests to be applied for deciding as to what constitutes a continuing wrong. The observations at page 496 of the Supreme Court Reports are as follows:

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 property characterised as continuing wrongs that Section 23 can invoked.

5. In view of this authorises 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 continues 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 defendants 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 defendants 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 after the commission thereof Now in our judgment the aforesaid acts or series of acts were really assertions of a title of ownership by the defendants 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 acts 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 defendants 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 have 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 these 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 committed by the defendant in 1942 in getting the rent-note executed is of the same character as the acts which were committed by his predecessor 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 in our judgment there is no doubt whatsoever that the act committed in 1942 was an act which was complete by itself and there was no continuing injury. The effect of this particular act may last for a long time; but that would not 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 of Rajrup Koer v. Abdul Hussein and Ors. reported in 6 Calcutta 394 and Hukam Chand and Ors. v. Maharaj Bahadur Singh and Ors. reported in . In our judgment the argument is not valid. The demands which were made did not constitute continuing injuries. The demands where 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 defendants predecessor in 1923 and by the defendant in 1942. In our judgment therefore Section 23 of the Indian Limitation Act has no application to the facts of the present case.

6. 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 inspite 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 denial. In support of the proposition Mr. Joshi relied upon the case Ram Lal and Ors. v. Thakurji Mandir and Anr. reported in A.I.R. 1933 Lahore 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 held that as the property in dispute had throughout been 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 disputes This articular proposition is sound in so far as it goes. But the main question would be as to what is a fresh invasion of ones 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 inspite of the series of acts alleged to have been committed by the defendant or his predecessors. When it is said that the present 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 that 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 8 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 have a fresh right to sue and the presents 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 I.L.R. 31 Allahabad 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 and Ors. v. Muhammad Baksh and Ors. reported in I.L.R. 9 Lahore 428. The observations are to be found at page 445. They are as follows:

The principle however is fully established that if 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 denial with complacency or at his option may institute a suit to falsity 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.

7. This principle has been approved by Their Lordships of the Supreme Court in Mst. Rukhmabai v. Lala Laxminarayan and Ors. : [1960]2SCR253 . 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 by 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 question which 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 following observations at page 349:

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 rise to a compulsory cause of action depends upon the question whether that threat effectively invades or jeopardizes 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. Prom 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 begin to run then it does not stop unless the provisions of Section 23 of the Limitation Act apply. The same principle is so be found embodied in the observations made by Their Lordship of the Privy Council in Raj Kumar Gobinda Narayan Singh v. Shah Lal Singh reported in 33 Bombay Law Reporter 885. In this case whilst negativing the plea of limitation Their Lordships made the following observations at page 896:

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 in Dendua were first invaded.

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 plain- tiffs were his protected tenants. Undoubtedly the word protected is not to be 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 the virtue of the tenancy laws which came to be passed in 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 right 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.

8. Mr. Joshi finally placed a great deal of reliance upon the principle enunciated at Chukkun Lal Roy and Anr. v. Lolit Mohan Roy and Ors. 20 Calcutta 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 afore said 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 Bulte v. Annajee Dhondajee Bulte reported in 31 Bombay Law Reporter 1240 in which case the above Calcutta case was expressly dissented from. Prom the observations quoted by us from the Supreme Court case Balkrishna Savalram Pujari and Ors. v. Shree Dhyaneshwar Maharaj Sansthan and Ors. reported in : AIR1959SC798 it 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 in Ms. Rukhmabai v. Lala Laxminarayan and Ors. 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 defendants predecessor in 1923. The plaintiffs or their predecessors 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 effectively extinguished on account of the fact that the 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.

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.

In our judgment therefore the appeals fail and must be dismissed with costs. The appeals are dismissed with costs.


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