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Syed Mamshah Thaika Through Syed Sultan Moideen Sahib Inamdar Vs. the Secretary of State for India in Council, Through the Collector of Tinnevelly - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtChennai
Decided On
Reported in(1919)37MLJ213
AppellantSyed Mamshah Thaika Through Syed Sultan Moideen Sahib Inamdar
RespondentThe Secretary of State for India in Council, Through the Collector of Tinnevelly
Cases ReferredAnantharazu v. Narayanarazu I.L.R.
Excerpt:
- - 197) and the actual levy of penal assessment from him is clearly such an unequivocal denial of title on the part of government. notice of eviction was given to the plaintiff in this case within 6 months before the suit and that notice, it was, that gave to the plaintiff the cause of action to sue for the injunction relief, which in the above view is therefore not clearly barred......assessment from him is clearly such an unequivocal denial of title on the part of government. the notice of eviction under section 9 of act iii of 1905 also involves a denial of title but it would not give a fresh starting point of limitation for declaratory relief, and limitation runs from the date of the first denial of title itself and continues to run. hence the claim for the declaratory relief is barred in this case as penal assessment was levied more than months before suit. 1 however hnd that the declaration is not prayed for in the plaint as a substantial relief, the injunction relief claimed being alone valued at ten rupees and court-fees of twelve annas paid thereon.2. as regards the suit then treated as a suit for an injunction to restrain the defendant (secretary of state.....
Judgment:

Sadasiva Aiyar, J.

1. So far as the relief for a declaration of the plaintiff's (Appellant's) title is concerned his right to sue for such relief accrued once for all when his title was first definitely and finally denied to his knowledge (See Thirumala Rao v. Jungamma Shettithi (1914) M.W.N. 197) and the actual levy of penal assessment from him is clearly such an unequivocal denial of title on the part of Government. The notice of eviction under Section 9 of Act III of 1905 also involves a denial of title but it would not give a fresh starting point of limitation for declaratory relief, and limitation runs from the date of the first denial of title itself and continues to run. Hence the claim for the declaratory relief is barred in this case as penal assessment was levied more than months before suit. 1 however hnd that the declaration is not prayed for in the plaint as a substantial relief, the injunction relief claimed being alone valued at ten rupees and court-fees of twelve annas paid thereon.

2. As regards the suit then treated as a suit for an injunction to restrain the defendant (Secretary of State for India) from interfering with the possession and enjoyment of the plaint and by the defendant, the levy of penal assessment does not give a cause of action for such relief and the plaintiff is therefore not bound to sue for that relief within the 6 month limited by Section 14 of Act III of 1905 and is not even entitled to sue at all for that relief as levy of penal assessment does not necessarily involve an immediate prospect or threat of ejectment proceedings. Notice of eviction was given to the plaintiff in this case within 6 months before the suit and that notice, it was, that gave to the plaintiff the cause of action to sue for the injunction relief, which in the above view is therefore not clearly barred. The decrees of the lower courts are set aside and the suit remanded to the first court for fresh decision after a trial of the issues arising in the case other than the issues 1 and 2.

3. Costs hitherto will be provided for in the fresh decision .

4. Court-fee stamp on the Second appeal memo will be refunded to appellant.

Spencer, J.

5. The Act (III of 1905) gives to persons 'deeming themselves aggrieved by any proceedings, under the Act a right to apply fo the Civil Courts for redress upon two causes of action viz., (1) imposition of any penalty or prohibitory assessment (2) eviction or forfeiture.

6. In Bhaskaraidu v. Subbarayudu I.L.R. (1913) M. 674 it was observed 'if the plaintiff did not feel himself aggrieved by the notice or levy of the penal assessment, he was not bound to bring a suit for a declaration. He might wait till any further step taken by Government gives him a right of suit.' This was not overruled by the Full Bench in Secretary of State for India v. Assan I.L.R. (1915) M. 727 which only confirmed the view taken in Narayana Pillai v. Secretary of State for India : (1912)23MLJ162 that a preliminary notice under Section 7 does not give rise to a cause of action. In The Secretary of State for India in Council v. Ramanujam Chetty 49 Ind.Cas. 364 : 1919 M.W.N. 21 to which I was a party, we observed that the plaintiffs ' might have waited till they were actually evicted and the anicuts demolished when, they would have got still another cause of action.'

7. Adopting the language used in Anantharazu v. Narayanarazu I.L.R. (1911) M. 383. I am inclined to think that the owner's title is affected by an eviction in an altogether different and greater degree than it is by a charge of prohibitory assessment, and the eviction may properly be regarded as a fresh and greater invasion of the plaintiff's right, so as to give him a fresh cause of action for a suit for a declaration of his title.

8. Moreover in this case one of the remedies asked for in the plaint was that an injunction be issued restraining the defendant from interfering with the possession and enjoyment of the plaint land in any manner whatsoever.

9. An occasion for asking for this remedy did not arise when the plaintiff was merely asked to pay prohibitory assessment, but only when he received notice under Section 6 of the Act that proceedings were about to commence to evict him. The prayer for a declaration of title was a remedy incidental to the granting of the prayer for an injunction as the plaintiff's right to obtain an injunction could not be determined without first coming to a conclusion on the question of title.

10. As a notice under Section 6 of the Act is alleged in the plaint to have been served on the plaintiff on the 26th March 1915 and his suit was instituted on the 23rd September 1915 within 6 months of the commencement of the eviction proceedings, 1 hold that the suit is not barred if the date of the notice is correctly stated.

11. The appeal must be allowed and the suit remanded for decision by the District Munsif of Tinnevelly on the issues other than those dealing with the question of limitation. I agree with the order as to costs.


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