JUDGMENT : PIGGOTT, J. It has been found in this case that the plaintiffs-respondents are the proprietors of certain land of which the defendants-appellants are in possession as mortgagees of certain occupancy tenants. According to the plaint it was about the year 1900, that the defendants, having obtained possession of the occupancy holding, proceeded to set up thereon the structures, for the removal of which the present suit is brought. The one point now taken before me is whether or not the suit is barred by time. In view of the provisions of section 3 of the Limitation Act, No. IX of 1908, I am bound to entertain this plea, although it was not taken, at least in the particular form in which it is now taken before me, in the courts below, namely, whether, as a matter of fact, the plaint discloses a cause of action upon which no suit can now be brought by reason of the law of limitation. The plaint as it stands is unquestionably based on a mistaken view of the law of limitation applicable to this class of suits. The plaintiff says that the structures were set up in 1900, but the cause of action accrued on the 5th of June, 1910, because on that date the defendants definitely refused to accede to a request made to them by the plaintiff that they should remove the said structures. This involves a proposition of law which is obviously erroneous, and which it has not been attempted to support by argument in this Court. The suit is virtually one for an injunction. I have no doubt in my own mind that the period of limitation applicable is that laid down by article 32 of what is now the first schedule of the Indian Limitation Act, No. IX of 1908. The defendants are persons who have a right to use certain land of the plaintiffs for specific purpose; the case for the plaintiffs is that they have perverted it to other purposes. The plaintiffs were bound to sue within two years of the time when the perversion first became known to them, or to their predecessors in title. Authority for this view is to be found in Ganga Dhar v. Zahurriya[1886] I.L.R., 8 All., 446 and Jaikishan v. Ram Lal, [1898] I.L.R., 20 All., 519.
The plaintiffs were bound to sue within two years of the time when the perversion first became known to them, or to their predecessors in title. Authority for this view is to be found in Ganga Dhar v. Zahurriya[1886] I.L.R., 8 All., 446 and Jaikishan v. Ram Lal, [1898] I.L.R., 20 All., 519. The point seems to me perfectly clear; but I may add that if article 32 be not applicable, it is clear that article 120 must lie. The latter article was applied to a suit for an injunction in the case of Waziran v. Babu Lal,[1904] I.L.R., 26 All., 391. Now the only point which has been seriously argued before me is that this plea of limitation either should not be allowed to be raised at all at this stage, or at any rate should not be allowed to prevail in the absence of a specific finding as to the time when the existence of the constructions in question came to the knowledge of the plaintiffs or of their predecessors-in-title. In my opinion this issue does not really arise on the pleadings. 2. It was for the plaintiffs in the first instance, if they intended to save, limitation by showing that the constructions complained of remained in existence and in regular use for years without coming to the knowledge of the proprietors of the land on which they stood, to have said so definitely in the plaint, and to have put forward the date on which the existence of the said structures became known to the proprietors as the date of the origin of their cause of action. So far from doing this, they stated in paragraph 3 of the plaint, as a matter of personal knowledge, that the structures in question were made “about ten years ago.” It seems to me that there was no room on the pleadings for an issue as to the time when the existence of these structures came to the knowledge of the plaintiffs. I hold that the plaint as it stands discloses a time-barred cause of action. I accordingly set aside the decree of the lower appellate court and restore that of the court of first instance. The defendants-appellants will get their costs throughout.