Kanti Prasad v. Bishamber Sahai — 1961 DIGILAW 162 (ALL)

JUDGMENT Srivastava, J. - In this case the following question has been referred to us for answer by Mr. Justice Lal: Whether in a suit for declaration of the present nature, cause of action or fresh cause of action would be deemed to nave accrued when the Plaintiffs acquired knowledge in 1939 or when the application for correction of papers was originally dismissed on the 29th June, 1942 or when it was finally dismissed on the 14th July, 1943 or on any subsequent date? Whether the present suit instituted on the 30th August, 1947 is or is not within time. 2. Though the case has had a chequered history it is not necessary to enter into the details of that history. The only facts which it is necessary to mention are that the suit out of which the second appeal has arisen relates to grove No. 886 situated on a rent free grant. The case of the Plaintiffs was that this grove along with three other plots originally belonged to the common ancestors of the parties. In a partition this grove and one other plot was allotted to the Plaintiffs' branch while the remaining two plots were allotted to the Defendant's branch. For, sometime the names of the Plaintiffs' branch alone were recorded in respect of the sir plots but subsequently at some stage the names of the Defendants' branch too were entered in the village papers. This fact was discovered by the Plaintiffs in the year 1939 when they wanted to file a suit against one Niadar for the price of the fruits of the grove. The Plaintiffs contended that they had been in possession of the grove throughout. Having discovered that the names of the Defendant's branch had also somehow been entered in respect of this grove which belonged exclusively to the Plaintiffs, the Plaintiffs made an application for correction of papers in the revenue court. That application was contested on the ground that the entry of the names of the Defendant's branch in respect of the plot was correct. The application for correction of papers was first dismissed by the sub-Divisional Officer on the 29th of June 1942. Thereafter there was an appeal and the case was remanded back to the trial court. The Sub Divisional Officer before whom the case came up on remand again dismissed it on the 14th of July 1943. The application for correction of papers was first dismissed by the sub-Divisional Officer on the 29th of June 1942. Thereafter there was an appeal and the case was remanded back to the trial court. The Sub Divisional Officer before whom the case came up on remand again dismissed it on the 14th of July 1943. The Plaintiffs then attempted to obtain a declaration of their rights first in the civil court and then in the revenue court and then again by the present suit. The present suit was instituted on the 20th of August, 1947. It was contested on various grounds of fact and law but we are concerned at present only with the plea of limitation that was raised to defeat the claim. 3. The suit being primarily for a declaration of title it was not disputed that it was governed by Article 120 of the Limitation Act. The limitation was therefore six years and was to be calculated from the date on which the right to sue accrued. The parties were however not agreed as to the date on which the right to sue accrued to the Plaintiffs. The Plaintiffs contended that the right to sue accrued when their application for correction of papers was finally dismissed on the 14th of July, 1943. The Defendant, on the other hand, contended that the Plaintiffs' right to sue really accrued in 1939 when the Plaintiffs admittedly came to know of the fact that the Defendant's name had also been entered in respect of the land. Each side relied on certain decisions of this Court and when the appeal was first heard by Mr. Justice Lal he was of opinion that there was conflict between the decisions relied upon by the parties. He thought that it was necessary to resolve the conflict and therefore referred the question we have already quoted, to a Division Bench. That is how the case has now come before us. 4. Art. 120 of the Limitation Act was considered by the Supreme Court in a recent decision reported in Mst. Rukhmabai Vs. Lala Laxminarayan and Others, AIR 1960 SC 335 , and it was laid down: 5. 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. Rukhmabai Vs. Lala Laxminarayan and Others, AIR 1960 SC 335 , and it was laid down: 5. 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." 6. In the suit which their Lordships were considering a trust had been created in 1916 and a house had been constructed in 1920 for the benefit of a family. Till 1926 the Plaintiff's father was residing in the house. In 1929 the trust deed was challenged but a compromise was arrived at and the house was salvaged. From 1936 onwards the Plaintiff continued to reside in the house though he had knowledge about a litigation in which the Defendant claimed the house against another person. It was in execution of the decree in that suit that a Commissioner came to that house to make measurements and the Plaintiff learnt that his rights were being challenged. He therefore filed a suit in 1940 for a declaration of his title in respect of the house. It was contended on behalf of the Plaintiff that his right to sue accrued only in 1937 when the Commissioner went to take measurements of the house and he learnt for the first time definitely that his rights were being challenged. The Defendant however, urged that the Plaintiff's right to sue had accrued much earlier when he had come to know about the litigation between the Defendant and the other person in which the Defendant was claiming his title to the house. Their Lordships rejected the Defendant's contention and held the Plaintiff's suit to be within time on the ground that the earlier knowledge about the litigation could not be considered to be a compulsory cause of action for the Plaintiff and his right had been effectively challenged only when the commissioner came to that house. 7. Their Lordships rejected the Defendant's contention and held the Plaintiff's suit to be within time on the ground that the earlier knowledge about the litigation could not be considered to be a compulsory cause of action for the Plaintiff and his right had been effectively challenged only when the commissioner came to that house. 7. The earlier decisions of this Court which were cited before the learned Single judge and which he thought were conflicting must be considered in the light of the law as declared by the Supreme Court in the case of Mst. Rukhmabai Vs. Lala Laxminarayan and Others, AIR 1960 SC 335 . The earliest case referred to us is the Full Bench decision in Francis Legge v. Rambaran Singh ILR 20 All. 35. In that case the Plaintiff's names were entered in the papers and they claimed to be in possession. The Defendant had however made an application for correction of papers before the Settlement Officer in course of a settlement and had in that way denied the Plaintiffs' rights. The Settlement Officer by an order dated the 28th of June 1883 decided against the Plaintiffs and directed that their names be expunged. No action was taken by the Plaintiffs against this order till they filed a suit for declaration on the 15th of May 1895. In that suit besides a declaration they also claimed possession in the alternative if they were found to be out of possession. This suit was held to be barred by Article 120 of the Limitation Act as it had been filed more than six years after the date on which the Settlement Officer had ordered the names of the Plaintiffs be expunged from the village records. The noteworthy feature of this case is that the order of the Settlement Officer had been passed as a result of the application made by the Defendant in which he had effectually denied the Plaintiffs title. 8. The question arose again in Akbar Khan v. Turaban ILR XXXI All. 9. In that case the Plaintiffs filed a suit for declaration of title in the year 1904. In 1895 the Defendant's name was entered in the revenue papers in respect of the property and the title of the Plaintiffs was denied. The Plaintiffs, however, again made an application for mutation and naturally it was again rejected. 9. In that case the Plaintiffs filed a suit for declaration of title in the year 1904. In 1895 the Defendant's name was entered in the revenue papers in respect of the property and the title of the Plaintiffs was denied. The Plaintiffs, however, again made an application for mutation and naturally it was again rejected. They then filed the suit and sought to bring it within time on the ground that it had been filed within six years from the rejection of the later application for mutation. It was, however, held that the later application did not give a fresh cause of action because it was only a continuation of the original cause of action in the earlier mutation proceedings. The suit having been filed after six years of the first entry of the Defendant's name was held to be time barred. The Full Bench case of Francis Legge ILR 20 All. 35 was distinguished. 9. In Sheopher Singh v. Deonarain Singh ALJ 10 413 in the settlement of 1901 the Plaintiffs were recorded as in possession of a smaller area than they actually held. They continued in possession. In April 1909 however the Collector corrected the entry. The order was subsequently set aside in appeal by the Commissioner. Thereafter the Defendants interfered with the Plaintiffs possession and the latter filed a suit for declaration. It was urged that the claim was time barred but the plea was negatived on the ground that the Commissioner's subsequent order passed in 1909 had given a fresh cause of action and as the suit had been filed within six years from that date it could not be held to be barred by time. 10. In Aftab Ali Khan and Others Vs. Akbar Ali Khan and Others, AIR 1929 All 529 the Defendants alone were entered as mortgagees in the papers and the Plaintiffs who also claimed to be mortgagees were not recorded there in. The wrong entries continued for sometimes and the Plaintiffs did not take any action. The Plaintiffs alleged that subsequently in April, 1926 they had asked that Defendants to agree to the correction of the entries but the Defendants had refused. Taking their cause of action from that refusal they filed a suit for declaration of their title and the suit was held to be within time. The decision in Akbar Khans case ILR 31 All. Taking their cause of action from that refusal they filed a suit for declaration of their title and the suit was held to be within time. The decision in Akbar Khans case ILR 31 All. 9 was held to be not applicable and the learned Judges laid down: That a mere entry of names does not debar the person against whom the entry is made far all time to come from suing for a declaration, if once six years are allowed to expire, is quite clear on the authorities. Any new invasion of rights which amounts to a fresh denial of title undoubtedly confers on the owner in possession a fresh right to sue. 11. In Mt. Salamat Begam Vs. Sheikh Ikram and Others the Plaintiff claimed to have been in possession. In 1917 he had applied for the entry of his name in place of the Defendant but the application had been rejected. Another application was made by him in 1926 with the same result. He therefore filed a suit in 1926 for a declaration of his title and the contention that it was barred because it had been filed more than six years after the first rejection of the application for correction of names was over ruled, and it was held that the rejection of the second application gave the Plaintiff a fresh right of suit. 12. In Parjapati and Others Vs. Jot Singh and Others the Plaintiff's rights were first denied in 1891 and then again in 1892 in connection with partition suits but he did not take any action on those occasions. Then there was a fresh denial of the Plaintiffs rights and taking that to be their cause of action the Plaintiffs filed a suit for declaration of their title. The plea of limitation was again overruled and it was held that a fresh cause of action may arise to a Plaintiff and he may bring a suit even though a prior cause of action had arisen to him beyond the period of six years but no suit had been filed on its basis. 13. In Ram Samujh and Another Vs. 13. In Ram Samujh and Another Vs. Kirpa Dutt and Others, AIR 1951 All 408 there was a registered compromise in 1928 according to which a mortgage was paid off and the redeemed property was entered in the names of the parties in a particular manner subsequently in 1944 one of the parties filed a suit for a declaration that they were really owners of a larger share than was entered in their names. A plea of limitation was taken on the ground that the Plaintiffs were aware of the earlier wrong entries and they have omitted to file a suit within six years and therefore their claim was time barred. Their plea was overruled and it was observed: It is always open to a person in respect of whom a wrong entry is made or upon whose title some cloud is cast to ignore that entry or that cloud it he does not consider it worthwhile to get the entry corrected or to remove the cloud. If, however, he bases his cause of action upon that wrong entry or upon the casting of that cloud then he must bring the suit within six years of his knowledge of the wrong entry or of the cloud that has been cast upon his title since Article 120 would apply. 14. The principle which emerges from all these decision as well as the Supreme Court case already referred to appears to be that the mere fact that a person's name is or is not entered in the village papers does not render it necessary for him to file a suit. If he wants he can take his cause of action from the time when he comes to know of the wrong entry and file a suit within six years of the date of knowledge. If he treats the date of his knowledge of the incorrect entry as the date of his cause of action he must file his suit within six years of that date otherwise it will be held to be time barred. He may, however, ignore the incorrect entry and take no action about it if he thinks that on account of it his rights are not really affected. No man is bound to rush to court about every ineffectual or innocuous threat to his rights. No notice need be taken about every passing cloud to one's title. He may, however, ignore the incorrect entry and take no action about it if he thinks that on account of it his rights are not really affected. No man is bound to rush to court about every ineffectual or innocuous threat to his rights. No notice need be taken about every passing cloud to one's title. It is only when, to adopt the language of their Lordships of the Supreme Court, the "threat effectively invades or jeopardises the right" that action becomes necessary. A right to sue accrues on each occasion of such an effective threat and if a suit is filed within six years of it, it is well within time. 15. It has also to be borne in mind that if threat arises in connection with mutation or correction of papers proceeding it becomes effective only when the proceeding finally ends against the Plaintiff. Till then the threat is not effective enough to give rise to a compulsory cause of action as there is a possibility that it may be found to be innocuous in the proceedings itself. 16. Applying this principle to the present case we find that somehow or the other the names of the Defendant's branch had also been entered in the village papers in respect of the plots in dispute. The Plaintiffs came to know of the fact in 1939. They however, continued to be in possession and the wrong entry did not affect them in any way. The wrong entry had not been made on the basis of any application made by the Defendant and till that stage there was no question of the Plaintiffs title being denied or their rights being challenged. When, however, the Plaintiffs applied for correction of the papers and prayed for the expunging of the Defendant's name the application was opposed. Then the Plaintiffs' rights were challenged for the first time and the challenge proved effective because as a result of the Defendant's objections the application for correction of papers was dismissed. As long as the correction of papers case was pending the Plaintiffs were not bound to file a regular suit. Till the decision of the correction of papers case they could very well be under the impression that the case will finally end in their favour. As long as the correction of papers case was pending the Plaintiffs were not bound to file a regular suit. Till the decision of the correction of papers case they could very well be under the impression that the case will finally end in their favour. When, however, the correction of paper, case was ultimately decided against them their right to sue for a declaration of title accrued and if their suit was filed within six years of that date, in our opinion, it can not be held to be time barred. 17. Our answer to this question referred to us therefore is that in the present case the period of six years under Article 120 of the Limitation Act is to be counted not from the year 1930 when the Plaintiffs first acquired knowledge of the incorrect entry but from the 14th of July 1943 when their application for correction of papers was finally rejected. The suit having been instituted within six years from the last mentioned date was within time. 18. With this answer the case will now go back to the learned Single Judge for disposal.