Judgement This second appeal is directed against the judgment and decree dated 3-4-86 passed by the District Judge, Cachar, Silchar dismissing the appeal and confirming the judgment and decree dated 17-12-83 passed by the Assistant District Judge, No. 2, Silchar, Cachar, in Title Suit No. 77 of 1980. 2. At the time of admission of appeal only one substantial question of law was formulated i.e. "whether the suit is barred by limitation ?" 3. At the time of hearing also the learned counsel for the appellants has urged only this question of law. The fact of the case, is that - Upendra Chandra Nath (since deceased) instituted a suit (T.S. No. 77/80) in the Court of the Assistant District Judge No. 2, Cachar, Silchar against Bijoy Krishna Nath, Anil Kr. Nath and two others. The third and fourth defendants were pro forma defendants. During the pendency of the suit Upendra Ch. Nath died leaving behind the appellants as his legal heirs. Accordingly their names were substituted. The plaintiff-Upendra Ch. Nath along with his brother Satyendra Chandra Nath jointly owned and possessed land measuring 22 bighas 15 kathas 2 chataks covered by S. R. Patta No. 95. Satyendra Nath died leaving his widow as his sole heir. After 3/4 years of the death of Satyendra Nath his widow Hemoprova Devi, remarried. According to Hindu Widows Re-marriage Act, 1856 her share of property reverted back to the plaintiff. Late - Upendra Ch. Nath. He was possessing the land since the death of Satyendra Nath and the widow never possessed even after the death of Satyendra Nath. However, her name was recorded in the record of rights. Therefore, the Late Upendra Ch. Nath after death of Hemaprova Devi approached her sons through her second marriage, to strike out the name of their mother from the records of right as they had no right, or claim over the suit land. Request for striking out the name was made in the month of May, 1980 to the defendants. However, they did not comply with the request. Hence, the suit was filed for declaration of plaintiffs right, title and interest over the suit property and for confirmation of his possession over the suit land. During the pendency of the suit the plaintiff Upendra Ch. Nath expired and the names of the present appellants were brought into the record. 3A. However, they did not comply with the request. Hence, the suit was filed for declaration of plaintiffs right, title and interest over the suit property and for confirmation of his possession over the suit land. During the pendency of the suit the plaintiff Upendra Ch. Nath expired and the names of the present appellants were brought into the record. 3A. The defendants entered appearance and contested the suit by filing written statement. After examination of witnesses, the Assistant District Judge by judgment dated 17-2-1983 dismissed the suit with costs. While dismissing the suit, the trial Court held that the suit was barred by limitation 4. The appellants preferred an appeal before the District Judge, Cachar, Silchar (T.A. No. 4/83). The District Judge also by his judgment dated 3-4-1986 dismissed the appeal affirming the judgment and decree passed by the trial Court. 5. I have heard both sides. Mr. C. R. De, learned counsel for the appellants has submitted that the District Judge without discussing the evidence on record and without giving proper reasons most illegally held that the suit was barred by limitation. While dismissing the suit on the ground of limitation, the District Judge completely misconstrued the provisions of law and thereby the impugned judgment of the Courts below are not sustainable in law and liable to be set aside. Mr. M. Singh, the learned counsel for the respondent however, has supported the impugned judgment. 6. I have gone through the judgments of the Courts below. While allowing the appeal and dismissing the suit, the District Judge observed that the name of Hemoprova Devi was recorded in the record of rights during the period of re-settlement 1949 to 1954. The filing of suit was therefore apparently barred by limitation. According to the District Judge, the suit ought to have been filed within the period of three years from the date of entry in the record of rights. 7. Article 58 of the Indian Limitation Act prescribes time for filing a suit for declaration. Article 58 is quoted below : "To obtain any other declaration (three years) when the right to sue first accrues". The only question to be seen here is that when the right to sue first accrues. According to the District Judge, from the date of entry in the record of rights, the right to sue accrued. Article 58 is quoted below : "To obtain any other declaration (three years) when the right to sue first accrues". The only question to be seen here is that when the right to sue first accrues. According to the District Judge, from the date of entry in the record of rights, the right to sue accrued. The learned District Judge, however, did not discuss any evidence as to when the plaintiffs came to know about the entry to the name of the mother of the respondents in the record of rights. Time, for filing a suit for declaration, under Art. 58 of the Limitation Act will run from the date when the right of sue first accrues. Section 34 of the Specific Relief Act provides in general terms that any person entitled to any legal character, or to any right to property, may institute a suit against any person denying, or interested to deny, his title to such character or right, and the Court may in its discretion, make therein a declaration that he is so entitled, and the plaintiff need not in such suit ask for any further relief. A suit can be instituted not only against the person denying, but even against one merely interested to deny. The cause of action arises only when the denial occurs, or when the plaintiff apprehends that the defendant may actually deny. In that case, the cause of action arises only when the denial occurs, by a formal act, or an oral denial made to a third person or a denial made in writing. If, however, such denial is not communicated to the plaintiff, when cause of action will arise in that case ? Normally, the right to sue accrues when the right in respect of which the declaration is sought is denied or challenged and the person who seeks the declaration has knowledge about. 8. In Mt. Bolo v. Mt. Koklan, AIR 1930 PC 270, the Privy Council held thus (at page 272) :- "..There can be no "right to sue" until there is an accrual of the right asserted in the suit and its infringement or at least clear and unequivocal threat to infringe that right by the defendant against whom the suit is instituted. No doubt Mt. Koklan, AIR 1930 PC 270, the Privy Council held thus (at page 272) :- "..There can be no "right to sue" until there is an accrual of the right asserted in the suit and its infringement or at least clear and unequivocal threat to infringe that right by the defendant against whom the suit is instituted. No doubt Mt. Koklans right to the property arose on the death of Tara Chand, but in the circumstances of this case their Lordships are of opinion that there was no infringement of, or any clear and unequivocal threat to her right till the year 1922, when the suit, as stated above, was instituted." 9. In Muruga Chetty v. Rajaswamy, AIR 1916 Mad 130, the Madras High Court held that the cause of action for declaratory suit, based on denial of title, does not arise until the plaintiff has knowledge of the denial. 10. In Ghulam Hussain v. Saifullah Kha, AIR 1917 Lah 293, also similar view was taken. 11. In Kamat Reddy Narayan Reddy v. Kamat Reddy Narayan Reddy, AIR 1958 AP 654 , the Andhra Pradesh High Court following the decision of the Privy Council in Mt. Bolo (supra) held that there can be no "right to sue" until there is an accrual of the right asserted in the suit and its infringement or at least clear and unequivocal threat to infringe that right by the defendant against when the suit is instituted. 12. In AIR 1942 Oudh 346, it was held that the right to sue would not occur even if the name of the defendant is entered in the rights of record. The Court observed that so long as an adverse entry in the revenue records does not injure the plaintiff he need not come to Court at all and hence a plaintiff in a suit for declaration that he is an under proprietor is not out of time if he institutes the suit within the prescribed period of the injury. 13. The Court observed that so long as an adverse entry in the revenue records does not injure the plaintiff he need not come to Court at all and hence a plaintiff in a suit for declaration that he is an under proprietor is not out of time if he institutes the suit within the prescribed period of the injury. 13. In another case, 205 Indian Cases 520, the same Court held that "where a suit was filed for a declaration by the deceaseds brother against the widow that the property was the joint family property and that mutation in the widows name was made only for consolation and that her assertion of right by filing a suit for profits against the plaintiff would not affect him, the plaintiff was not bound to institute a suit for declaration on the basis of mutation entry, for he was not disturbed at all by it as it did not throw any cloud on his title and that it was not until the defendant actually asserted a title by means of filing the suit for profits that it became obligatory upon him to file the suit and hence limitation for the suit started only from the latter date and not from the date of mutation entry". 14. Again in Ibrahim v. Sharifan, AIR 1980 P and H 25, the High Court of Punjab and Haryana held that mere entry of name of the defendant in the record of rights would not furnish any cause of action. The time will begin to run from the date when there is some threat from the defendant or denial of the title. 15. In Nath Singh v. Heet Singh, AIR 1980 All 358 , boundary was wrongly fixed as far back in 1935-36. However, there was not interference by other village people. The subsequent interference giving rise to suit for declaration the period of limitation should be calculated from the day of interference and not from the date of wrong fixation. 16. In the instant case, there was no interference either from the respondents or from their mother. Eventhough, her name remained in the record of rights she never claimed any right to the property. After the death of the mother, the respondent also did not exert any right. However, the plaintiff Upendra Ch. 16. In the instant case, there was no interference either from the respondents or from their mother. Eventhough, her name remained in the record of rights she never claimed any right to the property. After the death of the mother, the respondent also did not exert any right. However, the plaintiff Upendra Ch. Nath sought correction in the records of right as it might cloud his title inasmuch as, after the remarriage of the respondents mother, they had not right, title and interest over the property. But the respondents did not take any steps and from this I point of time, it appeared that the respondents were at least interested to deny the title to the property of the plaintiff Lt. Upendra Ch. Nath, and this threat gave cause of action to the deceased plaintiff. Accordingly, the suit was filed. 17. In view of the decisions quoted above, and under the facts and circumstances of the case, I hold that the Courts below erred in law by holding that the suit was barred by limitation. In my opinion, the suit filed by the plaintiff was very much within time and the suit cannot be dismissed on the ground. That being the position, I allow the appeal and set aside the impugned judgment and decree and remand the case to the District Judge, Cachar, Silchar with a direction to dispose of the appeal on merit after giving full opportunity to the parties. 18. Send down the case records immediately. The District Judge shall make endeavour to dispose of the appeal as expeditiously as possible and at any rate within a period of two months from the receipt of the order. Appeal allowed. AIR 1993 GAUHATI 56 "Babul Ali v. Khirada Dutt" GAUHATI HIGH COURT Coram : 1 D. N. BARUAH, J. ( Single Bench ) Babul Ali, Petitioner v. Smt. Khirada Dutta and others, Respondents. Civil Revision No. 127 of 1986, D/- 12 -5 -1992. Civil P.C. (5 of 1908), S.47 - ACQUISITION OF LAND - Excessive execution of property - Duty of Court - Application by judgment-debtor under S. 47 for restoration of possession - Rejection of - Validity - Question as to excessive execution can be decided under S. 47, and not by separate suit - Application under S. 47 is maintainable. Civil P.C. (5 of 1908), S.47 - ACQUISITION OF LAND - Excessive execution of property - Duty of Court - Application by judgment-debtor under S. 47 for restoration of possession - Rejection of - Validity - Question as to excessive execution can be decided under S. 47, and not by separate suit - Application under S. 47 is maintainable. Question regarding the excess acquisition of land in execution can be decided only in an application under S. 47 and not by a separate suit. When the complaint is made regarding taking over property in an execution of decree which is out side the decretal property, it is not only the duty of the party who alleges such excess, but also of the Court to find out the truth in order to further the justice. Hence the application under S. 47 of Civil Procedure Code by judgment-debtor for restoration of possession is maintainable. AIR 1922 PC 279; AIR 1956 SC 87 ; AIR 1959 Ker 401 , Foll. (Paras 8, 9, 10, 11, 12, 13, 16) Cases Referred : Chronological Paras AIR 1959 Ker 401 (Foll.) 8, 11 AIR 1956 SC 87 (Foll.) 8, 10 AIR 1922 PC 279 (Foll.) 8, 9 P. G. Baruah, D. Goswami and P. K. Goswami, for Petitioner; C. C. Deka, N. C. Phukan and K. Basar, for Respondents. Judgement The petitioner has filed this petition under S. 115 read with S. 151 of the Code of Civil Procedure and under Art. 227 of the Constitution of India, challenging the order dated 25-3-86 passed by the Munsiff No. 1, Sibsagar in Misc. Case (J) No. 27 of 1981, arising out of Title Execution Case No. 2 of 1979, dismissing the application filed by the petitioner for restoration of possession and for compensation. 2. The petitioners case is that the Predecessor-in-interest of the respondent 1(a) to 1(e) instituted a suit (TS No. 16/65) praying for a decree, inter alia, for recovery of khas possession of 18 lechas of land covered by Dag No. 45 (old) Periodic Patta No. 209 (old) corresponding to new Dag No. 55 of Simaluguri Town, Dhopabar Mouza, in the district of Sibsagar. In the plaint, however, the boundary of the suit land was not shown. The suit was decreed. An appeal preferred by the defendants/petitioners, was also dismissed. Second appeal was filed which was also dismissed. In the plaint, however, the boundary of the suit land was not shown. The suit was decreed. An appeal preferred by the defendants/petitioners, was also dismissed. Second appeal was filed which was also dismissed. The original plaintiff as well as defendants died and the present petitioner and the defendants Nos. 1(a) to 1(e) were substituted in their places. 3. The petitioners further case is that the land adjacent to the land included in Dag No. 55 are covered by Dag No. 54 and Dag No. 203. The petitioners and other members of their family had been using the said land since long time. This land was used by the members of the family of the petitioner as a path-way to their residences. As a matter of fact, this land was the only land over which the ingress and egress was possible. 4. After obtaining the decree, the decree-holder filed an Execution Case (T.Ex. Case No. 2/79) to execute the decree. The petitioner further stated that, meanwhile, an execution proceeding (LA Case No. 22/80-81/NEC) was also initiated for acquisition of land covered by the said Dag No. 55 and during the course of said execution proceeding, an area of land measuring 7 lechas under Dag No. 55 was taken possession. Thus the said land in the said Dag No. 55 was reduced to the extent it was taken over in the said acquisition proceeding. On 10th March, 1981, an area of land measuring 13 lechas covered by Dag Nos. 54 and 203 was taken in execution of the said decree even though the decretal land is only under Dag No. 55. The petitioner is the owner of the lands under the said Dags. 5. Thereafter, the petitioner filed a petition under S. 47 of Code of Civil Procedure, stating, inter alia, that the executing Court on 29-9-80 issued a writ for delivery of possession in execution of the decree by demolishing the houses standing thereon with the help of Lot Mandal, Supervisor Kanungoo and armed police, but the Nazir could not execute the writ as the Mandal could not point out the actual decretal land. However, the decree was executed on 10-3-81 with the help of Lot Mandal, Supervisor Kanungoo and Armed police and the plot was delivered to the decree-holder. However, the decree was executed on 10-3-81 with the help of Lot Mandal, Supervisor Kanungoo and Armed police and the plot was delivered to the decree-holder. While executing the decree the Nazir took possession of a portion of land included in Dag No. 54 as well as in Dag No. 203, demolishing the houses of the judgment-debtor standing on the said land, and, therefore, he prayed for restoration of possession of land which was not covered by decree and for compensation of Rs. 9,950/- for illegal demolition of the house belonged to the petitioner. This petition was registered as Misc. (J) case No. 27 of 1981. 6. The petitioner examined, as many as three witnesses, viz. Md. Babul Ali, Amar Bodh and Madhab Ch. Gope and the opposite party also examined two witnesses, viz. Jogendra Nath Konwar and Chandreswar Gohain. Sri Punaram Dutta, Supervisor Kanungoo was examined as a Court witness. After recording the evidence and on hearing the parties, the Munsiff by his order dated 25-3-86 dismissed the petition rejecting the prayer of the petitioner. While rejecting the prayer the Munsiff observed that Sri Punaram Dutta, Supervisor Kanungoo was appointed Survey Commissioner. This Commissioner was examined as C.W. 1. He stated that a portion of the house measuring 37x4 standing on the land covered by Dag No. 54 was demolished while delivering possession. His report was also exhibited as Exhibit (b). From the report as well as from his deposition it appears that he did not take the measurement of the land of those dags. He also observed that the Commissioner did not take proper steps in preparing the report, and, therefore, his report could not her accepted. Similarly, the Munsiff also disbelieved the witnesses, PWs 1 and 2, on the ground that they are tenants of the petitioner. The Munsiff, however, accepted the evidence of DW-1, Jogendra Nath Konwar, the Supervisor Kanungoo, who was directed to assist the Nazir at the time of execution of the decree. This witness stated that he measured the Dag No. 55 and possession was delivered by Nazir. At the time of delivery, both decree-holder and judgment-debtor were present. The judgment-debtor did not file any written objection. The Munsiff also did not believe the story of acquisition of land by the government in view of the fact that there was no documentary evidence to show such acquisition. At the time of delivery, both decree-holder and judgment-debtor were present. The judgment-debtor did not file any written objection. The Munsiff also did not believe the story of acquisition of land by the government in view of the fact that there was no documentary evidence to show such acquisition. He observed that in the acquisition of the land in an acquisition proceeding, there must be some official report maintained by the acquisition department. But these things were not proved. Considering these, the Munsiff dismissed the application. Hence this present petition. 7. I have heard both sides. Now the question for determination are :- (i) whether the application under S. 47 of the Code of Civil Procedure is maintainable for restoration of possession of land not covered under a decree and for compensation for illegal demolition of the house; and (ii) whether the Munsiff was justified in dismissing the application under the facts and circumstances of the case ? 8. Mr. P. G. Baruah, learned counsel for the petitioner has submitted that an application under S. 47 of the Code of Civil Procedure is maintainable in present case, inasmuch as, it relates to execution of a decree as envisaged under S. 47 of the Code of Civil Procedure. Mr. Baruah has submitted that question regarding the excess acquisition of land can be decided only in an application under S. 47 of Code of Civil Procedure and of by a separate suit. According to Mr. Baruah, where in execution of a decree property not covered by a decree is taken possession by the decree-holder, the proper remedy for the judgment-debtor to recover the excess land by an application under S. 47 of the Code of Civil Procedure. In support of his contention, Mr. Baruah has placed reliance on the following decisions : (i) AIR 1922 PC 279 (Rai Bahadur Chottey Lal v. The Collector of Moradabad), (ii) AIR 1956 SC 87 (Merla Ramanna v. Nallaparaju) and (iii) AIR 1959 Ker 401 (PP Govinda Pillai v. PP Raman Pillai). 9. In Rai Bahadur Cottey Lal (supra) the Privy Council held that where in execution of a decree the decree-holder take possession of property in excess of a decree, the remedy of the judgment-debtor is by an application under Section 47 C.P.C. 10. 9. In Rai Bahadur Cottey Lal (supra) the Privy Council held that where in execution of a decree the decree-holder take possession of property in excess of a decree, the remedy of the judgment-debtor is by an application under Section 47 C.P.C. 10. In Merla Ramanna (supra) the Supreme Court held that when the sale in execution of a decree is impugned on the ground that it is not warranted by terms thereof, the question can be agitated when it arises between the parties to a decree, only by an application under Section 47 not by a separate suit. 11. In PP Govinda Pillai (supra) the Kerala High Court held as follows at page 402 :- "If a decree-holder takes in execution, land not included in the decree or in excess of the decree, the judgment-debtor must apply under this Section for recovery of such land and a separate suit is not maintainable....." 12. Mr. CC Deka, learned counsel for the respondents has not seriously objected to the submission of the learned counsel for the petitioner. 13. In view of the ratio of the decision cited above, I am of the opinion that under the facts and circumstances of the present case, an application filed by the petitioner under Section 47 of the Code of Civil Procedure is maintainable. 14. Next submission of Mr. Baruah, is that the Munsiff filed to exercise his jurisdiction vested in him by not allowing the prayer of the petitioner, even though the decree-holder took over possession of some land included in Dag Nos. 54 and 203 by dismantling the houses standing thereon, though the said houses are not covered by a decree. Mr. Baruah, has further submitted that the munsif while dismissing the petition did not apply his mind to the evidence of the witnesses for the petitioner and the C.W. l. While rejecting the evidence of C.W. 1 the munsiff took a double standard, inasmuch as, he rejected the evidence of Supervisor Kanungoo, C.W. 1 Punaram Dutta, on the ground that he did not take proper measurement of Dag Nos. 54 and 203. But the said witness while preparing the report proved the map and the field book. But on the other hand, the munsif relied on the deposition of the DW-1, Sri Jogendra Nath Konwar, who accompanied the Nazir, at the time of execution of the decree. 54 and 203. But the said witness while preparing the report proved the map and the field book. But on the other hand, the munsif relied on the deposition of the DW-1, Sri Jogendra Nath Konwar, who accompanied the Nazir, at the time of execution of the decree. This witness, DW-1, also did not say that he took the measurement of the land included in Dag Nos. 54 and 203. In spite of this his evidence was accepted. Besides, the evidence of PWs 2 and 3 was discarded by the munsiff solely on the ground that they happened to be the tenants of the petitioner. The evidence of the witnesses cannot be rejected merely because they are tenants under the petitioner. The tenants who are living in the suit premises can be better witnesses than any other chance witness. On this ground, Mr. Baruah has submitted that the findings arrived at by the munsiff was perverse as the same was without proper application of mind. 15. Mr Deka, learned counsel for the respondents while supporting the decision of the munsiff strenuously argued that the evidence of DW-1, Supervisor Kangungoo, who accompanied the Lot Mandal at the time of execution of the decree should be relied on. He has also submitted that his case is different in view of the fact that there was no obligation on his part to measure the land. 16. After considering the rival contentions of the learned counsel for the parties, I find that the submissions of Mr. Baruah has got sufficient force. The Munsiff unreasonably discarded the evidence of C.W.1 and rejected the prayer. When the complaint is made regarding taking over property in an execution of decree, which is outside the decretal property, it is not only the duty of the party who alleges such excess, but it is also the duty of the court to find out the truth in order to further the justice. Here, in this case, the Munsiff simply rejected the petition finding fault with the evidence of the witnesses without proper application of mind. The Munsiff rejected the evidence of C.W. 1 for not taking measurement, but similar evidence of DW-1 was accepted. This appears to be not in conformity with the established principles of law. 17. For what have been stated above, I hold that the impugned order cannot be sustained in law. The Munsiff rejected the evidence of C.W. 1 for not taking measurement, but similar evidence of DW-1 was accepted. This appears to be not in conformity with the established principles of law. 17. For what have been stated above, I hold that the impugned order cannot be sustained in law. The Munsiff had shirked his responsibility to find out the truth by discarding the evidence on some technical grounds. The Munsiff also did not shift the evidence in proper perspective. I, therefore, set aside the impugned order and remand the case to the Munsiff with a direction to pass order after shifting the evidence of the witnesses on record on the basis of established principles of law. This shall be done within a period of three months. 18. With the above observation the petition is disposed. Order accordingly.