P. K. Bahri ( 1 ) THIS regular second appeal has been broughtagainst the judgment and decree dated 9/08/1974, of an Additionaldistrict Judge by which he had allowed the appeal of respondent Lila Ramagainst judgment and decree dated 31/01/1974, of a Sub-Judge and haddismissed the suit brought by the appellant against the respondent whereinreliefs of mandatory injunction, perpetual injunction and rendition ofaccounts were claimed. ( 2 ) THE dispute pertains to property bearing municipal No. 1 152 (Oldno. 272) situated in Gali Samosan, Farash Khana, Delhi. Admittely thisproperty was owned by Bhola Ram, father of the appellant. Lila Ramrespondent and one Kishan Lal. In 1921 Kishan Lal brought a suit forpartition and decree for partition was made and portion which is in browncolour in map Ex. Public Witness 3/2 had fallen to the share of Kishan Lal andultimately that portion also had been purchased by Lila Ram-respondent. In1983 the partition deed was executed between Bhola Ram and Lila Ram Ex. PW 3/1 which was duly registered and the map duly signed by the partieswas also registered which is Ex. Public Witness 3/2. The portion which fell to the shareof Bhola Ram is shown in light blue colour while the portion which fell tothe share of Lila Ram is shown in dark blue colour. A portion in red colouris shown as joint passage for the parties and beyond the joint passage shownin red colour, there exists a courtyard which is located in front of the cons-tructed portion which fell to the share of Bhola Ram. The portion in browncolour is located on the western side of the said courtyard. ( 3 ) THE case set up in the plaint by the appellant is that this particularcourtyard of compound, which is marked as ABCandd in the plan Ex. P-1 filedalong with the plaint, in accordance with the partition deed and the mappartitioning the properly which was duly registered, fell to the share ofappellant s father and the respondent bad started bringing drums in the saidopen courtyard for storing the same in the brown portion of the propertyand he had no right to use the courtyard at all and thus, a perpetual injunction was sought restraining the respondent from in any manner using thesaid courtyard. ( 4 ) IT was also the case of the appellant that the common passagewhich was shown in red colour in the said map has been also encroachedupon by the respondent in the manner that he had consitructed a tin-shed atthe end of the said common passage just adjacent to the said courtyard andhas been letting out the said tin-shed to the different persons for storing theirgoods and he sought mandatory injunction for demolishing the said tin-shedwhich is constructed in the portion kept for joint user of the parties. Thesaid tin-shed has been marked UHKJ in plan Ex. P-1. He has alsoalleged in the plaint that the said common passage shown in red colourin the partition deed as well as in the map was open to sky but thedefendant-respondent had covered that passage at point REFG which hadthe effect of blocking the light and air in that common passage and thus, heprayed tor relief of mandatory injunction for demolishing the said roofwhich covered the said common passage. ( 5 ) IT was pleaded in the plaint specifically that the said tin-shed andthe said roof had been constructed about 32 months prior to the institutionof the suit. The suit was instituted on 12/12/1970. The 32 monthswould take us back to about March-April 1968 ( 6 ) THE respondent contested the suit pleading that in fact the saidcourtyard was kept for common use of both the parties and has been sinceused commonly and it was further pleaded that the tin-shed had been constructed in a portion of the property which had fallen to his share and hadnot been constructed in any joint passage but he remained silent with respectto the covering the common passage. He took some preliminary objectionsthat the suit was liable to be stayed under Section 10 read with Section 151of the Code of Civil Procedure as he had also filed a suit for injunctionagainst the appellant with regard to the user of the said courtyard and alsotook the plea that the suit is bad for misjoinder of causes of actions and isnot properly valued for purposes of Court fee and jurisdiction. ( 7 ) IN replication the appellant while controverting the preliminaryobjections reiterated his plea on the merits. ( 7 ) IN replication the appellant while controverting the preliminaryobjections reiterated his plea on the merits. Before framing of issues thecourt examined defendant-respondent under Order 10 of the Code of Civilprocedure and he made a statement that the said tin-shed and the said roofover the passage are old constructions since the time of the partition of theproperty. Following issues were framed : 1. Is the suit liable to be stayed under Section 10 or Section 151of the Code of Civil Procedure ?2. Is the suit had for multifariousness ?3. Is the suit not correctly valued for the purposes of Court feeand jurisdiction ? ( 4 ) DID the defendant construct any tin-shed on any portion jointlyowned by the parties ? ( 5 ) WAS the Chowk reserved for joint use of the parties at thetime of partition ? If so, has the defendant any right to use it ? ( 6 ) DID the defendant construct any chhatta on the part of thejoint passage ? If so, when and to what effect ? ( 7 ) ( 8 ) THE learned Sub-Judge decided issues 1 and 2 against the defendant and in issue No. 3 he required the appellant to pay additional Courtfee on the separate reliefs of mandatory and perpetual injunctions and heheld that the defendant had constructed that the tin-shed on a portion jointlyowned by the parties and that the said chowk/courtyard had fallen to theshare of the plaintiff-appellant exclusively and the defendant-respondent hasno right to use the same and the defendant-respondenthad covered thecommon passage. He, however, declined to grant the relief of mandatoryinjunction in respect of the tin-shed and the said chhatta on the ground thatthe plaintiff-appellant had been guilty of laches which amount to acquiescenceon the part of the plaintiff-appellant and he proceeded to grant relief ofdamages in place of reliefs of mandatory injunctions both with regard to tinshed and the said chhatta coverage. He. however, granted relief of perpetualinjunction restraining the defendant-respondent from using the said courtyardin any manner. Thus, he partly decreed the suit for grant of perpetual injunction and declining the reliefs of mandatory injunctions, he awarded damagesof Rs. 2. 000. 00 to the plaintiff-appellant for the construction raised by thedefendant-respondent on point DJHK i. e. chhatta covering the commonpassage and Rs. 7500. 00 for the said construction of tin-shed in the commonpassage. He also awarded the costs to the plaintiff-appellant. 2. 000. 00 to the plaintiff-appellant for the construction raised by thedefendant-respondent on point DJHK i. e. chhatta covering the commonpassage and Rs. 7500. 00 for the said construction of tin-shed in the commonpassage. He also awarded the costs to the plaintiff-appellant. ( 9 ) THE defendant-respondent filed an appeal. The Additional Districtjudge, however, held that the suit in respect of the reliefs claiming mandatoryinjunction was barred by limitation. He repelled the contention of theplaintiff-appellant that as no plea has been raised with regard to suit beingbarred by limitation such a plea could not be raised for the first time beforethe first appellate Court and he held that in view of Section 3 of the Limitation Act as the fact stood admitted by the plaintiff in evidence the Courtwas duty bound to look into the plea of limitation raised for the first time inappeal. He gave the findings that the said tin-shed as well as chhatta hadbeen constructed more than three years prior to the filing of the suit and inview of Section 113 of the Limitation Act, 1963, the reliefs of mandatoryinjunction were barred by limitation. In the alternative he held that thelower Court was not legally right in granting the alternative relief ofdamages inasmuch as no such prayer has been made by the plaintiff in theplaint and during the course of arguments before the first Appellate Courtthe plaintiff bad declined to claim any such relief of damages by seekingamendment of the plaint. He also gave the finding that in fact, the courtyard has been in joint user of both the parties and thus, relief of perpetualinjunction could not be granted against the defendant. So, he set aside thejudgment and decree of the Trial Court and dismissed the suit of the plaintiffwith costs. ( 10 ) FINDINGS on issues 1, 2 and 3 were not challenged before the firstappellate Court and thus, they were contirmed. They are also not challengedbefore me in this appeal. ( 11 ) BARE reading of the partition deed and the map Ex. Public Witness 3/2which depict the portions falling to the shares of the two owners which wasalso duly registered make it self-evident that the courtyard had gone to theshare of appellant s father in the partition. It is not understood why thefirst appellate Court has not given any importance to this very materialdocument in his judgment. Public Witness 3/2which depict the portions falling to the shares of the two owners which wasalso duly registered make it self-evident that the courtyard had gone to theshare of appellant s father in the partition. It is not understood why thefirst appellate Court has not given any importance to this very materialdocument in his judgment. The learned Counsel for the respondent has notbeen able to show from the partition deed as well as map that this courtyardwas kept as joint by the two owners and that this courtyard had not fallen tothe share of the appellant s father. ( 12 ) THE learned first appellate Court gave importance to thefact that there was admission made by the appellant that the portionwhich went to the share of Kishan Lal in the earlier partition had adoor opening in this courtyard but no question was put to the appellant whether that door was kept open or not when the portion which isbrown colour had fallen to the share of Kishan Lal. Even in the writtenstatement no such fact has been pleaded that the portion which fell to theshare of Kishan Lal and had ultimately been purchased by the respondenthad any door opening in the said courtyard at the time the first partition ofthe property took place. The map Ex. PW3/2 did not show any such dooropening in the courtyard from the said portion. So, it has to be held that thecourtyard is exclusive property of the plaintiff-appellant and the learnedfirst appellate Court was not right in displacing the well considered finding ofthe Trial Court in this regard. The finding of the first appellate Court isvitiated in law inasmuch as the same has been arrived at ignoring the document of title, the partition deed and the map attached to that partition deed. In view of this. I set aside the finding of the first appellate Court on issueno. 5 and hold that this courtyard (chowk) was not kept for joint use of theparties at the time of the partition and the defendant-respondent has no rightto use that courtyard in any manner. Issue No. 5 is, hence, decided in favourof the appellant. ( 13 ) NOW coming to issue No. 4. 5 and hold that this courtyard (chowk) was not kept for joint use of theparties at the time of the partition and the defendant-respondent has no rightto use that courtyard in any manner. Issue No. 5 is, hence, decided in favourof the appellant. ( 13 ) NOW coming to issue No. 4. even assuming for the sake ofarguments that the appellant s suit was not barred by limitation and theconstruction of the tin-shed had obstructed the common passage of theparties and there is recurring cause of action arising in favour of the appellant, even then the relief of mandatory injunction could not have beengranted to the plaintiff-appellant in view of the plaintiff-appellant beingguilty of laches inasmuch as admittedly the plaintiff-appellant had not takenany objection to the construction of the said tin-shed in the joint passage formore than 5-6 years before filing the present suit. It is evident from the aforesaid map by which the partition of the property took place that a jointpassage was kept for the parties shown in red colour and this tin-shed islocated at the far end of the said joint passage. ( 14 ) KROTHAPALLI Satyanarayana v. Koganti Ramaiah and Ors. , AIR 1983sc 452. the facts, in brief, were that the defendant in that case hadconstructed a wall in the passage used as a lane for passing and repassing bythe plaintiff and also by dumping some earth in the passage he obstructed theplaintiff from passing and repassing with cattle and carts from the lane. Theplaintiff in that case had approached the Court for grant of mandatoryinjunction after about 9 years of such construction. The Trial Court in thatsuit refused to grant relief of mandatory injunction for removal of the wallon the ground of laches but had granted the relief of injunction requiring thedefendant to stop spreading of tandu in portion of lans to the west of thewall which was an encroachment on the right of way of the plaintiff In theappeal the High Court also did not grant the discretionary relief of mandatory injunction for removal of the wall as the plaintiff was held to haveacquiesced in the construction of the said wall. The Supreme Court alsoendorsed the judgment of the High Court on this point. The Supreme Court alsoendorsed the judgment of the High Court on this point. ( 15 ) THE learned Sub-Judge in the present case has also declined togrant this relief of mandatory injunction on the ground that this tin-shed hadbeen constructed more than three years before the filing of the suit withoutany objection from the plaintiff-appellant and he has relied upon Atamuhammad v. Nur Ahmad, AIR 1985 Lahore 642, where also the relief ofmandatory injunction for demolishing the construction over a common wallwas refused as the Court had been approached by the plaintiff belatedly after8 years of such construction. ( 16 ) SECTION 40 of the Specific Relief Act, 1963, debars the Court fromgranting any relief for damages in lieu of injunction unless and until theplaintiff has claimed such a relief in his plaint. An opportunity was providedto the appellant for amending the plaint to claim such damages by the firstappellate Court but for reasons unknown the plaintiff-appellant had chosennot to avail of such opportunity. Even in this appeal the appellant has notchosen to have this opportunity. ( 17 ) ALTHOUGH the question of limitation in the present case is of onlynow academic importance yet as the point has been argued in detaili would like to express my view on the said point as well. It is truethat in the written statement no plea has been taken that the cause ofaction in respect of seeking relief of mandatory injunction stood time barred. It appears that before framing the issues the Court had chosen to record thestatement of defendant-respondent in which he categorically stated that thesaid tin-shed was an old construction and had been in existence since thetime of the partition of the property. No issues were framed by the learnedtrial Court with regard to the point of limitation. However, in evidence notonly the plaintiff-appellant but his witnesses also admitted that this tin-shedwas in existence for more than three years before the filing of the suit. Thefirst appellate Court taking resort to Section 3 of the Limitation Act heldthat as the fact stands admitted by the plaintiff-appellant the Court has noopinion hut to examine the point of limitation which was a question oflaw necessarily arising from the admission of fact made by the plaintiff-appellant. ( 18 ) IN the plaint it was averred that this construction was madeabout 32 months prior to the filing of the suit. ( 18 ) IN the plaint it was averred that this construction was madeabout 32 months prior to the filing of the suit. There was no specific denialof this particular fact in the written statement but still the Court thought itadvisable to examine the defendant-respondent in order to clarify his pleawith regard to the date of the construction of the aforesaid tin-shed. At anyrate, as the plaintiff-appellant himself had admitted in his testimony aboutthe existence of this tin-shed for more than 3 years prior to filing of the suitthe first appellate Court was not issuing in taking notice of this admissionof fact and then drawing the legal inferences available flowing fromsuch facts. ( 19 ) SECTION 22 of the Limitation Act lays down that in the case of acontinuing breach of contract or in the case of a continuing tort, a freshperiod of limitation begins to run at every moment of the time during whichthe breach of the tort, as the case may be, continues. It is the contention ofthe learned Counsel for the plaintiff-appellant that the tin-shed which hadobstructed the common passage is a continuing tort and thus, till this observation remains the cause of action arises at every moment. He has referred toa number of Judgments in support of his contention. However, I may mention that this tin-shed although constructed in a joint passage still it has notfully blocked the passage of the plaintiff-appellant in any manner. The question which arises tor consideration is when such a construction had been puton the common joint property, could it give rise to continuous tort so as tobe covered by Section 22 of the Limitation Act ? ( 20 ) SECTION 23 of the Limitation Act, 1908, which is similar tosection 22 of the Limitation Act, 1963, came up for consideration before thefull Bench of the Lahore High Court in Khair Mohd, Khan and Anr. v. Mt. Jannat and Ors. , AIR 1940 Lahore 359. In the said case perpetual injunctionwas sought requiring the defendant to demolish a chabutra (platform) constructed on a portion of a courtyard which obstructed the passage of cartsand other vehicles from the outer throughfare into the courtyard and theplaintiff complained that it caused a lot of inconvenience to them and otherpersons living in the mohalla. , AIR 1940 Lahore 359. In the said case perpetual injunctionwas sought requiring the defendant to demolish a chabutra (platform) constructed on a portion of a courtyard which obstructed the passage of cartsand other vehicles from the outer throughfare into the courtyard and theplaintiff complained that it caused a lot of inconvenience to them and otherpersons living in the mohalla. The question which arose for decision waswhether it was a continuing wrong so as to give cause of action de die indiem as per Section 23 of the Limitation Act or it was covered byarticle 120 of the Limitation Act. Six years period was prescribed underarticle 120 of the old Limitation Act which has been curtailed to threeyears by similar Article 113 of the new Limitation Act. The leading judgment was given by Tek Chand, J and it was observed by him that a distinction has to be kept in view between an injury and the effects of that injury;where the injury complained of is complete on a certain date there js no continuing wrong even though the damage caused by that injury might continue. In such a case, the cause of action to the person injured arises once and forall at the time when the injury is inflicted and the fact that the effects of theinjury are felt by aggrieved person on subsequent occasions intermittently oreven continuously does not make the injury a continuing wrong so as to givehim a fresh cause of action on each such occasion. It was observed that if,however, the act is such that the injury itself is continuous, then there is a continuing wrong . The observation of Mookerjee, J. in Broiendra Kishoreroy v. Bharat Chandra Roy, 31 I. C. 242. to the following effect were quotedwith approval : "the act complained of creates a continuing source of injury and isof such a nature as to render the doer of it responsibe for the continuance: in such cases a fresh cause of action arises de die in diem. To put the matter in another way, where the wrongful act producesa state of affairs every moment s continuance of which is a newtort. a fresh cause of action for the continuance lies. To put the matter in another way, where the wrongful act producesa state of affairs every moment s continuance of which is a newtort. a fresh cause of action for the continuance lies. " ( 21 ) THE cases of continuous injury were considered in this judgment,one of which was Rai Rup Koer v. Abdul Hossein, (1881) 6 Calcutta 394,where facts were that an artificial watercourse had been constructed on thedefendants land to take water from a natural stream to the plaintiff s land. The defendants had without authority, obstructed the flow of water by making dams and cuts in the water channel and they used to take water from theplaintiff s channel to irrigate their own fields. The question arose whethersuch an act of the defendants was a continuous injury or not? The Privycouncil held that the dams, cuts and other modes of obstructing or divertingthe water from the watercourse were in the nature of a continuous nuisanceas to which the cause of action was renewed de die in diem so long as theobstructions causing such interference were allowed to continue. Otherinstances of continuous wrong are continued pollution of stream (Hole v. Chord Union, (1894) 1 Ch. 293), obstruction caused to immemmorial egressof rain water from the plaintiff s house through a drain on the defendant sland ( Punia Kuvarji v. Bai Kuvir, (1881) 6 Bombay 20), obstruction of discharge of surface water (Kaseswar Mukerjee v. Annada Prasad, 41 I. C. 863),obstructionn of light and air through ancient windows and similar suchwrongs (Shadwell v. Hutchinson, (1831)2 B. and Ad. 97, Ponnu Nadar v. Kumuru Reddiar, 59 Madras 75 and Moti Ram v. Hans Raj, AIR 1936 Lahore334 ). In all such cases the injury was said to be continuous and, therefore,limitation runs every moment of the time during which the injury continues. The learned Judge held that the present case stands on different footing asthe injury was inflicted and completed on the construction of the Chabutra (platform ). It was held that with the construction of such Chabutra on thecommon land there has taken place complete dispossession and ouster of theplaintiff. So, it was not a continuing wrong but a wrong which was completed at the time the construction was put up and it was not an injury whichhad been committed by continuation from one given day to another. Thesuit was held to be time barred. So, it was not a continuing wrong but a wrong which was completed at the time the construction was put up and it was not an injury whichhad been committed by continuation from one given day to another. Thesuit was held to be time barred. Din Mohammad, J. also agreed with themain judgment but he expres?ed the view that distinction drawn between aninjury which itself continues and an injury whose effect alone continues is toosubtle to be of any practical use. It requires a very acute brain to distinguishbetween the case of a dam that diverts the flow of water and that of a permanent structure which blocks a public way as was the case in Municipalcommissioners for the City of Madras v. Sarangapani Mudaliar, (1896) 19madras 154. ( 22 ) HOWEVER, the Supreme Court in Balakrishna Savalram Pujari Waghmare and Ors. v. Shree Dhyaneshwar Maharaj Sansthan and Ors. , AIR 1959 SC 798 . cited this judgment of Full Bench of Lahore High Court with approval. The Patna Full Bench in Sheo Narayan Singh and Ors. v. Ambica Singhand Ors. , AIR 1970 Patna 246, also has laid down similar principles as enunciated by the Lahore High Court and reiterated by the Supreme Court in theaforesaid judgment. ( 23 ) THE learned Counsel for the appellant has placed reliance onbhagwan Dutt Kamat v. Asharfi Lal Mahtha, AIR 1934 Patna34. This wasa case of obstruction of public way but the judgment does not show as to inwhat manner the obstruction was being made in the public way. It was nota case where construction has been made on the public way which could betermed as ouster of the other persons from public way. It is evident that incase the obstruction does not result in complete dispossession or ouster, suchan obstruction would be a continuous one and injury would be also a continuous one. ( 24 ) REFERENCE is then made to AIR 1935 Calcutta 201. In this judgment it was held thatlimitation does not apply in a case of obstruction to the right of way it beinga continuous nuisance. The judgment does not clarify the facts as to whetherthe obstruction amounted to complete ouster or not. ( 25 ) THE cases of Moyya Butchamma v. Moyya Venkateswararao andors. , AIR 1969 A. P. 136 and Damodara Naidu and Ors. v. Thirupur as undariammal and Anr. The judgment does not clarify the facts as to whetherthe obstruction amounted to complete ouster or not. ( 25 ) THE cases of Moyya Butchamma v. Moyya Venkateswararao andors. , AIR 1969 A. P. 136 and Damodara Naidu and Ors. v. Thirupur as undariammal and Anr. , AIR 1972 Madras 336, relied upon by the learned Counselfor the appellant are of no help to decide the present issue inasmuch as thepoint of limitation was not raised in these cases. ( 26 ) THE learned Counsel For the appellant has referred to Bai Revav. Bai Jadav, AIR 1986 S. C, 1921, which is not on the point which has arisenfor decision before me. It is true that in order to claim adverse possessionthe ouster must be for 12 years but here is the question whether the suit filedby the plaintiff-appellant seeking the relief of mandatory injunction was within time. ( 27 ) FACTS of the present case are in para-materia with the facts ofthe case decided by the Lahore High Court in the Full Bench judgment. So,following the Full Bench judgment of the Lahore High Court which standsapproved by the Supreme Court. I hold that in the present case the construction of the tin-shed in the common passage amounted to complete ouster ofthe right of common use to that portion of the joint passage where the tinshed stood constructed. Hence, the injury was complete when the tin-shed wasconstructed and limitation was three years for filing the suit for seeking therelief of mandatory injunction. ( 28 ) SIMILAR is the position in respect of the covering of the commonpassage which was subject-matter of issue No. 6 ( 29 ) NO satisfactory evidence was led by the appellants to prove thatthe said tin-shed had been lake out. so relief of rendition of accounts couldnot be granted to the appellants. ( 30 ) SO, in view of the above discussion. I partly allow the appeal andset aside the judgment and decree of the first Appellate Court and restorethe judgment and decree of the lower Court granting injunction restrainingthe defendant-respondent from using the courtyard in question markedabcd in map Ex. P 1 in any manner which is the exclusive property of theplaintiff-appellant. The appeal with regard to other reliefs is dismissed. Inview of the partial success, I leave the parties to bear their own coststhroughout.