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2001 DIGILAW 70 (HP)

PARKASHO DEVI v. BASHESHAR SINGH ALIAS SHER SINGH

2001-05-04

K.C.SOOD

body2001
JUDGMENT Kuldip Chand Sood, J.—This second appeal under Section 100 of the Code of Civil Procedure, is directed against the judgment and decree of learned Additional District Judge (II), Kangra at Dharamshala dated June 30, 1999. Admitted facts. 2. The land, subject matter of dispute, in tikka Kutlahar, Mauza Talara, Tehsil Nurpur, District Kangra, was owned and possessed by four brothers, namely, Hari Singh, Punjab Singh, Filo and Chuhru, all sons of Sunder. Thus, each of the brothers had l/4th share in this land. They had one sister, Chinto Devi, who died in the year 1959 leaving behind her daughters Parkash Devi and Brahmo Devi. Sh. Chuhru died intestate in the year 1972. He was not married and, therefore, issueless. On the death of Chuhru, mutation of his share was attested in favour of surviving brothers, e.g., Hari Singh, Punjab Singh and File as also in favour of Parkasho Devi and Brahmo Devi daughters of Chinto Devi. Mutation in respect of l/4th share was attested in dis-regard to the provisions of Section 12 of the Hindu Succession Act as Chinto Devi had pre-deceased her brother Chuhru and, therefore, only the surviving three brothers were entitled to inherit the share of Chuhru to the extent of l/3rd each. 3. In the year 1991, plaintiffs, successors-in-interest of Hari Singh, Punjab Singh and Filo filed a suit for declaration that the plaintiffs are the exclusive owners/co-sharers in possession of the disputed property and revenue entries to the contrary showing Parkasho Devi and Brahmo Devi daughters of Smt. Chinto to be co-sharers to the extent of l/4th share of Chuhru, are wrong, illegal, merely paper entries, against law, null and void as their mother Chinto Devi had pre-deceased Chuhru and, therefore, they were not entitled to inherit any part of the share of Chuhru in the presence of his brothers. A prayer to restrain the defendants from interfering with the possession of the plaintiffs and from getting the same partitioned from the Assistant Collector 1st Grade on the basis of wrong entires, was also made. 4. A prayer to restrain the defendants from interfering with the possession of the plaintiffs and from getting the same partitioned from the Assistant Collector 1st Grade on the basis of wrong entires, was also made. 4. It was the case of the plaintiffs that inspite of the entries in the revenue record, the plaintiffs and their predecessors continued to be in possession and it was only when defendants filed partition proceedings before the Assistant Collector, 1st Grade, that they visited the Patwari and saw the records and came to know that names of Parkasho Devi and Brahmo Devi were recorded as co-sharers in respect of the disputed land. 5. The defendants resisted the suit. It was pleaded that the mutation of inheritance in respect of the share of Chuhru was rightly attested. The plaintiffs having not objected to the attestation of the mutation at any point of time, cannot now challenge the revenue entries showing the defendants to be co-sharers. The suit, it was further pleaded, is barred by the period of limitation. 6. Learned trial Judge dismissed the suit of the plaintiffs. In appeal, the judgment and decree of the trial Court was set aside by the judgment and decree impugned in this second appeal. 7. Learned First Appellate Court found that the plaintiffs are in possession of the entire disputed land and further concluded that the suit is not barred by the period of limitation as the plaintiffs came to know about the wrong entry only in the year 1994. Learned First Appellate Court also found that no cloud was cast on the title of the plaintiffs and they could file the suit when defendants actually threatened to take forcible possession. 8. I have heard Mr. Ajay Sharma, learned Counsel for the appellants and Mrs. Rama Mehta, learned Counsel for the respondents and have also perused the record. 9. The only contention raised by Mr. Ajay Sharma, learned Counsel for the appellants is that the suit was barred by the period of limitation under Article 58 of the Limitation Act. The argument is that mutation of inheritance of the share of Chuhru was attested on 16.3.1973 in terms of mutation No. 731. Therefore, under Article 58, the suit could have been maintained only within three years of that date, whereas, the suit was filed almost after eighteen years of the attestation of mutation. 10. The argument is that mutation of inheritance of the share of Chuhru was attested on 16.3.1973 in terms of mutation No. 731. Therefore, under Article 58, the suit could have been maintained only within three years of that date, whereas, the suit was filed almost after eighteen years of the attestation of mutation. 10. In the present case, learned First Appellate Court, after appreciation of the evidence, found, as a matter of fact, that inspite of the attestation of mutation of l/4th share of Chuhru in favour of defendants No. 1 and 2, the plaintiffs continued to be in possession and their possession was never in dispute. He particularly referred to the statement of Kirpalu son of Shri Filo (PW 1) and copies of the revenue record in terms of jamabandis for the year 1971-72 (Ext. PI), 1975-76 (Ext. P2), 1982-83 (Ext. P3) which shows the possession of the plaintiffs over the disputed land. The learned Additional District Judge observed : “......The suit land is in possession of the plaintiffs and no part thereof is recorded to be in possession with the respondents.” 11. I find, even Parkasho Devi, appearing as DW1, did not claim joint possession with the plaintiffs. What she stated was that she is a co-sharer in the suit land. In these circumstances, inspite of attestation of the mutation of l/4th share of Chuhru in favour of the defendants in the year 1973, no cloud was cast on the title of the plaintiffs. 12. Article 58 of the Limitation Act, 1963 provides for a limitation of three years to obtain declaration and the period begins to run "when the right to sue first accrues”. Article 58 is a residuary Article under the Limitation Act, 1963. The suit for declaration, which was not governed by any other Article in the Act, was covered by residuary Article 120 of 1908 Act and such a suit now indeed is governed by Article 58 of the 1963 Act. 13. It may be noticed, the limitation period of three years commences from the date when the right to sue first accrues but the question is when the right to sue accrues. In my view, the right to sue would accrue when right in respect of which declaration is sought is denied or challenged. 13. It may be noticed, the limitation period of three years commences from the date when the right to sue first accrues but the question is when the right to sue accrues. In my view, the right to sue would accrue when right in respect of which declaration is sought is denied or challenged. A mere entry in the revenue papers of the name of the defendants as co-owner of the property, without any act of denied on the part of such defendant(s) will not provide a cause of action. There is no scope of dispute that mutation of l/4th share of Chuhru was wrongly attested in favour of the defendants and it is only because of this illegal attestation of mutation that entries in the revenue record showing the defendants as co-sharers to the extent of l/4th share of Chuhru were incorporated. In these circumstances, the right to sue would accrue to the plaintiffs only when their possession was threatened or an application for partition on the basis of these entries was filed in the Revenue Court. 14. As far back in 1930, in ML Bolo appellant v. Aft. Koklan and others, respondents, AIR 1930 Privy Council 270, a Judicial Committee interpreting the provisions of Article 120 of 1908 Act observed : “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 the opinion that there was no infringement of, or any clear and unequivocal threat to her rights till the year 1922, when the suit, as stated above was instituted” (Emphasis supplied) 15. This principle was re-stated and followed in Annamalai Ct-ieitiar v. Muttukaruppan Chettiar, AIR 1931 PC 9. This principle was re-stated and followed in Annamalai Ct-ieitiar v. Muttukaruppan Chettiar, AIR 1931 PC 9. In Mst Rukhmabai, appellant v. Lal Laxminarayan and others, respondents, AIR 1960 Supreme Court 335, a contention was raised that plaintiff respondent had knowledge of fraudulent character of the trust deed for 10 years, during the pendency of the partition suit instituted in the year 1929, but the suit was filed in the year 1940 much after the limitation of six years under the 1908 Act from the date of knowledge and therefore, the suit would be barred under Article 120 of the 1908 Act. The Apex Court interpreting the provisions of Article 120 of the Limitation Act of 1908 and heavily relying upon Mt Bolo, held: "33. 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 plaintiffs 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" (Emphasis supplied) 16. In Zorawar Singh and another Appellants v. Dip Chand and others, respondents, AIR 1929 Allahabad 331, it was observed that a suit for declaration may be repeated causes of action and each new cause would give a fresh right to sue. 17. In Faqira and another, plaintiffs-appellants v. Hardewa and others, defendants-respondents, AIR 1928 Allahabad 172, Full Bench of the Allahabad High Court had occasion to interpret Article 120 of Limitation Act, 1908. In that case, there was wrong entry in the khewat and the advantage of that wrong entry was likely to be taken by the defendants. The fact of such entry was never brought to the notice of the plaintiffs. In this background, the Full Bench speaking through Mukerji, J. held : "The right to sue, within the meaning ot Article 120 of the Limitation Act accrued to the plaintiff on the filing of the application for partition and not earlier," (Emphasis supplied) 18. The fact of such entry was never brought to the notice of the plaintiffs. In this background, the Full Bench speaking through Mukerji, J. held : "The right to sue, within the meaning ot Article 120 of the Limitation Act accrued to the plaintiff on the filing of the application for partition and not earlier," (Emphasis supplied) 18. It tlitis, is settled law that cause of action to obtain declaration under Article 58 of the Limitation Act, will only accrue when the rights of a plaintiff are invaded by an overtact. 19. In Thakurain Chhabraj Kuer, defendant-appellant v. Ram Deo Singh and others, plaintiffs-respondents, AIR (29) 1942 Oudh 346, a Division Bench of Oudh High Court held that so long as a mutation does not injure the plaintiff, he need not come to the Court at all and, therefore, a plaintiff is not out of time if he institutes a suit within six years (under the 1908 Act) of the injury which the entry creates and which is his cause of action. This statement of law was reiterated again in C. Mohammad Yunus, appellant v. Syed Unnissa and others, respondents, AIR 1961 Supreme Court 808. In this case, their Lordships emphasized that a suit for a declaration of a right and an injunction restraining the defendants from interfering with the exercise of that right is governed by Article 120 (now Article 58) and 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 a clear and unequivocal threat to infringe that right. 20. In Fateh Ali Shah and others v. Muhammad Bakhsh and others, AIR 1928 Lahore 516, a Division Bench of the Lahore High Court held that plaintiff in possession need not bring a suit on first denial of his title and he need to take proceedings within six years (under the old Act) from the time when his rights are actually jeopardized. The Division Bench observed : "If a plaintiff is in possession or enjoyment of the property in suit he is not obliged to sue for a declaration of title on the first or each succeeding denial of his title by the defendant. He may look upon each denial with complacency or at his option may institute a suit to falsify the assertions of the other side. He may look upon each denial with complacency or at his option may institute a suit to falsify the assertions of the other side. But when he finds that his rights are being actually jeopardized by the action or assertion of the defendant, then he must take proceedings within six years from the date of such actions or assertions: AIR 1922 Lah. 94, AIR 1925 Lah. 391 and 140 P.R. 1907; Dist." 21. This apart, persons continuing in possession inspite of adverse entry in the revenue papers need not seek any declaration until their possession is threatened. Reference may be made to Ghulam Mohammad Khan and others v. Sammundar Khan and others, AIR 1936 Lahore 37. In that case, the adverse entry was made in the year 1905-1906. The suit was filed much after the period of limitation under Article 120 of 1908 Act. In the plaint, it was urged that the entry was made in the jamabandi behind the back of the plaintiffs and they learnt about these entries for the first time in the year 1929-30. The defendants traversed the allegations. In this background, the Division Bench held that cause of action in all such cases "would accrue when the plaintiff feel aggrieved, and in these circumstances, on the plaintiffs allegations, these suits will be within time." 22. Otherwise also, entries in the revenue record for which there is no foundation, do not create any title (See : Jattu Ram v. Hakam Singh and others, JT 1993 (5) SC 423; Guru Amarjit Singh v. Rattan Chand and others, AIR 1994 Supreme Court 227; Guru Amarjit Singh v. Rattan Chand and others, (1993) 4 Supreme Court Cases 349). 23. I am also of the view that a mutation does not create title. It is only for the purpose of keeping the revenue records up-date that mutation is entered either at the instance of the party interested or suo moto by the concerned patwari or any other revenue officer on account of some change having taken place in ownership or other interest in the land and, therefore, defendants cannot succeeds simply because mutation of l/4th share of Chuhru was wrongly attested in their favour. 24. No other point is urged before me. 25. In this case, no substantial question of law arises. There is no merit in this appeal. The same is dismissed. No costs. Appeal dismissed.