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2011 DIGILAW 453 (KAR)

Ameeruddin s/o Maktum Hussain Kodakaeri v. Hussainsab S/o Imamsab Hakki

2011-04-19

D.V.SHYLENDRA KUMAR

body2011
Judgment :- 1. This is a plaintiff’s second appeal, who, sued for a mandatory injunction for removal of some structure in the form of a bathroom and latrine constructed by a neighbour-defendant, for declaration that the plaintiff is the owner of the subject land and for further consequential injunction. Suit dismissed by the trial Court and affirmed in appeal by the lower appellate Court. 2. Immovable properties have the knack of getting compatible with persons who start enjoying it. A true owner, if abandons the property allowed to be occupied by all and sundry and wakes up like a Rip van winkle long after, and starts howling that his property has been occupied by some stranger, well the stranger will have become the owner by then and he will no more be a stranger because the stranger has acquired familiarity with the property, due to long years of enjoyment and true owner becomes a stranger due to long years of absence from the property! Such is the law of the properties. 3. Plaintiff’s case was that the subject land on which the neighbour had encroached and put up construction, was a part of CTS No.1391-B of Ilakal village adjacent to CTS No.1391-A and 1392, which are all the properties of the plaintiff. Such is the assertion in the plaint. It is the further version of the plaintiff that the defendant, while is allotted CTS no.1390 has found it not adequate to his requirements and has therefore conveniently walked into a part of CTS No.1391-B and has arranged for his conveniences to be constructed there and plaintiff woke up to this reality only when he had visited the spot after 16 to 17 years of the construction put up by the defendant, which is a fact even as per the plan sanctioned by the Municipal authority! 4. Plaintiff in fact, was not even able to make good his possession, earlier enjoyment and title, etc. and therefore the suit was dismissed wholesale including on the point of limitation. The result of the appeal being no different, the present second appeal by the disgruntled plaintiff. 5. 4. Plaintiff in fact, was not even able to make good his possession, earlier enjoyment and title, etc. and therefore the suit was dismissed wholesale including on the point of limitation. The result of the appeal being no different, the present second appeal by the disgruntled plaintiff. 5. Appearing on behalf of the appellant submission of Sri V.R. Datar, learned counsel, is that the Courts below have totally gone wrong in dismissing the suit and the first appeal respectively, on the ground of limitation, have not appreciated the correct legal position; have not appreciated the law in this regard in it’s proper perspective; that the cause of action does not begin to run on the day a third party encroaches or commits violation in respect of proprietary rights of the plaintiff, but starts only on the day when the plaintiff comes to know of the such violation and therefore submits that the suit was well within time and the judgment is contrary to law. 6. I have perused the judgment and decree of the Courts below. A look at the issues framed by the trial Court, which are as under: (1) Whether the plaintiff proves that he is absolute owner in a lawful possession of the suit ‘ABCD’ area, as shown in the hand sketch map as on the date of the suit? .(2) Whether the plaintiff further proves that the defendant illegally has constructed the latrine and bathroom in the ‘ABCD’ area and fixed up the drainage pipes along ‘BKJ’ line as alleged? .(3) Is the plaintiff proves that the alleged interference by the defendant? .(4) Is the plaintiff entitled for the mandatory and permanent injunction as sought? (5) What relief? Addl. Issue .(1) Whether the suit of the plaintiff is time barred? and answers to all issues being in favour of the defendants and none in favour of the plaintiff, and the lower appellate having formulated the point for determination and having answered that against the plaintiff-appellant, the scope for further examination in this second appeal is virtually nil. In fact no question of law wrongly decided by the Courts below arises in this appeal for examination. 7. In so far as the submission relating to the aspect of limitation is concerned, though even if the suit was out of time, the plaintiff nevertheless would have failed in the event of the findings on other issues. In fact no question of law wrongly decided by the Courts below arises in this appeal for examination. 7. In so far as the submission relating to the aspect of limitation is concerned, though even if the suit was out of time, the plaintiff nevertheless would have failed in the event of the findings on other issues. Even on the issue of limitation I am of the considered and definite opinion that the Courts below have answered the issue correctly. I say so for the following reasons. 8. A look at the Limitation Act prescribing the periods of limitation as per the schedule to the Act shows that the starting point for computing limitation varies from situation to situation and is not necessarily uniform. In respect of many situations the starting point for computing Limitation is no doubt mentioned to be the cause of action and it is computed from the date cause of action arises. Arising of cause of action is undoubtedly a variable factor depending upon the facts and circumstances of each case and is an aspect which is required to be gathered from the pleadings of the parties. In fact the definition of cause of action is that it is a bundle of facts disclosing the rights of parties and which rights are in fact been violated or denied by the other side. 9. If the plaintiff had claimed the ownership of subject land and is accusing another person, as having violated his proprietory rights, the starting point of cause of action is that the day when such right is violated and not a date when the plaintiff in fact realizes that his rights have been violated by some offensive act on the part of the defendant. The convenient attitude of “do not care” about the developments in the property, cannot save the starting point of limitation in favour of a person who prefers to shut his eyes to reality and wants to live in a make believe world. 10. Well if rip van winkle had chosen to sleep for long years in the woods, world did not wait for him, went past him and when he woke up from his slumber and returned to his village, he found it was a totally different and changed world! 11. 10. Well if rip van winkle had chosen to sleep for long years in the woods, world did not wait for him, went past him and when he woke up from his slumber and returned to his village, he found it was a totally different and changed world! 11. If the plaintiff wants to assume the role of a rip van winkle, well he has to pay for it and no premium can be placed in favour of persons who choose to sleep rather than to be vigilant about their property rights. 12. The whole idea of enacting the Law of Limitation and the purpose of putting in a law like this in place, is to ensure that things which have got settled over a period of time, are not disturbed just because of ancient rights and more so Courts declining to lend their hands in favour of indolent and irresponsible persons, who, allow things to develop all around them, but remain inactive. Law helps the vigilant persons with bonafides and not the indolent and negligent. Feigning ignorance of the developments is no good for saving limitation to any person, the present case of the plaintiff is no different. 13. Sri V.R. Datar, learned counsel appearing for the appellant also urges that the judgments are contrary to the findings as recorded by the Court Commissioner to the effect that the construction put up by the defendant was not found on a property identified to be bearing a CTS number by the Municipal authority, but on a private land. 14. This argument does not advance the case of the plaintiff any further, more so, for getting over the judgments and decrees of the Courts below for the simple reason that just because the construction was not of a property identified or given a C.T.S. number and was even assuming for arguments sake was in fact on a private property, it does not necessarily mean that the property is the property of the plaintiff, unless and until the plaintiff establishes his ownership in respect of this property also and in fact the Courts below having negatived this claim and having declined to declare the title of the plaintiff as owner, the argument does not succeed, but fails. 15. No merit in this appeal for examination and no scope for interference in Sec. 100 C.P.C. Appeal is dismissed.