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2013 DIGILAW 845 (HP)

Khushal Chand v. Shboha Lal

2013-09-25

RAJIV SHARMA

body2013
JUDGMENT Justice Rajiv Sharma, Judge. This Regular Second Appeal is directed against the judgment and decree dated 22.11.2012 rendered by the Additional District Judge Shimla in Civil Appeal No.2-S/13 of 2010. 2. “Key facts” necessary for the adjudication of this Regular Second Appeal are that the appellant/plaintiff (hereinafter referred to as the “plaintiff” for convenience sake) filed a suit for injunction against the respondents/defendants (hereinafter referred to as the “defendants” for convenience sake). According to the plaintiff, one Devku, daughter of Atma was resident of Village Neen Pargana Karoli, Sub Tehsil Junga, District Shimla, H.P.. She was the exclusive owner of the land comprised in Khata No.3, Khatauni No. 5, Khasra Kita No.6, measuring 14-1 Bighas in that revenue village. She was also co- sharer in possession of half share in the land comprised in Khata No.6, Khatauni No.9, Khasra Kita 6, measuring 36-1 Bighas. The other half share in the said land belonged to her husband Tek Dass, as per jamabandi for the year 1976-77. She was owner in possession of 32-1 Bighas, situated in revenue village. Tek Dass, husband of Devku, gifted 8 bighas of land in favour of Krishan Chand and thus, he was owner in possession of 10 bighas of land. He died intestate leaving behind Smt. Brikmu, daughter and Smt. Devku and Smt. Panchi, his widows. Therefore, five Bighas of land out of 10 Bighas of Tek Dass devolved upon Smt. Brikmu, his daughter and 5 Bighas jointly on Smt. Devku and Smt. Panchi in equal shares. According to him, on account of inheritance, Devku became owner in possession of 34-11 Bighas of land situated in that village, whereas Smt. Brikmu and Smt. Panchi jointly owned and possessed 7-10 Bighas of land. According to the plaintiff, Smt. Devku executed a will in favour of the plaintiff on 30.6.1980 and bequeathed the land comprised in Khasra No.92/2, 94/3, 96/7 and 2-18 Bighas of land out of Khasra No. 38 measuring 10 Bighas to the plaintiff, whereas the remaining land was bequeathed in favour of Shiv Ram, defendant No.2. Devku died on 20.7.1980. After the death of Devku, the plaintiff succeeded to 10 Bighas of land comprised in Khasras No. 92/2, 94/3, 96/7 and 113/38 on the basis of the will dated 30.6.1980 and, thus, he was owner in possession of the aforesaid land. Devku died on 20.7.1980. After the death of Devku, the plaintiff succeeded to 10 Bighas of land comprised in Khasras No. 92/2, 94/3, 96/7 and 113/38 on the basis of the will dated 30.6.1980 and, thus, he was owner in possession of the aforesaid land. Mutation No. 49 was attested by the Assistant Collector 2nd Grade on 25.8.1980 only to the extent of half share i.e. 5-2 Bighas, instead of attesting the mutation in favour of the plaintiff to the extent of 10-3 Bighas of land, on the basis of the will dated 30.6.1980. The remaining land was shown in the ownership and possession of Shobha Lal, defendant No.1. He purchased only shares of Smt. Brikmu and Smt. Panchi, which were only to the extent of 7 1/2 Bighas, therefore, the vendors could not have delivered the ownership and possession of more land than what they themselves owned and possessed. Defendant No.1 on the strength of wrong revenue entries tried to interfere in the possession of the plaintiff over the suit land in the first week of September 1998. Thereafter, the plaintiff filed a suit bearing No. 133/1 of 1998 before the learned Sub Judge (2) Shimla against him, and in that suit, defendant No.1 took a plea by filing written statement on 12.11.1998 that Devku had given just 5-2 Bighas of land to the plaintiff under the will and set up title in the remaining land, on the basis of the sale deed dated 14.7.1983 executed in his favour by Smt. Brikmu and Smt. Panchi. Civil Suit No. 133/1 of 1998 was dismissed in default on 17.1.2002. It is in these circumstances, the plaintiff filed suit for decree of declaration to the effect that he is owner in possession of the suit land measuring 10-3 Bighas and the revenue entries existing in favour of defendant No.1 are wrong, null and void. He also prayed for a decree of permanent prohibitory injunction and in the alternative, possession of the suit land was prayed for against the defendants. 3 The suit was contested by defendant No.1. On merits, defendant No.1 averred that Tek Dass and his wife Smt. Devku jointly gifted 8 Bighas of land to Krishan Chand and they continued to be the owners in possession of the remaining land around 28 Bighas in equal shares. 3 The suit was contested by defendant No.1. On merits, defendant No.1 averred that Tek Dass and his wife Smt. Devku jointly gifted 8 Bighas of land to Krishan Chand and they continued to be the owners in possession of the remaining land around 28 Bighas in equal shares. After death of Tek Dass, his half share, i.e. 14 Bighas, was devolved upon his legal heirs, Smt. Brikmu to the extent of half share and Smt. Panchi and Smt. Devku jointly to the extent of half share. The plaintiff was given half share in the suit land by Devku under the said will and mutation No. 49 was rightly attested on 25.8.1980. The plaintiff was present at the time of attestation of mutation and he was also a witness to the sale deed executed by Smt. Brikmu and Smt. Panchi in favour of defendant No.1. 4 Defendant No.2 did not choose to contest the suit and was proceeded ex-parte. 5 Replication was filed by the plaintiff. Learned trial court framed issues on 16.8.2005 and dismissed the suit of the plaintiff vide judgment and decree dated on 16.10.2009. Feeling aggrieved, the plaintiff preferred an appeal before the learned first appellate court, who dismissed the same on 22.11.2012. Hence, the present Regular Second Appeal. It was admitted on following substantial questions of law, on 26.6.2013:- 1. Whether mark A, the alleged copy of plaint in previous suit filed by the appellant could not be relied upon and it was inadmissible in evidence? 2.Whether provisions of Article 58 of the Limitation Act has wrongly been applied by the Court in the present case? 3.Whether provision of Order 9 Rule 4 CPC and article 58 of the Limitation Act are not applicable to the facts of the case and suit for injunction can be maintained at any time when there is threat of dispossession. 6 Mr. G.D. Verma, learned Senior Advocate on the basis of substantial questions of law framed, has vehemently argued that the suit filed by the plaintiff was within time. 7 Mr. B.P. Sharma, learned Senior Advocate, has supported the impugned judgments and decrees passed by the learned courts below. 8 The plaintiff has appeared as PW2. He has also produced PW1 Hari Ram an official posted in the office of Tehsildar Shimla, PW4 Lekh Ram, the Registration Clerk and PW5 Parsu Ram, one of the attesting witnesses to Will Ext. B.P. Sharma, learned Senior Advocate, has supported the impugned judgments and decrees passed by the learned courts below. 8 The plaintiff has appeared as PW2. He has also produced PW1 Hari Ram an official posted in the office of Tehsildar Shimla, PW4 Lekh Ram, the Registration Clerk and PW5 Parsu Ram, one of the attesting witnesses to Will Ext. PW4/A dated 29.7.1980 executed by Devku. The defendant examined himself as DW1 and produced DW2 Tusli Ram. It was not in dispute that Tek Dass and his wife Devku were initially owners of land denoted in the year 1975-76 by Khata No.3 and Khata No. 6. According to jamabandi Ext.PW2/A, land denoted by Khata No.3 measuring 14 Bigha 1 Biswa was owned and possessed by Devku Devi. According to the jamabandi, Ext. PW2/C, land denoted by Khata No.6 measuring 36 Bighas 1 Biswa has been reflected in co-ownership and possession of Devku and Tek Dass to the extent of half share each. According to Ext. PW2/A and Ext.PW2/C, Devku Devi was possessing 32- 1/2 Biswas of land in both these khatas. According to PW2/C, Tek Dass during his life time had gifted the land to Krishan Chand, son of Nanku Ram, vide mutation No.44, i.e. land denoted by Khasra No. 35 measuring 2 Bighas 11 Biswas, Khasra No. 37 measuring 2 Bighas 10 Biswas and Khasra No. 38/1 measuring 2-19 Bighas. It is thus evident that Tek Dass remained owner of only 10 Bighas of land. After the execution of the gift in favour of Krishan Chand, son of Nanku, Devku during her life time had executed registered will dated 30.6.1980. The execution of the will had been admitted by defendant No.1 while appearing as DW1. According to the plaintiff, Smt. Devku Devi vide will had bequeathed 10-3 Bighas of land denoted by Khasra No. 92/2, 94/3, 96/7 and 38 in his favour. PW5, Parsu Ram was one of the marginal witnesses to the will. It is specifically stated in Ext. PW4/A that the testatrix had bequeathed 10 bighas of land out of land denoted by khewat No. 6, khatauni No. 9, khasras No. 92/2, 94/3 and 96/7 and 2 bighas 18 Biswas out of khasra No. 38 situated at Mauja Neen Tehsil and District Shimla, in favour of the plaintiff. Devku died on 28.7.1980. It is specifically stated in Ext. PW4/A that the testatrix had bequeathed 10 bighas of land out of land denoted by khewat No. 6, khatauni No. 9, khasras No. 92/2, 94/3 and 96/7 and 2 bighas 18 Biswas out of khasra No. 38 situated at Mauja Neen Tehsil and District Shimla, in favour of the plaintiff. Devku died on 28.7.1980. However, as per Ext.PW2/E, instead of 10 Bighas of land, 5-2 Bighas of land had been mutated in the name of the plaintiff by the Assistant Collector, 2nd Grade. After the death of Tek Dass, his daughter Brikmu and Smt. Panchi had jointly acquired total land measuring 7-5 Bighas. However, as per sale deed, Ext.PW1/A, dated 14.7.1983, vendors are shown to have sold 14-1 Bighas of land in favour of defendant No.1. They could not sell the land excess to their actual shares. Thus, the learned trial court and the first appellate court have rightly come to the conclusion that the revenue entries showing the plaintiff as owner to the extent of 5 Bighas and 10 Biswas land are wrong and illegal. However, the fact of the matter is that the plaintiff has been non-suited on the ground of limitation. 9 The plaintiff has earlier filed a suit bearing No. 133/1 of 1998 against the defendant, which was dismissed in default on 17.1.2002. The suit was instituted on 9.9.1998. In the present suit, the plaintiff has taken a specific stand that the cause of action had arisen after 17.1.2002 when the defendant again threatened him to create charge or alienate the suit land. The present suit has been filed on 16.2.2004. According to the first appellate court, Article 58 of the Limitation Act was applicable in the present case. As per judgment of the learned first appellate court, cause of action has arisen when the written statement was filed by the defendant on 12.11.1998 when the defendant cast cloud on the title of the plaintiff over the suit land. According to both the courts below, the suit could have been filed within three years from that date. Learned first appellate court has also held that Article 65 of the Limitation Act was not applicable in the present case. Both the Courts below have erred in law while coming to the conclusion that the suit filed by the plaintiff was barred by limitation. Learned first appellate court has also held that Article 65 of the Limitation Act was not applicable in the present case. Both the Courts below have erred in law while coming to the conclusion that the suit filed by the plaintiff was barred by limitation. 10The plaintiff has filed the suit for declaration to the effect that he was owner in possession of the suit land measuring 10-3 Bighas of land on the basis of the will dated 30.6.1980 and the revenue entries existing in favour of defendant No.1 are wrong, null and void. He has also prayed for permanent prohibitory injunction and in the alternative, possession of the suit land has also been prayed for against the defendants by him. 11 In Mt. Bolo vs. Mt. Koklan, AIR 1930 Privy Council 270, expression “right to sue” has been succinctly explained as under:- “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 Mr. Koklan’s 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 rights till the year 1922, when the suit, as stated above, was instituted.” 12 In Shiam Lal vs. Mohamad Ali Asghar Husain, AIR 1935 Allahabad 174, learned single Judge has held that a mere entry of names does not debar the person against whom the entry is made for all time to come from suing for a declaration. Any new invasion of rights which amounts to a fresh denial of title confers on the owner in possession a fresh right to sue. The right to sue accrues when 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 by the defendant against whom the suit is instituted. The right to sue accrues when 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 by the defendant against whom the suit is instituted. 13 In Rukhmabai vs. Lala Laxminarayan, AIR 1960 SC 332 , their Lordships of Hon’ble Supreme Court have held that there can be “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, by the defendant against whom the suit is instituted. Their Lordships have held as under:- “31. The argument on the question of limitation is put thus: The plaintiff, respondent herein, had knowledge of the fraudulent character of the trust deed as early as 1917 or, at any rate, during the pendency of the partition suit between Rakhmabai and Chandanlal instituted in the year 1929, and the suit filed in 1940, admittedly after six years of the said knowledge, would be barred under Art. 120 of the Limitation Act. Article 120 of the Limitation Act reads: Description of suit Period of limitation Time from which period beings to run. 120. Suit for which no period of Limitation is provided elsewhere in this Schedule. Six years When the right to sue accrues. This Article was subject to judicial scrutiny both by the Judicial Committee as well as by the High Courts of various States. The leading decision on the subject is that of the Judicial Committee in Mt. Bolo v. Mt. Koklan, 57 Ind App 325 at p. 331: (AIR 1930 PC 270 at p. 272). Therein Sir Benod Mitter 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 a clear and unequivocal threat to infringe that right, by the defendant against whom the suit is instituted.” 32. The said principle was restated and followed by the Judicial Committee in Annamalai Chettiar v. Muthukaruppan Chettiar, ILR 8 Rang 645: (AIR 1931 PC 9), and in Gobinda Narayan Singh v. Sham Lal Singh, 58 Ind App 125: (AIR 1931 PC 89). The said principle was restated and followed by the Judicial Committee in Annamalai Chettiar v. Muthukaruppan Chettiar, ILR 8 Rang 645: (AIR 1931 PC 9), and in Gobinda Narayan Singh v. Sham Lal Singh, 58 Ind App 125: (AIR 1931 PC 89). The further question is, if there are successive invasions or denials of a right, when it can be held that a person’s right has been clearly and unequivocally threatened so as to compel him to institute a suit to establish that right. In Pothukutchi Appa Rao v. Secy. of State, AIR 1938 Mad 193 at p. 198, a Division Bench of the Madras High Court had to consider the said question. In that case, Venkatasubba Rao, J., after considering the relevant decisions, expressed his view thus: “There is nothing in law which says that the moment a person’s right is denied, he is bound at his peril to bring a suit for declaration. The Government beyond passing the order did nothing to disturb the plaintiff’s possession. It would be most unreasonable to hold that a bare repudiation of a person’s title, without even an overt act, would make it incumbent on him to bring a declaratory suit.” He adds at p. 199: “It is a more difficult question, what is the extent of the injury or infringement that gives rise to, what may be termed, a compulsory cause of action?” 14 In Rukshmanibehn vs. Vadilala N. Jadawala, 1994 (1) G.L.H. 237 , a Division Bench of Gujarat High Court has explained the expression “right to sue” as under: ‘7. As already noted, Article 58 of the Limitation Act, 1963, which Article learned counsel for the defendant wants use to apply to the pleas of the plaintiffs, stipulates that time of three years for a suit to obtain any other declaration would begin to run “when the right to sue first accrues”. The word “first” found in Article 58 could not have a separate or an independent significance, unless the right to sue accrues. It is the element of accrual of the right to sue that is decisive and only when the right to sue has accrued, then it has got to be found out as to when it “first” accrued. The word “first” found in Article 58 could not have a separate or an independent significance, unless the right to sue accrues. It is the element of accrual of the right to sue that is decisive and only when the right to sue has accrued, then it has got to be found out as to when it “first” accrued. Hence, the pronouncement which have spoken on Article 120 of the Old Limitation Act, 1908, do form a firm guidance, to find out as to when the right to sue accrues for the purpose of Article 58 of the Limitation Act, 1963. 8. There must be accrual of the right to sue for the plaintiff, in the sense and infringement or at least a clear and unequivocal threat to infringe that right by the defendant should happen. So far the right of the plaintiff is not infringed or there is no positive and over act on the part of the defendant to infringe the right of the plaintiff, there would not be accrual of the right to sue. When the plaintiff states and proves his case that on a particular date there was an infringement or at least a clear and unequivocal threat to infringe the right of the plaintiff, the defendant, if he wants to demonstrate a contrary position, must plead and prove the same. Some over act on the part of the defendant towards infringement or threat to infringe is expected to make it incumbent for the plaintiff to institute the suit. Then only it could be stated that the right to sue has accrued. A hostile attitude remaining dormant in the mind of the defendant and which never got expressed in any over act of his, by infringing or at least clearly and unequivocally threatening to infringe the right of the plaintiff will not bring the case within the purview of the set of expressions “right to sue accrues”. A hostile attitude remaining dormant in the mind of the defendant and which never got expressed in any over act of his, by infringing or at least clearly and unequivocally threatening to infringe the right of the plaintiff will not bring the case within the purview of the set of expressions “right to sue accrues”. The above propositions gleaned from the pronouncements which we have referred to above, thought do not require reiteration, yet we have recapitulated them for the purpose of guiding ourselves to assess the facts of the case to find out as to whether the suit of the plaintiffs is barred as contended by the defendant.” 15 In Dhanno vs. Hari Ram, (1997-2) 115 P.L.R. 393, learned Single Judge of Punjab and Haryana High Court has held that the plaintiff can file suit as and when a cloud has been cast on the title of the plaintiff and the cause of action arises in such like cases when the defendant/defendants threaten the plaintiffs to take forcible possession of the land from him. Learned Single Judge has held as under: “13. Reliance upon Section 108 of the Indian Evidence Act is wholly misplaced. This section deals with burden of proving as to whether a person is alive who has not been heard of for seven years. In view of the fact that Smt. Dhanno is stated to have married Gainda sometime in the year 1943, she automatically stand divested of her right in the land on account of section 59 of the Punjab Tenancy Act. This way the plaintiffs along with Punnu became owners of the extent of l/3rd share in the joint holding. Admittedly, the land has remained in cultivating possession of the plaintiffs as well as defendants and so the mere entries in the revenue record specifying certain shares do not cast any doubt on their valuable right and the plaintiffs are well within their right to seek correction of these revenue entries in the register of mutation etc. as and when an attempt is made to dispossess them. Thus, cause of action arises in such like cases when the defendant/defendants threaten the plaintiffs to take forcible possession of the land from him. Mere entry of mutation in the name of defendant does not furnish any cause of action to the plaintiffs. as and when an attempt is made to dispossess them. Thus, cause of action arises in such like cases when the defendant/defendants threaten the plaintiffs to take forcible possession of the land from him. Mere entry of mutation in the name of defendant does not furnish any cause of action to the plaintiffs. This precise point came up for consideration in Ibrahim’s case supra) and the Court after considering the provisions contained in Article 58 of the Limitation Act held that the use of word ‘first’ in Article 58 is of no significance at all and so the plaintiff can file suit as and when a cloud has been cast on the title of the plaintiff. Reliance was placed on the earlier decision of the Division Bench in the case reported as Niamat Singh v. Darbari Singh etc., (1956) 58 PLR 461 wherein it was held as under:- “If an adverse entry is made against a person who is in actual physical possession of the property and if he continues to retain possession of the said property despite this entry in the revenue papers he is under no obligation to bring a suit. If, however, his rights are actually jeopardised by the actions or assertions of the defendant, then he must take proceedings within six years from the date of such actions or assertions. In other words, the time begins to run not from the date on which an adverse entry is made but from the date on which there is a fresh denial of the plaintiff rights.” 16 In Bhagwanti Devi vs. Mat Ram, (2003-3) 135 P.L.R. 585, learned Single Judge of Punjab and Haryana High Court while discussing Article 58 of the Limitation Act has held that the plaintiff continues to be in possession of the suit land along with the defendant and cause of action in such case would arise when there is threat to his title. “13. It could not be disputed that the plaintiff is a partner of the firm and as partner he enjoys the benefits of the firm including the possession of the property purchased by virtue of conveyance deed dated 29.4.1968, Ext. D1. Since the plaintiff continues to be in possession of the suit land along with the defendant and, thus, his suit could not be dismissed on the ground that it is beyond the period of limitation. D1. Since the plaintiff continues to be in possession of the suit land along with the defendant and, thus, his suit could not be dismissed on the ground that it is beyond the period of limitation. The cause of action in such case would arise only when there is any threat to his title. According to the plaintiff such threat arose when Improvement Trust, Hansi served a notice under Section 9 regarding acquisition of land comprising in Khasra No.1075. At this stage on inspection of record he came to know about the omission of his name in the sale deed and in the mutation.” 17 In Manti and ors. Vs. Sarwati Devi and ors., (2004-1) 136 P.L.R. 397, learned Single Judge of Punjab and Haryana High Court has held that even if entries in revenue record are wrong, a party can choose to ignore the same till a real threat to title is apprehended. Learned Single Judge held as under:- 11. I have considered the rival submission and perused the record. There is no serious dispute about the substantive rights of the parties. Even learned counsel for the appellants does not dispute that Mata Chand having pre-deceased Dalip Chand, heirs of Mata Chand will not be entitled to the share of Dalip Chand in view of Entry-II of Class IInd of the Schedule to the Hindu Succession Act read with Section 8 of the said Act. Only question is of limitation. I am of the view that Article 58 of the Schedule to the Limitation Act will govern the limitation and the lower appellate court was in error in observing that Article 58 of the Act cannot apply. Even so, contention of the learned counsel for the appellants that the suit is barred by limitation, cannot be accepted. Though limitation is three years, the time from which this period beings to run is when the right to sue first accrues. It is not possible to accept that right to sue accrued in the year 1966 when mutation was sanctioned, as rightly held by the lower appellate court nor it accrued when gift of part of land was made. The parties were in joint possession and it is not shown that their shares were separated. It is not possible to accept that right to sue accrued in the year 1966 when mutation was sanctioned, as rightly held by the lower appellate court nor it accrued when gift of part of land was made. The parties were in joint possession and it is not shown that their shares were separated. Though learned counsel for the appellants mentioned that there was separation of joint holding, there is no material on record to indicate separation of shares and date of separation, if any. Even if entries in revenue record are wrong, a party can choose to ignore the same till a real threat to title is apprehended. Reference in this regard may be made to the decision of a Division Bench of this Court in Ibrahim vs. Smt. Sharifan, AIR 1980 P&H 25 , it was observed: “ it may be observed at the outset that that the word ‘first’ occurring in Article 58 of the Actis of no significance at all for deciding the issue of limitation so for as the facts of the case in hand are concerned as the main point which requires determination is whether mere entry of a mutation in the name of the defendant would furnish a cause of action to the plaintiff to file a suit for declaration or not.” It was further held that where no cloud is cast on the title of plaintiff, mere entry of mutation in the name of the defendant in absence of any other act of the defendant, cause of action does not accrue to the plaintiff for the purpose of Article 58 of the Schedule to the Limitation Act.” 18 In Ibrahim vs. Sharifan, 1979 P.L.J. 469, a Division Bench of Punjab and Haryana High Court has held that mere entry of a mutation in the name of defendant would not furnish any cause of action to plaintiff and cause of action arose to the plaintiff when defendant actually threatened to take forcible possession of land from the plaintiff. The Division Bench has held as under: “6. While controverting the aforesaid findings of the learned Single Judge, it was contended by Mr. The Division Bench has held as under: “6. While controverting the aforesaid findings of the learned Single Judge, it was contended by Mr. Aggarwal, learned counsel for the appellant, that cause of action arose to the plaintiff in April, 1969, when the defendant actually threatened to take forcible possession of the land from the plaintiff and that mere sanction of the mutation with respect to half share of the land in dispute in the name of the defendant did not give any cause of action to the plaintiff, especially when he had continued to be in exclusive possession of the land without any interference of any kind by the defendant. ON the other hand, it was contended by Mr. Kapur, learned counsel for the respondent, that a cloud was actually cast on the right of the plaintiff in the year 1957 after the death of Akbar mutation of inheritance was sanctioned in favour of the plaintiff, the defendant and their mother in equal shares; that the right to sue first accrued to the plaintiff, on the date when the said mutation was sanctioned and the suit having been filed beyond the period of three years was clearly barred by time. 7. After giving our thoughtful consideration to the entire matter, we find that there is considerable force in the contention of the learned counsel for the appellant. 8. It may be observed at the outset that the word ‘first’ occurring in article 58 of the Act is of no significance at all for deciding the issue of limitation so far as the facts of the case in hand are concerned as the main point that requires determination is whether mere entry of mutation in the name of the defendant would furnish a cause of action to the plaintiff to file a suit for declaration or not. There is no dispute that mutation was sanctioned in favour of the defendant after the death of Akbar and in case such an entry furnished a cause of action, then certainly the suit would be barred by limitation. Even Mr. Aggarwal very fairly conceded this proposition. But what was argued by him was that mere entry of mutation did not furnish any cause of action and in support of his contention he relied on a Division Bench judgment of this Court in Niamat Singh v. Barbari Singh etc., 1956 P.L.R. 461. Even Mr. Aggarwal very fairly conceded this proposition. But what was argued by him was that mere entry of mutation did not furnish any cause of action and in support of his contention he relied on a Division Bench judgment of this Court in Niamat Singh v. Barbari Singh etc., 1956 P.L.R. 461. In our view, the contention of the learned counsel has considerable force. The plaintiff continued to be in possession of the entire property even after the sanction of the mutations in the name of the defendant after the death of Akbar or her mother Smt. Nanhi or her uncle Bhiku. The defendant was never given any share in the rent, nor was she given any produce out of the land her share. In this situation, no cloud was cast on the title of the plaintiff by mere entry of the mutation in the name of the defendant. Further, there is no proof on the record to show that before Arpil, 1960, by any act or assertion of the defendant the right of the plaintiff was ever actually jeopardized. The defendant is occupying a house in the village. The assertion of the plaintiff is that it was given by him to her out of compassion, while the plea of the defendant is that she occupied it as of right. Be that as it may, the fact remains that so far as the agricultural land is concerned, the defendant after the sanction of the mutations never asserted her right to her share in the land in dispute, nor did she ever get any rent or produce any that it was in the year 1969 that she tried to assert her right and interfere with the possession of the plaintiff. In this situation, mere entry of a mutation in the name of the defendant would not furnish any cause of action to the plaintiff. The view of ours finds full support from the judgment of the Division Bench in Niamat Singh’s case. Thus, we do not agree with the learned Single Judge that the cause of action arose when the mutation was entered in the name of the defendant and consequently, reverse the finding on issue No. 4 and hold that the suit filed by the plaintiff is within limitation.” 19Their Lordships of the Hon’ble Supreme Court in Daya Singh and another versus Gurdev Singh (dead) by LRs. and others, (2010) 2 SCC 194 have held that right to sue accrues when there is a clear and unequivocal threat to infringe a right. Their Lordships have held as under: “13. Let us, therefore, consider whether the suit was barred by limitation in view of Article 58 of the Act in the background of the facts stated in the plaint itself. Part III of the schedule which has prescribed the period of limitation relates to suits concerning declarations. Article 58 of the Act clearly says that to obtain any other declaration, the limitation would be three years from the date when the right to sue first accrues. 14. In support of the contention that the suit was filed within the period of limitation, the learned senior counsel appearing for the plaintiffs/appellants before us submitted that there could 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 by the defendant against whom the suit is instituted. In support of this contention the learned senior counsel strongly relied on a decision of the Privy Council reported in AIR 1930 PC 270 [Mt.Bolo vs. Mt. Koklan and others]. In this decision their Lordships of the Privy Council observed as follows :- “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 by the defendant against whom the suit is instituted.” 15. A similar view was reiterated in the case of C.Mohammad Yunus vs. Syed Unnissa and others [ AIR 1961 SC 808 ] in which this Court observed : “the period of 6 years prescribed by Article 120 has to be computed from the date when the right to sue accrued and there could 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.” In the case of C.Mohammad Yunus (supra), this Court held that the cause of action for the purposes of Article 58 of the Act accrues only when the right asserted in the suit is infringed or there is atleast a clear and unequivocal threat to infringe that right. Therefore, the mere existence of an adverse entry into the revenue record cannot give rise to cause of action. 16. Keeping these principles in mind, let us consider the admitted facts of the case. In para 16 of the plaint, it has been clearly averred that the right to sue accrued when such right was infringed by the defendants about a week back when the plaintiffs had for the first time come to know about the wrong entries in the record of rights and when the defendants had refused to admit the claim of the plaintiffs. Admittedly, the suit was filed on 21st of August, 1990. According to the averments made by the plaintiffs in their plaint, as noted hereinabove, if this statement is accepted, the question of holding that the suit was barred by limitation could not arise at all. Accordingly, we are of the view that the right to sue accrues when a clear and unequivocal threat to infringe that right by the defendants when they refused to admit the claim of the appellants, i.e. only seven days before filing of the suit. Therefore, we are of the view that within three years from the date of infringement as noted in Paragraph 16 of the plaint, the suit was filed. Therefore, the suit which was filed for declaration on 21st of August, 1990, in our view, cannot be held to be barred by limitation.” 20 This Court in Shiam Singh and others versus Chaman Lal and others, 2011 (2) Shim. L.C.-1 has held that the limitation begins to run not from the date of the entry affecting the right of the person concerned, but from the date when he feels aggrieved by the entry and it is the satisfaction of such person as to when does he feel aggrieved by the entries. This Court has held as under: “14. It is well settled that for a suit for declaration, referred to in Section 46, limitation begins to run not from the date of the entry affecting the right of the person concerned, but from the date when he feels aggrieved by the entry and it is the satisfaction of such person as to when does he feel aggrieved. It is well settled that for a suit for declaration, referred to in Section 46, limitation begins to run not from the date of the entry affecting the right of the person concerned, but from the date when he feels aggrieved by the entry and it is the satisfaction of such person as to when does he feel aggrieved. Defendant cannot be heard to say that he (the plaintiff) felt aggrieved by the entry at some earlier point of time or when the entry was actually made.” 21 The plaintiff earlier instituted a suit bearing No. 133/1 of 1998 against the defendant on 9.9.1998, which was dismissed in default on 17.1.2002. The plaintiff specifically averred in the plaint that the cause of action arose to him few days before filing of Civil Suit No. 15-1 of 2004. The limitation is to be taken from the date when rights of the plaintiff were infringed or threatened by the defendant. Limitation will not run from the attestation of the mutation or revenue entries. He has filed the suit within limitation. The fact that the plaintiff knew about the revenue entries in the year 1986 and he stood witness to the will dated 14.7.1983 will not come in his way. The plaintiff has proved his title over the suit land and he was in continuous and physical possession of the same. Learned trial court has wrongly considered document Mark A, which was not duly proved by the defendant. 22 Accordingly, in view of the discussions and analysis made hereinabove, the appeal is allowed and the judgment and decree dated 22.11.2012 passed by the learned first appellate court and judgment and decree dated, 16.10.2009 passed by learned trial court are set aside and the suit of the plaintiff is decreed, as prayed for in relief clause of Civil Suit No.15-1 of 2004. Pending application(s), if any, also stands disposed of.