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2020 DIGILAW 437 (MP)

Kamla Bai v. Prem Bai

2020-03-18

SANJAY DWIVEDI

body2020
JUDGMENT : 1. This appeal under Section 100 of the Code of Civil Procedure has been filed by the appellants/defendants against the judgment and decreed passed on 13.08.2001 by District Judge, Raisen in Civil Appeal No. 11-A/2001 whereby the appellate court reversed the judgment and decree dated 20.01.2001 passed by Civil Judge, Class I, Gauharganj in Civil Suit No. 7-A/2000. 2. This appeal has been admitted by this Court on 17.04.2002 on the following substantial question of law: - "Whether the appellate Court erred in holding that the suit is within time while the suit was barred by time because plaintiff had demanded her share 20 years before filing of the suit and it was denied: 3. To answer the substantial question of law framed by this Court, the facts in brief are taken note of that the respondent No. 1/plaintiff filed a suit for declaration and possession for the land situated at Kh. No. 9 area measuring 3.09 acres, Kh. No. 10 area measuring 0.87 acre and Kh. No. 12 area measuring 5.60 acres, total area being 9.56 acres of village Divatiya, Tehsil Gauharganj, District Raisen. The plaintiff has claimed that out of the land described hereinabove, she be declared owner of 1/3rd of the land and decree of possession be also passed in her fafvour. Admittedly the land in dispute was owned by Neekaram, the father of the plaintiff. Neekaram died leaving behind his wife, two sons namely Phool Singh and Hari Prasad and plaintiff namely Prem Bai, the daughter. Phool Singh also died leaving behind his wife Kamla Bai, son Mahesh Kumar and daughter Ombati Bai. The mother of the plaintiff also died and thereafter defendant Nos. 1 to 4, the present appellants, and respondent No. 2 herein were in joint possession of the property and were looking after the same. After the death of Neekaram, the suit property had to be recorded in the name of his wife and sons Phool Singh and Hari Prasad and daughter Prem Bai (Plaintiff), but Plaintiff/respondent No.1 was never informed that her name was not recorded in the revenue record as joint owner of the property in dispute. After the death of Neekaram, the suit property had to be recorded in the name of his wife and sons Phool Singh and Hari Prasad and daughter Prem Bai (Plaintiff), but Plaintiff/respondent No.1 was never informed that her name was not recorded in the revenue record as joint owner of the property in dispute. As per the plaintiff, her name got recorded in the share of her mother whereas her name had to be recorded jointly in the property in dispute, which was left by Neekaram in which the plaintiff had also equal share as that of defendants. As alleged by the plaintiff, in collusion with the revenue officials, the defendant Nos. 1 to 3 got their name mutated in the revenue record in respect of half of the portion of the suit land whereas she was also entitled to get 1/3rd share in the suit land and she should have been given 3.18 acres of land. As per the plaintiff, when she obtained copy of Khasra on 13.07.1997 then only she came to know that she is in possession of one acre of land whereas she was entitled to get 3.18 acres of land and, therefore, she filed a suit for declaration and possession in respect of her share, which she was claiming in the plaint. By and large, the claim of the plaintiff was that after the death of Neekaram, defendant Nos. 1 and 4 and the plaintiff also had an equal share in the suit property, therefore, she should be granted possession of 02 acres of land from defendant No. 4 and possession be also delivered to her. 4. Defendant Nos. 1 to 3 filed their written statement in which they contested the claim of the plaintiff. It was also pointed out that Janki Bai, the mother of the plaintiff, died somewhere in the year 1977. During here lifetime, there was a partition and half of the suit land was allotted to the defendant Nos. 1 to 3 and rest half of the land was allotted to defendant No. 4. It is also stated in the written statement that defendant Nos. 1 to 3 are in possession of the suit land since last 25 years. It is further stated that since 1969-70 the name of defendant Nos. 1 to 3 and rest half of the land was allotted to defendant No. 4. It is also stated in the written statement that defendant Nos. 1 to 3 are in possession of the suit land since last 25 years. It is further stated that since 1969-70 the name of defendant Nos. 1 to 3 is recorded in the revenue record in respect of 4.78 acres of land and as such the suit filed by the plaintiff was time barred. 5. In view of the stand taken by the parties in the plaint and also in the written statement, the trial court framed as many as four issues including the Issue No. 3 i.e. in respect of limitation saying that "whether the suit filed by the plaintiff is barred by time". The trial court, while dealing with the issue in respect of the limitation, has observed that as per the plaintiff herself she was aged about 35 years and when she was minor her father Neekaram died. After the death of Neekaram, the mother of the plaintiff namely Janki Bai and her brother Phool Singh died 22 and 20 years back respectively. The trial court has further observed that as per the statement given by the plaintiff Prem Bai (PW-1) that she had demanded her share from her mother Janki Bai and brother Phool Singh, but they had not given her share. However, they had assured that they would give the same to her. The trial court has found that since as per the admission of the plaintiff she had demanded her share 20 years back, therefore, cause of action started from that point. It is further observed by the trial court that in the year 1970-71 the name of the plaintiff was not recorded in the revenue record and being a public document the plaintiff could have obtained the same and could have enquired as to why her name was not recorded in the revenue record. It is further observed by the trial court that in the year 1970-71 the name of the plaintiff was not recorded in the revenue record and being a public document the plaintiff could have obtained the same and could have enquired as to why her name was not recorded in the revenue record. The trial court has also observed that as per the plaintiff herself she made demand of her share from her mother and brother, but, they have not given her share and at that time her age was about 15 years, but, after attaining the majority since cause of action was already started at the time when her age was 15 years and when she first time made demand from her mother and brother, the limitation started from that point of time. It is also observed by the trial court that as per Article 65 of the Limitation Act, 1963, the limitation of 12 years is provided for bringing a suit for claiming possession, but, admittedly the present suit was filed thereafter. The trial court has found that in the year 1970-71 when the name of the plaintiff was not recorded in the revenue record, she was about 15 years of age and after attaining the majority the cause of action had already been started, but, the suit was not filed within the said period of limitation and accordingly it was dismissed. 6. The appeal was preferred against the judgment and decree of trial court. The first appellate court reversed the judgment and decree passed by the trial court and has observed that the suit was within limitation. In Para-15 of its judgment the appellate court has observed that as per the pleadings and evidence adduced by the parties, it is no where mentioned that the defendants have ever denied the plaintiff to give her share whereas they assured her for partition of the property and to give share to her. Merely because in the revenue record the name of defendants were recorded and the plaintiffs name was not recorded, it is not proper to say that the cause of action starts from the said date and the suit cannot be held to be time barred. Merely because in the revenue record the name of defendants were recorded and the plaintiffs name was not recorded, it is not proper to say that the cause of action starts from the said date and the suit cannot be held to be time barred. In para-16 of its judgment, the appellate court has observed that until and unless there is specific denial to the plaintiff to give her share and also on the fact that when she was held to be share holder in the property of her father, the suit filed by her cannot be said to be barred by time. The Appellate Court thus reversed the finding of the trial court in respect of the limitation for filing the suit. 7. Present appeal under Section 100 of CPC has been filed by the appellants/defendants and this Court has admitted the appeal on a singular substantial question of law i.e. in respect of the issue whether the suit filed by the plaintiff was time barred or not. 8. Learned counsel for the appellants has submitted that the finding given by the trial court in respect of not filing the suit within limitation was perfectly right. He has drawn attention of this Court towards the averments made in paragraph-8 of the plaint wherein the plaintiff has stated that first the cause of action accrued on 13.07.1997 when she came to know about the illegal partition and at the last on 02.04.2000 when the defendants had refused to give crops of her share from the land in dispute. Counsel has further drawn attention of this Court towards the statement made by the plaintiff in paragraph-4 of her statement in which she has stated that when she demanded her share from her mother and brother, they assured her to give the same. The brother has also stated that since all were residing together, therefore, the plaintiff could be given her share in future. As per the counsel for the appellant, the cause of action for filing the suit of partition accrued for the first time when the plaintiff made demand of her share from the land in question and the trial court has rightly held that the suit was not filed within time from the date of cause of action and accordingly the court has rightly held that the suit was time barred. Learned counsel for the appellants has relied upon a decision reported in (2011) 9 SCC 126 - Khatri Hotels Private Limited and another vs. Union of India and another. As per learned counsel for the appellants, Article 58 of the Limitation Act, 1963 provides that cause of action for filing a suit for declaration starts when 'right to sue first accrues'. According to the appellants, in the facts and circumstances of the case, the respondent No. 1/plaintiff had first got the cause of action in her favour from the date when she made demand of her share from her mother and brother and indisputably she had not filed the suit within the limitation prescribed and, therefore, the finding given by the court is perverse and the first appellate court has erroneously reversed the same without appreciating the fact that right to sue first accrues to the plaintiff when she first time raised demand of her share. 9. Learned counsel for the respondents submits that the finding given by the trial court is absolutely erroneous. Therefore, the first appellate court has rightly reversed the same observing that the cause of action to file the suit for declaration starts from the date when plaintiff came to know about the illegal partition between the parties and she has been denied her share in the same. Learned counsel has also placed reliance upon a decision reported in AIR 1961 SC 808 - C. Mohammad Uunus V. Syed Unnissa and others in which the Supreme Court has held that a suit for declaration of right and injunction restraining the defendants from interfering with the exercise of that right is governed by Article 120, according to which, 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. 10. 10. In view of the rival contention of the parties, the finding given by both the courts below and the judgment relied by them, I am of the opinion that the trial court was wrong in determining the cause of action accrued in favour of the plaintiff from the date when her name was not recorded in the revenue record somewhere in the year 1977 and that being a public document, the plaintiff could have obtained the same, but that was not done and even though the demand was made by the plaintiff of her share from her mother and brother. The trial court has not correctly appreciated the starting point of limitation. As per Article 58 of Limitation Act, to obtain the decree of declaration the suit has to be filed within a period of three years from the date when right to sue first accrues. Here in this case as per the trial court the point of limitation started from the date when revenue records were corrected and the name of plaintiff was not recorded and further from the date when she made a demand of her share. However, I am not convinced with the said observation of the trial court because in view of the law laid down by the Supreme Court in the case of Khatri Hotels Private Limited (supra). The Supreme Court in para-25 has referred a decision of Privy Council in which it is observed 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, a clear or unequivocal threat to infringe that right, by the defendant against whom the suit is instituted." Likewise, in the case of Daya Singh and another vs. Gurdev Singh (Dead) by LRS. & others reported in (2010) 2 SCC 194 the Supreme Court in respect of starting point of limitation has observed as under: "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 Mt.Bolo vs. Mt. Koklan and others AIR 1930 PC 270 . In this decision Their Lordships of the Privy Council observed as follows :- (IA p. 331) "...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 C. Mohammad Yunus vs. Syed Unnissa [ AIR 1961 SC 808 ] in which this Court observed : (AIR p. 810, para 7) "7. ...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 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 at least 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 21-08-1990. 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. Admittedly, the suit was filed on 21-08-1990. 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 21-8-1990, in our view, cannot be held to be barred by limitation. Further the Kerala High Court also in the case of Mohammed Basheer V. Jameela reported in 2012 (4) KHC 920 in para 19 has observed as under:- "19. Article 58 of the Limitation Act prescribes a limitation of three years for a declaration of the nature sought for in this case. As per this Article, the period of limitation begins to run when the right to sue first accrues. The Honourable Supreme Court in Daya Singh v. Gurdev Singh, 2010 (1) Recent Apex Judgments (R.A.J.) 2010 : (2010) 2 SCC 194 held that the right to sue for declaration accrues when there is a clear and unequivocal threat to infringe the right. Therefore, the real test is not to ascertain when the factum of purchasing the property or constructing the buildings in the name of the respondent came to the knowledge of the appellant for reckoning the commencement of the period of limitation. But, such commencement of the period of limitation depends on the fact when was the clear and unequivocal threat to or infringement of the right of the appellant had taken place. The fact that the property and the buildings stand in the name of the respondent came to the knowledge of the appellant on a previous occasion ipso facto will not determine the commencement of the period of limitation from that occasion so long as the respondent has not denied the title of the appellant in the properties or she has not asserted her title in them." 11. Taking note of the view taken by the Supreme Court and also by the Kerala High Court in the judgments quoted hereinabove, I am also of the opinion that the first appellate court was right in holding that mere giving assurance to the plaintiff by her brother and mother for giving share to her cannot be considered to be the starting point of limitation and that the plaintiff acquired the right in her favour to sue first on that date. Since there was no specific denial by mother and brother of the plaintiff to give her share in the property, that demand cannot be considered to be the starting point of limitation for filing suit for declaration. On the contrary, as per the statement made by the plaintiff in para-4 it is clear that her brother had assured her to give her share in future. The first appellate court in its judgment has rightly observed in para-15 and 16 that merely because in the revenue record the names of defendant Nos. 1 to 3 were shown to be the share holders of half of the suit land and for remaining land the names of defendant No. 4 and plaintiff were shown in the revenue record, the suit cannot be held to be time barred treating the said entry as starting point of Raghvendra limitation. The first appellate court has rightly observed that there was no denial by the defendants to the plaintiff for giving her share and, therefore, in view of the decisions of the Supreme Court, as quoted hereinabove, there was no infringement of right and the cause of action did not accrue to the plaintiff by that point of time. Accordingly, the finding given by the first appellate court in respect of the fact that the suit was well within limitation is a reasoned one and also in consonance with the law laid down by the Supreme Court and also by the Kerala High Court in the case of Mohammed Basheer (supra). The judgment passed by the first appellate court is held proper and, therefore, the same does not call for any interference. The suit filed by the plaintiff cannot be dismissed on the ground of limitation as the same was well within limitation. 12. Accordingly, this appeal does not have any substance and accordingly it is dismissed. The judgment passed by the first appellate court is held proper and, therefore, the same does not call for any interference. The suit filed by the plaintiff cannot be dismissed on the ground of limitation as the same was well within limitation. 12. Accordingly, this appeal does not have any substance and accordingly it is dismissed. The substantial question of law framed by this Court is accordingly answered.