Madhya Pradesh High Court
Bharat Singh vs Kunwar Singh And Anr. on 28 February, 1991
Equivalent citations: AIR1991MP368, 1993(0)MPLJ547, AIR 1991 MADHYA PRADESH 368, (1993) MPLJ 547
Author: R.C. Lahoti
Bench: R.C. Lahoti
JUDGMENT R.C. Lahoti, J.
1. The defendant in a suit for declaration of title and issuance of a mandatory injunction who succeeded fully from the trial court, but lost partially in the plaintiffs appeal before the lower appellate court has come up in second appeal.
2. The suit property consists of two parts. The plaint alleges that the property shown by letters v] c] d] ?k (also in red colour) is plaintiffs' property, a part of their residential house, while the property shown by letters v] c] l] n is a passage meant for approach to their house. In the month of August 1967, the defendant committed trespass over the passage and started raising construction over it. This led to initiation of proceedings before the Revenue authorities as also under the Criminal Law. However, the defendant did not desist. As the defendant denied the title and right of the plaintiffs, the plaintiffs sued for a declaration that the property v] c] d] ?k was owned and possessed by them and also for a mandatory injunction against the defendant requiring removal of obstruction created by him in their way. The defendant denied in his written statement all the material averments made in the plaint and also took a plea that the suit was barred by time.
3. The trial Court decided all the issues against the plaintiffs and hence dismissed the suit. The lower appellate court in an appeal preferred by the plaintiffs, has confirmed the judgment and decree of the trial court in so far as it refused mandatory injunction touching the property v] c] l] n but in so far as the property v] c] d] ?k is concerned it held that the property does belong to the plaintiffs and hence granted a declaration to that effect. The plaintiffs have not chose to prefer a further appeal nor a cross-objection and hence to the extent to which their suit has been dismissed, the decree of the courts below has achieved a finality. The sole question surviving for consideration is that whether the lower appellate court was justified in granting a declaration of title to the plaintiffs touching the property ^^v] c] d] ?k**
4. In so far as the finding as to the title of the plaintiffs is concerned it is purely a finding of fact based on appreciation of evidence adduced, not open to interference in second appeal. At the hearing, the learned counsel for the defendant/appellant has also not laid any serious challenge to that finding.
5. What has been seriously argued is that the plaintiff's suit was barred by time under Article 58 of the Limitation Act 1963, inasmuch as the cause of action arose to the plaintiffs in the month of August 1967 and the suit was instituted on 11-1-1972, i.e. beyond 3 years of the accrual of the cause of action. The learned counsel for the appellant has placed reliance on Balkrishna v. Shree Dhyaneshwar Maha-raj AIR 1959 SC 798 to "contend that the plaintiff/respondents could not have had resort to Section 22 of the Limitation Act, 1963 which refers not to a continuing right but to a continuing wrong.
6. The learned counsel for the plaintiff/ respondents has rightly pointed out that in the facts and circumstances of the case it is not necessary to examine whether there was a continuing wrong or a continuing right because the plaintiff/respondents were not claiming exemption from limitation by submitting that they had a continuing cause of action but their suit was within limitation because there was no clear and unequivocal threat to the right of the plaintiffs made beyond 3 years of the date of the institution of the suit.
7. It is common plea of the learned counsel for the parties that the suit in so far as it relates to declaration shall be governed by Article 58 of the Limitation Act, 1963 which prescribes a period of limitation of 3 years commencing when the right to sue first accrues. It is trite law that the limitation would not commence unless there has been a clear and unequivocal threat to infringe the right claimed by the plaintiff. See C. Mohd. Yunus v. Syed Unnissa AIR 1961 SC 808; Rukhmabai v. Laxminarayan AIR 1960 SC 335; Mt. Bolo v. Mt. Koklan AIR 1930 PC 270: (1930 All LJ 1188).
8. In C. Mohd. Yunus's case (supra) it is further held that mere denial by the defendant of the rights of the plaintiffs would not set the period of limitation running against them. In Mst. Rukhmabai's case (supra), their Lordships observed that where there were successive invasions or denials of right, the right to sue would accrue when the defendant had clearly and unequivocally threatened to infringe the right asserted by the plaintiff in the suit. Their Lordships also observed :--
"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 right to a compulsory cause of action depends upon the question whether that threat effectively invades or jeopardizes the said right."
9. C. Mohd. Yunus's case was followed by the High Court of Orissa in Gouranga v. Bhaga Sahu AIR 1976 Ori 43, a suit to obtain a declaration as to plaintiffs to hold that a mere denial or oral protest which have no apparent connection with the actual exercise of the right of enjoyment of the property and even mutation proceedings in which status of adoption is challenged would not set the limitation to commence unless there was actual interference with the plaintiff's right or an unequivocal threat of infringement of such right.
10. It follows from the abovesaid authorities that a distinction has to be drawn between a mere denial of a right or ineffective and innocuous threat to the plaintiffs' right on the one hand and a clear and unequivocal threat or infringement of the right asserted by the plaintiff on the other. It is only the later which would set on start of limitation under Article 58 of the Limitation Act, 1963.
11. In the present suit there has been no actual interference with, or infringement of, the enjoyment and possession of the plaintiffs over the property v] c] d] ?k. It is the order of the Criminal Court dated 13-12-1971 which caused an unequivocal apprehension in the mind of the plaintiff that his title to the property was in jeopardy as pleaded in para 6 of the plaint.
12. It is noteworthy that in the written statement the defendant has raised a bald plea that the suit was barred by time without pleading any other fact as to how it was so and as to when the cause of action had arisen or would be deemed to have arisen to the plaintiffs. The defendant had actually invaded over the property v] c] l] n and to the extent of that property the plaintiff has lost. In so far as the property v] c] d] ?k is concerned, the title of the plaintiffs having been found proved, there is nothing which may come in the way of the Court in granting a declaration to the plaintiffs. The suit cannot be held to be barred by time to the extent of the property described by letters v] c] d] ?k. The decree of the lower appellate court has to be sustained though for different reasons.
13. For the foregoing reasons, the appeal is dismissed. The judgment and decree of the lower appellate court are confirmed. Looking to the purely legal controversy arising for decision in the appeal, the parties are left to bear their costs as incurred. Counsel fee as per Schedule, if certified.