MST.THEMU vs RAM NATH AND ORS.
- Court
- Jammu and Kashmir High Court
HIGH COURT OF JAMMU & KASHMIR AND LADAKH
AT JAMMU
Case No . CSA No. 30/2013
Reserved on: 09.10.2026
Pronounced on: 23.10.2026
Uploaded on:- 23.10.2026
Whether the operative part or
full judgment is pronounced:- Full
Mst. Themu
D/o Late Sonu
W/o Krishan Chand,
R/o Village Kundal Padder,
Tehsil Kishtwar.
…..Petitioner/Appellant(s)
Through: Mr. Abhishek Wazir, Advocate.
Vs
1. Ram Nath
S/o Late Dina Nath
R/o Village Machail
Padder, Tehsil Kishtwar.
2. Om Parkash
S/o Late Dina Nath
R/o Village Machail
Padder, Tehsil Padder
District Kishtwar.
3. Girdhari Lal
S/o Late Dina Nath
R/o Village Machail
Padder Tehsil Kishtwar.
4. Tirath Lal
S/o Late Dina Nath
R/o Village Machail
Padder Tehsil Kishtwar
5. Jai Kishan
S/o Late Dina Nath
R/o Village Machail
Padder Tehsil Kishtwar
6. Smt. Himla Devi
W/o Hira Lal
R/o Village Garh
(Machail Padder) Tehsil
Kishtwar.
7. Shyama Devi
W/o Pyara Lal
CSA No. 30/2013 Page 1 of 13
R/o Village Krtha Padder
Tehsil Kishtwar.
8. Kunta Devi
D/o Dina Nath
R/o Village Machail
Padder Tehsil Kishtwar.
9. Kashpa Devi
S/o Late Dina Nath
R/o Village Machail
Padder Tehsil Kishtwar.
10. Anoopa Devi
W/o Nand Lal
R/o Village Legri Padder
Tehsil Kishtwar.
11. Jama Devi
W/o Late Dina Nath
R/o Village Machail
Tehsil Padder District
Kishtwar.
.…. Respondent(s)
Through: Mr. P.N Raina, Sr. Advocate with
Mr. J.A Hamal, Advocate
CORAM:
HON’BLE MR. JUSTICE SHAHZAD AZEEM, JUDGE
(JUDGMENT)
nd
1. This Civil 2 Appeal under Section 100 of Code of Civil
Procedure, Svt. 1977 [for short “the Code”] is directed against the
judgment and decree dated 07.11.2012 passed by the learned
st
District Judge, Kishtwar [the 1 Appellate Court] in File No.
01/Appeal titled Ram Nath and ors. Vs. Mst. Themoo, whereby
the judgment and decree dated 09.03.2004 passed by the learned
Sub Judge, Kishtwar [the trial Court] in Suit No. 65/Civil c/w
Suit No. 61/Civil was reversed and suits were dismissed.
CSA No. 30/2013 Page 2 of 13
BRIEF FACTUAL MATRIX
2. The appellant (plaintiff) filed suit No. 65/Civil on
14.09.1982 seeking declaration that she is the only daughter of
Late Sonu S/o Deep Ram Thakur of village Machail, Padder, and
is entitled to half share in land measuring 58 kanals 11 marlas in
Khewat No. 01 and that mutation No. 43 dated
15.10.1966, attested exclusively in favour of Smt. Shib Devi is
illegal to the extent of her share, together with consequential
relief of ejectment/possession. A second suit bearing No. 61/Civil
was filed on 27.08.1991 against the present respondents after the
death of Shib Devi. Both suits were clubbed.
3. Sonu died around the year 1963 when the appellant was
a minor approximately 6-7 years of age. The respondents
(defendants) denied the paternity of the appellant and raised
pleas of limitation, non-maintainability, etc. The trial Court after
appreciating the evidence, decreed both suits on 09.03.2004. The
st
1 Appellate Court by judgment dated 7.11.2012, reversed the
decree primarily on the grounds of limitation and non-proof of
paternity.
4. This Appeal was admitted vide order dated 27.03.2023
on the following substantial questions of law:
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(i) Whether to determine, when right to sue and cause
of action accrues to the plaintiff, it was incumbent
st
upon the 1 Appellate Court to examine the
pleadings and evidence of the plaintiff in this
regard and whether any deviation from the
pleadings and evidence of appellant can be made
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by the 1 Appellate Court, this aspect in the
absence of any pleadings and evidence of the
defendant to this effect?
(ii) Whether the issue of limitation which is mixed
st
question of fact and law can be decided by the 1
Appellate Court in favour of respondents when the
respondents failed to discharge the onus of said
issue by leading any evidence in this regard?.
SUBMISSIONS
5. Learned counsel for the appellant contended that the
trial Court correctly appreciated the documentary and oral
evidence and rightly held that the appellant is the daughter of
Late Sonu, who born out of the wedlock of Sonu and Channa
st
Devi. It was further submitted that the 1 Appellate Court
completely overlooked the evidence, misapplied Section 50 of the
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Evidence Act, reversed the burden of proof on the issue of
limitation, contrary to the issue framed, whereby the burden was
cast on the defendants, and failed to consider the minority of the
appellant under Section 6 of the Limitation Act, thereby rendering
its findings perverse.
6. Per contra, learned senior counsel for the respondents
st
supported the reasoning of the 1 Appellate Court, and prayed for
dismissal of the appeal.
ANALYSIS
7. To determine when the right to sue and cause of action
accrues, the Court is required to examine the pleadings and
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evidence of the plaintiffs. The 1 Appellate Court was not entitled
to deviate from the appellant’s pleadings and evidence in the
complete absence of any contrary material from the defendants.
8. In the Paragraph-6 of the plaint, it was specifically
averred that the defendants were asked to admit the appellant’s
rights and handover possession but they refused, “for the last few
days”, thereby constituting the cause of action. The Trial Court
accepted this plea. The appellant was a minor at the time of
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attestation of Mutation No. 43 dated 15.10.1966 and at the time
of Sonu’s death.
9. Section 6 of the Limitation Act provides that limitation
does not run against a minor until he attains majority. A bare
denial in mutation proceedings against a minor does not
necessarily constitute a clear and unequivocal threat so as to
start the limitation clock. Hon’ble Supreme Court in “ Mst.
Rukhmabai Vs. Lala Laxminarayan and ors., AIR 1960 SC
335” held that the right to sue under the residuary article
accrues only when there is clear and unequivocal threat to the
right, and not on every ineffective or incomplete denial.
Subsequent refusals by the respondents after the death of Shib
Devi, as pleaded, can give rise to a fresh cause of action.
10. The concept of cause of action, right to sue and
limitation are closely interwoven in Civil Procedure. The cause of
action furnishes the foundation of the suit and the law of
limitation bars the remedy once the prescribed period expires
st
from the date, the right to sue accrues, however, the 1 Appellate
Court while reversing the judgment and decree of the trial Court
completely deviated from the evidence led by the appellant on the
point of right to sue and cause of action. In this regard, it is worth
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noting that PW-Ram Saran deposed that Sonu divorced Channa
Devi after the appellant’s birth when she was about 02 years old
and after Sonu’s death, Shib Devi turned the appellant out of the
house. PW-Sukh Dayal deposed that he worked at the Machail
Temple in 2013, Bikrami and saw the appellant then about 03
years old coming with her father Sonu. PW-Jyoti Ram deposed
that Sonu divorced Channa Devi when the appellant was about
03 years old. The appellant ( Themu ) herself deposed that she
was turned out by Shib Devi after Sonu’s death and her status
was denied by Shib Devi before the Tehsildar when she was
minor. PW-Romal Chand , Patwari produced the revenue record.
st
However, against it, the 1 Appellate Court had ventured to fix
the age of the appellant and accrual of cause of action on
surmises and conjectures without taking into consideration the
factum of minority of the appellant at the time of death of her
father and subsequent attestation of the mutation, where her
status as daughter of Sonu was denied by Shib Devi, when the
appellant was reeling under Minority.
st
11. The 1 Appellate Court, while reversing the trial Court’s
finding, did not properly examine or give effect to the pleadings
and evidence of the appellant on the point of accrual of cause of
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action, nor did it consider the effect of minority. Such deviation,
in the absence of any pleadings or evidence from the defendants,
is impermissible.
12. Although the substantial questions of law, primarily,
concern accrual of cause of action and limitation, nonetheless the
findings on paternity, with regard to issue No. 1 are intertwined,
as the First Appellate Court’s reversal on both issues is perverse.
The Trial Court correctly held that the appellant is the Daughter
of late Sonu on the basis of consistent oral evidence of PW-Ram
Saran, a domestic help in Sonu’s house for 5-6 years, PW-Sukh
Dayal, PW-Jyoti Ram, the appellant herself, and
contemporaneous revenue entries in mutation No. 43 (Shajra
Nasab) and Mutation No. 67 proved by PW-Romal Chand,
Patwari. Some of the defence witnesses also admitted that
Channa Devi lived with Sonu and in this regard, reference can be
made to the testimonies of DW-Lal Chand and DW-Sujan Singh.
At the same time, DW-Saroop Chand, Patwari confirmed the
pedigree entries showing the appellant as Daughter of Sonu and
Channa Devi, though the mutation was not finally attested in her
favour.
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13. Section 50 of the Evidence Act, makes relevant the
opinion of a person having special means of knowledge as to
relationship “as a member of the family or otherwise”. The
expression “or otherwise” is significant. A domestic help who lived
in the house and persons who saw the child with the father
possess special means of knowledge. Non-examination of the
mother is a relevant circumstance but is not fatal when other
cogent evidence is available. The 1st Appellate Court, by
completely overlooking the oral and documentary evidence and by
misapplying Section 50 of the Evidence Act, recorded a perverse
finding. Issue No. 1 was rightly decided in favour of the appellant
by the trial Court.
14. The accrual of the right to sue and the cause of action to
the plaintiff is subservient to the proof of paternity. Once
paternity is established, the consequential relief of entitlement to
inherit and possession of the property left by Sonu follows. The
appellant specifically averred in the plaint the denial of her
entitlement to inherit the property by the respondents before the
filing of the suit. The denial was twinned with the proof of her
paternity. To hold that the appellant failed to prove when cause of
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action accrued is against the mandate of Section 6 of the
Limitation Act.
15. The findings of the 1st Appellate Court are also perverse,
because appellant had sufficiently proved, by leading cogent
evidence, that at the time of attestation of mutation No. 43 she
was a minor and thereafter she was consistently pursuing her
claim as owner of the property left by her father. In that event,
the cause of action was continuing and cannot be made static
with the time period when she was a minor or without guardian.
st
Once the 1 Appellate Court is found to have misapplied the law
to the foundational facts regarding the status of the appellant as
daughter of Sonu, the natural fallout is the wrong application of
law to the foundational facts of accrual of the right to sue and
cause of action, which goes to the root of the case.
16. In Chowdamma (D) by LR and Anr. Versus
Venkatappa (D) by LRs and Anr . (2025 SCC Online SC 1814) ,
the Hon’ble Supreme Court while dealing with scope of Section 50
of the Evidence Act, held that a witness who is not a blood
relative of either party but has demonstrated long standing
familiarity with the parties can be accepted. The Court observed
that the evidence of such a witness, rooted in personal knowledge
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and long-standing familiarity, which withstood the rigours of
cross-examination, and found corroboration in the genealogical
chart, is sufficient. It was further held that it is not always the
blood relation who can depose regarding the relationship between
the parties; if the plaintiff has discharged the burden to prove the
relationship by leading evidence based on personal knowledge
and long standing familiarity, the same is sufficient.
st
17. Accordingly, the 1 Appellate Court, while reversing the
judgment of the trial Court on the ground that the appellant
failed to examine mother or nearest relative, completely
misapplied Section 50 of the Evidence Act. This misapplication
took the 1st Appellate Court in the wrong direction and formed
the basis for the misapplication of law on the issue of accrual of
the right to sue and the cause of action to the appellant to seek
her share in the property of her father.
18. Issue No. 3 i.e., “whether the suit is time barred”, was
st
framed with the onus on the defendants. The 1 Appellate Court
decided the issue against the appellant without the defendants
discharging this onus. This constitutes a clear error of law,
rendering the finding perverse.
CSA No. 30/2013 Page 11 of 13
19. The respondents led no evidence whatsoever to prove
the exact date when the right was first unequivocally denied or
the exact date of birth of the appellant. The First Appellate Court
itself noted the absence of exact evidence regarding the date of
birth, yet proceeded to fix the year of birth as 1953-54 and hold
the suits barred by limitation. A minor cannot be imputed with
the knowledge of an adverse revenue entry in a manner that
starts limitation against her, particularly when the Tehsildar
referred the parties to the civil Court.
20. Under Section 3 of Limitation Act, the Court is required
to examine the period of limitation. However, this does not permit
the Court to decide a mixed question of fact and law against the
plaintiff when the onus lies on the defendant and the defendant
has led no evidence. The finding of the First Appellate Court that
“it is for the plaintiff to show that the suit is within time”
incorrectly reverses the burden cast by the trial Court. Where the
defendants fail to lead evidence on a mixed issue of limitation, the
issue must be decided against them.
st
21. If the 1 Appellate Court was of the view that the burden
had been wrongly cast, it was required to re-cast or amend the
issue and, if necessary, exercise power under Order XLI Rules 25
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or 27 of the Code after giving the parties an opportunity. The First
Appellate Court reversed the Trial Court’s judgment without
following the prescribed procedure and without properly dealing
with the reasoning of the trial Court and Order XLI Rule 31 of the
Code.
22. For the foregoing reasons, both the substantial
questions of law are answered in favour of the appellant. The
judgment and decree dated 07.11.2012 passed by the 1st
Appellate Court suffers from perversity and is set aside. The
judgment and decree dated 09.03.2004 passed by the trial Court
in suit No. 65/Civil clubbed with suit No. 61/civil is restored.
nd
23. The Civil 2 Appeal is allowed in the above terms.
Parties shall bear their own costs.
24. Disposed of.
(SHAHZAD AZEEM)
JUDGE
JAMMU
23.10.2026
Tarun/PS
Whether judgment is speaking: Yes
Whether judgment is reportable: Yes
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