PARKASH CHAND vs AMAR NATH
- Court
- High Court of Himachal Pradesh
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High Court of H.P.
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
RSA No. 60 of 2010
Reserved on: 07.04.2026
Date of Decision: 25.05.2026
Prakash Chand (deceased) through LRs ...Appellants
Versus
Amar Nath (deceased) through LRs ...Respondents
Coram
Hon’ble Mr Justice Rakesh Kainthla , Judge.
1
Whether approved for reporting? Yes
For the Appellants : Mr Rajinder Kumar Sharma,
Advocate.
For the respondents : Ms Devyani Sharma, Senior
Advocate, with Ms Srishti Negi,
Advocate.
Rakesh Kainthla, Judge
The present appeal is directed against the judgment
and decree dated 10.12.2009 passed by the learned Additional
District Judge, Fast Track Court, Kangra at Dharmshala (learned
1
Whether reporters of Local Papers may be allowed to see the judgment? Yes.
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Appellate Court) vide which the judgment and decree dated
11.01.2008 passed by the learned Civil Judge (Junior Division),
Court No.2, Nurpur, District Kangra (learned Trial Court) were
upheld. (The parties shall hereinafter be referred to in the same
manner and as they were arrayed before the learned Trial Court for
convenience).
2. Briefly stated, the facts giving rise to the present
appeal are that the plaintiff filed a civil suit before the learned
Trial Court seeking a declaration that he is the owner in
possession of the suit land described in the head note, the
defendant is the adopted son of Rupa who has no right, title or
interest in the suit land or the estate of late Dullo, the revenue
entries showing the defendant as son of Dullo and co-sharer of
the suit land are incorrect and not binding on the plaintiff’s
rights. A consequential relief of permanent prohibitory
injunction for restraining the defendant from interfering in the
ownership and possession of the plaintiff over the suit land or
alienating the suit land in any manner whatsoever was also
sought. It was asserted that the suit land was originally owned
and possessed by Dullo, son of Dadhu. The pedigree table of the
parties is as follows:
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Dadhu
Rasilo Dullo
(Died unmarried in 1938 &
was succeeded by Dulo, his brother) Amar Nath
3. Fikki Devi, mother of the plaintiff and defendant,
died in the year 1930, when the defendant was about three
months old. Dullo was unable to look after the defendant. One
Rupa S/o Lakhu was issueless. He adopted the defendant as per
the custom. The defendant remained with Rupa and Smt.
Mahanti, as their adopted son. He was admitted to the primary
classes in Government Primary School, Maccroli, and was
described as the adopted son of Rupa. The defendant lost all his
connection with the family of Dullo and was transplanted to the
family of Rupa. He succeeded to the estate of Rupa by way of a
Will. Mutation was initially attested in favour of the legal heirs
of Rupa, and the defendant challenged the order of mutation by
filing an appeal describing himself as the adopted son of Rupa.
The defendant has no right, title or interest in the property of
Dullo, and the mutation of Dulo’s estate in the defendant’s
favour is wrong. The revenue entries in the defendant’s favour
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are null and void, and do not have any effect on the plaintiff's
right. Hence, the suit was filed to seek the relief mentioned
above.
4. The suit was opposed by filing a written statement
taking preliminary objections regarding lack of maintainability,
jurisdiction and cause of action, the plaintiff being estopped by
his act and conduct to file the present suit, the suit being bad for
non-joinder of necessary parties, the suit being barred by
limitation, the plaintiff having not come to the Court with clean
hands and the parties being governed by the custom for
adoption. The contents of the plaint were denied on the merits.
However, it was not disputed that the plaintiff and defendant are
the sons of Dullo. It was specifically denied that the defendant
was adopted by Rupa, and he resided in the house of Rupa as his
adopted son. Rupa was the neighbour of the parties who had love
and affection with the defendant. The defendant served Rupa,
and Rupa executed a Will in the defendant’s favour after being
satisfied with the services rendered by the defendant. The
defendant is the son of Dulo, and he had rightly inherited the
estate of Dulo with the plaintiff. The suit was filed without any
basis. Hence, it was prayed that the suit be dismissed.
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5. A replication denying the contents of the written
statement and affirming those of the plaint was filed.
6. The following issues were framed by the learned
Trial Court on 22.01.1999:
1. Whether the plaintiff is the sole owner in possession of
the suit land, as alleged? OPP.
2. Whether Rupa s/o Lakhu had adopted the defendant as a
son from Dulo according to custom, as alleged? OPP.
3. Whether the revenue entries, as alleged by the plaintiff,
are factually incorrect, illegal, null and void, and if so, its
effect? OPP
4. Whether the plaintiff is entitled for the consequential
relief of an injunction? OPP
5. Whether in the alternative, the plaintiff is entitled for
vacant possession of the suit land? OPP
6. Whether the suit is within time? OPP
7. Whether the suit is not maintainable in the present form?
OPD
8. Whether the plaintiff is estopped by his act and conduct
from filing the present suit? OPD
9. Whether the suit is bad for non-joinder of necessary
parties? OPD
10. Whether the plaintiff has no enforceable cause of action?
OPD
11. Whether this Court has no jurisdiction to try the present
suit? OPD
12. Relief.
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7. The parties were called upon to produce the evidence
and the plaintiff examined Manohar Lal (PW1), Om Prakash
(PW2), Santokh Ram (PW3), Suresh Kumar (PW4), Baldev Singh
(PW5), Nand Lal (PW6), Balak Ram (PW7), Dulo Ram (PW8),
Amar Nath, plaintiff (PW9) and Ashwani Kumar (PW10). The
defendant examined himself (DW1), Chajju Ram (DW2) and
Faquir Chand (DW3).
8. The learned Trial Court held that the defendant had
succeeded to the estate of Rupa by way of Will in which Rupa had
described the defendant as his adopted son. The defendant was
treated as the son by Rupa, and his marriage was also
solemnised by Rupa and his wife, Mahanti Devi. Defendant was
described as the adopted son of Rupa in the school admission
record. These facts proved that Rupa had adopted the defendant.
The adoption in Nurpur was not required to be accompanied by
any formalities. An adopted son lost his connection with his
natural family and could not succeed to his natural father. The
defendant had no right to the estate of Dullo. Hence, the learned
Trial Court answered issues Nos 1 to 4 and 6 in the affirmative,
issues No. 5, 7 to 11 in the negative and decreed the plaintiff’s
suit.
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9. Being aggrieved by the judgment and decree passed
by the learned Trial Court, the defendant filed an appeal, which
was decided by the learned Additional District Judge, Fast Track
Court, Kangra at Dharmshala, H.P. (learned Appellate Court).
The learned Appellate Court concurred with the findings
recorded by the learned Trial Court that there was overwhelming
evidence on record to show that the defendant was adopted by
Rupa, and was treated as the adopted son of Rupa by all the
persons. The defendant had described himself as the son of Rupa
in the appeal filed by him challenging the mutation. He was
admitted to the school by describing him as the son of Rupa. The
adoption was not required to be accompanied by any formalities,
and the adopted son lost his connection with his natural family.
The defendant could not have inherited the estate of his natural
father, and the attestation of mutation in his favour was bad.
There was no infirmity in the judgment and decree passed by the
learned Trial Court. Hence, the appeal filed by the defendant was
dismissed.
10. Being aggrieved by the judgment and decree passed
by the learned Courts below, the defendant has filed the present
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appeal, which was admitted on the following substantial
questions of law on 07.10.2010:
1. Whether the finding of the two Courts below that the
appellant-defendant was adopted by one Rupa is not
supported by evidence on record and hence not
sustainable?
2. Whether the suit was barred by time when filed, and the
finding to the contrary, returned by the two Courts below,
is illegal?
11. I have heard Mr Rajender Kumar Sharma, learned
counsel for the appellant and Ms Devyani Sharma, learned
Senior Advocate, assisted by Ms Shrishti Negi, learned counsel
for the respondent.
12. Mr Rajender Kumar Sharma, learned counsel for the
appellant, submitted that the learned Courts below erred in
holding that the defendant is the adopted son of Rupa. No
person had deposed about the performance of the essential
ceremonies of the adoption. The adopted son is entitled to
inherit the estate of his father as per the custom prevalent in the
area. The suit was barred by limitation because the mutation
was attested in the year 1960, and the plaintiff filed the suit
beyond three years from the date of attestation of the mutation.
Hence, he prayed that the present appeal be allowed and the
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judgments and decrees passed by the learned Courts below be
set aside. He relied upon the judgments in Dada Jinnappa Khot vs.
Shivalingappa Ganapati Bellanki I.L.R. 1989 KAR 993 , Rukhmabai
versus Laxminarayan AIR 1960 SC 335 , Vidya Sagar and others vs.
Vijay Nandan & others decided on 09.08.2017, R. Ravindra Reddy &
Ors vs. H. Ramaiah Reddy and Ors AIR 2010 SC 991, Nanak Chand
vs. Ami Lal & Ors RSA No. 1394 of 1977 decided on 21.02.2003, and
Arjan Singh & Ors vs. Narain Singh & Ors decided on 12.02.1963 in
support of his submissions.
13. Ms Devyani Sharma learned Senior Counsel for the
respondent submitted that the defendant is the adopted son of
Rupa. He had claimed himself to be the adopted son of Rupa in
an appeal preferred by him regarding the estate of Rupa. He was
described as the son of Rupa in various documents and was
treated as his son by Rupa. Rupa and his wife had performed the
ceremonies as the defendant’s parents during his marriage. The
custom of Punjab does not apply to the Brahmins in Nurpur,
who are governed by Kangra customary law. Mere attestation of
the mutation does not have the effect of commencing the
limitation. There is no infirmity in the judgments and decrees
passed by learned Courts below. Hence, she prayed that the
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present appeal be dismissed. She relied upon the judgments in
Prakasho Devi versus Basheshar Singh (2001) 2 ShimLC 354, Rulda
Ram vs. Sanju Ram 2013: HHC:10005, Shankar Lal (through LRs vs.
Ramesh Chander (through LRs) and others 2016: HHC:9689 and
Dharam Singh vs. Prem Singh (2001) 2 ShimLJ 1317 in support of
her submission.
14. I have given a considerable thought to the
submissions made at the bar and have gone through the records
carefully.
Substantial Question of Law No.1 :
15. Defendant Prakash Chand (DW1) admitted in his
cross-examination that he had filed an appeal regarding the
estate of Rupa. He had claimed in the appeal that he was an
adopted son of Rupa, Rupa's estate should be mutated in his
favour, and the land was mutated in his favour after the
acceptance of the appeal. He admitted his signature on the sale
deed (Ext.PW6/A) in which he had described himself as the son
of Dulo Ram and the adopted son of Rupa.
16. The admission made by the defendant in the cross-
examination that he had described himself as the adopted son of
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Rupa corroborates the plaintiff’s plea that Rupa had adopted the
defendant. The copy of the order (Ext.PW1/B) shows that the
defendant had contested the appeal by describing himself as the
adopted son of Rupa, who had been brought up by Rupa as his
son, and he was entitled to inherit Rupa’s estate. The
memorandum of appeal (Ext.PW1/C) also mentions that the
defendant Prakash Chand had claimed Rupa’s estate as an
adopted son of Rupa. Rupa had executed a Will (Ext.PW12/A),
mentioning that he had adopted Prakash, son of Dulo, at the age
of three months and thereafter had brought up Prakash Chand
as his adopted son. It was laid down by the Hon’ble Supreme
Court in Banwari Lal v. Trilok Chand, (1980) 1 SCC 349: 1979 SCC
OnLine SC 389 , that a statement made by a testator in the Will
about the adoption is admissible in evidence. It was observed:
13… .The statement made by the testator in the will about
the adoption is certainly a piece of admissible evidence as
observed in Chandreshwar Prasad Narain Singh v.
Bisheshwar Pratab Narain Singh [AIR 1927 Pat 61] cited by
learned counsel for Defendant 1 but there is no rule of law
or prudence laying down the principle that such a
statement must be regarded as conclusive, and this was
also the view taken in that case….”
17. The defendant is described as the son of Rupa in the
copy of shajra nasab. It was laid down in Gurmel Singh v. Prem
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Kaur, 1969 SCC OnLine P&H 305: PLR (1970) 72 P&H 365: 1970 Cur
LJ 166, that an entry in the revenue record covers the person and
their relationship, and when a person is described to be related
to another in the revenue record, it has to be presumed that the
parties are so related unless the contrary is proved. It was
observed:
“6. The word “entry” as appearing in section 44 is not
limited to the fact of devolution of a right, interest or
liability only, but also covers in its ambit the other facts
mentioned in the record-of-rights, which will include the
relationship of parties as stated in such records. The
presumption about the devolution or transfer of an
interest in land will be meaningless without reference to
the parties in whose favour such devolution or transfer
has taken place. I am, therefore, of the view that it must
be presumed under section 44 that a person shown in the
record-of-rights as having a particular relationship with
another person interested in the estate does possess that
relationship unless the contrary is proved. The Courts
below committed no illegality in raising the presumption
that the plaintiffs were daughters of Uttami, as shown in
the revenue records, and it was for the defendants to
rebut that presumption, which they failed to do.
18. The defendant was also described as the son of Dullo
in the School Leaving Certificate. All these documents came into
existence before the present controversy had arisen, and there is
no reason to doubt them. Therefore, the learned Courts below
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had rightly held that the defendant was proved to be the adopted
son of Rupa.
19. It was submitted that the mere fact that a person has
been described as an adopted son is not sufficient to confer the
status of adopted son unless the necessary ceremonies are
proved. In the present case, no ceremonies were proved, and the
adoption was not proper. This submission is only stated to be
rejected. The defendant had specifically asserted in para 9 of the
preliminary objection that parties are Brahmin by caste and are
governed by custom for the purpose of adoption. Therefore, the
adoption was to be made as per the custom. Learned Trial Court
had referred to Question 76 of the customary law of Kangra
District, which reads as follows:
“Question 76- What formalities are necessary for
adoption? State expressly whether the omission of any
customary ceremonies will vitiate the adoption?
Ans- The Rajputs, Brahmans, Khatris, Thakars, Rathis,
Ghirths and Mahajans of Nurpur, the Rajputs Rathis,
Sainis, Jats and Gaddis or Kangra, the Rajputs, Brahmans,
Rathis, Jats, Sainis, Gaddis and Kanets of Palampur say no
formalities are required for adoption.”
20. Therefore, in view of this question and the answer,
no essential ceremonies are required to be performed and
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learned Courts below had rightly held that the adoption was
valid.
21. It was submitted that, as per the custom, an adopted
son does not lose the relationship with the natural family. This
submission is also stated to be rejected. Learned Trial Court had
noticed Question No. 77 regarding the effect of adoption, which
reads as follows:
“Question 77- Is an adopted son entitled to succeed to his
natural father in case of the latter having no other lineal
issue?
Answer- Except the Gosains of Kangra and the Gaddis
and Kanets of Palampur Tehsil, all the tribes say the
adopted son is not entitled to succeed to his natural
father.”
22. Therefore, as per the custom, an adopted son does
not inherit the estate of his natural father and learned Courts
below had rightly held that the defendant would be divested of
the estate of Dulo. Since the parties are governed by the custom
of Kangra District, the judgment in Nanak Chand (supra),
dealing with the custom of Punjab, and the judgment in Arjan
Singh (supra), dealing with the custom in the Firozpur area, do
not apply to the present case, and no advantage can be derived
from the cited judgments. Therefore, there is no infirmity in the
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finding recorded by learned Courts below that the defendant is
the adopted son of Rupa and he is not entitled to inherit the
estate of Dulo. Hence, this substantial question of law is
answered accordingly.
Substantial Question of Law No.2 :
23. It was submitted that the suit is barred by limitation.
The mutation was attested in the year 1960, and the suit was
filed in 1996. The right to sue accrued on the date of attestation
of mutation, and the suit was required to be filed within three
years. This submission cannot be accepted. It was laid down by
the Karnataka High Court in State of Karnataka v. Mohammed
Kunhi, 1990 SCC OnLine Kar 396: ILR 1991 Kar 1500 that a mere
adverse entry in the revenue record will not have the effect of
commencement of the period of limitation. It was observed at
page 1512:
18. Unlike the Limitation Act, 1908, the Limitation Act,
1963, contains only three Articles in respect of suits
relating to declarations, i.e., Articles 56, 57 and 58.
Undoubtedly, the relief of declaration sought in the suit
does not fall under Article 56 or under Article 57.
Therefore, it has to necessarily fall under Article 58,
which is a residuary article insofar as the suits relating to
declarations are concerned. Article 58 of the Limitation
Act, 1963, is equivalent to Article 120 of the Limitation
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Act, 1908, with the difference that the limitation begins to
run in the case of Article 58 when the right to sue first
accrues, whereas in the case of Article 120 of the
Limitation Act, 1908, the limitation begins when the right
to sue accrued. Therefore, the word “first” contained in
Column No. 3 of Article 58 after the words ‘right to sue’ is
not found in Article 120 of the Limitation Act, 1908. The
contention of the learned Government Advocate is that
the right to sue first accrued to the plaintiffs when the
entries in the revenue records were changed from
redeemed to unredeemed in the year 1918 and continued
till the date of filing of the suit; that the plaintiffs were
also aware of this fact of changing the description of the
land from redeemed to unredeemed when they purchased
the suit property on 21st June 1965 as per Exs. P-1 to P-3.
There is no doubt that P.W. 1 stated in the cross-
examination that when they purchased the suit property,
the revenue record described the suit property as an
unredeemed estate. The learned Government Advocate
also brought to our notice the averments made in the
plaint as to how the cause of action arose. In Para-12 of
the plaint, the plaintiff has stated thus:
“12. The cause of action for this suit accrued to the
plaintiffs against the Defendant on and from 17-8-
1966, 18-8-1966, 30-11-1966, 9-10-1967, 9-9-
1969, 14-1-1971, 18-1-1971, 2-6-1973 and
subsequently at Kundacherry Village,
Bhagamandala Nadu, Mercara Taluk, Coorg District
and at Mercara, Coorg District, within the
jurisdiction of this Honourable Court.”
It is not each and every entry in the Record of Rights that
would give rise to a cause of action. As to when a cause of
action would accrue to the plaintiffs has been the subject
of interpretation in several decisions. In Mt. Bolo v. Mt.
Koklan [AIR 1930 PC 270], their Lordships considered the
meaning and effect of the right to sue in Column No. 3 of
Article 120 of the Limitation Act, 1908 and held thus:
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“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.”
This was again reaffirmed in Annamalai Chettiar v.
A.M.K.C.T. Muthukaruppan Chettiar. [AIR 1931 PC 9.] The
Supreme Court in Mst. Rukhmabai v. Lala Laxminarayan
[AIR 1960 SC 335.] after referring to the decisions of the
Privy Council in A.I.R. 1930 P.C. 270 [AIR 1930 PC 270.] and
A.I.R. 1931 P.C. 9 [AIR 1931 PC 9.] has held that if there are
successive invasions or denials of a right, then 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. The Supreme Court has also
further held thus:
“The legal position may be briefly stated thus: The
right to sue under Article 120 of the Limitation Act
accrues when the defendant has clearly and
unequivocally threatened to infringe the right
asserted by the plaintiff in the suit. 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 rise to a
compulsory cause of action depends upon the question
whether that threat effectively invades or jeopardises
the said right .” (Emphasis supplied)
It may be relevant to notice the facts of Rukmabai's case
[AIR 1960 SC 335] as stated in Para-34 of the very
Judgment, which are as follows:
“The facts relevant to the question of limitation in
the present case may be briefly restated: The trust
deed was executed in 1916. The suit house was
constructed in 1920. If, as we have held, the trust
deed as well as the construction of the building
were for the benefit of the family, its execution
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could not constitute any invasion of the plaintiff's
right. Till 1926, the plaintiff's father, Ratanlal, was
residing in that house. In 1928, when Daga
challenged the trust deed, the family compromised
the matter and salvaged the house. From 1936
onwards, the plaintiff has been residing in the suit
house. It is conceded that he had knowledge of the
litigation between Rukmabai and Chandanlal
claiming the property under the trust deed; but, for
that suit, he was not a party and the decision in that
litigation did not in any way bind him or affect his
possession of the house. But in the execution of the
decree, the Commissioner appointed by the Court
came to the premises on February 13, 1937, to take
measurements of the house for effecting partition
of the property, when the plaintiff raised an
objection, and thereafter, in 1940, filed the suit.
From the aforesaid facts, it is manifest that the
plaintiff's right to the property was not effectively
threatened by the appellant till the Commissioner
came to divide the property. It was only then that
there was an effectual threat to his right to the suit
property, and the suit was filed within six years
thereafter. We, therefore, hold that the suit was
within time.”
From the aforesaid facts, it is clear that the mere adverse
entry in the Record of Rights in respect of the property in
possession of the plaintiff cannot be taken as a real threat
to the right of the plaintiff to the property in his
possession. Rukhamabai was not a party to the
proceeding. Her right to the property came to be
threatened only when the order was tried to be executed,
and she was tried to be dispossessed. Their Lordships
further held that even if it was considered that
Laxminarayan had the knowledge of the litigation
between Rukhmabai and Chandanlal claiming the
property under the trust deed, but, for that suit, he was
not a party and the decision in that litigation did not in
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any way bind him or affect his possession. In the instant
case, it may be relevant to notice that the entries on
which the reliance was placed changing the suit land from
redeemed to unredeemed to form a basis for a starting
point of limitation, even if it were in the knowledge of the
plaintiffs the same could not affect the right of the
plaintiffs adversely because those entries were not made
in accordance with law, after due notice to the plaintiffs.
As such as held by the Supreme Court in Khader's case
[(1990) 2 SCC 271: AIR 1990 SC 1225], they were void and
non est. Therefore, they cannot be of any value as it
cannot be held that the same affected the rights of the
plaintiffs in any manner. In C. Mohammad Yunus v. Syed
Unnissa [AIR 1961 SC 808], it has been further reiterated
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’. There is no such clear and
unequivocal infringement of the right of the plaintiffs or
real threat to the right of the plaintiffs by the entries
which have no legal effect in the eyes of the law. Further,
the very order dated 17th August 1966 - Ex. P-9 itself
shows that the Government was not sure whether the
suit-scheduled property was redeemed sagu or
unredeemed sagu. They also did not assert in the
th
Government Order dated 17 August 1966 that the suit
schedule property was redeemed sagu only. This conduct
on the part of the Government would also show that the
entries made from the year 1918 till the date relied upon
by the learned Government Advocate to non-suit, the
plaintiffs were not treated even by the State Government
as final and conclusive and affecting the right of the
plaintiffs. We may also refer to two more decisions of the
Supreme Court having a bearing on the point. In Gannon
Dunkerley and Co. Ltd. v. The Union of India [(1969) 3 SCC
607: AIR 1970 SC 1433.] It has been held thus:
“In our Judgment, there is no right to sue until
there is an accrual of the right asserted in the suit,
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and its infringement, or at least a clear and
unequivocal threat to infringe that right by the
defendant against whom the suit is instituted.”
Thus, in Gannon's case [(1969) 3 SCC 607: AIR 1970 SC
1433.] the decision of the Privy Council in A.I.R. 1930 P.C.
270 [AIR 1931 PC 9.] was again restated. In Raghubir Jha v.
State of Bihar [1986 Supp SCC 372: AIR 1986 SC 508], the
Supreme Court held that the limitation would begin to
commence only on the communication of the termination
of the proceedings and not on the date the order was
passed by the first authority. In the instant case, there is
no evidence adduced by the defendant, nor is there any
material brought on record in the cross-examination of
P.W. 1 that the right to sue accrued much earlier than the
date of the suit. As in the instant case, the entries in the
record of rights, being non-est, cannot be held to affect
the right, title and interest of the plaintiffs and their
predecessors-in-title in possession of the suit property.
Such entries cannot also be held to be a threat to the title
of the plaintiffs who are in possession of the suit property
so as to give rise to the cause of action sufficient for the
commencement of the period of limitation. However, the
learned Government Advocate has placed reliance on a
decision of this Court in Dada Jinnappa Khot v.
Shivalingappa Ganapati Bellaniki ILR 1989 Kar 993 . That
was a case in which a learned single Judge of this Court
recorded a specific finding that, in the light of the
application filed by the defendant before the Tahsildar in
the year 1967 denying the title of the plaintiff, there was a
real threat to the plaintiff's right and therefore on that
date the right to sue accrued because the plaintiff was
also a party to that application. Thus, it is clear that the
Decision in D.J. Khot's case [ILR 1989 Kar 993] is confined
to the facts of that case. Therefore, the contention of the
learned Government Advocate that the change of entries
from redeemed to unredeemed in the year 1918 and the
continuation of the same in the subsequent years was a
real threat to the rights of the plaintiffs cannot be
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accepted, because those entries are held to be void and
non est. Therefore, the contention based on the change of
entries from redeemed to unredeemed is rejected.
24. A similar view was taken by the Punjab and Haryana
High Court in Ibrahim v. Sharifan , 1979 SCC OnLine P&H 186: AIR
1980 P&H 25, wherein it was observed at page 26:
7. 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 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. There is no dispute that mutation was sanctioned
in favour of the defendant after the death of Akbar, and in
case such an entry furnishes 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 a mutation did
not furnish any cause of action, and in support of his
contention, he relied on a Division Bench judgement of
this Court in Niamat Singh v. Darbari Singh etc., (1956) 58
PLR 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 her father, 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 of her share. In this situation, no cloud was
cast on the title of the plaintiff by the mere entry of the
mutation in the name of the defendant. Further, there is
no proof on the record to show that before April 1969, by
any act or assertion of the defendant, the right of the
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plaintiff was ever actually jeopardised. The defendant is
occupying a house in the village.
8. 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,
and 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. This 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.
25. It was held by this Court in Parkasho Devi (supra) that
the attestation of mutation does not confer a right to sue upon a
person. It was observed:
12. Article 58 of the Limitation Act, 1963 provides for a
limitation of three years to obtain a declaration, and the
period begins to run "when the right to sue first accrues".
Article 58 is a residuary Article under the Limitation Act,
1963. The suit for declaration, which was not governed by
any other Article in the Act, was covered by residuary
Article 120 of the 1908 Act, and such a suit now indeed is
governed by Article 58 of the 1963 Act.
13. It may be noticed that the limitation period of three
years commences from the date when the right to sue
first accrues, but the question is when the right to sue
accrues. In my view, the right to sue would accrue when
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the right in respect of which a declaration is sought is
denied or challenged. A mere entry in the revenue papers
of the name of the defendants as co-owner of the
property, without any act of denial on the part of such
defendant(s), will not provide a cause of action. There is
no scope of dispute that the mutation of a l/4th share of
Chuhru was wrongly attested in favour of the defendants,
and it is only because of this illegal attestation of
mutation that entries in the revenue record showing the
defendants as co-sharers to the extent of l/4th share of
Chuhru were incorporated. In these circumstances, the
right to sue would accrue to the plaintiffs only when their
possession was threatened or an application for partition
on the basis of these entries was filed in the Revenue
Court.
14. As far back as 1930, in Mst Bolo appellant v. Aft. Koklan
and others, respondents, AIR 1930 Privy Council 270 , a
Judicial Committee interpreting the provisions of Article
120 of the 1908 Act 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. No doubt Mt.
Koklan's right to the property arose on the death of
Tara Chand, but in the circumstances of this case,
their Lordships are of the 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" (Emphasis
supplied)
15. This principle was re-stated and followed in
Annamalai Ct-ieitiar v. Muttukaruppan Chettiar, AIR 1931
PC 9 . In Mst Rukhmabai, appellant v. Lal Laxminarayan and
others, respondents, AIR 1960 Supreme Court 335 , a
contention was raised that plaintiff respondent had
knowledge of fraudulent character of the trust deed for 10
years, during the pendency of the partition suit instituted
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in the year 1929, but the suit was filed in the year 1940
much after the limitation of six years under the 1908 Act
from the date of knowledge and therefore, the suit would
be barred under Article 120 of the 1908 Act. The Apex
Court, interpreting the provisions of Article 120 of the
Limitation Act of 1908 and heavily relying upon Mt Bolo,
held:
"33. The legal position may be briefly stated thus:
The right to sue under Article 120 of the Limitation
Act accrues when the defendant has clearly and
unequivocally threatened to infringe the right
asserted by the plaintiffs in the suit. 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 rise to a
compulsory cause of action depends upon the
question whether that threat effectively invades or
jeopardises the said right" (Emphasis supplied)
16. In Zorawar Singh and another Appellants v. Dip Chand
and others, respondents, AIR 1929 Allahabad 331 , it was
observed that a suit for declaration may be a repeated
cause of action and each new cause would give a fresh
right to sue.
17. In Faqira and another, plaintiffs-appellants v. Hardewa
and others, defendants-respondents, AIR 1928 Allahabad
172 , the Full Bench of the Allahabad High Court had
occasion to interpret Article 120 of the Limitation Act,
1908. In that case, there was a wrong entry in the khewat,
and the advantage of that wrong entry was likely to be
taken by the defendants. The fact of such an entry was
never brought to the notice of the plaintiffs. In this
background, the Full Bench speaking through Mukerji, J.
held :
"The right to sue, within the meaning ot Article 120
of the Limitation Act, accrued to the plaintiff on the
filing of the application for partition and not
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earlier," (Emphasis supplied)
18. It tlitis, is settled law that the cause of action to obtain
a declaration under Article 58 of the Limitation Act will
only accrue when the rights of a plaintiff are invaded by
an overt act.
19. In Thakurain Chhabraj Kuer, defendant-appellant v.
Ram Deo Singh and others, plaintiffs-respondents, AIR (29)
1942 Oudh 346 , a Division Bench of Oudh High Court held
that so long as a mutation does not injure the plaintiff, he
need not come to the Court at all and, therefore, a
plaintiff is not out of time if he institutes a suit within six
years (under the 1908 Act) of the injury which the entry
creates and which is his cause of action. This statement of
law was reiterated in C. Mohammad Yunus, appellant v.
Syed Unnissa and others, respondents, AIR 1961 Supreme
Court 808 . In this case, their Lordships emphasised that a
suit for a declaration of a right and an injunction
restraining the defendants from interfering with the
exercise of that right is governed by Article 120 (now
Article 58), and 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.
20. In Fateh Ali Shah and others v. Muhammad Bakhsh and
others, AIR 1928 Lahore 516 , a Division Bench of the
Lahore High Court held that the plaintiff in possession
need not bring a suit on first denial of his title, and he
needs to take proceedings within six years (under the old
Act) from the time when his rights are actually
jeopardised. The Division Bench observed:
"If a plaintiff is in possession or enjoyment of the
property in suit, he is not obliged to sue for a
declaration of title on the first or each succeeding
denial of his title by the defendant. He may look
upon each denial with complacency or, at his
option, may institute a suit to falsify the assertions
of the other side. But when he finds that his rights
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are being actually jeopardised by the action or
assertion of the defendant, then he must take
proceedings within six years from the date of such
actions or assertions: AIR 1922 Lah. 94, AIR 1925
Lah. 391 and 140 P.R. 1907 ; Dist."
26. This position was reiterated in Dharam Singh & others
versus Prem Singh & Ors 2002 (1) Shim. LC 49 , wherein it was
held:
17. Article 58 of the Limitation Act specifically provides a
limitation of three years to obtain a declaration that is not
provided under any other Article. Under this Article, the
limitation period of three years commences from the date
when the right to sue first accrues. However, the question
would be when a right to sue accrues. In my view, the
right to sue accrues when the right in respect of which a
declaration is sought is denied or challenged. A mere
entry in the revenue papers, in the name of appellants, in
the column of possession, without any act of denial of the
possession of the respondent on the part of appellants,
will not provide a cause of action.
18. The Supreme Court in Mst. Rukhmabai v. Lala
Laxminarayan and others, AIR 1960 SC 335 , interpreting
the provision of Article 120 of the Limitation Act of 1908
and relying upon Mt. Bolo v. Mt. Koklan and others, AIR
1930 Privy Council 270 , held:
'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. No doubt Mt.
Koklan's right to the property arose on the death of
Tarn Chand, but in the circumstances of this case,
their Lordships are of the opinion that there was no
infringement of, or any clear and unequivocal
threat to her rights till the year 1922, when the suit,
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as stated above, was instituted".(Emphasis
supplied)
19. In Fateh AH Shah and others v. Muhammad Bakhsh and
others, AIR 1928 Lahore 516 , a Division Bench of the
Lahore High Court held that the plaintiff in possession
need not bring a suit on the first denial of his title, and he
needs to take proceedings within six years (under the old
Act) from the time when his rights are actually
jeopardised. The Division Bench observed:
"If a plaintiff is in possession or enjoyment of the
property in suit, he is not obliged to sue for a
declaration of title on the first or each succeeding
denial of his title by the defendant. He may look
upon each denial with complacency or, at his
option, may institute a suit to falsify the assertions
of the other side. But, when he finds that his rights
are actually being jeopardised by the action or
assertion of the defendant, then he must take
proceedings within six years from the date of such
actions or assertions: AIR 1922 Lah 94, AIR 1925 Lah.
391 and 140 RR. 1907 : Dist".
20. It is no longer res-integra that persons continuing in
possession in spite of adverse entry in the revenue papers
need not seek any declaration until their possession is
threatened. Reference may be made to Ghulam
Mohammad Khan and others v. Sammundar Khan and
others, AIR 1936 Lahore 37 . In that case, the adverse entry
was made in the year 1905-06. The suit was filed much
after the period of limitation under Article 120 of the 1908
Act. In the plaint, it was urged that the entry was made in
the jamabandi behind the back of the plaintiffs, and they
learnt about these entries for the first time in the year
1929-30. The defendants traversed the allegations. In this
background, the Division Bench held that the cause of
action in all such cases "would accrue when the plaintiff
feels aggrieved, and in these circumstances, on the
plaintiff's allegations, these suits will be within time."
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21. Otherwise, also, entries in the revenue record for
which there is no foundation do not create any title (See
Jattu Ram v. Hakam Singh and others, JT 1993 (5) SC 423;
Guru Amarjit Singh v. Rattan Chand and others, AIR 1994 SC
227; Guru Amarjit Singh v. Rattan Chand and others, (1993)
4 SCC 349 ).
27. A similar view was taken in Sairu Ram vs. Prem Chand,
Latest HLJ 2004(1) 663 (HPHC) and held as under :
22. It was next contended on behalf of the defendant that
even if Art. 113 is applied, the suit having been filed
beyond three years of the order of mutation would be
barred by time.
23. There is no merit in the contention; it is well settled
that mutation does not confer title. A cause of action
would accrue to the plaintiffs only when there is an
invasion of or a threat to his rights and title. The order of
mutation, even otherwise, having been passed by an
authority having no jurisdiction, was a nullity and
capable of being ignored.
24. In Ghulam Mohammad Khan and others Vs. Samundar
Khan and others [1936 Lahore 37] dealing with a suit filed
under Section 45, Punjab Revenue Act, 1887, which
provision is para material to Section 46 of the HP. Land
Revenue Act, 1953, it has been held that to such suits
Article 120, Limitation Act, 1908 (corresponding to Article
113, Limitation Act, 1963) applies and the terminus a quo
in such cases is when the cause of action accrues and that
reading Article 120, Limitation Act 1908 with Section 45,
Punjab Land Revenue Act, 1887, the cause of action would
accrue when the plaintiff feels aggrieved.
25. It has been held in Kewal Krishan Purl and another vs.
The State of Punjab and others [1977 P&H 347] that the
right to sue will accrue only where there is an unequivocal
threat to infringe the right of the plaintiff.
26. Taking into consideration the averments in the plaint
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as to the threat to infringe the rights of the plaintiff, the
suit is well within time under Article 113, Limitation Act,
1963.
28. It was laid down by the Hon’ble Supreme Court in
Daya Singh v. Gurdev Singh, (2010) 2 SCC 194: 2010 SCC OnLine SC
136 that the period of limitation starts running when the actual
right is infringed. It was observed (at page 198 of SCC):
14. In support of the contention that the suit was filed
within the period of limitation, the learned Senior
Counsel appearing for the appellant-plaintiffs 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 in Bolo v. Koklan [(1929-30) 57 IA 325: 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 v.
Syed Unnissa AIR 1961 SC 808, in which this Court
observed: (AIR p. 810, para 7)
“ 7 . … The period of six years prescribed by Article 120
has to be computed from the date when the right to
sue accrues, 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.”
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In C. Mohammad Yunus [AIR 1961 SC 808] , 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 in the revenue records
cannot give rise to a 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 21-8-
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 accrued when a clear and
unequivocal threat to infringe that right by the
defendants was made when they refused to admit the
claim of the appellants, i.e. only seven days before the
filing of the suit. Therefore, we are of the view that within
three years from the date of infringement, as noted in
Para 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.
29. It was laid down in versus Rulda Ram v. Sanju Ram,
2013 SCC OnLine HP 4341, that mere entry of the name does not
confer a person the right to sue. The right to sue accrues when
the rights of a person are threatened. It was observed:
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14. In Mt. Bolo v. Mt. Koklan, AIR 1930 Privy Council 270 ,
the 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 a 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 the 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.”
15. In Shiam Lal v. Mohamad Ali Asghar Husain, AIR 1935
Allahabad 174 , a 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.
16. In Rukhmabai v. Lala Laxminarayan, AIR 1960 SC 332 ,
their Lordships of the 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
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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 begins 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 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:
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“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?”
17. Their Lordships of the Hon'ble Supreme Court in C.
Mohammad Yunus v. Syed Unnissa, AIR 1961 SC 808 , have
held that a suit for declaration of a right and an injunction
restraining the defendants from interfering with the
exercise of that right is governed by Article 120. Under the
Article, 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. Their Lordships have held as under:
“7. The surplus income of the institution is
distributed by the trustees, and the plaintiffs are
seeking a declaration of the right to receive the
income and also an injunction restraining the
defendant from interfering with the exercise of
their right. The High Court held that plaintiff No. 1
was at the date of the suit 19 years of age and was
entitled to file a suit for enforcement of her right
even if the period of limitation had expired during
her minority within three years from the date on
which she attained majority by virtue of Ss. 6 and 8
of the Indian Limitation Act, Apart from this
ground which saves the claim of the first plaintiff
alone, a suit for a declaration of a right and an
injunction restraining the defendants from
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interfering with the exercise of that right is
governed by Art. 120 of the Limitation Act and in
such a suit the right to sue arises when the cause of
the action accrues. The plaintiffs claiming under
Fakruddin sued to obtain a declaration of their
rights in the institution, which was and is in the
management of the trustees. The trial judge held
that the plaintiffs were not “in enjoyment of the
share” of Fakruddin since 1921, and the suit filed by
the plaintiffs more than 12 years from the date of
Fakruddin's death must be held barred, but he did
not refer to any specific article in the first schedule
of the Limitation Act which barred the suit. It is not
shown that the trustees have ever denied or are
interested in denying the right of the plaintiffs and
defendant No. 2; and if the trustees do not deny
their rights, in our view, the suit for declaration of
the rights of the heirs of Fakruddin will not be
barred under Article. Section 120 of the Limitation
Act merely because the contesting defendant did
not recognise that right. The period of six years
prescribed by Art. 120 has to be computed from the
date when the right to sue accrues, 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. If the trustees were willing to give a share and
on the record of the case it must be assumed that
they being trustees appointed under a scheme
would be willing to allow the plaintiffs their
legitimate rights including a share in the income if
under the law they were entitled thereto, mere
denial by the defendants of the rights of the
plaintiffs and defendant No. 2 will not set the
period of limitation running against them.”
18. In Rukshmanibehn v. Vadilala N. Jadawala, 1994 (1)
G.L.H. 237 , a Division Bench of the Gujarat High Court has
explained the expression “right to sue” as under:
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‘7. As already noted, Article 58 of the Limitation
Act, 1963, which Article learned counsel for the
defendant wants to use to apply to the pleas of the
plaintiffs, stipulates that the 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. Hence, the
pronouncement which has been spoken on Article
120 of the Old Limitation Act, 1908, does 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 that 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 overt 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 overact 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 could it 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 overt act of his, by
infringing or at least clearly and unequivocally
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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, though 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.”
19. In Dhanno v. 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 the 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 stands divested of her right in the
land on account of section 59 of the Punjab Tenancy
Act. This way, the plaintiffs, along with Punnu,
rd
became owners of the extent of l/3 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, a cause of action arises in such like cases
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when the defendant/defendants threaten the
plaintiffs to take forcible possession of the land
from him. Mere entry of mutation in the name of
the 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
the 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, (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's
rights.”
20. In Bhagwanti Devi v. Mat Ram, (2003-3) 135 P.L.R. 585 ,
a learned Single Judge of the Punjab and Haryana High
Court, while discussing Article 58 of the Limitation Act,
has held that when the plaintiff continues to be in
possession of the suit land along with the defendant,
cause of action in such case would arise when there is
threat to his title.
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“13. It could not be disputed that the plaintiff is a
partner of the firm, and as a partner, he enjoys the
benefits of the firm, including the possession of the
property purchased by virtue of the conveyance
deed dated 29.4.1968, Ext. D1. Since the plaintiff
continues to be in possession of the suit land along
with the defendant, his suit could not be dismissed
on the ground that it is beyond the period of
limitation. The cause of action in such a case would
arise only when there is a threat to his title.
According to the plaintiff, such a threat arose when
Improvement Trust, Hansi, served a notice under
Section 9 regarding the acquisition of land
comprising Khasra No. 1075. At this stage, on
inspection of the record, he came to know about the
omission of his name in the sale deed and in the
mutation.”
21. In Manti v. Sarwati Devi, (2004-1) 136 P.L.R. 397 , a
learned Single Judge of the Punjab and Haryana High
Court has held that even if entries in the 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, the heirs of Mata Chand will not be entitled
to the share of Dalip Chand in view of Entry-II of
nd
Class II of the Schedule to the Hindu Succession
Act read with Section 8 of the said Act. The 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, the contention of the learned
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counsel for the appellants that the suit is barred by
limitation cannot be accepted. Though the
limitation is three years, the time from which this
period begins to run is when the right to sue first
accrues. It is not possible to accept that the right to
sue accrued in the year 1966 when mutation was
sanctioned, as rightly held by the lower appellate
court, nor did it accrue when a gift of part of the
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 a separation
of joint holding, there is no material on record to
indicate the separation of shares and the date of
separation, if any. Even if entries in the revenue
record are wrong, a party can choose to ignore the
same till a real threat to the title is apprehended.
Reference in this regard may be made to the
decision of a Division Bench of this Court in Ibrahim
v. 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 the plaintiff, mere entry of
mutation in the name of the defendant in the
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.”
22. In Ibrahim v. Sharifan, 1979 P.L.J. 469 , a Division Bench
of the Punjab and Haryana High Court has held that mere
entry of a mutation in the name of the defendant would
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not furnish any cause of action to the plaintiff, and a
cause of action arose to the plaintiff when the defendant
actually threatened to take forcible possession of the 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.
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
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action to the plaintiff to file a suit for declaration or
not. There is no dispute that the 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 , 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 the mere entry of the
mutation in the name of the defendant. Further,
there is no proof on the record to show that before
April, 1960, by any act or assertion of the
defendant, the right of the plaintiff was ever
actually jeopardised. 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
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furnish any cause of action to the plaintiff. Our view
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.”
23. Their Lordships of the Hon'ble Supreme Court in Daya
Singh v. Gurdev Singh (dead) by LRs., (2010) 2 SCC 194 have
held that the 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 v. Mt. Koklan ]. 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
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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 v. Syed Unnissa [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 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 a 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
st
plaintiffs. Admittedly, the suit was filed on the 21
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
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clear and unequivocal threat to infringe that right
by the defendants is made when they refused to
admit the claim of the appellants, i.e. only seven
days before filing 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
st
was filed for declaration on 21 of August, 1990, in
our view, cannot be held to be barred by
limitation.”
24. This Court in Shiam Singh v. Chaman Lal, 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 he feels aggrieved by the entry. 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 he feels
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.”
30. A similar view was taken in Shankar Lal v. Ramesh
Chander, 2016 SCC OnLine HP 3993, wherein it was held:
15. The learned counsel appearing for the defendants has
contended qua the suit of the plaintiffs being barred by
limitation, it standing instituted beyond the prescribed
period mandated in Article 58 of the Limitation Act.
However, the aforesaid submission cannot stand accepted
by this Court, as the aforesaid apposite article of the
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Limitation Act while prescribing the commencement of the
relevant period of limitation proclaims qua the relevant
commencement for computing therefrom the period of
limitation encapsulated therein occurring on an accrual of
“right to sue”, right to sue whereof holds a connotation qua
its spurrings or occurrings arising on actual and threatened
invasion(s) qua the settled right of the plaintiff(s) upon the
suit property. In sequel when the connotation borne by the
apposite statutory parlance ‘right to sue’ is qua its
upsurging on the defendant(s) committing overt act upon
the suit property hence theirs explicitly pronouncing theirs
casting cloud qua the title of the plaintiff(s) qua the suit
land whereupon even if mutations qua the suit property
stood attested on 24.12.1994 and 20.11.1999 whereas the suit
of the plaintiff stood instituted in the year 2001 would not
render it to be construable to stand instituted beyond
limitation, as merely on attestation of relevant mutations
which palpably are nonest besides stand recorded in
deprivation of the vested rights of the plaintiffs qua the suit
property no title hence standing invested upon the suit land
qua defendant No. 2 rather when the plaintiffs' title to the
suit land stood explicitly annulled besides came under a
cloud by the proactive overt act of defendant No. 2
executiing sale deeds respectively on 3.11.1999 and 5.5.2001,
with defendant No. 1 constituted the latter period to enliven
thereat the relevant cause of action or it begot the
commencement of the relevant period of limitation for the
plaintiffs' instituting a suit. In sequel thereto, with the
plaintiffs therefrom instituting the suit within the
statutorily mandated period of limitation prescribed in the
relevant Article of the Limitation Act renders it to be
construable to be within limitation.
31. In Dada Jinnappa Khot (supra), the defendant filed a
petition to the Tehsildar seeking to recover possession of the
suit property, and it was held that the right to sue accrued on the
date of the application. In Vidya Sagar (supra), the compensation
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was awarded regarding the land acquired by the State, and it was
held that this constituted a threat to the plaintiff’s rights. In R.
Ravindra Reddy (supra), an order was passed by the Land
Tribunal, which was not assailed, and it was held that the order
constituted a threat to the plaintiff’s rights. In the present case,
no steps were taken after the attestation of the mutation, which
would constitute a threat to the plaintiff’s rights. Therefore, the
right to sue did not accrue, and the suit cannot be held to be
barred by limitation merely because it was filed beyond the
period of three years from the date of attestation of a mutation.
Hence, this substantial question of law is answered accordingly.
Final Order:
32. In view of the above, the present appeal fails, and it is
dismissed
33. The appeal stands disposed of, so also the pending
application(s) , if any.
34. Records of the learned Courts below be sent down
forthwith.
(Rakesh Kainthla)
Judge
th
25 May, 2026
(Nikita)
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