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REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO.5339 OF 2002
Daya Singh & Anr. ...Appellants
VERSUS
Gurdev Singh (Dead) by L.Rs. & Ors. ...Respondents
JUDGMENT
TARUN CHATTERJEE, J.
1. This appeal is directed against the final judgment and order
dated 10th of September, 2001 of a learned Judge of the Punjab
and Haryana High Court dismissing a second appeal being
Regular Second Appeal No.3416 of 1997, inter alia, on the
ground that the suit for declaration and injunction filed on 21st of
August, 1990 was barred by limitation under Article 58 of the
Limitation Act, 1963 (in short `the Act’) which could only be filed
within three years from the date when the cause of action
arose.
2. Therefore, the only question that needs to be decided in this
appeal by us is : whether the suit for declaration and injunction
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could be held to be barred by limitation as the same was filed
after 18 years of the alleged compromise between the parties.
For the purpose of deciding this question on limitation, as noted
hereinabove, which was only urged by the learned counsel for
the appellants before us and the High Court also decided the
second appeal on this question of limitation, we need to state
the facts which would be relevant for the purpose of deciding
the question of limitation only. The facts are as follows:
3. The plaintiffs/appellants were the owners and in joint
possession of 1/9th share in the entire land measuring about
286 Kanals and 5 Marlas of Khewat No.359 Khatoni No.702-
710 situated in village Sukhchain falling under Sirsa Tehsil. Two
other individuals named Jang Singh and Jangir Singh were the
owners of 2/3rd share in the said total land. The appellants and
the two individuals were co-owners in the said total land. These
two individuals, namely, Jang Singh and Jangir Singh had sold
their entire 2/3rd share to the respondents on 7th of June, 1965
for a sale consideration of Rs.33,500/-. The said share of land
was already under mortgage with the respondents. In 1965, the
respondents got their names mutated in the relevant record of
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rights as owners of the area purchased by them as indicated in
the aforesaid sale deed. The appellants filed a pre-emption suit
being Pre-emption Suit No.377 of 1966 in the Court of the
Subordinate Judge, Class II, Sirsa against the respondents for
possession of 2/3rd share sold to them and got it decreed in
their favour by the trial court by a judgment and decree dated
30th of November, 1967.
4. The respondents appealed against the aforesaid decision
before the Appellate Court, namely, District Judge, Hissar who
dismissed their appeal on 15th of June, 1968. Feeling aggrieved
against the aforesaid concurrent judgments of the courts below,
a second appeal was filed before the Punjab and Haryana High
Court which was dismissed on 26th of May, 1972. Subsequent
to the dismissal of the second appeal, the appellants and the
respondents compromised their dispute and such compromise
was reduced into writing on 26th of October, 1972. According to
this compromise, the appellants were entitled to retain half of
the 2/3rd share of the land in dispute and the respondents were
to retain the other half. The respondents admitted in their
compromise deed that the appellants had taken possession of
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their share of land. When this compromise was presented
before the Division Bench of the High Court of Punjab and
Haryana in Letters Patent Appeal which came to be registered
as LPA No.86 of 1973, the Division Bench of the High Court
disposed of the said Letters Patent Appeal in terms of the said
compromise petition. From the records, it would also be evident
that the report of the Kanoongo dated 16th of January, 1976 and
the Roznamcha No.252 dated 14th of April, 1996 recorded that
the possession of 95 Kanals and 8 = Marlas had been
delivered to the appellants. After such compromise was
effected, the appellants thereafter filed a suit for declaration that
they were in possession as owner of 1/9th share and in joint
possession of half of 2/3rd share (thus totaling of 4/9th shares) of
land measuring 286 Kanals and 5 Marlas of Khewat No.359
Khatoni No.702-710 along with respondents and the entries in
the revenue record of rights should only be corrected in the
Court of the Senior Subordinate Judge, Sirsa. In paragraphs 15
and 16 of the plaint of this suit which concerned the question of
limitation, the plaintiffs/appellants had averred as follows :
“15. That the defendants were approached and
requested to admit the claim of the plaintiffs and to
5get the revenue entries corrected accordingly in
their favour, the defendants have refused to do so,
hence this suit.
16. That the cause of action for this suit first arose
on 26.10.1972 when the parties filed a compromise
in the Hon’ble High Court and then on 14.4.76 when
the plaintiffs were delivered possession of 1/3 share
of land in the khewat at the spot and now about a
week back when the plaintiffs have for the first time
come to know about the wrong entries in the
revenue records and now when the defendants
have refused to admit the claim of the plaintiffs.”
On the basis of the averments made as noted herein above, the
plaintiffs/appellants filed the aforesaid suit for the following reliefs:
“a) That the plaintiffs are the joints owners in possession,
in equal share of 1/3rd share in land measuring 286 kanal
5 marlas comprised in khewat No.359, Khatoni NO.702 to
710, all land as per jamabandi for the year 1985-86,
situated in the area of village Sukhchain, Tehsil and
Distt.Sirsa and that the revenue records showing the
defendants to be the owners of 12/18th share of 2/3rd
share in the aforesaid land is wrong and is hence liable to
be corrected in favour of the plaintiffs, and
b) That the defendants are the owners of only 1/3rd
share in the aforesaid khewat, and
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c) That the plaintiffs who are already the owners of 2/18th
share of 1/9th share in the khewat have thus become the
total owners of 4/9th share in the entire khewat No.359
and that the plaintiffs are entitled to get the mutation of
change of ownership sanctioned accordingly in their
favour, may please be passed in favour of the plaintiffs
and against the defendants with cost of this suit.”
5. The respondents entered appearance and filed written
statement denying the material allegations made in the plaint.
Leaving aside the other facts in the present case, we may state
here that a specific defence taken by the respondents in their
written statement was to the effect that the suit was barred by
limitation in view of Article 58 of the Act because the suit having
been filed after about 18 years of entering into the compromise
by the parties in the High Court in the Letters Patent Appeal,
must be filed within three years from the date of entering into
the alleged compromise by the parties. Accordingly, the
respondents alleged that the suit must be dismissed on the
ground of limitation. We make it clear that since the only
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question involved in this appeal is relating to the question of
limitation, we have not considered the other aspects of the
matter in this judgment. After the parties had entered
appearance and led evidence in support of their respective
cases also on the point of limitation, the trial court held, inter
alia, that the suit was barred by limitation in view of Article 58 of
the Act as the cause of action arose in 1972 i.e. on the date of
compromise entered into by the parties. Accordingly, the suit
was dismissed by the trial court also on the ground of limitation.
Feeling aggrieved, the plaintiffs/appellants filed an appeal
before the Additional District Judge, Hissar who also dismissed
the appeal of the appellants, inter alia, holding that the suit was
barred by limitation. Consequent thereupon, the appellants
approached the High Court in second appeal and the High
Court also dismissed the appeal holding that under Article 58 of
the Act a declaratory suit must be filed within three years of
arising the cause of action for filing the suit. The High Court
held in the impugned judgment that the cause of action arose
when the parties had entered into the compromise, that is, on
26th of October, 1972 and, therefore, the suit having been filed
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on 21st of August, 1990 was barred by time since it was filed
after 18 years from the date of the said compromise.
6. The appellants still feeling aggrieved by the impugned judgment
of the High Court have filed the instant Special leave petition
and on grant of leave the appeal was heard in the presence of
the learned counsel for the parties.
7. As noted herein earlier, the only question, therefore, to be
decided is whether the mere existence of an adverse entry in the
revenue records had given rise to cause of action as contemplated
under Article 58 or it had accrued when the right was infringed or
threatened to be infringed. 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. 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
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accrual of the right asserted in the suit and its infringement or at least
a clear and unequivocal threat to infringe that right by the defendant
against whom the suit is instituted. In support of this contention the
learned senior counsel strongly relied on a decision of the Privy
Council reported in AIR 1930 PC 270 [Mt.Bolo vs. Mt. Koklan and
others]. In this decision their Lordships of the Privy Council observed
as follows :-
“There can be no right to sue until there is an
accrual of the right asserted in the suit and its
infringement or at least a clear and unequivocal
threat to infringe that right by the defendant against
whom the suit is instituted.”
8. A similar view was reiterated in the case of C.Mohammad
Yunus vs. Syed Unnissa and others [AIR 1961 SC 808] in which
this Court observed :
“the period of 6 years prescribed by Article 120 has
to be computed from the date when the right to sue
accrued and there could be no right to sue until
there is an accrual of the right asserted in the suit
and its infringement or at least a clear and
unequivocal threat to infringe that right.”
9. 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
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atleast a clear and unequivocal threat to infringe that right. Therefore,
the mere existence of an adverse entry into the revenue record
cannot give rise to cause of action.
10. Keeping these principles in mind, let us consider the admitted
facts of the case. In para 16 of the plaint, it has been clearly averred
that the right to sue accrued when such right was infringed by the
defendants about a week back when the plaintiffs had for the first
time come to know about the wrong entries in the record of rights and
when the defendants had refused to admit the claim of the plaintiffs.
Admittedly, the suit was filed on 21st of August, 1990. According to
the averments made by the plaintiffs in their plaint, as noted
hereinabove, if this statement is accepted, the question of holding
that the suit was barred by limitation could not arise at all.
Accordingly, we are of the view that the right to sue accrues when a
clear and unequivocal threat to infringe that right by the defendants
when they refused to admit the claim of the appellants, i.e. only seven
days before filing of the suit. Therefore, we are of the view that within
three years from the date of infringement as noted in Paragraph 16 of
the plaint, the suit was filed. Therefore, the suit which was filed for
declaration on 21st of August, 1990, in our view, cannot be held to be
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barred by limitation. Therefore, the courts below including the High
Court had proceeded entirely on a wrong footing that the cause of
action arose on the date of entering into the compromise and,
therefore, the suit was barred by limitation, whether or not the
compromise decree was acted upon and whether delivery of
possession had taken place has to be decided by the trial court
before it could come to a proper conclusion that the suit was barred
by limitation. In this view of the matter, we do not find any ground to
agree with the findings of the High Court that the suit was barred by
time because of its filing after 18 years of entering into the
compromise. The question of filing the suit before the right accrued to
them by compromise could not arise until and unless infringement of
that right was noticed by one of the parties. The High Court in the
impugned judgment, in our view, had fallen in grave error in holding
that the suit was barred by time and had ignored to appreciate that
the rights of the appellants to have the revenue record accrued first
arose in 1990 when the appellants came to know about the wrong
entry and the respondents failed to join the appellants in getting it
corrected. In our view, the High Court was not justified in holding that
mere existence of a wrong entry in the revenue records does not, in
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law, give rise to a cause of action within the meaning of Article 58 of
the Act. No other point was urged before us by the learned counsel
for the parties.
11. In view of our discussions made herein above, the impugned
judgment of the High Court on the question that the suit was barred
by limitation cannot be sustained. Therefore, the judgment of the High
Court is set aside and the matter may be remitted back to the High
Court for decision on merits. The High Court is requested to dispose
of the second appeal at an early date preferably within six months
from the date of supply of a copy of this order to it.
12. Accordingly, the impugned order of the High Court is set aside.
The appeal is allowed to the extent indicated above. There will be no
order as to costs.
…………………….J.
[Tarun Chatterjee]
New Delhi; ..........................J.
January 07, 2010. [Aftab Alam]