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Dada Jinnappa Khot vs Shivalingappa Ganapati Bellanki on 9 December, 1988
Equivalent citations: ILR 1989 KAR 993, 1989 (1) KarLJ 377
JUDGMENT Shyamasundar, J.
1. This appeal Is by the plaintiff who chases a set of concurrent decrees against him with both the Courts having refused to declare his title to a small bit of property measuring 16 guntas in relation to which both sides have been at issue all these years in a litigation which appears to have commenced as far back as the year 1967.
2. In this Court the questions of law that have been formulated for consideration are:
(i) Whether on facts held proved by the lower Appellate Court an inference that the possession of the plaintiff-appellant in regard to the subject matter of the suit amounts to adverse possession?
5. That application came to be disposed off by the Tahsildar on 4-5-1970 as per order found in Ex.P-3. The Tahsildar after duly hearing the plaintiff and the defendant took the view that the encroachment complained of by the defendant was true and it had, therefore, to be vacated. This finding is ecorded despite the opposition mounted by the plaintiff asserting that he had not encroached on any portion of defendant's land and he was in possession of his own land. In short, he claimed title to the disputed area claiming It to be his own property. Although Ex.P-3 came to be made on 4-5-1970, there can be little doubt that on the presentation of an application by the defendant to the revenue authorities complaining of encroachment of his land by the plaintiff and asking for restoration of possession there was a clear threat to the right of the plaintiff to the suit property. In other words, the defendant claiming to be the owner of the suit property had accused the plaintiff of having encroached upon it unauthorisedly and made it clear that he was, therefore, seeking the assistance of the revenue authorities for being put back Into possession and in that process clearly putforward his right to the suit property denying thereby the right, title and interest of the plaintiff if any in the suit property. At any rate when he branded possession of the suit property by plaintiff as that of a trespasser who had encroached illegitimately on the defendant's property, It should become evident to any one that the defendant was not merely asserting title to the property but was also denying the title of the plaintiff to the same when he went on to characterise the possession of the plaintiff as that of an encroacher or an unlawful intruder. While there can be no doubt that when the Tahsildar made the order as per Ex.P-3 upholding the defendant's claim to the suit property and ordering possession thereof to be restored to him, without more the plaintiff's right to the suit property had been infringed upon and consequently the cause of action to assail it before Court had certainty arisen but the question is as to when such cause had arisen for the first time. I would have no hesitation in saying that it arose the moment the defendant filed a petition to the Tahsildar seeking to recover possession of the suit property from the plaintiff claiming the same to be his and denying the plaintiff's rights, title and interest in the property and his right to be in possession thereof. Under Article 58 of the Limitation Act the time to assert and to rise up against invasion of one's right occurs when the aberration to the plaintiff's right or the slighting of the plaintiff's right occurs for the first time.
6. The fact that on a subsequent occasion a similar infringement or derogation of the plaintiff's right might have taken place and had furnished a right to the plaintiff to sue, is of no avail as the right to seek a declaration to set at nought the denial of the plaintiff's right by the defendant, starts or commences when the plaintiff's right to the suit property stood thwarted or slighted for the first time. If that is so, it becomes clear that the plaintiff's right to the suit property had been clearly called in question and placed in Jeopardy when the defendant filed an application before the Tahsildar in the year 1967. In fact in paragraph 2 of the plaint there is reference to the threat posed by the filing of that application by the defendant. The following passage in para 2 may be adverted to in this connection:
'However, plaintiff is given to understand that the defendant is about to take possession of the alleged encroached area on the strength of the order of Tahsildar, Athani.'
The above passage impliedly makes a reference to the apprehension raised in the mind of the plaintiff following the proceedings adopted by the defendant before the Tahsildar. There can be no doubt that the plaintiff was aware of the threat posed to his title by the adoption of the proceedings before the Tahsildar by the defendant and consequently cannot deny that when the defendant approached the Tahsildar in the year 1967 for recovering possession on the basis of title to the suit property and in the process denying the title of the plaintiff to the same, the latter's cause of action to demur the opposition had clearly arisen in law.
7. I am to notice that the expression 'where the right to sue first accrues' appearing in Article 58 came to be included in the Limitation Act of 1964 in place of Article 120 of the old Act of 1908. In Article 120 of the old Act, which was the corresponding Article to Article 58 of the new Act, the language used was quite different, in that the language employed in the old Act read, 'when the right to sue accrues.' It may well be on the basis of the language of the provision as it stood prior to the Amending Act of 1964, it was possible to contend that whenever the right to sue accrued, a plaintiff who was the repository of such a right could treat it as the commencement of the period of limitation. But under the new Act with the change in the language of the statute the same having become more specific and precise with the inclusion of the words 'when right to sue first accrues', there can be little doubt that although a cause of action may have arisen even on subsequent occasions as well, what is material for the purpose of computing the period of limitation under Article 58 is the date when the right to sue first accrued.
8. The Supreme Court has adverted to the question as to what type of threat to a plaintiff's title can signal the running of time against him in case of successive denials. In the case of RUKHMABAI v. LAXMINARAYAN Supreme Court made the following enunciation:
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'Where there are successive invasions or denials of a right, the right to sue under Article 120 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 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 jeopardizes the said right.'
The ratio of the decision referred to supra although rendered in a different context makes It clear that the right to sue can be treated as having arisen when there was a clear or unequivocal threat proceeding from the opponent and that a threat which clearly Invades or jeopardises the plaintiff's right can be taken as giving rise to a compulsory cause of action to take steps for smothering such a threat.
9. In this case, there can be no doubt at all when the defendant went before the Tahsildar in the year 1967 complaining of the land grabbing act of the plain-tiff, claiming the lands grabbed to be his and on that basis seeking for restoration of possession, the plaintiff's right to remain in possession or the title and interest he had in the property being clearly under threat, a cause of action enabling him to assert his title to the property must be held to have unmistakenly arisen. Therefore, it is I must hold that the cause of action for the plaintiff had arisen not in 1971 when the Tahsildar disposed off the defendant's application as per Ex.P-3 but it actually arose when the application was made in the year 1967. This is also the view of the two Courts below with whom I concur for different reasons.
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10. As already stated earlier, it is not necessary to record any finding on the first point regards the acquisition of title by prescription by the plaintiff in view of my finding on the second question raised for consideration, on the basis of which the plaintiff's suit for declaration and an injunction should be held to have been statute barred for which reason this appeal fails and has, therefore, to be dismissed. It is ordered accordingly. No costs.
Mr. Gunjal says that if the defendant wants possession he will have to take it in accordance with law. That is a matter over which the parties to the litigation may ponder over. But, then, whether the defendant can take possession of the suit property hereafter by adopting further proceedings or not, he will have to pay the value of the well which admittedly exists on the suit property. The value of the well will have to be evaluated by a professional Engineer and in accordance with the estimate made by such an Engineer the plaintiff has to be compensated in terms of money. It is only thereafter, the defendant would be entitled to possession of the suit property.
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