Angatiparambath Kanniyalli Chathu vs Thekkse Illath Neelakandhan alias Padmanaban Namboodry

Devadoss, J.—The plaintiff alleges that he is the jenmi of the plaint property and that he applied to have the land registered in his name in

1917 and that on the , objection of the defendant the Revenue Authorities refused to change the registry. He therefore sues for a declaration that

he is the jenmi of the plaint land. Both courts dismissed the suit as being barred by limitation under Article 120. The plaintiff has preferred this

Second Appeal.

It is found that the plaintiff''s father applied in 1903 for change of revenue registry to his name and the Settlement Officer ordered that the

registry should stand as it did. It is contended on his behalf that the suit is not barred by limitation as there was a fresh cause of action in 1917. He

relies upon Rajendra Kishore Rai Chaudhuri v. Abdul Razac Chaudhuri (1915) 22 C. L. J. 283 . The facts in that case were the plaintiffs claimed

title to some property by purchase at a sale in execution of a mortgage decree. They took possession but were resisted by the defendants and the

property was attached u/s 146, Criminal Procedure Code. The order of the Magistrate was made on 25th April 1902. On the 3rd July and 11th

October 1909 two sets of plaintiffs instituted suits for a declaration of their title and for their shares of the property. The Courts found that plaintiffs

had title to the property and that they were in possession till the attachment of the property by the Magistrate on 25th April 1902. The Lower

Appellate Court dismissed the suits as barred by limitation under Article 120 of the Limitation Act. The learned Judges held that the attachment by

the Magistrate on account of the interference of the defendants was a continuing wrong and that no question of limitation arose. In Allah Jilai v.

Umrao Hussain ILR (1914) All. 492 the learned Judges held that the suit brought for profits; of the share gave the plaintiffs a fresh cause of action.

In Kali Prasad v. Harbans Missir (1918) 50 I.C. 767. Piggott, J. observes ""my opinion is that the proceedings taken in the partition court whereby

the plaintiffs found themselves, if their statements of facts are true, for the first time in danger of being actually dispossessed of their joint ownership

over plot No. 655 gave rise to a fresh cause of action altogether independent of any cause of action which may have been furnished to the plaintiffs

by the settlement entry made in 1877."" If in this case the respondents had attempted to disturb the plaintiff''s possession or claim any right over the

property to the derogation of the plaintiff''s right, such an act would give a fresh cause of action. The plaintiff herein asks for the same relief which

was denied to him in 1903. As observed in Chowdhry Shamamund v. Rajnarain Das (1906) 11 C.W.N. 186 ""it cannot be successfully maintained

that the plaintiffs should as a matter of law be regarded as dispossessed merely by virtue of the order of the revenue authorities dismissing their

application for registration. The suit is in substance as it is in form a suit for declaration of title and the rule of limitation applicable is that provided in

Article 129 and not that in Article 144.

The case in Ananta Razn v. Narayana Razu I.L.R.(1912) Mad. 383 , has no application to the facts of the present case. There was an

attachment of a person''s land, as if it belonged to another, and on a later date the same was sold in court auction. It was held ""the plaintiffs no

doubt might then have sued but we do not think they were bound to sue...The owners'' title is affected by a sale in an altogether different and

greater degree than it is by an attachment. We think this gives the owners of the property a fresh cause of action.

In the present case it cannot be contended that there was a fresh cause of action in 1917. The plaintiff''s father was refused change of registry to

his name in 1903. The plaintiff again applied in 1917 for the same relief which was refused. The suit brought after six years from the date of first

refusal is barred under Article 120 of the Limitation Act; vide Akbar Khan v. Turaban ILR (1908) All. 9 .

It is next contended that the respondent did not deny the plaintiff''s title in 1903 and that he denied plaintiff''s title only in 1917. The facts in

evidence do not support this contention. Operations under the Malabar and Registration Act 1896 went on in 1901 and 1902 and under Sections

4 and 5, notices must have been issued, and such enquiry as was necessary must have been held u/s 6.

The records of the operation seem to have been destroyed and it would be putting a premium upon perjury to allow the parties to adduce oral

evidence as to what happened in 1903. It is clear from Ex. VII that plaintiff''s father must have been aware of what was going on then and after the

entry was made in defendant''s name he wanted a transfer to his name which was refused by the Settlement Officer; vide Ex. VIII.

It is next contended that the plaintiff has been in undisturbed possession for the last twelve years and that he is therefore entitled to bring a suit

for declaration of his title against the defendant. In the first place there is no evidence as to the nature of his possession. Even if he is in possession

as a jenmi that would not by itself give a cause of action against the defendant.

It is further contended that every fresh denial of title gives a fresh cause of action and Jalandhar Thakur v. Jharula Das I.L.R.(1914) Cal. 244 is

cited to support it. In that case their Lordships held"" that on each occasion on which Jharula Das received and wrongfully appropriated to his own

use a share of the income to which the shebait was entitled, Jharula Das committed a fresh actionable wrong in respect of which a suit could be

brought against him by the Shebait"". If in the present case the defendants attempted to collect or collected the income of the land, the plaintiff

would have had a fresh cause of action. By asking for this identical relief in 1917, which was denied his father in 1903, the plaintiff does not

acquire a fresh cause of action against the defendants. The Second Appeal fails and is dismissed with costs.

Kumaraswami Sastri, J.

I agree.