Devinder Kaur vs Manmohan Singh

A.S. Nehra, J.

Defendantappellant Devinder Kaur has filed this appeal against the judgment and decree dated 18.5.1978 passed by the Additional District Judge, Ludhiana.

Briefly stated, the facts of the case are that the plaintiffsrespondents instituted the suit for a declaration that they are the owners in possession of the suit land, described and detailed in the headnote of the plaint, and also of the house and open courtyard around it, which is also described in the site plan attached with plaint, on the basis of a Will dated 21.1.1966 executed by Kaur Singh who had bequeathed his property in favour of the plaintiffsrespondents. Kaur Singh was the owner of the disputed property. He died on 8.6.1969. The plaintiffsrespondents claimed that they are the owners of the suit land but the defendants did not admit their ownership.

Only defendants Nos. 4 and 6, namely, Devinder Kaur and Nihal Kaur respectively, contested the suit and denied the allegations of the plaintiffsrespondents and also the execution of any Will by Kaur Singh in their favour during his lifetime regarding the property, in dispute. On this controversy between the parties, the trial Court framed the following issues :

(1) Whether the suit in present form is maintainable ?

(2) Whether the suit has not been properly valued for the purposes of courtfee and jurisdiction ?

(3) Whether the suit is within limitation ?

(4) Whether Kaur Singh deceased had executed a valid and genuine Will in favour of the plaintiffs ? If so, its effect ?

(5) Relief.

The trial Court held under issue No. 1 that the suit is maintainable in the present form. It decided issue No. 2 in favour of the plaintiffsrespondents and the value of the suit for the purposes of Courtfee and jurisdiction was upheld. It also held under issue No. 4 that Kaur Singh executed a valid Will in favour of the plaintiffsrespondents while the findings on issue No. 3 were given against the plaintiffsrespondents and the suit was held to be time barred and, as such, it was dismissed. The defendentsrespondents did not file any cross appeal against the plaintiffs respondents. The learned counsel for the plaintifsrespondents has argued only regarding the finding of the trial Court on issue No. 3 before the lower appellate Court. The lower appellate Court held that the cause of action given by the plaintiffsrespondents may be wrong but it is up to the Court to see when the cause of action accrued to them so as to determine the point of limitation in the suit. Mutations Nos. 2031 and 4929 were sanctioned by the Assistant Collector 1st Grade, Ludhiana on 12.5.1971 as is evident from his mutation order passed by him on 12.5.1971, which is on the file. The plaintiffsrespondents had cause of action, in fact, from this date onwards, when they were not shown exclusive owners of the suit property under that Will which has been held valid by the trial Court. The lower appellate Court held that under these circumstances the limitation for bringing the suit started from 12.5.1971 and, as the suit was filed by the plaintiffsrespondents on 19.5.1973 it is clearly within three years so the suit of the plaintiffs respondents was held to be filed within limitation. Therefore, the lower appellate Court set aside the finding of the trial Court on issue No. 2, decided this issue in favour of the plaintiffsrespondents and decreed the suit in their favour.

The learned counsel for the defendantappellant submitted that, according to paragraph 4 of the plaint the cause of action for bringing the suit by the plaintiffsrespondents arose to them on 8.4.1969 when Kaur Singh died and they became entitled to the property, in dispute, on the basis of the alleged Will in their favour and the suit was filed on 19.5.1973, i.e. after more than 3 years, whereas under Article 58 of the Limitation Act, the limitation period prescribed for obtaining any declaration is 3 years from the date when the right to sue accrues. Therefore, the learned counsel has argued that the suit is beyond limitation.

The learned counsel for the defendantappellant further argued that as the plaintiffsrespondents were not being dispossessed and the mutations do not confer the title, therefore, the plaintiffsrespondents have no cause of action and their suit was liable to be dismissed on this ground alone.

There is no merit in the contentions raised by the learned counsel for the defendantappellant. Article 58 of the Limitation Act provides a period of 3 years in such like suits from the date when the right to sue accrues. The point to be determined in this case is as to when the right to sue accrued to the plaintiffsrespondents for filing the suit. After the death of Kaur Singh, they instituted the suit for declaration, which has been held by the trial Court as maintainable in the present form, and there was no appeal against that decision of the trial Court. It establishes that the plaintiffrespondents were in possession of the suit land after the death of Kaur Singh. The plaintiffrespondents would have the cause of action against the defendants only when the title of the plaintiffs was challenged, infringed or denied. On the day of death of Kaur Singh, the title of the plaintiffs respondents as the owners of the suit land would not ordinarily be challenged by the defendants. For such suits, time begins to run when the cause to sue first accrues. The word ''first'' is of special significance and has been inserted by the Legislature with a purpose. The intention of the Legislature in inserting the word ''first'' in Article 58 of the Limitation Act is very clear. The word ''first'' cannot be construed in any other manner except that the limitation in a declaratory suit shall begin to run when the cause to sue for the property first accrues to the plaintiff. The cause to sue arises to him only from the date when there is threat to his right to property. In the instant case, the threat to the plaintiffsrespondents'' possession over the suit property came for the first time as far back as 12.5.1971 when they were not shown the exclusive owners of the suit property under that Will which was held valid by the trial Court. The plaintiffsrespondents had cause of action, in fact, from his date onwards. In these circumstances, the limitation for bringing the suit started from 12.5.1971, and the suit was filed on 19.5.1973 by the plaintiffsrespondents, which is clearly within three years. As such, the suit of the plaintiffsrespondents was filed within limitation. The finding of the trial Court on issue No. 3 was rightly set aside by the lower appellate Court.

In view of my above discussion and findings, there is no merit in this appeal filed by the defendantappellant and the same is dismissed with costs.