SUBHASH PANDURANG GAWAND & Ors. v. NONE

Judgment

-(Smt. Ranjana Desai, J.) . The appellants are original plaintiffs in S.C. Suit No. 4591 of 1996 which is pending in this court. The respondents are original defendants in the said suit. In this appeal the appellants have challenged order dated 31/8/2001 passed by learned 4 Single Judge of this court on Notice of Motion No. 3682 of 1999 taken out by them praying for an order of injunction against the defendants. By the impugned order learned Single Judge has dismissed the motion. For the sake of convenience, we shall refer to the appellants and the respondents as the plaintiffs and the defendants respectively.

2. It is necessary to begin with the facts of the case.

3. The suit land is Survey No. 317 (Hissa No. 3 part) bearing C.T.S. No. 1409 admeasuring 1 acre and 32 gunthas situated at Dahisar, Mumbai. The suit land along with the other land was held by one Haji Ali Mohamed Haji Kasam. He died in the year

1946. On his death, a suit being Suit No. 3145 of 1947 was filed in this court for administration of the estate of the deceased. By this court’s order dated 30/1/90 the Court Receiver was appointed in respect of the property left behind by the deceased. Pursuant to the preliminary decree passed by this court, the Receiver was authorised to sell the estate of the deceased. Pursuant to that permission the estate was sold and ultimately the sale deed of the suit land was executed in 5 favour of M/s. Veekaylal Investment Company Pvt.

Ltd. According to the plaintiffs, the land Survey No. 317 was admeasuring 9 acres and 32 gunthas. Out of that 5 acres of land was Pot Kharaba. The balance land admeasuring 4 acres 32 Gunthas was under cultivation. Out of 4 acres and 32 gunthas, which was under cultivation, the land admeasuring 1 acre and 32 gunthas (i.e. the suit land) was cultivated by one Pandurang Gawand, of whom the plaintiffs are legal representatives.

4. Proceedings were initiated under the Bombay Tenancy and Agricultural Lands Act ("Bombay Tenancy Act" for short) to find out whether the said Pandurang Gawand is a tenant of the land admeasuring 1.32 acres. A finding was recorded in favour of Pandurang Gawand. The proceedings went up to Maharashtra Revenue Tribunal ("Revenue Tribunal" for short). At that stage, there was a compromise between the owner M/s. Veekaylal Investment Pvt. Ltd., the Court Receiver, High Court, Bombay and the said Pandurang Gawand. As a result of the compromise a sale deed was executed in favour of the said Pandurang Gawand in respect of land admeasuring 1.32 acres 6

5. One Bhatia Rawal, of whom defendants 4 to 14 are the legal representatives, claimed to be the tenant of the Pot Kharaba land and, therefore, proceedings were initiated by him by making an application on 13/3/66 under Section 70(b) of the Bombay Tenancy Act for deciding whether the said Bhatia Rawal was the tenant of 5 acres of land from Survey No. 317. The Agricultural Lands Tribunal by order dated 5/4/67 held that the said Bhatia Rawal was cultivating 5 acres of land from Survey No. 317. Thereafter the Agricultural Lands Tribunal took up proceedings for determination of the purchase price of the said land. However, in that order, it was shown that the said Bhatia Rawal is entitled to ownership of 6.32 acres of land from Survey No. 317. A certificate under Section 32-M of the Bombay Tenancy Act was issued to the same effect on 15/5/67. Order passed by the Mamlatdar holding Bhatia Rawal to be tenant of 5 acres of land as also 32-M certificate were challenged by M/s. Veekaylal Investment Pvt. Ltd., and the Court Receiver by filing an appeal before the Sub-Divisional Officer. In that appeal the Sub-Divisional Officer set aside the 32-M certificate issued in favour of Bhatia Rawal to the extent of land in excess of 5 acres. The 7 Sub-Divisional Officer remanded the proceedings to the Mamlatdar.

6. A revision was filed against that order by a Trust to whom Bhatia Rawal had transferred 5 acres of land. That revision was decided by the Revenue Tribunal by order dated 5/10/81. The Revenue Tribunal set aside the order passed by the Sub-Divisional Officer in appeal and remanded the appeal to the Sub-Divisional Officer for fresh consideration.

7. It appears that the transferee from Bhatia Rawal filed Writ Petition No. 1315 of 1982 in this court challenging the order passed by the Revenue Tribunal. That petition was admitted and further proceedings, on remand before the Sub-Divisional Officer were stayed. In the meanwhile proceedings were initiated before the authorities, who maintain land records. However, while taking entries in the revenue records, the land records department ignored the 32-M Certificate. In the appeal, Pandurang Gawand, the predecessor-in-title of the plaintiffs was joined as the respondent. The appeal was decided by the Sub-Divisional Officer on 31/8/84. The Sub-Divisional Officer by his order 8 dated 21/8/84 set aside the entries made by the authorities of the land records department and directed them to make entries in consonance with certificate issued under Section 32-M of the Bombay Tenancy Act. Feeling aggrieved by that order the plaintiffs filed an appeal before the Deputy Collector (appeals). During pendency of this appeal Writ Petition No. 1315 of 1982 was finally decided by this court by its judgment dated 26/7/88. This court held that the Sub-Divisional Officer, who had set aside 32-M certificate and remanded the matter to the Mamlatdar for issuance of fresh 32-M certificate was not justified in remanding the proceedings to the Mamlatdar. This court also held that the Revenue Tribunal, which had set aside the order of the Sub-Divisional Officer and remanded the proceedings to the Sub-Divisional officer for fresh decision was also not justified in making the order of remand. This court set aside both the orders, i.e. one passed by the Sub-divisional Officer as also one passed by the Revenue Tribunal. While the writ petition was pending before this court, M/s. Veekaylal Investment Pvt. Ltd. had filed Suit No. 268 of 1987 in this court claiming amongst other reliefs a declaration that the certificate issued under 9 Section 32-M in favour of Bhatia Rawal was illegal and nullity. This court, therefore, held that in view of the pendency of that suit it is not necessary for this court either to make an inquiry in the writ petition as to validity or otherwise of the 32-M certificate or to remand the proceedings to the authorities under the Bombay Tenancy Act. It was specifically observed that the validity or otherwise of the 32-M certificate can be gone into by this court in that civil suit. To this writ petition the said Pandurang as also the legal representatives of Bhatia Rawal were also parties.

8. The instant suit is filed by the plaintiffs inter alia for a declaration of their title and for protection of their possession of land admeasuring

1.32 acres from Survey No. 317 because their possession was threatened by defendants 1 to 3 who are transferees from defendants 4 to 14 immediately before the suit was instituted. In Notice of Motion No.3682 of 1999, the plaintiff sought interim injunction restraining the defendants from putting up any construction on the suit land admeasuring 1 Acre 32 Gunthas. Interim injunction was also sought restraining the defendants from transferring, selling etc. the suit land. 10

9. Before learned Single Judge, it was contended by the defendants that Pandurang Gawand, predecessor in title of the plaintiffs came to know of the certificate issued under Section 32-M of Bombay Tenancy Act when he was served with the papers of the appeal filed by the transferee from Bhatia Rawal in the year 1983, and, therefore, as the present suit is governed by the provisions of Article 58 of the Limitation Act, 1963 the suit had to be instituted within a period of three years from the date when the said Pandurang Gawand acquired knowledge of the 32-M certificate, which amounts to setting up rival title by the said Bhatia to the title of the plaintiffs. Reliance was placed on the judgment of the Supreme Court in State of Punjab & Ors. v. Gurudev Singh & Ashok Kumar, AIR 1992 SC 11 and it was contended that even for a suit seeking a declaration that an order is a nullity, the law of limitation applies. This submission found favour with learned Single Judge. He held that 32-M certificate was subject matter of challenge before the Revenue Tribunal as also in Writ Petition No. 1315 of 1982. Learned Single Judge observed that the plaintiffs’ predecessor-in-title Pandurang Gawand was the 11 respondent in Writ Petition No. 1315 of 1982 and in fact the sale deed in favour of the plaintiffs was executed by the original owners M/s. Veekaylal Investment Pvt. Ltd. and the Court Receiver during the pendency of this writ petition. Learned Single Judge held that, therefore, the proceedings in which 32-M certificate was challenged, the plaintiffs predecessor was a party. The plaintiffs were also aware that the legal representatives of Bhatia Rawal were claiming title to their land and, therefore, if the plaintiffs wanted to assert their title, they should have filed the suit within limitation. Learned Single Judge concluded that prima facie, it appears that the suit is barred by limitation and, therefore, it cannot be said that the plaintiffs have a prima facie case in their favour so as to entitle them to an order of interim relief in the suit. In the circumstances, learned Single Judge disposed of the motion without granting any interim relief to the plaintiffs. The plaintiffs have challenged the said order in this appeal.

10. The appeal was admitted on 30/10/01. The Division Bench directed that there shall be status quo pending hearing and final disposal of this 12 appeal.

11. We have heard Mr. Samdani, learned Senior Counsel appearing for the appellants/plaintiffs. We shall refer to a few of the documents on which Mr. Samdani has placed reliance. He took us to order dated 31/7/73 passed by Tahsildar Borivali holding Pandurang Gawand as tenant of the suit land. He drew our attention to Deed of Conveyance executed between the Court Receiver as Vendor, Veekaylal as confirming Party Second Vendor and Pandurang Gawand as purchaser. He also pointed out Index II issued by Sub-registrar in connection with this conveyance. Mr. Samdani submitted that ownership of the predecessor in title of the plaintiffs and consequently of the plaintiffs of the suit lands cannot be, therefore, doubted. Mr. Samdani then drew our attention to the deposition of Bhatia Raval dated 13/3/67 made before Tahsildar Borivali in which he has clearly admitted that 5 acres of land of S. No. 137 is with him and he is cultivating it as a tenant. He has clearly stated that he has no other land except this land either of his ownership or as tenant. Our attention was also drawn to the evidence of Bhaskar Churi, Manager of the Khot that Bhatia Rawal is in 13 possession of 5 Acres of land. Mr. Samdani submitted that even Pandurang Gawand has in his evidence supported Bhatia Rawal. He has stated that Bhatia Rawal is in possession of 5 acres of land, it is cultivated by him and it is situated next to his land. We have been shown order dated 5/4/07 passed by Tahsildar Borivali holding that Bhatia Rawal is the lawful tenant of 5 acres of land and Mutation Entry No. 3045 made pursuant to this order in favour of Bhatia Rawal in respect of 5 Acres of land. Mr. Samdani submitted that in spite of the above a certificate came to be issued in favour of Bhatia Rawal under Section 32-M of the Bombay Tenancy Act in respect of 6 Acres 32 Gunthas of land instead of 5 Acres. It includes 1 Acre 32 Gunthas belonging to the plaintiffs. Significantly in this certificate 5 Acres land is shown as Pot Kharaba. Mr. Samdani submitted that this certificate is erroneously issued is evident from the fact that Bhatia Rawal sold 5 acres of land to a trust. The said sale deed is on record. Mr. Samdani submitted that, therefore, Sub-Divisional Officer wrongly passed order directing name of Bhatia Rawal to be added in respect of 1 Acre 32 Gunthas by order dated 21/8/84. Mutation Entry No. 6743 dated 9/5/85 came to be effected showing 14 plaintiffs’ 1.32 acres land in the name of Bhatia Rawal and revenue record was manipulated. This gave rise to further proceedings. Mr. Samdani pointed out that in September/October, 1996 the defendants commenced constructing a compound wall on the suit property. The possession of the plaintiffs was obstructed. The plaintiffs, therefore, filed Suit No. 6193 of 1996 in the City Civil Court at Bombay for injunction. Mr. Samdani drew our attention to order dated 4/11/96 passed by the City Civil Court in the said suit stating that since efficacious remedy of filing a substantive suit on title is open to the plaintiffs, the suit for injunction simplicitor is not maintainable. The suit was withdrawn with liberty to file a fresh suit. The City Civil Court directed the parties to maintain status quo. Mr. Samdani pointed out that pursuant to the said order the plaintiffs have filed the instant suit on title on 6/12/96.

12. Mr. Samdani submitted that learned Single Judge erred in holding that the suit was barred by limitation. He erred in referring to paragraph 15 of the plaint where the plaintiffs have stated that Pandurang Gawand came to know of the certificate issued under Section 32-M of the Bombay Tenancy Act 15 when he was served with the papers of the appeal filed by the transferee from Bhatia Rawal in the year 1983, to hold that the plaintiffs had knowledge of 32-M certificate in 1983 and, therefore, as the suit is governed by the provisions of Article 58 of the Limitation Act, the suit had to be filed within three years from the date on which Pandurang Gawand acquired knowledge thereof. Mr. Samdani submitted that Article 58 provides that the limitation period shall start from the date when the right to sue first accrues and in this case the right to sue first accrued in the year 1996, when the defendants for the first time threatened the plaintiffs’ physical possession of the suit property. Mr. Samdani submitted that way back in the year 1983 the title of the suit land vested in the plaintiffs and the instant suit is a suit on title. Mr. Samdani submitted that revenue proceedings are independent proceedings which do not challenge the title vested in the plaintiffs. He submitted that learned Single Judge erred in giving undue weightage to revenue proceedings.

13. In support of his submission that the right to sue accrues when there is actual threat to physical 16 possession, Mr. Samdani relied on Mt. Bolo v Mt. Kokan & Ors., AIR 1930 Privy Council 270, Mst. Rukhmanibai V Lala Laxminarayan & Ors., AIR 1960 SC 335, Mohammad Yunus v. Unnissa & Ors., AIR 1961 SC 808, Rameshwar Dubey & Ors. v. Masomat Asha Kaur & Ors. (1996) 11 SCC 160, Gannon Dunkerley & Co. Ltd. v. Union of India, AIR 1970 SC 1433, judgment of the Delhi High Court in Irshad Ali v. Smt. Sahaba Begum, 1997 A I H C 3101, judgment of the Madhya Pradesh High Court in Bharat Singh v. Kunwar Singh & Anr., AIR 1991 MP 368, judgment of the Punjab & Haryana High Court in Ibrahim v. Sharifan, AIR 1980 Punjab & Haryana 25, and judgment of the Calcutta High Court in Rai Kiran Chandra Roy Bahadur & Ors. v. Tarak Nath Gangopadhyay & Ors., AIR 1936 Cal. 456. Mr. Samdani lastly submitted that, if two interpretations are possible on limitation then a liberal interpretation in favour of the party against whom limitation is set up must be adopted. In this connection, he relied on Full Bench decision of the Madras High Court in Kandeswami Pillai v. Kannappa Chetly, AIR (39) 1952 Madras 186 and judgment of this court in P.N. Films Ltd. & Anr. v. Overseas Films Corporation Ltd., AIR 1958 Bom. 10. Mr. Samdani submitted that learned 17 Single Judge has taken erroneous view of law. He submitted that the plaintiffs have made out a more than prima facie case in their favour which has not even been considered by learned Single Judge and, therefore, the impugned order be set aside and appropriate order be passed in favour of the plaintiffs. 14. Mr. Narula, learned counsel for defendants 1 to 3 submitted that no interference is necessary with the impugned order. Mr. Narula submitted that under Article 58 of the Limitation Act, 1963 the limitation starts running when the right to sue first accrues. The right to sue accrues when hostile title is set up. Mr. Narula submitted that certificate under Section 32-M is an unequivocal threat to the plaintiffs’ possession. Predecessor-in-title of the plaintiffs, on the plaintiffs own showing got to know about it when a copy of appeal filed by the transferee from Bhatia Rawal was served on him in the year 1983. Therefore, the suit ought to have been filed within three years, therefrom, as per Article 58 of the Limitation Act. Mr. Narula submitted that reliance placed by learned Single Judge on State of Punjab’s case (supra) is apt. Mr. Narula submitted that in that case the Supreme Court was considering Art. 113 of the Limitation Act, 1963 18 which pertains to suits for which there is no prescribed period. It states that for any suit for which no period of limitation is provided elsewhere in the schedule, the period of limitation will be three years from the date when the right to sue accrues. Mr. Narula pointed out that Art. 58 with which, we are concerned, the period of limitation is three years from the date when the right to sue first accrues. The words "right to sue first accrues" are significant. They connote that the moment the right asserted in the suit is infringed the period of limitation starts running. The concept of actual threat of dispossession or deprivation of right is not involved here. Therefore, in this case the date of knowledge of the fact that 32-M certificate was issued will be the starting point of limitation. Mr. Narula relied on the Supreme Court’s judgment in State of Punjab & Anr. v. Balkaran Singh, 2006 (12) SCC 709 and judgment of this court in Agyarani Dua v. Vidyagauri J. Tripathi & Anr., 1984 (4) BCR 844. Mr. Narula submitted that the suit is clearly out of limitation and hence relief has rightly been denied to the plaintiffs.

15. Mr. Kadam, learned Senior Counsel appearing 19 for respondents 4,6,9,10,13 & 14 submitted that Section 32 of the Bombay Tenancy Act inter alia provides that on 1/4/57 i.e. the Tillers day a tenant who cultivates the land personally shall be deemed to have purchased the said land from the landlord. Under Section 32-G of the Bombay Tenancy Act as soon as may be after the Tillers day the Agricultural Lands Tribunal shall publish or cause to be published a public notice in each village within its jurisdiction calling upon tenants, who under Section 32 are deemed to have purchased the lands to appear before it and shall proceed to determine the purchase price of the lands. Certificate under Section 32-M is a consequence of these proceedings. It is obligatory on the Agricultural Lands Tribunal to issue a certificate of purchase under this Section on deposit of purchase price. Statute creates this right and moment certificate under Section 32-M is issued, it extinguishes all other rights. Mr. Kadam submitted that on the date when 32-M certificate was issued, all rights which any one was claiming qua the suit land get extinguished. Therefore, on the date on which 32-M certificate was issued right to sue accrued to the plaintiffs. He submitted that physical threat to possession is merely 20 manifestation of that right and that is not the starting point of limitation. Mr. Kadam submitted that even a collateral challenge to 32-M certificate must be within limitation . He submitted that State of Punjab’s judgment (supra) has rightly been relied upon by learned Single Judge. He submitted that no case is made out by the plaintiffs for grant of interim relief and, therefore, the appeal be dismissed.

16. The moot question in this appeal is whether the instant suit is barred by limitation. The plaintiffs have inter alia prayed for a declaration of their title to the suit land and for a mandatory order directing the defendants to demolish the construction carried out by them on the suit land and to restore the suit to its position prior to the alleged construction. The plaintiffs had admittedly filed S.C. Suit No. 6193 of 1996 in the City Civil Court at Bombay for injunction simplicitor. The City Civil Court vide its order dated 4/11/96 opined that efficacious remedy of a substantive suit on title is available to the plaintiffs and hence the said suit was not maintainable. Learned counsel for the plaintiffs, therefore, withdrew that suit. The plaintiffs were 21 permitted to withdraw the said suit with a liberty to institute a fresh suit on title. Order of status quo was passed which is continued till date.

17. Pursuant to the above order the present suit was filed. It is a suit on title. The plaintiffs have inter alia relied upon Deed of Conveyance dated 17/5/84 between the Court Receiver as Vendor, Veekaylal as confirming Party-Second Vendor and Pandurang Gawand, their predecessor-in-title as purchaser and Index II issued in respect of the suit land. The plaintiffs claim to be owners of the suit land. They also claim to be cultivating the suit land.

18. The plaint makes reference to several revenue proceedings to which, we have already adverted. Suffice it to say that prima facie it does appear that one Bhatia Rawal was tenant in respect of 5 Acres of Pot Kharaba land of S. No. 317 situated at Dahisar and the plaintiffs predecessor-in-title was tenant in respect of 1.32 Acres of the land from the said S. No. 317. We have already referred to the conveyance under which the plaintiffs claim ownership of the suit land. Prima facie it appears that despite clear evidence that 22 the plaintiffs predecessor was in possession of the suit land and was cultivating suit land, certificate under Section 32-M of the Bombay Tenancy Act came to be issued in favour of Bhatia Rawal in May, 1967. This certificate is the subject matter of several revenue proceedings and a suit being Suit No. 268 of 1987 is pending in this court in which M/s. Veekaylal Investment Pvt. Ltd. has claimed a declaration that the said certificate is illegal and a nullity. This 32-M certificate has the effect of showing the suit land which is of the ownership of the plaintiffs as being in possession and cultivation of Bhatia Rawal as a tenant. Bhatia Rawal is shown as tenant purchaser of the suit lands.

19. It is the plaintiffs’ case that on the basis of this erroneous 32-M certificate mutation entries are manipulated. In September and October, 1996 the defendants threatened them and tried to trespass on the suit land. Thereafter they in fact trespassed on the suit land and attempted to put up illegal construction on the suit land. In the circumstances, the instant suit on title is filed claiming aforementioned reliefs. 23

20. When the notice of motion praying for injunction restraining the defendants from putting up construction on the suit land was taken out by the plaintiffs, the defendants contended that the suit was barred by limitation as the plaintiffs’ alleged right to the suit land was threatened when 32-M certificate was issued in May, 1967, or at any rate when the plaintiffs’ predecessor-in-title came to know about it in 1983 and, therefore, as per Article 58 of the Limitation Act, 1963 suit should have been filed within three years from the knowledge.

21. It is true that in paragraph 15 of the plaint the plaintiffs have stated that their predecessor-in-title got to know about the said certificate in 1983. However, till September and October, 1996 their possession was not threatened. When the possession was threatened in September and October, 1996 the plaintiffs filed the present suit in December, 1996 because there was physical invasion of their right to the suit land. The question is whether limitation starts running from the date when the plaintiffs got to know about 32-M certificate or from the date when their possession was threatened. In this connection it is necessary 24 to have a look at the various judgments to which our attention is drawn by learned counsel for the parties.

22. In Mt. Bolo’s case, one Tarachand died in 1918 leaving behind him his widow Mt. Bolo and son Meher Chand. A suit was filed on 11/7/22 on behalf of Meher Chand by Mt. Bolo for partition of properties left by Kanhya Lal grandfather of Meher Chand. That suit was withdrawn with liberty to file fresh suit. Mt. Koklan widow of Kanhya Lal filed a suit for partition. Objection was raised that it was barred by limitation because the right to sue accrued when Tarachand died in 1918, and the suit was not filed within six years as required by Art. 120 of the Limitation Act, 1908. The Privy Council rejected this submission as in its opinion right to sue did not accrue until Meher Chand filed suit in 1922 asserting his right and threatening Mt. Koklan’s right. Relevant observations of the Privy Council may be quoted: . "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 clear and unequivocal threat to 25 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 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."

23. Thereafter in a series of judgments, the above legal position was restated by the Supreme Court and various High Courts. In Rukhmani’s case (supra) it was urged that the plaintiff 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 Rukhmanibai and Chandan Lal instituted in the year 1929, and the suit filed in 1940, admittedly six years of the knowledge would be barred under Art. 120 of the Limitation Act, 1908. The Supreme Court held that the plaintiff’s right to the property was not effectively threatened by the appellant till the Commissioner came to divide the property on 13/2/37 and the suit filed within six years thereafter was 26 within time. The Supreme Court relied on Mt. Bolo’s case and observed as under: . "The legal position may be briefly stated thus: The right to sue under Art. 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." Similar view was taken by the Supreme Court in Mohammad Yunus’s case (supra) where the suit was governed by Art. 120 of Limitation Act, 1908.

24. In Rameshwar Dubey’s case the suit was governed by Art. 58 of the Limitation Act, 1963. The plaintiff filed suit contending that sale deeds 27 dated 12/7/66 and 14//12/70 are vitiated by fraud and do not bind her. She contended that she was sought to be dispossessed on the basis thereof on 15/2/73. It was contended that suit ought to have been filed within three years from the sale deed dated 12/7/66 as there cannot be any second fraud in respect of the second sale deed. The Supreme Court observed that limitation starts running when dispossession was sought to be made in 1973 and, therefore, suit was rightly filed within three years from dispossession as per Art. 58 of the Limitation Act, 1963.

25. In Ganon Dunkerley’s case (supra) the plaintiff’s company’s claim was for an enhanced rate of 42.5 per cent over the basic rates stipulated under the original contract. The plaintiff filed a suit against the Union of India for that amount on 9/8/56. The High Court held that the claim was governed by Art. 56 or Art. 115 of the Limitation Act, 1908 and the suit not having been filed within three years of the date on which the work was done and in any event of the date on which the claim was rejected was barred. The Supreme Court set aside the High Court’s judgment. The Supreme Court held that suit being a 28 suit for enhanced rates in view of change of circumstances and in respect of work not covered by contract the claim must fall within Art. 120 of the Limitation Act, 1908 which pertains to suits for which no period of limitation is provided elsewhere. Relying on Mt. Bolo’s case (supra) the Supreme Court observed that the suit is not barred because there is 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.

26. In Irshad Ali’s case according to the plaintiff she was compelled to institute the suit as the defendant had refused to part with money received by her by the sale of properties of one Mumtaz of whom she claimed to be the heir. The plaintiff’s case was that the defendant had obtained the Will dated 30/10/82 of Mumtaz by fraud. The question was whether the suit filed on 29/3/95 was barred by limitation because the plaintiff had stated that she came to know about the will on 1/1/91. The defendant contended that the suit was barred under Article 58 of the Limitation Act, 1963. The Delhi High Court 29 following judgment of the Supreme Court in Mst. Rukhmabai’s case (supra) held that cause of action will accrue to the plaintiff when he is compelled to approach the court by the action of the defendant. The mere fact that the plaintiff had come to know about the alleged fraudulent character of Will on 1/1/91 was no ground to hold, without anything more, that the suit filed on 29/3/95 was barred by limitation. The Delhi High Court held that cause of action arose when the defendant refused to part with monies and for the first time threatened the right of the plaintiff.

27. In Bharat Singh’s case it was argued that the plaintiff’s suit for declaration of title and mandatory injunction was barred by time under Art. 58 of the Limitation Act,1963 without pleading as to how it was so and as to when cause of action had arisen or would be deemed to have arisen. Relying on Privy Council’s judgment in Mt. Bolo (supra) and judgments of the Supreme Court in Mohammad Yunus and Rukhmanibai’s case (supra) the Madhya Pradesh High Court held that it is only the order of Criminal Court dated 13/12/71 which caused an unequivocal apprehension in the plaintiff’s mind and that is the starting point of limitation under 30 Art. 58; because that was the clear and unequivocal threat or infringement of the right asserted by the plaintiff.

28. In Ibrahim’s case, the plaintiff had filed suit for declaration claiming himself to be the sole owner of the suit land. Plea of limitation was raised. It was contended that in 1957 mutation entries were made in favour of the plaintiff and the defendant and their mother. The plaintiff claimed to be in exclusive possession of the land inherited by the defendant. He claimed to be owner thereof. Learned Single Judge of the Punjab & Haryana High Court held that the word ’first’ occuring in Art. 58 of the Limitation Act, 1963, has great significance and it could not be construed in any other manner except that the right to sue first accrued to the plaintiff in the year 1957, when the mutation entries were made and therefore, the suit was barred by limitation. On appeal the Division Bench observed that the word ’first’ occuring in Art. 58 was of no significance to the issue of limitation so far as the facts of the case are concerned. The Division Bench observed that the plaintiff continued to be in possession of the entire property even after the 31 sanction of the mutation in the name of the defendant. The defendant was not given any share in the rent or in the produce of the land. The defendant did not assert her right, jeopardising right of the plaintiff before 1969. She did not interfere with the possession of the plaintiff and therefore, a mere mutation entry in favour of the defendant would not furnish any cause of action to the plaintiff. The contention that cause of action arose to the plaintiff in April, 1969, when the defendant actually threatened to take forcible possession was accepted and the suit was held to be within limitation.

29. Similar view has been taken by the Calcutta High Court in Rai Kiran’s case (supra). The Calcutta High Court has held that, if there is an entry adverse to the plaintiff, he is not bound to institute a suit for declaration that the entry is wrong. He can wait and when an invasion of his right is made on the basis of the entry, he can come and sue for a declaration of title on the ground that the record is wrong, and the suit is in time, if brought within six years of the threatened invasion. 32

30. The following propositions relevant to the present case emerge from the above judgments; a). 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 clear and unequivocal threat to infringe that right by the defendant. b). Every threat by a party to the right asserted by the plaintiff, however ineffective or innocuous it may be, cannot be considered to be a clear and unequivocal threat so as to compell the plaintiff to file a suit. Whether a particular suit gives rise to a compulsory cause of action depends upon the question whether that threat effectively invades or jeopardises the said right. c). An adverse mutation entry may not offer cause of action to the plaintiff to file a suit. It is only if there is actual or physical invasion of the plaintiff’s right or a clear and unequivocal threat to infringe that right, the right to sue can be said to accrue.

31. In view of the above in the facts of the present case the certificate issued under Section 33 32-M of the Bombay Tenancy Act or the date on which Mutation entries were made pursuant thereto and the date of knowledge thereof to the plaintiff will not furnish the starting point of limitation under Article 58 of the Limitation Act, 1963. The defendants did not actually threaten the plaintiffs possession of the suit land till September and October, 1996. There was no clear and unequivocal threat to the plaintiffs right till September and October, 1996. It is only in September and October 1996 that the defendants are said to have threatened the plaintiff’s possession and tried to construct on the suit land. In our opinion, therefore, the limitation starts running from September, 1996 and the suit filed in December, 1996 is within the period of limitation as per Art. 58 of the Limitation Act, 1963.

32. We are not impressed by the distinction sought to be made by Mr. Narula between Art. 58 and Article 113 of the Limitation Act, 1963 for the purpose of present controversy. Art. 58 pertains to suit filed to obtain any other declaration which is not covered by Art. 56 and 57. The starting point of limitation as per this Article is when the right to sue first accrues. Article 113 provides 34 limitation period for suits for which no period of limitation is provided elsewhere in the schedule,. The limitation period starts running for such suits, as per this Article, when the right to sue accrues. Mr. Narula urged that the words ’the right to sue first accrues’ are absent in Article 113 and that makes all the difference. He submitted that in State of Punjab’s case the Supreme Court has dealt with Art. 113. He submitted that in cases covered by Art. 58, the concept of ’the right to sue first accrues’ is introduced and, therefore, in this case, the date of Section 32-M certificate or the date when the plaintiffs learnt about it must be treated as the date when the right to sue first accrued.

33. This submission has no force. In our opinion principle underlying both these sections is same. This is evident from the fact that the same test is applied by the Supreme Court in Rameshwar Dubey’s case while considering a suit governed by Article 58 of the Limitation Act, 1963. In Bharat Singh’s case (supra) Lahoti, J. (as he then was) has applied the same test to suit governed by Art. 58 of the Limitation Act, 1963 . Judgments of other High Courts to which, we have made reference 35 hereinabove also support our conclusion. This submission of Mr. Narula must, therefore, be rejected.

34. Another principle which must guide courts while considering the bar of limitation must also be stated. In P. N. Films Ltd.’s case (supra), Division Bench of this court presided over by Chagla,CJ. observed: "Apart from that, the Limitation Act must always be construed strictly against the party who sets up the plea of limitation. The Limitation Act deprives a party of a valuable right and unless the provision in the Limitation Act was clear and beyond doubt, a benevolent construction, a construction favourable to the party whose valuable right is being taken away must always be given.......".

35. The Full Bench of Madras High Court in Kandaswami’s case (supra) observed as under: "Though it is true that in construing statutes of limitation considerations of 36 hardships and anomaly are out of place. It is, I think permissible to adopt a beneficient construction of a rule of limitation, if alternative constructions are possible".

36. In the circumstances of the case, in our opinion, the view that, we have taken is in tune with the judgment of this court in P.N. Films Ltd.’s case and the judgment of the Madras High Court in Kandswami’s case.

37. We must also refer to the judgment of the Supreme Court in Narne Rama Murthy v. Ravula Somasundaram & Ors. (2005) 6 SCC 614 where the Supreme Court held that in case where the question of limitation is a mixed question of fact and law and the suit does not appear to be barred by limitation on the face of it then the facts necessary to prove limitation must be pleaded, an issue raised and then proved. Similarly in Raman B. Desai & Ors. v. Bipin Vadilal Mehta & Ors., 2006 (5) BCR 574, the Supreme Court held that in given facts plea of limitation cannot be decided as abstract principle of law divorced from facts. To ascertain starting point of limitation evidence is 37 required to be recorded and it is a pure question of fact. In this case, we are of the opinion that the suit does not appear to be barred by limitation on the face of it. We have already stated that here the limitation will start running from the date when there was actual and physical invasion of the plaintiffs’ right. The alleged actual invasion of the plaintiffs’ right or clear and unequivocal threat to the plaintiffs’ right can be proved only by leading evidence. Therefore, the question of limitation in this case is a mixed question of fact and law for the determination of which the parties must go for trial.

38. It is necessary to refer to the judgment of the Supreme Court in State of Punjab’s case on which learned Single Judge has placed reliance. In that case the respondents services were terminated. Suit was filed for a declaration that the respondent continues to be in service since his dismissal was void and inoperative. The High Court observed that, if the dismissal of the employee is illegal, void and inoperative being in contravention of the mandatory provisions of any rules or conditions of service, there is no limitation to bring a suit for declaration that the 38 employees continue to be in service. When the matter was carried to the Supreme Court the Supreme Court was primarily concerned with the question whether the repeated view taken by the Punjab & Haryana, High Court that there is no limitation for instituting the suit for declaration by a dismissed employee that the dismissal is void is correct or not and that question was answered by the Supreme Court holding that this proposition runs afoul to the Limitation Act and since there is no period of limitation provided for such suits they were covered by the residuary Art. 113 of the Limitation Act, 1963. It is in this context that the Supreme Court observed that the law of limitation applies to such suits. This judgment cannot be used to canvas the proposition that collateral challenge has to be within limitation. It is pertinent to note that the Supreme Court referred to Mt. Bolo’s case (supra) and Gannon Dunkerley’s case (supra) and reiterated that the suit must be instituted when the right asserted in the suit is infringed or when there is a clear and unequivocal threat to infringe that right by the defendant against whom the suit is instituted. The Supreme Court then observed that the order of dismissal had clearly infringed the respondents’ 39 right to continue in the service and they were precluded from attending the office from the date of their dismissal. The Supreme Court noted that the respondents had not been paid their salary from that date and then went on to observe that the party aggrieved by the invalidity of the order has to approach the court for relief of declaration that the order against him is inoperative and not binding upon him within the prescribed period of limitation. It is important to note that since salary was not paid from the date of the termination order there was a clear and unequivocal threat from that date to the respondents’ right. The observation of the Supreme Court must be read against the above background. The legal principles enunciated by the Privy Council in Mt. Bolo is case and by the Supreme Court Gannon Dunkerley’s case which were endorsed by the Supreme Court in the State of Punjab’s case persuade us to hold that in the instant case period of limitation cannot be said to have started running from the Section 32-M certificate or from the date of knowledge thereof by the plaintiffs, but from the date when there was actual infringement of the plaintiffs’ right on account of threat of trespass, dispossession and illegal construction. 40

39. In our opinion, reliance placed by Mr. Narula on Agyarani’s case (supra) is misplaced. In that case the facts entitling the plaintiffs to have the Agreement of Sale cancelled or set aside had come to his knowledge long back and even, if that point were to be taken in consideration as the starting point of limitation, the suit was hopelessly barred by time. Besides none of the judgments which, we have discussed hereinabove appear to have been cited before learned Single Judge. Those judgments have not been considered by him. In the circumstances, we are of the opinion that the said judgment will have to be confined to its own peculiar facts.

40. Judgement of the Supreme Court in State of Punjab & Anr. v. Balkaran Singh (supra) on which reliance is placed by Mr. Narula does not help the defendants. In that case the plaintiff had prayed for a declaration that the office order dated 13/3/80, passed by the Director of Agriculture, Punjab fixing his pay in certain payscale was illegal, null and void and had prayed for a declaration that he was entitled to higher pay scale and consequential relief. His claim was 41 based on seniority. The suit was filed on 6/5/93. The seniority list was published in the year 1980 and 1984. The Supreme Court observed that the suit was governed by Art. 58 of the Limitation Act,

1963. The period of limitation was three years from the date when the right to sue first accrued. On facts the Supreme Court recorded that the plaintiff’s right to seek relief of declaration that he was entitled to revised pay scale accrued to him on 13/3/80 when the endorsement to that effect was made by the Director of Agricultural Services and the suit ought to have been filed within three years therefrom. The Supreme Court observed that the fact that some other officer had been given a decree for enhanced revised scale does not furnish the plaintiff with a fresh course of action. The Supreme Court went on to observe that no one in a service can sleep over the question of seniority for more than 12 years and then come to court seeking a relief which will upset the seniority of a number of persons, who had been shown as seniors in the respective seniority lists. The judgment of the Supreme Court will have to be understood against the above factual background. It is not applicable to the present case. 42

41. It appears that in view of the finding recorded by learned Single Judge that the suit is barred by limitation, whether the plaintiffs have made out a prima facie case for grant of interim relief has not been considered him. We have already expressed that the plaintiffs have made out a prima facie case. The plaintiffs appear to be in possession of the suit land. They appear to be cultivating the suit land. Prima facie the title of the suit land appears to vest in them and Section 32-M certificate appears to wrongly show the suit land in the name of Bhatia Rawal. We have, therefore, no hesitation in reiterating that the plaintiffs have made out a prima facie case for interim relief. It appears that all throughout a status quo order is in operation. It was confirmed by this court when the appeal was admitted. We, therefore, feel that instead of passing an injunction order the said status quo order should be confirmed and ordered to remain in operation during the pendency of the suit.

42. Hence the following order: . The impugned order dated 31/8/01 is set aside. During the pendency of the suit there shall be an 43 order of status quo. . We make it clear that observations, if any, made by us touching the merits of the case are prima facie observations. Needless to say that the court seized of the suit will deal with the suit independently and uninfluenced by any observations made by us in this order on the merits of the case. . Appeal is disposed of in the aforestated terms. JUDGE JUDGE