NANAK Vs. FAQIRA

JUDGEMENT

(1.) This is a defendant's appeal. The plaintiffs are the sons of one Mula, deceased. It was alleged in the plaint that Mula was the owner of the property in suit and that on 27 April 1876 he executed a deed of sale in favour of his sister, Mt. Siri; but this deed of sale was a sham and collusive instrument, the intention being not to pass title to the ostensible vendee, but to defraud the vendor's creditors. It appears that mutation was not effected until 1887 by which time danger to the property was apprehended from a creditor named Bishen Lal. In 1888 Bishen Lal had this property attached. Mt. Siri objected under Order 21, Rule 58, Civil P.C., but her objection was dismissed. "Within a month after the passing of that order Mula and Mt. Siri jointly executed a usufructuary mortgage in favour of one Mt. Bhoi, and Bishen Lal's decree was liquidated out of the mortgage money. The plaintiffs have instituted this suit for a declaration of their title as against the defendant, who is a son of Mt. Siri.

(2.) The defence was that the sale deed of 1876 was genuine, that the defendant had been in possession ever since that; time and that the suit was barred by limitation and by Section 42, Specific Relief Act; and a plea of title by adverse possession was also set up. The trial Court found for the defendant and dismissed the suit, but the lower Appellate Court has found against the defendant on all points and has decreed the suit as prayed. Three points have been taken before me by learned Counsel for the defendant-appellant. These are that the suit is barred by limitation, that it is barred by Section 42, Specific Relief Act, and that the defendant has acquired title by adverse possession. As regards limitation, it is conceded by learned Counsel for both parties that the Art. applicable is Article 120, Limitation Act, which prescribes a period of six years from the date when the right to sue accrues. Learned Counsel for the defendant appellant pleads that the plaintiffs had a cause of action on 27 April 1876 when the sale deed in favour of Mt. Siri was executed, and that at least they had a cause of action in 1888 when mutation was effected. He therefore pleads that the suit is time-barred.

(3.) This was a suit for a declaration of title on the ground that the sale deed of 27 April 1876 was a sham, fictitious and collusive instrument passing no title. The plaintiffs possession of the property was not discontinued and therefore it was sufficient for them to pray for a declaration of title. There is no controversy before me on this point. The cause of action as alleged in the plaint is a vague allegation that the defendant was intending to alienate the property and that, when the plaintiffs asked him to admit their title, he declined to abandon the intention which he had conceived. This is the cause of action upon which the suit is based, and the main question for determination in this appeal is whether this allegation does in fact amount to a cause of action giving the plaintiffs a right of suit. In Faujdar Singh V/s. Baldeo Singh , there is the following observation of Iqbal Ahmad J. at page 598: The plaintiffs being in possession of the property, it was not obligatory on them to file a suit for a declaration of their title unless and until their title to the property was denied by the defendants and the denial had the effect of disturbing their possession or doing them some other injury that was not capable of being remedied otherwise than by a suit for a declaration....