PONNU NADAR Vs. KUMARU REDDIAR

JUDGEMENT

(1.) Plaintiffs are the appellants. They are Nadars by caste living permanently in the village of Mela Seithalai situated within, the Zemindari of Ettiyapuram. In the" suit out of which this second appeal arises, they claim for themselves individually and for their castemen the right to take marriage procession along the streets marked A, C, D, E, E, F(1), F(2) and G in the plaint plan. The defendants who are other eastemen of the village, namely, the Naickers, Reddies and Acharies, denied them such right and stated that the exercise of the right is barred by limitation. The plaintiffs allege in the plaint that when they attempted to take a procession they were threatened that they would be murdered, and it may be taken for the purposes of this case that the procession did not start owing to the defendant's hostile attitude. The streets in question have been found by the lower appellate Court to be public streets. In 1900, when the plaintiffs castemen living in the same village attempted to carry a shanar Corpse through the streets, an order was passed by Mr. Lionel Vibert, Joint Magistrate, apparently under Section 147, Criminal P.C., directing that: No organised procession of shanars, or Christians shall pass through these streets unless and until they have got an order from a civil Court affirming their right to do so.

(2.) This order was passed on 19 July 1900. This order not having been set aside, and six years having passed from the date of the order, the defendants now state that the plaintiffs suit for a declaration of their right and for a perpetual injunction to restrain the defendants from objecting to the exercise of the right, is barred by limitation under Art. 120, Lim. Act. The appellants were not parties to those orders, nor are they representatives of the persons who were parties to them. The short question for determination in this second appeal is, whether in the circumstances mentioned above the plaintiffs suit is barred by limitation under Art. 120, Lim. Act. This point was decided against the plaintiffs-appellants by the lower Courts; if their cause of action started on the date of the order passed by the Joint Magistrate, Ex. 9, it is clear that the suit is barred by limitation. But it is argued by the appellants learned Counsel that the article applicable to the case is note Art. 120; according to him the proper article that should govern the case is Section 23, Limitation Act, according to which in the case of a continuing breach of contract and in the case of a continuing wrong independent of contract, a fresh period of limitation begins to run at every moment of the time during which the breach or the wrong, as the case may be, continues.

(3.) The learned Counsel argues that every moment the defendants continued to threaten the plaintiffs, the acts complained of create what may be called a, continuing source of injury and a fresh cause of action arises de die in diem so long as the threats or obstruction continue and that the suit is not therefore barred by limitation. The question is whether in the circumstances there maybe said to be a continuing wrong in the present case. It is by no means easy to decide the point. A case very similar to the present one, but with reference to a dispute likely to cause a breach of the peace concerning land, arose in Rajah of Venkatagiri v. Isakapalli Subbiah (1903) 26 Mad. 410, and was decided by Benson and Bashyam Ayyangar, JJ. In that, case certain lands were attached by a Magistrate in 1886, under Section 146, Criminal P.C., in consequence of disputes relating to their possession. The Magistrate continued in possession of the lands, and realised some income from them. Both claimants instituted, in 1897, suits in. which each claimed the lands as his own, and sought to obtain a declaration of title to them....