FAUJDAR SINGH Vs. BALDEO SINGH

JUDGEMENT

(1.) The sole question for decision in the present appeal is, as to whether or not the suit giving rise to the present appeal was barred by limitation. There is no controversy about the facts. In 1888 a 6-pies zemindari share was purchased at an auction-sale by the ancestors of the parties to the present suit. Out of the share purchased by them a 4 1/2 pies share was subject to a usufructuary mortgage held by one Ramphal Singh. After the auction-purchase referred to above the name of one Shamser Singh who was the ancestor of the plaintiffs was alone entered as a mortgagor in respect of the 4 1/2 pies share. This led to an application by some of the defendants ancestors for correction of the khewat and for an entry of their names along with the names of Shamser Singh as owners of the equity of redemption. This dispute between the parties was compromised, and the names of the parties or of their ancestors were entered in the khewat with respect to the 4 1/2 pies share in 1906. It appears that, sometime after, the name of one Bundan Singh was entered in the khewat as owner of the equity of redemption in the above mentioned 4 1/2 pies share. How and when the name of Bundan Singh was entered nobody is in a position to say. Ramphal continued in possession as a mortgagee till the year 1918, when one of the plaintiffs- respondents redeemed the mortgage from him.

(2.) Thereupon the father of Defendants Nos. 6 to 8 deposited the whole of the mortgage money in Court to the credit of the plaintiff, who had redeemed the mortgage, under Section 83 of the Transfer of Property Act, and wanted redemption of the mortgage. This application of the father of Defendants Nos. 6 to 8 was resisted on the ground that he had only a right to redeem half of the mortgaged property as the remaining half of the mortgaged property belonged to the plaintiffs. On this objection being raised the father of Defendants Nos. 6 to 8 withdrew half of the mortgage-money from the Court, and was allowed to redeem half of the mortgaged property. In 1922 Defendant No. 1 applied in the revenue Court that his name be entered in the khewat in place of Bundan Singh's name. This application was opposed by the plaintiffs who claimed to be entitled to have their names entered with respect to half of the 4 1/2 pies share, viz., 2 1/4 pies share. The revenue Court referred the plaintiffs to the civil Court with a view to have their title declared from that Court with respect to the 2 1/4 pies share. This led to the institution of the present suit by the plaintiffs-respondents for a declaration of their title to, and, in the alternative, for recovery of possession of the 2 1/4 pies share. One of the pleas raised in defence was that the suit was time barred. The learned Munsif was of opinion that the plaintiffs had knowledge of the incorrect entry in the khewat more than six years prior to the institution of the suit, and that the proceedings in the revenue Court in the year 1922 did not furnish the plaintiffs a new cause of action, and as such the suit was time barred, and accordingly the learned Munsif dismissed the suit.

(3.) On appeal by the plaintiffs the lower appellate Court has held that the suit was within time and has passed a declaratory decree in the plaintiffs favour. In my judgment the decision of the lower appellate Court is perfectly correct and ought to be affirmed. The case is covered by the decision of this Court reported as Kali Prasad Misir V/s. Harbans Misir [1919] 17 A.L.J. 588. It cannot be denied that up to the year 1918 the entire 4 1/2 pies share, out of which the plaintiffs claimed a half-share, was in possession of a usufructuary mortgagee. It did not then matter as to whose name was entered in the khewat. It also cannot be denied that after 1918, when the mortgage was redeemed, the plaintiffs have been in possession of the half-share to which they were entitled. That being so, the cause of action for a declaratory suit accrued to the plaintiffs in 1922, when their right to a 2 1/4 pies share was, because of the incorrect entry in the khewat, denied by the defendants. 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, vide the case of Parmeshwar Din V/s. Ramnath [1919] 53 I.C. 1005.