LAWS(PVC)-1918-9-31

SYED MAMSHAH THAIKA THROUGH SYED SULTAN MOIDEEN SAHIB INAMDAR Vs. SECRETARY OF STATE FOR INDIA IN COUNCIL, THROUGH THE COLLECTOR OF TINNEVELLY

Decided On September 27, 1918
SYED MAMSHAH THAIKA THROUGH SYED SULTAN MOIDEEN SAHIB INAMDAR Appellant
V/S
SECRETARY OF STATE FOR INDIA IN COUNCIL, THROUGH THE COLLECTOR OF TINNEVELLY Respondents

JUDGEMENT

(1.) So far as the relief for a declaration of the plaintiff s (Appellant s) title is concerned his right to sue for such relief accrued once for all when his title was first definitely and finally denied to his knowledge (See Thirumala Rao v. Jungamma Shettithi (1914) M.W.N. 197) and the actual levy of penal assessment from him is clearly such an unequivocal denial of title on the part of Government. The notice of eviction under Section 9 of Act III of 1905 also involves a denial of title but it would not give a fresh starting point of limitation for declaratory relief, and limitation runs from the date of the first denial of title itself and continues to run. Hence the claim for the declaratory relief is barred in this case as penal assessment was levied more than months before suit. 1 however hnd that the declaration is not prayed for in the plaint as a substantial relief, the injunction relief claimed being alone valued at ten rupees and court- fees of twelve annas paid thereon.

(2.) As regards the suit then treated as a suit for an injunction to restrain the defendant (Secretary of State for India) from interfering with the possession and enjoyment of the plaint and by the defendant, the levy of penal assessment does not give a cause of action for such relief and the plaintiff is therefore not bound to sue for that relief within the 6 month limited by Section 14 of Act III of 1905 and is not even entitled to sue at all for that relief as levy of penal assessment does not necessarily involve an immediate prospect or threat of ejectment proceedings. Notice of eviction was given to the plaintiff in this case within 6 months before the suit and that notice, it was, that gave to the plaintiff the cause of action to sue for the injunction relief, which in the above view is therefore not clearly barred. The decrees of the lower courts are set aside and the suit remanded to the first court for fresh decision after a trial of the issues arising in the case other than the issues 1 and 2.

(3.) Costs hitherto will be provided for in the fresh decision .