AFTAB ALI KHAN Vs. AKBAR ALI KHAN

JUDGEMENT

(1.) This is a plaintiffs appeal arising out of a suit for a declaration that the plaintiffs are the owners entitled to four out of ten sihams in certain village properties and house property. The facts mentioned in the plaint were that the property originally belonged to Mt. Hussain Bibi who is shown in the pedigree at p. 8, that on her death the heirs to her estate were her daughters and certain collaterals who are the ancestors of the present plaintiffs. In her lifetime she had mortgaged this property with possession to certain mortgagees whose descendants are not impleaded as such. Paras. 8 and 9 of the plaint stated that on account of the wrong entries in the khewat, only the names of defendants 1 to 4 (who are descendants of Mt. Sakina), stand recorded as mortgagors against the property mortgaged and the names of the plaintiff's are not recorded; and that although the entries are null and void and ineffectual as against the rights of the plaintiffs yet the defendants were asked to rectify them because their existence was contrary to fact and not proper, but they did not pay any heed. In para. 10 of the plaint it was alleged that the cause of action accrued in April 1926 when the defendants refused for the last time. In para. 4 it was stated that the ancestors of defendants 1 to 4 had died about six years ago. Heading these paragraphs together it is clear that the plaintiffs case was that the names of defendants 1 to 4 were wrongly entered in the revenue papers as the mortgagors about six years ago, and although the entries were not binding on the plaintiffs, the defendants were asked to rectify them but they did not pay any heed and refused to do so. The plaintiffs wanted a declaration of their right against the defendants.

(2.) In the written statements which were filed it was stated that after Mt. Husaini Begam the name of her daughter only was recorded about fifty years ago and that of no one else was ever recorded. The defendants case was that Mt. Husaini had gifted the property to her daughter. It was further pleaded that the claim was barred by limitation and also pleaded that the suit had been brought without any cause of action and ought to be dismissed on that very ground. It was also stated that a declaratory suit had been filed without any necessity. There were a number of other pleas which it is not necessary to mention.

(3.) The learned Subordinate Judge framed no less than eight issues but ultimately dismissed the suit on the sole ground that the suit for declaration was barred by limitation. The basis of the ground is that the name of Mt. Sakina Bibi was entered in the revenue papers about 1878 and the cause of action in favour of the plaintiffs ancestors arose at that time and that there has been no fresh cause of action since then and a subsequent refusal on the defendants part cannot create a new cause of action. The learned Subordinate Judge has placed reliance on the case of Akbar Khan V/s. Turaban [1909] 31 All. 9 and has considered that case is not distinguishable. The suit has accordingly been dismissed on the ground of limitation only.