Dismissed

Anil Kumar Shukla v. Bipin Bihari Shukla (Dead) Through Lrs.

Chhattisgarh HC13 Jan 2020SA/255/2007

Case brief

AI extract

What is this about?

In this second appeal, the High Court held that mutation entries alone do not constitute a clear and unequivocal threat to infringe plaintiffs' rights. The suit was deemed within limitation because the cause of action arose only when defendants explicitly denied plaintiffs' title in 1999, three years before filing.

What did the court decide?

Second appeal dismissed; parties to bear their own costs.

Anil Kumar Shukla Vs Bipin Bihari Shukla… — Civil Procedure and Limitation | Chhattisgarh HC (2020)

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NAFR

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HIGH COURT OF CHHATTISGARH AT BILASPUR

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Second Appeal No. 255 of 2007

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1. Anil Kumar Shukla, Aged about 55 years, S/o Bipin Bihari Shukla.

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2. Banshi Satnami, Aged about 55 years, S/o Ghiriya. Both Residents of Village Kumharkhan, Patwari Circle No. 3, P.O. Datrengi, Tahsil/Police Station Bhatapara, Distt. Raipur, Chhattisgarh.

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--Appellants/Defendants No. 1 and 9

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Versus

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1. Bipin Bihari Shukla (died) through LRs. :- (a) Smt. Mamta Dixit, Aged about 60 years, Wd/o Parasnath Dixit, R/o Harsh Agency, Raghunath Ganj, Katni, Tahsil/Distt. Katni, Madhya Pradesh.

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2. Naveen Kumar shukla, Aged about 45 years, S/o Bipin Bihari R/o Gandhi Mandir Ward, Bhatapara, P.S./Tahsil/P.O. Bhatapara, Distt. Raipur, Chhattisgarh. – Plaintiffs

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3. Mahesh Ram Kewat, Aged about 42 years, S/o Baisakhu.

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4. SitaRam Kewat, Aged about 42 years, S/o Baisakhu.

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5. Rameshwar Kewat, Aged about 36 years, S/o Baisakhu.

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6. Shrawankumar Kewat, Aged about 34 years, S/o Baisakhu.

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Respondents No. 3 to 6 R/o Village Kumharkhan,

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Patwari Circle No. 3, P.O. Datrengi,

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Tahsil/Police Station Bhatapara, Distt. Raipur,
Chhattisgarh.

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7. Smt. Sarojini, Aged about 57 years, W/o Naresh Chandra Tiwari, R/o Sadar Bazar, Behind Kali Mandir, Jabalpur, Madhya Pradesh.

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8. Sadhu ram Kewat, Aged about 50 years, S/o Bhakla.

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9. Jhagru Ram Kewat, aged about 48 years, S/o Bhakla.

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Both R/o Village Semariya, Patwari Circle No. 2,
P.O. Deori, Tahsil/P.S. Bhatapara, Distt.Raipur,
Chhattisgarh.

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10. Shanker Lal Satnami, Aged about 52 years, S/o Ghiriya, R/o Village Kumharkhan. Patwari Circle No. 3, P.O. Datrengi, Tasil /P.O. Bhatapara, Chhattisgarh.

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11. Shyamratan Satnami, Aged about 35 years, S/o Samaru @ Jarha, R/o Village Datrengi, P.O. Datrengi, P.S./Tahsil Bhatapara, Distt. Raipur, Chhattisgarh.

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12. Daulal Kewat, Aged about 50 years, S/o Amukh.

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13. A. Desiram Kewat, Aged about 30 years, S/o Bisambhar.

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B. Shiv Kumar Kewat, Aged about 24 years, S/o Bisambhar.

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C. Durpati Bai, Aged about 58 years, Wd/o Bisambhar Kewat.

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14. A. Mannu Ram Kewat, Aged about 40 years, S/o Surajbali.

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B. Chhannu Ram Kewat, Aged about 38 years, S/o Surajbali.

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C. Chainu Ram Kewat, Aged about 36 years, S/o
Surajbali.

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D. Paras Ram Kewat, Aged about 34 years, S/o
Surajbali.

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E. Chaity Bai, Aged about 60 years, Wd/o
Surajbali Kewat.

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15. Keju Ram Kewat, Aged about 48 years, S/o Khamhan.

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16. RamKhilawan Kewat, Aged about 48 years, S/o Khamhan.

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Respondents No. 12 to 16 R/o Village Kumharkhan,
Patwari Circle No. 3, P.O. datrengi, Tahsil
/P.S. Bhatapara, Distt. Raipur, Chhattisgarh.

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17. Dharam Lal Sahu, Aged about 55 years, S/o Lila Ram, R/o Village Datrengi, P.O.Datrengi, P.S. Tahsil Bhatapara, Distt. Raipur, Chhattisgarh.

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18. Tiju Ram Kewat, Aged about 45 years, S/o ramhan.

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19. Ramhan Kewat, Aged about 65 years, S/o Pachkaud.

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20. Melu Ram Kewat, Aged about 42 years, S/o Ramhan.

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21. Rameshwar Kewat, Aged about 38 years, S/o Ramhan.

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22. Dukalha Kewat, Aged about 56 years, S/o Bisauha Ram.

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23. Hira Lal Kewat, Aged about 45 years, S/o Duklha.

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24. Anjor Das Satnami, Aged about 55 years, S/o Jhagru Ram.

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Respondents No. 18 to 24 R/o Village Kumharkhan,
Patwari Circle No. 3, P.O. Datrengi, Tahsil/P.S.
Bhatapara, Distt. Raipur, Chhattisgarh.

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25. Banshi Lal Verma, Aged about 55 years, S/o Anand Ram.

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26. Bhagvani Verma, Aged about 58 years, S/o Anand Ram.

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Respondents No. 25 and 26 R/o Village Amalidih,
P.O. Datrengi, Patwari Circle No. 3, Tahsil
Bhatapara, Distt. Raipur, Chhattisgarh.

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27. State of Chhattisgarh, through Distt. Collector, Raipur, Chhattisgarh.

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---Respondents

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For Appellants :- Mr. B.M. Rao, Advocate
For Respondents No. 1 & 2:- Mr. Arjit Tiwari on behalf
 of Mr. Shailendra Shukla,
 Advocate
For State :- Mr. Sanjeev Kumar Agrawal,
 Advocate

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Hon'ble Shri Justice Sanjay K. Agrawal Judgment on Board

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13/01/2020

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1.This second appeal preferred by the

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appellants/defendants No. 1 and 9 was admitted

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for hearing on the following substantial
question of law :-

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“Whether both the Courts below were

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right in holding that the suit was
within limitation ?”

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(For the sake of convenience, parties would be
referred hereinafter as per their status and

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ranking shown in the suit before the trial Court. )

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2.Two plaintiffs namely Bipin Bihari and Naveen

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Kumar brought a suit for declaration of title stating inter alia that they are in joint possession of the suit land along with defendant No. 1 and the alienation made by defendant No. 1 in favour of other defendants vide sale deeds (Ex. P/9 to P/21) are not binding on them and defendant No. 1 be restrained from further alienating the suit land.

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3.Defendant No. 1 filed his written statement

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and set up a plea that plaintiffs are not
entitled for any relief as claimed by them and
partition has already taken place in the year
1956, as such, extent of co-parcenery interest
has already come to an end and moreover,
plaintiffs' suit is time barred.

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4.Learned trial Court, after appreciation of
oral and documentary evidence on record,
partly decreed the suit holding that
plaintiffs are joint title-holders of the suit
land with defendant No. 1 and restrained
defendant No. 1 from further alienating the
suit land against which plaintiffs preferred

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an appeal being partly aggrieved by the
judgment and decree of the trial Court and

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defendants also filed cross-objection with

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regard to the plea of limitation decided
against him.

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5.Learned first appellate Court allowed the
appeal of the plaintiffs and decreed the suit
in toto whereas dismissed the cross-objection
of the defendants qua the plea of limitation
assailing which this second appeal under
Section 100 of the CPC has been preferred by
defendants No. 1 and 9 in which one
substantial question of law has been
formulated qua limitation that has been set
out in the opening paragraph of this judgment.

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6.Mr. B.M. Rao, learned counsel for the
appellants/defendants No. 1 and 9 would submit
that both the Courts below are absolutely
unjustified in not dismissing plaintiffs' suit
on merits as the suit land was mutated in the
name of defendant No. 1 in the year 1978 and
the suit was filed as late as on 29/01/1999
averring that the cause of action arose in
December, 1996, therefore, the suit was
apparently barred by limitation, as such, the
second appeal deserves to be allowed by

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answering the substantial question of law in
favour of the defendants.

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7.Mr. Arjit Tiwari, learned counsel for the

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respondents No. 1 and 2/plaintiffs would
support the impugned judgment and decree and
would submit that mere existence of adverse
entry in revenue records does not give rise to
cause of action. Cause of action to sue
accrues only when right asserted in suit is
infringed or there is threat to infringe that
right, as such, both the Courts below have
rightly rejected the plea of limitation raised
by the defendants and rightly held that the
suit is within limitation.

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8.I have heard learned counsel for the parties,
considered their rival submissions made
herein-above and went through the records with
utmost circumspection.

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9.Both the Courts below have held that the suit

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land is held jointly by plaintiffs and
defendant No. 1 and also held that sale deeds
(Ex. P/9 to P/21) are not binding on them.

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10.The suit was filed on 29/01/1999 averring that

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in the month of December, 1996, defendant No.
1 declared that he is the title-holder of the
entire land and he would further continue to
alienate the suit land as he has sold whereas
he could not have alienated the suit

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land in favour of defendants No. 2 to 26

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without the consent of the plaintiffs which
led to the filing of the suit by the
plaintiffs for declaration of joint possession
over the suit land.

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11.Article 58 of the Limitation Act, 1963,
applies to the suit for declaration, which
states as under :-

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58 To obtain any other Three years When the right declaration to sue first accrues.

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12.Article 58 of the Act of 1963 prescribes a
period of limitation of three years commencing
when the right to sue first accrues. It is

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trite law that the limitation would not
commence unless there has been a clear and
unequivocal threat to infringe the right
claimed by the plaintiffs (See C. Mohd. Yunus
v. Syed Unnissa1, Rukhmabai vs. Laxminarayan2
and Mt. Bolo vs. Mt. Koklan3).

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13.In C. Mohd. Yunus's case (supra) it is
further held that mere denial by the defendant

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of the rights of the plaintiffs would not set
the period of limitation running against them.

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1 AIR 1961 SC 808

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2 AIR 1980 SC 335

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3 AIR 1930 PC 270

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InMst. Rukhmabai'scase (supra), Their

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Lordships observed that where there were
successive invasions or denials of right, the
right to sue would accrue when the defendant
had clearly and unequivocally threatened to
infringe the right asserted by the plaintiff
in the suit. Their Lordships also observed:-

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“Every threat by a party to such a
right,howeverineffectiveand
innocuous it may be, cannot be
considered to be clear and unequivocal
threat so as to compel him to file a
suit, whether a particular threat gives
right to a compulsory cause of action
depends upon the question whether that
threateffectivelyinvadesor
jeopardizes the said right.”

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14.In Daya Singh and another v. Gurdev Singh

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(dead) by LRs. and others4 relying upon C.
Mohd. Yunus's case (supra) Their Lordships of

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the Supreme Court have held that mere
existence of adverse entry in revenue records
does not give rise to cause of action. Cause
of action to sue accrues only when right
asserted in suit is infringed or there is
threat to infringe that right.

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15.Similarly, in the matter of Khatri Hotels
Private Limited and another v. Union of India

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and another5 the Supreme Court has considered

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4 (2010) 2 SCC 194

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5 (2011) 9 SCC 126

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the earlier decisions of Rukhmabai'scase

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(supra) and Mt. Bolo'scase (supra) and held
as under:-

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“24. The Limitation Act, 1963 (for
short, “the 1963 Act”) prescribes time
limit for all conceivable suits,
appeals etc. Section 2(j) of that Act
defines the expression "period of
limitation" to mean the period of
limitation prescribed in the Schedule
for suit, appeal or application.
Section 3 lays down that every suit
instituted, appeal preferred or
application made after the prescribed
period shall, subject to the
provisions of Sections 4 to 24, be
dismissed even though limitation may
not have been set up as a defence. If
a suit is not covered by any specific
article, then it would fall within the
residuary article. In other words, the
residuary article is applicable to
every kind of suit not otherwise
provided for in the Schedule.

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30. While enacting Article 58 of the
1963 Act, the legislature has
designedly made a departure from the
language of Article 120 of the 1908
Act. The word “first” has been used
between the words “sue” and “accrued”.
This would mean that if a suit is
based on multiple causes of action,
the period of limitation will begin to
run from the date when the right to
sue first accrues. To put it
differently, successive violation of
the right will not give rise to fresh
cause and the suit will be liable to
be dismissed if it is beyond the
period of limitation counted from the
day when the right to sue first
accrued.”

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16.Reverting to the facts of the present case

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in light of the aforesaid discussion, it is
quite vivid that defendant No. 1 did not raise

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any express plea of limitation except saying
that the suit is barred by limitation with
regard to which trial Court held that the suit

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is within limitation as the cause of action
has arisen on 29/01/1999 when defendant No. 1
denied the plaintiff and declared that he is
the title-holder of the suit land, which has
been affirmed by the first appellate Court
that the suit preferred was within limitation
in the cross-objection preferred by the
defendants.

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17.The only argument raised by learned counsel
for the appellants/defendants No. 1 and 9
before this Court is that since the mutation
entry took place in the name of defendant No.
1 in the year 1978, therefore, the suit was
barred by limitation and the suit should have
been filed within three years from the date of
mutation entry in the name of defendant No. 1.
It has already been held in the aforesaid
cases by their Lordships of the Supreme Court
that mere mutation in the revenue record does
not give rise to the cause of action for
filing a suit for declaration under Article 58
of the Limitation Act, 1963, unless there has
been a clear and unequivocal threat to

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infringe the right claimed by the plaintiffs.

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18.The plea raised by defendant No. 1 in

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paragraph 8 of the written statement is as
vague as it can be. The said plea is only
raised for namesake and no express and
speaking plea was raised qua limitation in the
suit which was filed by the plaintiffs wherein
both the Courts below negatived the said plea
of limitation raised by the defendants and
decreed the suit of the plaintiffs, as such,
both the Courts below have rightly held that
plaintiffs' suit is within limitation.
Consequently, the substantial question of law
is answered in affirmative.

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19.Lastly, it was pleaded that I.A. No. 3 be
allowed and additional substantial question of
law be formulated, but after hearing to
learned counsel for the appellants/defendants
No. 1 and 9, I do not find any good ground to
entertain the said application and frame
additional substantial question of law. Thus,
I.A. No. 3 stands rejected.

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20.The second appeal deserves to be and is

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accordingly dismissed leaving the parties to
bear their own cost(s).

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21.Decree be drawn-up accordingly.

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Sd/-
(Sanjay K. Agrawal)
Judge

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Harneet

Anil Kumar Shukla v. Bipin Bihari Shukla (Dead) Through Lrs.

Case brief

What is this about?

What did the court decide?

Anil Kumar Shukla v. Bipin Bihari Shukla (Dead) Through Lrs.

Case brief

What is this about?

What did the court decide?

What the court decided

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Issues for consideration

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