Or.VII, rule 11(d) of C.P.C. and Art.58 of Limitation Act and A.P. Pattadar pass book rights Act- suit for declaration of revenue entries is null and void and consequential injunction - Lower court wrongly dismissed the suit under Or.7, rule 11(d) C.P.C.- considering a single act in 2008 for counting limitation of 3 years - dismissed the suit with out considering other dates and facts mentioned in cause of action - as that date alone in 2008 can not itself force the plaintiff to file a suit as it only hearing of rumors ects., - What is cause of action - When right to sue first occurs - not considered - Lower court orders are set aside - Appeal was allowed = Sri Mohan Singh & others......Appellants Sri R.Venkatramana & others......Respondents = published in http://judis.nic.in/judis_andhra/qrydisp.aspx?filename=10392
Or.VII, rule 11(d) of C.P.C. and Art.58 of Limitation Act and A.P. Pattadar pass book rights Act- suit for declaration of revenue entries is null and void and consequential injunction - Lower court wrongly dismissed the suit under Or.7, rule 11(d) C.P.C.- considering a single act in 2008 for counting limitation of 3 years - dismissed the suit with out considering other dates and facts mentioned in cause of action - as that date alone in 2008 can not itself force the plaintiff to file a suit as it only hearing of rumors ects., - What is cause of action - When right to sue first occurs - not considered - Lower court orders are set aside - Appeal was allowed =
Whether a single date from cause of action is enough to compute limitation ? =
The cause of action arose in the month of February 2008, when the
plaintiff noticed certain illegal interference over the suit schedule property,
in the month of July 2008, when the plaintiffs availed certified copies of the
certain registered sale deed in respect of the parts of lands in schedule
property, on 30.01.2009, when the defendant No.2 gave letter stating that the
defendant No.2 is not competent to correct the entries in the pahanis, on
16.02.2010 when the plaintiff gave public caution notice in Eenadu newspaper, on
27.01.2012 when the defendant No.2 informed that the file in ROR/6067/1989 is
not readily available, on 15.03.2012 on which date the defendant No.1 wrote
letter to defendant No.2 calling for detailed statement, finally on 27.08.2012
when the defendants through their men and agents tried to interfere with the
possession of the plaintiffs over the suit schedule property and tried to
dispossess the plaintiffs from the suit schedule property. That the cause of
action is still continuing as the threat of dispossession is still looming
large."
From the aforesaid averments in the plaint, it is clear that though
several facts which gave rise to cause of action for instituting the suit are
mentioned in the plaint, the learned Judge, without mentioning all the facts
constituting the cause of action, has taken note of the averment made in the
plaint to the effect that the plaintiffs noticed certain illegal interference
over suit schedule property in February 2008, and thus, by computing the period
of limitation from the said date till the date of filing of suit i.e.
29.08.2012, held that the suit is barred by limitation - is illegal.
when "right to sue first accrues" arise ? =
whether the
illegal interference in the month of February 2008 which resulted in application
by plaintiffs for Pahanis for all the survey numbers, can be taken as a first
cause of action for the purpose of filing the suit. It is needless to mention
that every threat or interference by a party cannot be considered to be a clear
and unequivocal threat, so as to compel him to file a suit. What is required to
be considered is whether a particular threat or interference effectively invades
or jeopardize the said right of plaintiff, so as to institute a suit.
When
subsequent causes of action are mentioned with regard to the attempts made by
defendants and their agents to dispossess the plaintiffs and also other causes
of action as mentioned in para 17 of the plaint, we are of the view that there
is no reason to take note of the allegation of interference that occurred in
February 2008, so as to non-suit the plaintiff/appellants on that ground alone,
at preliminary stage by entertaining the application under Order 7 Rule 11 (d)
of CPC. It is true that Order 7 Rule 11 (d) of CPC empowers the Court to reject
the plaint, if it appears to have been barred by any law from the statements
made in the plaint, but, we are of the view that such a power is to be exercised
with great caution.
When a serious dispute is raised by plaintiffs in their
counter with regard to cause of action and limitation, such a dispute is to be
resolved only after framing an issue and conducting trial on the said aspect,
but not by rejecting the plaint under Order 7 Rule 11(d) of CPC. We are of the
view that having regard to the averments made in the plaint, unless a clear
finding is recorded as to when the right asserted is infringed or atleast a
clear and unequivocal threat was made to infringe the right, the Court below
fell in serious error by allowing the application, by recording a finding that
the suit is barred by limitation. The phrase "right to sue first accrues" is to
be considered having regard to the right asserted in the suit and as to when
such right is infringed, necessitating filing of suit.
Unless such a finding is
there, by taking a stray sentence in the plaint, no finding can be recorded to
the effect that the suit is barred by limitation. What is the proper cause of
action must depend on the entirety of facts mentioned in the plaint and a single
sentence in the plaint cannot be read in isolation by over-emphasizing the same
and to throw away the suit at its inception, on the ground that it is barred by
limitation.
As already discussed above, we are of the view that the cause of
action for filing the suit cannot be decided by merely reading a single
statement in the plaint in isolation, when the plaintiff has mentioned many such
occasions. Therefore, the order under challenge is liable to be set aside.
23. Accordingly, the appeal is allowed and the order, dated 20.06.2013, passed
by the learned Special Judge for Trial of S.C. & S.T. (Prevention of Atrocities)
Act-cum-Additional District and Sessions Judge, Ranga Reddy District, in
I.A.No.103 of 2013 in O.S.No.782 of 2012, is set aside. The suit in O.S.No.782
of 2012 shall be restored to file and be disposed of on merits. No order as to
costs.
HON'BLE SRI JUSTICE R. SUBHASH REDDY AND HON'BLE SRI JUSTICE A.V.SESHA SAI
APPEAL SUIT No.759 of 2013
Dated: 04-10-2013
Sri Mohan Singh & others......Appellants
Sri R.Venkatramana & others......Respondents
CounselFor appellants : Sri G.K.Deshpandey, Advocate.
For Respondent No.1 : Sri E.Manohar, Senior Counsel, appearing for
Sri R.A.Achuthanand, Advocate.
or Respondents 3 to 39 :Parties shown as not necessary.
<Gist:
>Head Note:
?CITATIONS:
1. AIR 1960 SC 335
2. AIR 2010 SC 3240
3. AIR 2008 SC 363
4. 2008 (2) PLR 714
5. AIR 1980 P & H 25
6. ILR 1991 KARNATAKA 1500
7. 2003 (5) ALT 403
8. 2009 (2) ALD 212
9. 1997 (6) ALT 654
10. AIR 1971 SC 442
11. (2013) 3 SCC 182
12. (2011) 9 SCC 126
13. (2007) 5 SCC 614
14. AIR 1961 SC 808
15. AIR 1930 PC 270
APPEAL SUIT No.759 of 2013
JUDGMENT : (Per R.Subhash Reddy, J)
This appeal suit is filed by the plaintiffs in O.S.No.782 of 2013, aggrieved by
order dated 20.06.2013, passed by the learned Special Judge for Trial of S.C. &
S.T. (Prevention of Atrocities) Act-cum-Additional District and Sessions Judge,
Ranga Reddy District, allowing the interlocutory application filed by the 1st
respondent/defendant No.31 in I.A.No.103 of 2013 under Order 7 Rule 11(d) of
CPC, by which, the plaint filed by the petitioners herein in O.S.No.782 of 2012
is rejected on the ground that the suit claim is barred by limitation.
2. The appellants herein have filed the suit against respondent No.1 and
others for declaration declaring that the entries made in the revenue records
reflecting the names of defendants 3 to 39 as possessors, are illegal, null and
void and for correction of entries by entering their names as possessors in the
revenue records/pahanis, with a consequential relief of perpetual injunction.
Declaratory relief is also sought under Section 8(2) of the A.P.Rights in Land
and Pattadar Pass Books Act, 1971, read with Chapter VI of the Specific Relief
Act, 1963.
3. As averred in the plaint, it is the case of plaintiffs that their father
Late Sri Narayan Singh was possessor of lands in various survey numbers of
Puppalaguda village of Rajendranagar Mandal in Ranga Reddy District as a tenant
of original pattadar Mr.Fakaryar Jung, who migrated to Pakistan in the year
1945. They claim title and possession to the land admeasuring Ac.14.20 gts. in
Sy.No.310, Ac.12.32 gts. in Sy.No.311, Ac.20.14 gts. in Sy.No.312 and Ac.11.18
gts. in Sy.No.318. It is also stated that a Rythu passbook was also issued in
the name of their father Late Narayan Singh in respect of the aforesaid suit
schedule properties, totally admeasuring Ac.59.04 gts. It is alleged that the
name of the father of plaintiffs continually appeared in possessory column of
Pahanis till the year 1994-95 and the name of one Smt.Jeshi Bai appeared in
pattadar column. The plaintiffs are legal heirs of Late Sri Narayan Singh and
after his demise, they came into possession of the lands and are enjoying the
same, and at no point of time, the pattadar Smt.Jeshi Bai or any other person,
claiming on her behalf, interfered with their possession and thus, they
perfected their title through adverse possession. The extracts of revenue
records and pahanis for the years from 1972-73 to 1999-2000 were filed along
with the suit.
4. It is alleged in the plaint that in the month of February 2008, when they
noticed certain illegal interference over the suit schedule property and
overheard the rumors of some third parties claiming certain portions of the suit
schedule property, they have applied for pahanis for all the survey numbers and
came to know that the names of certain irrelevant persons i.e. defendants 3 to
39 were recorded in the possessory column of pahanis and it was also noticed
that certain sale transactions tookplace in respect of suit schedule property,
and thus, coming to know about the same, they approached the 2nd respondent
herein for correction of entries in the pahanis, on 30.01.2009, upon which, the
2nd respondent has issued a Memo in Lr.No.B/1513/2008, stating that he was not
competent to order for corrections, and that the appeal preferred against the
said letter, is pending. It is further alleged that in the month of February
2010, some unknown persons tried to interfere with the possession of plaintiffs
and the plaintiffs have successfully prevented such interference and
immediately, they got issued public caution notice through their Advocate, which
was published in Eenadu newspaper on 16.02.2010. It is their further allegation
that on discreet enquiries made by them, they learnt that the 2nd respondent
herein has entered the names of defendants 3 to 39 in the revenue records, which
is totally illegal and not supported by any order passed by competent authority.
They have also referred to the revision petition filed under the A.P. Rights in
Land and Pattadar Pass Books Act, 1971 and a reference is made to the complaint
dated 02.06.2012, given to the Station House Officer of P.S.Narsingi with regard
to trespass by some unknown persons in the land covered by Sy.No.312,
admeasuring Ac.20.14 gts. It is alleged that defendants 3 to 39 are making
hectic efforts to change the nature of land by cutting big stones in the suit
schedule property, and with a specific allegation that on 27.08.2012, defendants
3 to 39, along with their men and agents, interfered with the possession of
plaintiffs over the suit schedule property, the plaintiffs have filed the suit
for declaration, declaring that the entries in the revenue records reflecting
the names of defendants 3 to 39 as possessors, are illegal, null and void and
for correction of entries by entering their names as possessors. They have
further sought the relief of perpetual injunction in their favour, restraining
defendants 3 to 39, their servants, agents or anybody claiming through them,
from interfering with the peaceful physical and actual possession of plaintiffs
over the suit schedule property.
The cause of action for filing the suit is set out in para 17 of the plaint, which reads as under :
"17. That the plaintiffs submit that the above mentioned facts constitute cause
of action. The cause of action arose in the month of February 2008, when the
plaintiff noticed certain illegal interference over the suit schedule property,
in the month of July 2008, when the plaintiffs availed certified copies of the
certain registered sale deed in respect of the parts of lands in schedule
property, on 30.01.2009, when the defendant No.2 gave letter stating that the
defendant No.2 is not competent to correct the entries in the pahanis, on
16.02.2010 when the plaintiff gave public caution notice in Eenadu newspaper, on
27.01.2012 when the defendant No.2 informed that the file in ROR/6067/1989 is
not readily available, on 15.03.2012 on which date the defendant No.1 wrote
letter to defendant No.2 calling for detailed statement, finally on 27.08.2012
when the defendants through their men and agents tried to interfere with the
possession of the plaintiffs over the suit schedule property and tried to
dispossess the plaintiffs from the suit schedule property. That the cause of
action is still continuing as the threat of dispossession is still looming
large."
5. It is brought to the notice of this Court by the learned counsel for
appellants that after filing of the suit, on their application for grant of
interim injunction, orders are also passed and the said orders are in force. At
that stage, without responding by way of counter or written statement in the
suit, defendant No.31 has filed an application in I.A.No.103 of 2013 under Order
7 Rule 11(d) of CPC, to reject the plaint on the ground that suit is barred by
limitation. It is stated in the affidavit filed in support of the said
application that he is defendant No.31 in the suit in O.S.No.782 of 2012 and as
per the averments contained in the plaint read with the documents filed along
with the plaint, the cause of action to file the suit first accrued to the
plaintiffs in February 2008, and at any rate, by July 2008, and thus, the period
of limitation for instituting the above suit expired in 2011 as per the
provisions of the Indian Limitation Act, 1963, whereas the plaint was filed on
29.08.2012, and thus, the claim is barred by limitation and plaint is liable to
be rejected under Order 7 Rule 11 (d) of CPC, as such, there is no need
to go for trial since the suit is liable to be rejected on the basis of admitted
averments contained in the plaint.
6. The plaintiffs have filed detailed counter affidavit in the aforesaid
interlocutory application. In the counter, while denying the various
allegations made by defendant No.31, it is pleaded that the suit filed by them
is well within the period of limitation in view of various incidents and causes
of action, the last being on 27.08.2012, when the defendants, through their men
and agents, tried to interfere with the possession of plaintiffs over the suit
schedule property. In the counter, it is further pleaded that as the
cause of action is a bundle of facts, the suit is well within the period of
limitation and also pleaded that the question of limitation is always a mixed
question of facts and law, and thus, the same is no ground to reject the plaint
at preliminary stage. It is categorically averred in the counter that instead
of filing reply to the injunction petition, the petitioner/ defendant No.31 is
adopting dubious methods of raising untenable technical pleas, which itself show
that he has no case on merits.
7. The trial Court, while considering the said interlocutory application in
I.A.No.103 of 2013, which is filed under Order 7 Rule 11 (d) of CPC and with
reference to the allegations made by defendant No.31 in support of his
application and also by considering the counter affidavit filed by the
plaintiffs, has recorded a finding
that para 8 of the plaint goes to show that
in the month of February 2008, plaintiffs have noticed certain illegal
interference over the suit schedule property and overheard the rumors of some
third parties claiming certain parts of suit schedule property, and thus, they
had notice of illegal interference in the month of February 2008 itself, but as
the suit is filed on 29.08.2012, it is barred by limitation.
A further finding
is recorded that for the relief of perpetual injunction, the plaintiffs have not
paid separate Court fee.
Referring to the provision under Article 58 of the
Limitation Act of 1963, which is equivalent to Article 120 of the Limitation Act
of 1908, and emphasizing on the word "first" in column No.3 of Article 58, has
held that the suit is barred by limitation.
8. From a reading of the impugned order, it is clear that the said
application came to be allowed primarily on the ground that the plaintiffs have
noticed the alleged interference by third parties and change of entries in the
month of February 2008, and hence, the cause of action starts from the said
date.
9. Heard Sri G.K.Deshpande, learned counsel appearing for appellants and Sri
E.Manohar, learned senior counsel, appearing on behalf of Sri R.A. Achuthanand,
for respondent No.1.
10. It is contended by Sri G.K.Deshpande, learned counsel appearing for
appellants that though the suit is filed for a comprehensive relief of
declaration and injunction, instead of contesting the same by filing written
statement and counter in the injunction petition filed by the plaintiffs,
defendant No.31 alone has filed the application in I.A.No.103 of 2013, seeking
to reject the plaint. It is submitted that inspite of valid objections put-
forth by the appellant/plaintiffs in the counter affidavit supported by several
authorities of Hon'ble Supreme Court, without considering the same and without
recording valid reasons, the lower Court has allowed the application. It is
submitted that a bundle of facts constitute cause of action and the cause of
action arose on several occasions as comprehensively mentioned in para 17 of the
plaint, and inspite of the same, the incident happened in the month of Feburary
2008 alone is taken into account for the purpose of deciding the limitation. It
is submitted by the learned counsel that having regard to various disputes on
factual aspects with reference to cause of action, the lower Court ought to have
dismissed the application, as much as such issues can be resolved only after a
full-pledged trial, but not in an application filed under Order 7 Rule 11(d) of
CPC. It is contended by the learned counsel that existence of a wrong entry in
the revenue records does not give rise to a cause of action within the
meaning of Article 58 of the Indian Limitation Act, 1963. It is also submitted
that every threat by the defendants to the right of plaintiffs, cannot be
considered to be a clear and unequivocal threat infringing the rights of
plaintiffs so as to compel them to file a suit, as such, the Court below ought
not to have relied solely on the cause of action occurred in February 2008, so
as to allow the application filed by defendant No.31.
The learned counsel, in
support of his arguments, relied on the judgments of Hon'ble Supreme Court in
the case of Mrs. Rukhmabai Vs. Lala Laxminarayana & others1, in Daya Singh &
another Vs. Gurdev Singh (dead) by LRs. & others2 and in C.Natrajan Vs. Ashim
Bai & another3. Reference is also made to the judgments of Punjab and Haryana
High Court in the case of Gurcharan Ram Vs. Tejwant Singh (dead) through LRs.4
and in Ibrahim Vs. Sharifan5.
Reliance is also placed on the judgment of
Karnataka High Court in the case of State of Karnataka Vs. Mohammed Kunhi6, and
also on the judgments of learned Single Judges of this Court in Ragam Yellaiah &
others Vs. Chinta Shankaraiah7, in K. Pratap Reddy & others Vs. The Joint
Collector, Lakdikapool, Hyderabad & others8 and in the case of Seela Venkata
Subbaiah Vs. Jinka Muni Swamy & another9. Referring to the above said
authorities, the learned counsel submits that the right to sue arises only when
the rights of parties are infringed substantially and every threat cannot be
taken as a first cause of right to sue for the purpose of deciding the
limitation. It is contended that when substantial rights of parties are
involved, plaintiffs ought not to have been non-suited on the application filed
under Order 7 Rule 11 (d) of CPC without recording valid reasons.
11. Per contra, it is contended by Sri E.Manohar, learned senior counsel
appearing for the 1st respondent/defendant No.31 that the suit filed by the
appellant/plaintiffs is not maintainable for more than one reason.
It is stated
that in view of the provision under Section 8(1) of the A.P. Rights in Land and
Pattadar Pass Books Act, 1971, the very suit is not maintainable.
It is further
submitted that though the suit is filed against the District Collector, Ranga
Reddy and Tahsildar, same is filed without issuing notices to them under Section
80 of CPC.
It is contended that from a reading of the plaint, it is clear that
the first cause of action arose in the month of February 2008 when the
plaintiffs have noticed illegal interference over the suit schedule property and
overheard the rumors of third parties claiming purchase of certain portions of
suit schedule property, and as much as the suit was filed on 29.08.2012, same is
barred by limitation. It is submitted by the learned senior counsel that under
Article 58 of the Limitation Act of 1963, limitation starts when the right to
sue first accrues, as such, the trial Court has rightly computed the
limitation from the month of February 2008 for the purpose of deciding the issue
of limitation and allowed the application filed by defendant No.31. The learned
counsel, in support of his submissions, relied on the judgments of Hon'ble
Supreme Court in the case of Gangappa Gurupadappa Gugwad Vs. Rachawwa &
others10, in Board of Trustees of Port of Kandla Vs. Hargovind Jasraj &
another11, in Khatri Hotels Private Limited & another Vs. Union of India &
another12 and in Hardesh Ores (P) Ltd. Vs. Hede and Company13.
12. Having heard learned counsel for the parties, we have carefully perused
the material on record, the decretal order under challenge, copy of plaint and
the supporting documents filed by the petitioners and the judgments relied on by
the learned counsel for the parties.
13. The only aspect which falls for consideration in this appeal is having
regard to the cause of action stated in the plaint in O.S.No.782 of 2013, and
having regard to the relief sought, whether such claim is barred by limitation
in view of the provision under Article 58 of the Limitation Act, 1963.
It is
well settled that there is no one word meaning for cause of action, but the
cause of action means, a bundle of facts which give rise to institute a suit by
plaintiffs.
Order 7 Rule 1 of CPC prescribes the particulars to be contained in
the plaint while filing the suit, and as per Rule 1(e) of Order 7, the plaintiff
shall give the facts constituting the cause of action and as to when it arose.
From a reading of plaint in the instant case, it is clear that the
appellant/plaintiffs have stated in the plaint that the cause of action arose in
the month of February 2008 when they noticed certain illegal interference over
the suit schedule property, in the month of July 2008 when they availed
certified copies of registered sale deeds in respect of parts of suit schedule
property, on 30th January 2009, when the 2nd defendant gave a letter stating
that he was not competent to correct the entries in the pahanis, on 16.02.2010,
when plaintiffs gave public caution notice in Eenadu newspaper, on 27.01.2012,
when the 2nd defendant informed that the file in ROR/6067/1989 was not readily
available, and on 15.03.2012, on which date, the 1st defendant wrote a letter to
the 2nd defendant calling for detailed statement, and finally on 27.08.2012,
when the defendants, through their men and agents, tried to interfere with the
possession of plaintiffs over the suit schedule property and tried to dispossess
them. It is further stated that the cause of action is still continuing as the
threat of dispossession is still looming large.
14. From the aforesaid averments in the plaint, it is clear that though
several facts which gave rise to cause of action for instituting the suit are
mentioned in the plaint, the learned Judge, without mentioning all the facts
constituting the cause of action, has taken note of the averment made in the
plaint to the effect that the plaintiffs noticed certain illegal interference
over suit schedule property in February 2008, and thus, by computing the period
of limitation from the said date till the date of filing of suit i.e.
29.08.2012, held that the suit is barred by limitation.
It is no doubt true
that as the suit is for declaration, the limitation aspect is governed by
Article 58 of the Indian Limitation Act, 1963 i.e. three years from the period
when the right to sue first accrues. From a reading of the plaint in entirety,
it is clear that the plaintiffs have averred that in the month of February 2008,
when they noticed certain illegal interference and overheard the rumors of some
third parties claiming to have purchased certain portions of suit schedule
property, they applied for Pahanis, upon which, they came to know that names of
certain irrelevant persons i.e. defendants 3 to 39 are appearing in possessory
column of pahanis and then they verified the revenue records and found that
certain transactions tookplace under registered documents in respect of parts of
suit schedule property.
15. The core question which is required to be considered is
whether the
illegal interference in the month of February 2008 which resulted in application
by plaintiffs for Pahanis for all the survey numbers, can be taken as a first
cause of action for the purpose of filing the suit. It is needless to mention
that every threat or interference by a party cannot be considered to be a clear
and unequivocal threat, so as to compel him to file a suit. What is required to
be considered is whether a particular threat or interference effectively invades
or jeopardize the said right of plaintiff, so as to institute a suit. When
subsequent causes of action are mentioned with regard to the attempts made by
defendants and their agents to dispossess the plaintiffs and also other causes
of action as mentioned in para 17 of the plaint, we are of the view that there
is no reason to take note of the allegation of interference that occurred in
February 2008, so as to non-suit the plaintiff/appellants on that ground alone,
at preliminary stage by entertaining the application under Order 7 Rule 11 (d)
of CPC. It is true that Order 7 Rule 11 (d) of CPC empowers the Court to reject
the plaint, if it appears to have been barred by any law from the statements
made in the plaint, but, we are of the view that such a power is to be exercised
with great caution. When a serious dispute is raised by plaintiffs in their
counter with regard to cause of action and limitation, such a dispute is to be
resolved only after framing an issue and conducting trial on the said aspect,
but not by rejecting the plaint under Order 7 Rule 11(d) of CPC. We are of the
view that having regard to the averments made in the plaint, unless a clear
finding is recorded as to when the right asserted is infringed or atleast a
clear and unequivocal threat was made to infringe the right, the Court below
fell in serious error by allowing the application, by recording a finding that
the suit is barred by limitation. The phrase "right to sue first accrues" is to
be considered having regard to the right asserted in the suit and as to when
such right is infringed, necessitating filing of suit. Unless such a finding is
there, by taking a stray sentence in the plaint, no finding can be recorded to
the effect that the suit is barred by limitation. What is the proper cause of
action must depend on the entirety of facts mentioned in the plaint and a single
sentence in the plaint cannot be read in isolation by over-emphasizing the same
and to throw away the suit at its inception, on the ground that it is barred by
limitation.
16. The judgments relied on by the learned counsel for appellants also support
their case. In the case of Rukhmabai (1 supra), the Hon'ble Supreme Court,
while considering the aspect as to what is the extent of injury or infringement
that give rise to a compulsory cause of action for instituting the suit, held
that right to sue under Article 120 of the Limitation Act, 1908 accrues when the
defendant has clearly and unequivocally threatens to infringe the rights
asserted by the plaintiff in the suit and every threat by a party to such right,
however ineffective and innocuous it may be, cannot be considered to be a
clear and unequivocal threat so as to compel him to file a suit. In the case
of C.Mohammad Yunus Vs. Syed. Unnissa & others14, the Hon'ble Supreme Court has
held that the cause of action for the purpose of Article 58 of Limitation Act,
1963 accrues only when the right asserted in the suit is infringed or atleast
when there is a clear and unequivocal threat to infringe that right. It is also
held that the mere existence of adverse entry in the revenue records cannot be
considered to be cause of action for filing the suit.
17. In Gurcharan Ram's case (4 supra), it is held by the Punjab and Haryana
High Court that the starting point for limitation is not the date of sanction of
the mutation, but it is the date when the title and possession of the plaintiff
was actually threatened by the defendant. It is further held that every threat
by a party to such a right cannot be considered to be a clear and unequivocal
threat so as to compel him to file a suit. In the said judgment, it is also
held that merely because adverse entry is made in the revenue records against a
person who is in actual possession of property, if he continues to retain
possession of such property despite such entry, he is under no obligation to
bring a suit. In Mohd. Kunhi's case (6 supra), a Division Bench of Karnataka
High Court, referring to the judgment in the case of MT.Bolo Vs. MT.Koklan &
others15, has held that there can be no right to sue until there is an accrual
of the right asserted in the suit and its infringement or at least a clear and
unequivocal threat to infringe that right by the defendant against whom the suit
is instituted. In the same judgment, it is further held that cause of action is
nothing but a bundle of facts which are necessary for the purpose of
establishing the relief sought in the plaint. Any statement made in the plaint
does not amount to conceding the fact that the limitation for the suit commenced
on that particular date as mentioned.
18. In the case of C.Natrajan (3 supra), the Hon'ble Supreme Court has held
that limitation would not commence unless there has been a clear and unequivocal
threat to the right claimed by plaintiff and held that in such a situation,
application under Order 7 Rule 11 (d) is not maintainable. Further, in the case
of K.Pratap Reddy (8 supra), while considering the extent and scope
of jurisdiction of revenue authorities in exercise of powers under the Andhra
Pradesh Rights in Land and Pattadar Pass Books Act, 1971, has held that complex
and serious disputes of title falling beyond the scope of revision are not
within the purview of revenue authorities under the provisions of the said Act,
and that it is for the parties to initiate appropriate proceedings before a
civil Court of competent jurisdiction for resolution of their disputes.
19. From the aforesaid judgments relied on by the learned counsel for
appellants, it is clear that every threat or interference by a party to the
right of plaintiff cannot be considered as a clear and unequivocal threat, so as
to compel him to file a suit and to record a finding that right to sue first
accrued on such date. Though there is a serious dispute on the aforesaid aspect
which could have been resolved after subjecting the parties to trial, the
learned trial Judge has committed serious error in allowing the application
filed under Order 7 Rule 11 (d) of CPC, by rejecting the plaint instead of
allowing the parties to proceed for trial for adjudication of rights over
valuable property in a total extent of Ac.59.04 gts., situated at Puppalaguda
village of Rajendranagar Mandal in Ranga Reddy District.
20. Though the learned senior counsel appearing for the 1st
respondent/defendant No.31 has contended that the suit itself is barred under
Section 8(1) of the A.P. Rights in Land and Pattadar Pass Books Act, 1971, it is
to be noticed that under Section 8(2) of the said Act, an aggrieved party with
regard to any right by virtue of an entry made in record of rights, is entitled
to institute a suit for declaration of his right under Chapter VI of the
Specific Relief Act, 1963 and the entry in the record of rights shall be amended
in accordance with any such declaration. Reference is made to Rule 32 of the
A.P. Rights in Land and Pattadar Pass Books Rules, 1989, which reads as under :
"Every person proceeding under Sec.8(2) of the Act shall intimate to the Mandal
Revenue Officer concerned the particulars of the suit. The Mandal Revenue
Officer shall enter the details of the suit in a register in Form XVIII. On the
disposal of the suit, the Party shall communicate a copy of the order on the
suit to the Mandal Revenue Officer who shall enter the details in the register
in Form XVIII. The register in Form XVIII shall be open for inspection, and the
certified extracts of the same shall be granted."
From the aforesaid provision, it is clear that a declaratory suit is
maintainable by an aggrieved person who is in possession of property, if an
adverse entry is made against his interest in the record of rights, but the same
is also no ground on which the application is ordered by the trial Court in the
present case. Though it is contended by the learned senior counsel appearing
for 1st respondent that though the District Collector, Ranga Reddy District and
the Tahsildar are shown as defendants, the suit is filed without issuing notices
to them under Section 80 of CPC, from a reading of plaint, it is clear that no
relief is sought against them, but as they are the authorities under the
provisions of the Act, they are made party-respondents along with the contesting
respondents. In any event, same is also not the ground on which the application
filed by the 1st respondent/defendant No.31 is allowed. On the said ground, the
impugned order cannot be sustained by this Court, at this stage. The further
submission of the learned senior counsel that as it is mentioned in the plaint
itself that there was an interference in the month of February 2008, as such,
the right to sue shall be treated to have been accrued on the aforesaid date,
also cannot be accepted, as we have already held that every threat cannot be
considered as a threat or interference, so as to compel the plaintiffs to file a
suit. Such allegation alone cannot be looked in isolation for deciding the
issue of limitation.
21. Coming to the judgments relied on by the learned senior counsel appearing
for the 1st respondent/defendant No.31,
in the case of Gangappa Gurupadappa Gugwad (10 supra),
it is held by the Hon'ble Supreme Court that if the Court
finds that the plaint, on the face of it, is barred by any law, it should not
embark upon trial of all the issues involved and plaint can be rejected.
In the
case of Board of Trustees of Port of Kandla (11 supra), the Hon'ble Supreme
Court has held that a suit for declaration not covered by Article 58 of the
Schedule to the Limitation Act, 1963 must be filed within three years from the
date when the right to sue first accrues.
In the case of Khatri Hotels Private
Limited (12 supra), the Hon'ble Supreme Court, while interpreting Article 58 of
the Limitation Act, 1963, has held that the Legislature has designedly made a
departure from the language of Article 120 of the 1908 Act by introducing the
word "first" between the words "sue" and "accrued". It is held 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.
In the further judgment
relied on by the learned senior counsel in the case of Hardesh Ores (P) Ltd. (13
supra), the Hon'ble Supreme Court has held that plaint can be rejected in
exercise of power under Order 7 Rule 11 (d) of CPC on the ground of limitation,
where it appears from the statement in the plaint that the suit is barred by any
law.
In the same judgment, it is further held that for the said purpose, the
averments made in the plaint in their entirety must be held to be correct and
that it is not permissible to cull out a sentence or a passage and read it out
of the context in isolation.
22. As much as the core issue to be addressed in this case is as to which is
the cause of action that accrued first for instituting the suit, the above said
judgments relied on by the learned senior counsel will not render any
assistance in support of his submissions, having regard to the facts of the case
on hand. As already discussed above, we are of the view that the cause of
action for filing the suit cannot be decided by merely reading a single
statement in the plaint in isolation, when the plaintiff has mentioned many such
occasions. Therefore, the order under challenge is liable to be set aside.
23. Accordingly, the appeal is allowed and the order, dated 20.06.2013, passed
by the learned Special Judge for Trial of S.C. & S.T. (Prevention of Atrocities)
Act-cum-Additional District and Sessions Judge, Ranga Reddy District, in
I.A.No.103 of 2013 in O.S.No.782 of 2012, is set aside. The suit in O.S.No.782
of 2012 shall be restored to file and be disposed of on merits. No order as to
costs.
As a sequel, miscellaneous applications pending, if any, in this appeal, shall
stand closed.
______________________
R. SUBHASH REDDY, J
_________________
A.V. SESHA SAI, J
4th October 2013
Whether a single date from cause of action is enough to compute limitation ? =
The cause of action arose in the month of February 2008, when the
plaintiff noticed certain illegal interference over the suit schedule property,
in the month of July 2008, when the plaintiffs availed certified copies of the
certain registered sale deed in respect of the parts of lands in schedule
property, on 30.01.2009, when the defendant No.2 gave letter stating that the
defendant No.2 is not competent to correct the entries in the pahanis, on
16.02.2010 when the plaintiff gave public caution notice in Eenadu newspaper, on
27.01.2012 when the defendant No.2 informed that the file in ROR/6067/1989 is
not readily available, on 15.03.2012 on which date the defendant No.1 wrote
letter to defendant No.2 calling for detailed statement, finally on 27.08.2012
when the defendants through their men and agents tried to interfere with the
possession of the plaintiffs over the suit schedule property and tried to
dispossess the plaintiffs from the suit schedule property. That the cause of
action is still continuing as the threat of dispossession is still looming
large."
From the aforesaid averments in the plaint, it is clear that though
several facts which gave rise to cause of action for instituting the suit are
mentioned in the plaint, the learned Judge, without mentioning all the facts
constituting the cause of action, has taken note of the averment made in the
plaint to the effect that the plaintiffs noticed certain illegal interference
over suit schedule property in February 2008, and thus, by computing the period
of limitation from the said date till the date of filing of suit i.e.
29.08.2012, held that the suit is barred by limitation - is illegal.
when "right to sue first accrues" arise ? =
whether the
illegal interference in the month of February 2008 which resulted in application
by plaintiffs for Pahanis for all the survey numbers, can be taken as a first
cause of action for the purpose of filing the suit. It is needless to mention
that every threat or interference by a party cannot be considered to be a clear
and unequivocal threat, so as to compel him to file a suit. What is required to
be considered is whether a particular threat or interference effectively invades
or jeopardize the said right of plaintiff, so as to institute a suit.
When
subsequent causes of action are mentioned with regard to the attempts made by
defendants and their agents to dispossess the plaintiffs and also other causes
of action as mentioned in para 17 of the plaint, we are of the view that there
is no reason to take note of the allegation of interference that occurred in
February 2008, so as to non-suit the plaintiff/appellants on that ground alone,
at preliminary stage by entertaining the application under Order 7 Rule 11 (d)
of CPC. It is true that Order 7 Rule 11 (d) of CPC empowers the Court to reject
the plaint, if it appears to have been barred by any law from the statements
made in the plaint, but, we are of the view that such a power is to be exercised
with great caution.
When a serious dispute is raised by plaintiffs in their
counter with regard to cause of action and limitation, such a dispute is to be
resolved only after framing an issue and conducting trial on the said aspect,
but not by rejecting the plaint under Order 7 Rule 11(d) of CPC. We are of the
view that having regard to the averments made in the plaint, unless a clear
finding is recorded as to when the right asserted is infringed or atleast a
clear and unequivocal threat was made to infringe the right, the Court below
fell in serious error by allowing the application, by recording a finding that
the suit is barred by limitation. The phrase "right to sue first accrues" is to
be considered having regard to the right asserted in the suit and as to when
such right is infringed, necessitating filing of suit.
Unless such a finding is
there, by taking a stray sentence in the plaint, no finding can be recorded to
the effect that the suit is barred by limitation. What is the proper cause of
action must depend on the entirety of facts mentioned in the plaint and a single
sentence in the plaint cannot be read in isolation by over-emphasizing the same
and to throw away the suit at its inception, on the ground that it is barred by
limitation.
As already discussed above, we are of the view that the cause of
action for filing the suit cannot be decided by merely reading a single
statement in the plaint in isolation, when the plaintiff has mentioned many such
occasions. Therefore, the order under challenge is liable to be set aside.
23. Accordingly, the appeal is allowed and the order, dated 20.06.2013, passed
by the learned Special Judge for Trial of S.C. & S.T. (Prevention of Atrocities)
Act-cum-Additional District and Sessions Judge, Ranga Reddy District, in
I.A.No.103 of 2013 in O.S.No.782 of 2012, is set aside. The suit in O.S.No.782
of 2012 shall be restored to file and be disposed of on merits. No order as to
costs.
HON'BLE SRI JUSTICE R. SUBHASH REDDY AND HON'BLE SRI JUSTICE A.V.SESHA SAI
APPEAL SUIT No.759 of 2013
Dated: 04-10-2013
Sri Mohan Singh & others......Appellants
Sri R.Venkatramana & others......Respondents
CounselFor appellants : Sri G.K.Deshpandey, Advocate.
For Respondent No.1 : Sri E.Manohar, Senior Counsel, appearing for
Sri R.A.Achuthanand, Advocate.
or Respondents 3 to 39 :Parties shown as not necessary.
<Gist:
>Head Note:
?CITATIONS:
1. AIR 1960 SC 335
2. AIR 2010 SC 3240
3. AIR 2008 SC 363
4. 2008 (2) PLR 714
5. AIR 1980 P & H 25
6. ILR 1991 KARNATAKA 1500
7. 2003 (5) ALT 403
8. 2009 (2) ALD 212
9. 1997 (6) ALT 654
10. AIR 1971 SC 442
11. (2013) 3 SCC 182
12. (2011) 9 SCC 126
13. (2007) 5 SCC 614
14. AIR 1961 SC 808
15. AIR 1930 PC 270
APPEAL SUIT No.759 of 2013
JUDGMENT : (Per R.Subhash Reddy, J)
This appeal suit is filed by the plaintiffs in O.S.No.782 of 2013, aggrieved by
order dated 20.06.2013, passed by the learned Special Judge for Trial of S.C. &
S.T. (Prevention of Atrocities) Act-cum-Additional District and Sessions Judge,
Ranga Reddy District, allowing the interlocutory application filed by the 1st
respondent/defendant No.31 in I.A.No.103 of 2013 under Order 7 Rule 11(d) of
CPC, by which, the plaint filed by the petitioners herein in O.S.No.782 of 2012
is rejected on the ground that the suit claim is barred by limitation.
2. The appellants herein have filed the suit against respondent No.1 and
others for declaration declaring that the entries made in the revenue records
reflecting the names of defendants 3 to 39 as possessors, are illegal, null and
void and for correction of entries by entering their names as possessors in the
revenue records/pahanis, with a consequential relief of perpetual injunction.
Declaratory relief is also sought under Section 8(2) of the A.P.Rights in Land
and Pattadar Pass Books Act, 1971, read with Chapter VI of the Specific Relief
Act, 1963.
3. As averred in the plaint, it is the case of plaintiffs that their father
Late Sri Narayan Singh was possessor of lands in various survey numbers of
Puppalaguda village of Rajendranagar Mandal in Ranga Reddy District as a tenant
of original pattadar Mr.Fakaryar Jung, who migrated to Pakistan in the year
1945. They claim title and possession to the land admeasuring Ac.14.20 gts. in
Sy.No.310, Ac.12.32 gts. in Sy.No.311, Ac.20.14 gts. in Sy.No.312 and Ac.11.18
gts. in Sy.No.318. It is also stated that a Rythu passbook was also issued in
the name of their father Late Narayan Singh in respect of the aforesaid suit
schedule properties, totally admeasuring Ac.59.04 gts. It is alleged that the
name of the father of plaintiffs continually appeared in possessory column of
Pahanis till the year 1994-95 and the name of one Smt.Jeshi Bai appeared in
pattadar column. The plaintiffs are legal heirs of Late Sri Narayan Singh and
after his demise, they came into possession of the lands and are enjoying the
same, and at no point of time, the pattadar Smt.Jeshi Bai or any other person,
claiming on her behalf, interfered with their possession and thus, they
perfected their title through adverse possession. The extracts of revenue
records and pahanis for the years from 1972-73 to 1999-2000 were filed along
with the suit.
4. It is alleged in the plaint that in the month of February 2008, when they
noticed certain illegal interference over the suit schedule property and
overheard the rumors of some third parties claiming certain portions of the suit
schedule property, they have applied for pahanis for all the survey numbers and
came to know that the names of certain irrelevant persons i.e. defendants 3 to
39 were recorded in the possessory column of pahanis and it was also noticed
that certain sale transactions tookplace in respect of suit schedule property,
and thus, coming to know about the same, they approached the 2nd respondent
herein for correction of entries in the pahanis, on 30.01.2009, upon which, the
2nd respondent has issued a Memo in Lr.No.B/1513/2008, stating that he was not
competent to order for corrections, and that the appeal preferred against the
said letter, is pending. It is further alleged that in the month of February
2010, some unknown persons tried to interfere with the possession of plaintiffs
and the plaintiffs have successfully prevented such interference and
immediately, they got issued public caution notice through their Advocate, which
was published in Eenadu newspaper on 16.02.2010. It is their further allegation
that on discreet enquiries made by them, they learnt that the 2nd respondent
herein has entered the names of defendants 3 to 39 in the revenue records, which
is totally illegal and not supported by any order passed by competent authority.
They have also referred to the revision petition filed under the A.P. Rights in
Land and Pattadar Pass Books Act, 1971 and a reference is made to the complaint
dated 02.06.2012, given to the Station House Officer of P.S.Narsingi with regard
to trespass by some unknown persons in the land covered by Sy.No.312,
admeasuring Ac.20.14 gts. It is alleged that defendants 3 to 39 are making
hectic efforts to change the nature of land by cutting big stones in the suit
schedule property, and with a specific allegation that on 27.08.2012, defendants
3 to 39, along with their men and agents, interfered with the possession of
plaintiffs over the suit schedule property, the plaintiffs have filed the suit
for declaration, declaring that the entries in the revenue records reflecting
the names of defendants 3 to 39 as possessors, are illegal, null and void and
for correction of entries by entering their names as possessors. They have
further sought the relief of perpetual injunction in their favour, restraining
defendants 3 to 39, their servants, agents or anybody claiming through them,
from interfering with the peaceful physical and actual possession of plaintiffs
over the suit schedule property.
The cause of action for filing the suit is set out in para 17 of the plaint, which reads as under :
"17. That the plaintiffs submit that the above mentioned facts constitute cause
of action. The cause of action arose in the month of February 2008, when the
plaintiff noticed certain illegal interference over the suit schedule property,
in the month of July 2008, when the plaintiffs availed certified copies of the
certain registered sale deed in respect of the parts of lands in schedule
property, on 30.01.2009, when the defendant No.2 gave letter stating that the
defendant No.2 is not competent to correct the entries in the pahanis, on
16.02.2010 when the plaintiff gave public caution notice in Eenadu newspaper, on
27.01.2012 when the defendant No.2 informed that the file in ROR/6067/1989 is
not readily available, on 15.03.2012 on which date the defendant No.1 wrote
letter to defendant No.2 calling for detailed statement, finally on 27.08.2012
when the defendants through their men and agents tried to interfere with the
possession of the plaintiffs over the suit schedule property and tried to
dispossess the plaintiffs from the suit schedule property. That the cause of
action is still continuing as the threat of dispossession is still looming
large."
5. It is brought to the notice of this Court by the learned counsel for
appellants that after filing of the suit, on their application for grant of
interim injunction, orders are also passed and the said orders are in force. At
that stage, without responding by way of counter or written statement in the
suit, defendant No.31 has filed an application in I.A.No.103 of 2013 under Order
7 Rule 11(d) of CPC, to reject the plaint on the ground that suit is barred by
limitation. It is stated in the affidavit filed in support of the said
application that he is defendant No.31 in the suit in O.S.No.782 of 2012 and as
per the averments contained in the plaint read with the documents filed along
with the plaint, the cause of action to file the suit first accrued to the
plaintiffs in February 2008, and at any rate, by July 2008, and thus, the period
of limitation for instituting the above suit expired in 2011 as per the
provisions of the Indian Limitation Act, 1963, whereas the plaint was filed on
29.08.2012, and thus, the claim is barred by limitation and plaint is liable to
be rejected under Order 7 Rule 11 (d) of CPC, as such, there is no need
to go for trial since the suit is liable to be rejected on the basis of admitted
averments contained in the plaint.
6. The plaintiffs have filed detailed counter affidavit in the aforesaid
interlocutory application. In the counter, while denying the various
allegations made by defendant No.31, it is pleaded that the suit filed by them
is well within the period of limitation in view of various incidents and causes
of action, the last being on 27.08.2012, when the defendants, through their men
and agents, tried to interfere with the possession of plaintiffs over the suit
schedule property. In the counter, it is further pleaded that as the
cause of action is a bundle of facts, the suit is well within the period of
limitation and also pleaded that the question of limitation is always a mixed
question of facts and law, and thus, the same is no ground to reject the plaint
at preliminary stage. It is categorically averred in the counter that instead
of filing reply to the injunction petition, the petitioner/ defendant No.31 is
adopting dubious methods of raising untenable technical pleas, which itself show
that he has no case on merits.
7. The trial Court, while considering the said interlocutory application in
I.A.No.103 of 2013, which is filed under Order 7 Rule 11 (d) of CPC and with
reference to the allegations made by defendant No.31 in support of his
application and also by considering the counter affidavit filed by the
plaintiffs, has recorded a finding
that para 8 of the plaint goes to show that
in the month of February 2008, plaintiffs have noticed certain illegal
interference over the suit schedule property and overheard the rumors of some
third parties claiming certain parts of suit schedule property, and thus, they
had notice of illegal interference in the month of February 2008 itself, but as
the suit is filed on 29.08.2012, it is barred by limitation.
A further finding
is recorded that for the relief of perpetual injunction, the plaintiffs have not
paid separate Court fee.
Referring to the provision under Article 58 of the
Limitation Act of 1963, which is equivalent to Article 120 of the Limitation Act
of 1908, and emphasizing on the word "first" in column No.3 of Article 58, has
held that the suit is barred by limitation.
8. From a reading of the impugned order, it is clear that the said
application came to be allowed primarily on the ground that the plaintiffs have
noticed the alleged interference by third parties and change of entries in the
month of February 2008, and hence, the cause of action starts from the said
date.
9. Heard Sri G.K.Deshpande, learned counsel appearing for appellants and Sri
E.Manohar, learned senior counsel, appearing on behalf of Sri R.A. Achuthanand,
for respondent No.1.
10. It is contended by Sri G.K.Deshpande, learned counsel appearing for
appellants that though the suit is filed for a comprehensive relief of
declaration and injunction, instead of contesting the same by filing written
statement and counter in the injunction petition filed by the plaintiffs,
defendant No.31 alone has filed the application in I.A.No.103 of 2013, seeking
to reject the plaint. It is submitted that inspite of valid objections put-
forth by the appellant/plaintiffs in the counter affidavit supported by several
authorities of Hon'ble Supreme Court, without considering the same and without
recording valid reasons, the lower Court has allowed the application. It is
submitted that a bundle of facts constitute cause of action and the cause of
action arose on several occasions as comprehensively mentioned in para 17 of the
plaint, and inspite of the same, the incident happened in the month of Feburary
2008 alone is taken into account for the purpose of deciding the limitation. It
is submitted by the learned counsel that having regard to various disputes on
factual aspects with reference to cause of action, the lower Court ought to have
dismissed the application, as much as such issues can be resolved only after a
full-pledged trial, but not in an application filed under Order 7 Rule 11(d) of
CPC. It is contended by the learned counsel that existence of a wrong entry in
the revenue records does not give rise to a cause of action within the
meaning of Article 58 of the Indian Limitation Act, 1963. It is also submitted
that every threat by the defendants to the right of plaintiffs, cannot be
considered to be a clear and unequivocal threat infringing the rights of
plaintiffs so as to compel them to file a suit, as such, the Court below ought
not to have relied solely on the cause of action occurred in February 2008, so
as to allow the application filed by defendant No.31.
The learned counsel, in
support of his arguments, relied on the judgments of Hon'ble Supreme Court in
the case of Mrs. Rukhmabai Vs. Lala Laxminarayana & others1, in Daya Singh &
another Vs. Gurdev Singh (dead) by LRs. & others2 and in C.Natrajan Vs. Ashim
Bai & another3. Reference is also made to the judgments of Punjab and Haryana
High Court in the case of Gurcharan Ram Vs. Tejwant Singh (dead) through LRs.4
and in Ibrahim Vs. Sharifan5.
Reliance is also placed on the judgment of
Karnataka High Court in the case of State of Karnataka Vs. Mohammed Kunhi6, and
also on the judgments of learned Single Judges of this Court in Ragam Yellaiah &
others Vs. Chinta Shankaraiah7, in K. Pratap Reddy & others Vs. The Joint
Collector, Lakdikapool, Hyderabad & others8 and in the case of Seela Venkata
Subbaiah Vs. Jinka Muni Swamy & another9. Referring to the above said
authorities, the learned counsel submits that the right to sue arises only when
the rights of parties are infringed substantially and every threat cannot be
taken as a first cause of right to sue for the purpose of deciding the
limitation. It is contended that when substantial rights of parties are
involved, plaintiffs ought not to have been non-suited on the application filed
under Order 7 Rule 11 (d) of CPC without recording valid reasons.
11. Per contra, it is contended by Sri E.Manohar, learned senior counsel
appearing for the 1st respondent/defendant No.31 that the suit filed by the
appellant/plaintiffs is not maintainable for more than one reason.
It is stated
that in view of the provision under Section 8(1) of the A.P. Rights in Land and
Pattadar Pass Books Act, 1971, the very suit is not maintainable.
It is further
submitted that though the suit is filed against the District Collector, Ranga
Reddy and Tahsildar, same is filed without issuing notices to them under Section
80 of CPC.
It is contended that from a reading of the plaint, it is clear that
the first cause of action arose in the month of February 2008 when the
plaintiffs have noticed illegal interference over the suit schedule property and
overheard the rumors of third parties claiming purchase of certain portions of
suit schedule property, and as much as the suit was filed on 29.08.2012, same is
barred by limitation. It is submitted by the learned senior counsel that under
Article 58 of the Limitation Act of 1963, limitation starts when the right to
sue first accrues, as such, the trial Court has rightly computed the
limitation from the month of February 2008 for the purpose of deciding the issue
of limitation and allowed the application filed by defendant No.31. The learned
counsel, in support of his submissions, relied on the judgments of Hon'ble
Supreme Court in the case of Gangappa Gurupadappa Gugwad Vs. Rachawwa &
others10, in Board of Trustees of Port of Kandla Vs. Hargovind Jasraj &
another11, in Khatri Hotels Private Limited & another Vs. Union of India &
another12 and in Hardesh Ores (P) Ltd. Vs. Hede and Company13.
12. Having heard learned counsel for the parties, we have carefully perused
the material on record, the decretal order under challenge, copy of plaint and
the supporting documents filed by the petitioners and the judgments relied on by
the learned counsel for the parties.
13. The only aspect which falls for consideration in this appeal is having
regard to the cause of action stated in the plaint in O.S.No.782 of 2013, and
having regard to the relief sought, whether such claim is barred by limitation
in view of the provision under Article 58 of the Limitation Act, 1963.
It is
well settled that there is no one word meaning for cause of action, but the
cause of action means, a bundle of facts which give rise to institute a suit by
plaintiffs.
Order 7 Rule 1 of CPC prescribes the particulars to be contained in
the plaint while filing the suit, and as per Rule 1(e) of Order 7, the plaintiff
shall give the facts constituting the cause of action and as to when it arose.
From a reading of plaint in the instant case, it is clear that the
appellant/plaintiffs have stated in the plaint that the cause of action arose in
the month of February 2008 when they noticed certain illegal interference over
the suit schedule property, in the month of July 2008 when they availed
certified copies of registered sale deeds in respect of parts of suit schedule
property, on 30th January 2009, when the 2nd defendant gave a letter stating
that he was not competent to correct the entries in the pahanis, on 16.02.2010,
when plaintiffs gave public caution notice in Eenadu newspaper, on 27.01.2012,
when the 2nd defendant informed that the file in ROR/6067/1989 was not readily
available, and on 15.03.2012, on which date, the 1st defendant wrote a letter to
the 2nd defendant calling for detailed statement, and finally on 27.08.2012,
when the defendants, through their men and agents, tried to interfere with the
possession of plaintiffs over the suit schedule property and tried to dispossess
them. It is further stated that the cause of action is still continuing as the
threat of dispossession is still looming large.
14. From the aforesaid averments in the plaint, it is clear that though
several facts which gave rise to cause of action for instituting the suit are
mentioned in the plaint, the learned Judge, without mentioning all the facts
constituting the cause of action, has taken note of the averment made in the
plaint to the effect that the plaintiffs noticed certain illegal interference
over suit schedule property in February 2008, and thus, by computing the period
of limitation from the said date till the date of filing of suit i.e.
29.08.2012, held that the suit is barred by limitation.
It is no doubt true
that as the suit is for declaration, the limitation aspect is governed by
Article 58 of the Indian Limitation Act, 1963 i.e. three years from the period
when the right to sue first accrues. From a reading of the plaint in entirety,
it is clear that the plaintiffs have averred that in the month of February 2008,
when they noticed certain illegal interference and overheard the rumors of some
third parties claiming to have purchased certain portions of suit schedule
property, they applied for Pahanis, upon which, they came to know that names of
certain irrelevant persons i.e. defendants 3 to 39 are appearing in possessory
column of pahanis and then they verified the revenue records and found that
certain transactions tookplace under registered documents in respect of parts of
suit schedule property.
15. The core question which is required to be considered is
whether the
illegal interference in the month of February 2008 which resulted in application
by plaintiffs for Pahanis for all the survey numbers, can be taken as a first
cause of action for the purpose of filing the suit. It is needless to mention
that every threat or interference by a party cannot be considered to be a clear
and unequivocal threat, so as to compel him to file a suit. What is required to
be considered is whether a particular threat or interference effectively invades
or jeopardize the said right of plaintiff, so as to institute a suit. When
subsequent causes of action are mentioned with regard to the attempts made by
defendants and their agents to dispossess the plaintiffs and also other causes
of action as mentioned in para 17 of the plaint, we are of the view that there
is no reason to take note of the allegation of interference that occurred in
February 2008, so as to non-suit the plaintiff/appellants on that ground alone,
at preliminary stage by entertaining the application under Order 7 Rule 11 (d)
of CPC. It is true that Order 7 Rule 11 (d) of CPC empowers the Court to reject
the plaint, if it appears to have been barred by any law from the statements
made in the plaint, but, we are of the view that such a power is to be exercised
with great caution. When a serious dispute is raised by plaintiffs in their
counter with regard to cause of action and limitation, such a dispute is to be
resolved only after framing an issue and conducting trial on the said aspect,
but not by rejecting the plaint under Order 7 Rule 11(d) of CPC. We are of the
view that having regard to the averments made in the plaint, unless a clear
finding is recorded as to when the right asserted is infringed or atleast a
clear and unequivocal threat was made to infringe the right, the Court below
fell in serious error by allowing the application, by recording a finding that
the suit is barred by limitation. The phrase "right to sue first accrues" is to
be considered having regard to the right asserted in the suit and as to when
such right is infringed, necessitating filing of suit. Unless such a finding is
there, by taking a stray sentence in the plaint, no finding can be recorded to
the effect that the suit is barred by limitation. What is the proper cause of
action must depend on the entirety of facts mentioned in the plaint and a single
sentence in the plaint cannot be read in isolation by over-emphasizing the same
and to throw away the suit at its inception, on the ground that it is barred by
limitation.
16. The judgments relied on by the learned counsel for appellants also support
their case. In the case of Rukhmabai (1 supra), the Hon'ble Supreme Court,
while considering the aspect as to what is the extent of injury or infringement
that give rise to a compulsory cause of action for instituting the suit, held
that right to sue under Article 120 of the Limitation Act, 1908 accrues when the
defendant has clearly and unequivocally threatens to infringe the rights
asserted by the plaintiff in the suit and every threat by a party to such right,
however ineffective and innocuous it may be, cannot be considered to be a
clear and unequivocal threat so as to compel him to file a suit. In the case
of C.Mohammad Yunus Vs. Syed. Unnissa & others14, the Hon'ble Supreme Court has
held that the cause of action for the purpose of Article 58 of Limitation Act,
1963 accrues only when the right asserted in the suit is infringed or atleast
when there is a clear and unequivocal threat to infringe that right. It is also
held that the mere existence of adverse entry in the revenue records cannot be
considered to be cause of action for filing the suit.
17. In Gurcharan Ram's case (4 supra), it is held by the Punjab and Haryana
High Court that the starting point for limitation is not the date of sanction of
the mutation, but it is the date when the title and possession of the plaintiff
was actually threatened by the defendant. It is further held that every threat
by a party to such a right cannot be considered to be a clear and unequivocal
threat so as to compel him to file a suit. In the said judgment, it is also
held that merely because adverse entry is made in the revenue records against a
person who is in actual possession of property, if he continues to retain
possession of such property despite such entry, he is under no obligation to
bring a suit. In Mohd. Kunhi's case (6 supra), a Division Bench of Karnataka
High Court, referring to the judgment in the case of MT.Bolo Vs. MT.Koklan &
others15, has held that there can be no right to sue until there is an accrual
of the right asserted in the suit and its infringement or at least a clear and
unequivocal threat to infringe that right by the defendant against whom the suit
is instituted. In the same judgment, it is further held that cause of action is
nothing but a bundle of facts which are necessary for the purpose of
establishing the relief sought in the plaint. Any statement made in the plaint
does not amount to conceding the fact that the limitation for the suit commenced
on that particular date as mentioned.
18. In the case of C.Natrajan (3 supra), the Hon'ble Supreme Court has held
that limitation would not commence unless there has been a clear and unequivocal
threat to the right claimed by plaintiff and held that in such a situation,
application under Order 7 Rule 11 (d) is not maintainable. Further, in the case
of K.Pratap Reddy (8 supra), while considering the extent and scope
of jurisdiction of revenue authorities in exercise of powers under the Andhra
Pradesh Rights in Land and Pattadar Pass Books Act, 1971, has held that complex
and serious disputes of title falling beyond the scope of revision are not
within the purview of revenue authorities under the provisions of the said Act,
and that it is for the parties to initiate appropriate proceedings before a
civil Court of competent jurisdiction for resolution of their disputes.
19. From the aforesaid judgments relied on by the learned counsel for
appellants, it is clear that every threat or interference by a party to the
right of plaintiff cannot be considered as a clear and unequivocal threat, so as
to compel him to file a suit and to record a finding that right to sue first
accrued on such date. Though there is a serious dispute on the aforesaid aspect
which could have been resolved after subjecting the parties to trial, the
learned trial Judge has committed serious error in allowing the application
filed under Order 7 Rule 11 (d) of CPC, by rejecting the plaint instead of
allowing the parties to proceed for trial for adjudication of rights over
valuable property in a total extent of Ac.59.04 gts., situated at Puppalaguda
village of Rajendranagar Mandal in Ranga Reddy District.
20. Though the learned senior counsel appearing for the 1st
respondent/defendant No.31 has contended that the suit itself is barred under
Section 8(1) of the A.P. Rights in Land and Pattadar Pass Books Act, 1971, it is
to be noticed that under Section 8(2) of the said Act, an aggrieved party with
regard to any right by virtue of an entry made in record of rights, is entitled
to institute a suit for declaration of his right under Chapter VI of the
Specific Relief Act, 1963 and the entry in the record of rights shall be amended
in accordance with any such declaration. Reference is made to Rule 32 of the
A.P. Rights in Land and Pattadar Pass Books Rules, 1989, which reads as under :
"Every person proceeding under Sec.8(2) of the Act shall intimate to the Mandal
Revenue Officer concerned the particulars of the suit. The Mandal Revenue
Officer shall enter the details of the suit in a register in Form XVIII. On the
disposal of the suit, the Party shall communicate a copy of the order on the
suit to the Mandal Revenue Officer who shall enter the details in the register
in Form XVIII. The register in Form XVIII shall be open for inspection, and the
certified extracts of the same shall be granted."
From the aforesaid provision, it is clear that a declaratory suit is
maintainable by an aggrieved person who is in possession of property, if an
adverse entry is made against his interest in the record of rights, but the same
is also no ground on which the application is ordered by the trial Court in the
present case. Though it is contended by the learned senior counsel appearing
for 1st respondent that though the District Collector, Ranga Reddy District and
the Tahsildar are shown as defendants, the suit is filed without issuing notices
to them under Section 80 of CPC, from a reading of plaint, it is clear that no
relief is sought against them, but as they are the authorities under the
provisions of the Act, they are made party-respondents along with the contesting
respondents. In any event, same is also not the ground on which the application
filed by the 1st respondent/defendant No.31 is allowed. On the said ground, the
impugned order cannot be sustained by this Court, at this stage. The further
submission of the learned senior counsel that as it is mentioned in the plaint
itself that there was an interference in the month of February 2008, as such,
the right to sue shall be treated to have been accrued on the aforesaid date,
also cannot be accepted, as we have already held that every threat cannot be
considered as a threat or interference, so as to compel the plaintiffs to file a
suit. Such allegation alone cannot be looked in isolation for deciding the
issue of limitation.
21. Coming to the judgments relied on by the learned senior counsel appearing
for the 1st respondent/defendant No.31,
in the case of Gangappa Gurupadappa Gugwad (10 supra),
it is held by the Hon'ble Supreme Court that if the Court
finds that the plaint, on the face of it, is barred by any law, it should not
embark upon trial of all the issues involved and plaint can be rejected.
In the
case of Board of Trustees of Port of Kandla (11 supra), the Hon'ble Supreme
Court has held that a suit for declaration not covered by Article 58 of the
Schedule to the Limitation Act, 1963 must be filed within three years from the
date when the right to sue first accrues.
In the case of Khatri Hotels Private
Limited (12 supra), the Hon'ble Supreme Court, while interpreting Article 58 of
the Limitation Act, 1963, has held that the Legislature has designedly made a
departure from the language of Article 120 of the 1908 Act by introducing the
word "first" between the words "sue" and "accrued". It is held 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.
In the further judgment
relied on by the learned senior counsel in the case of Hardesh Ores (P) Ltd. (13
supra), the Hon'ble Supreme Court has held that plaint can be rejected in
exercise of power under Order 7 Rule 11 (d) of CPC on the ground of limitation,
where it appears from the statement in the plaint that the suit is barred by any
law.
In the same judgment, it is further held that for the said purpose, the
averments made in the plaint in their entirety must be held to be correct and
that it is not permissible to cull out a sentence or a passage and read it out
of the context in isolation.
22. As much as the core issue to be addressed in this case is as to which is
the cause of action that accrued first for instituting the suit, the above said
judgments relied on by the learned senior counsel will not render any
assistance in support of his submissions, having regard to the facts of the case
on hand. As already discussed above, we are of the view that the cause of
action for filing the suit cannot be decided by merely reading a single
statement in the plaint in isolation, when the plaintiff has mentioned many such
occasions. Therefore, the order under challenge is liable to be set aside.
23. Accordingly, the appeal is allowed and the order, dated 20.06.2013, passed
by the learned Special Judge for Trial of S.C. & S.T. (Prevention of Atrocities)
Act-cum-Additional District and Sessions Judge, Ranga Reddy District, in
I.A.No.103 of 2013 in O.S.No.782 of 2012, is set aside. The suit in O.S.No.782
of 2012 shall be restored to file and be disposed of on merits. No order as to
costs.
As a sequel, miscellaneous applications pending, if any, in this appeal, shall
stand closed.
______________________
R. SUBHASH REDDY, J
_________________
A.V. SESHA SAI, J
4th October 2013
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