REPORTABLE

       IN THE SUPREME COURT OF INDIA          CIVIL APPELLATE JURISDICTION

         CIVIL APPEAL NO.5339 OF 2002

Daya Singh & Anr.                                            …Appellants

VERSUS

Gurdev Singh (Dead) by L.Rs. & Ors.                           …Respondents

J U D G M E N T

TARUN CHATTERJEE, J.

1. This  appeal  is  directed  against  the final  judgment  and order  

dated 10th of September, 2001 of a learned Judge of the Punjab  

and  Haryana  High  Court  dismissing  a  second  appeal  being  

Regular  Second  Appeal  No.3416  of  1997,  inter  alia, on  the  

ground that the suit for declaration and injunction filed on 21st of  

August, 1990 was barred by limitation under Article 58 of the  

Limitation Act, 1963 (in short ‘the Act’) which could only be filed  

within  three  years  from  the  date  when  the  cause  of  action  

arose.   

2. Therefore, the only question that needs to be decided in this  

appeal by us is : whether the suit for declaration and injunction  

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could be held to be barred by limitation as the same was filed  

after 18 years of the alleged compromise between the parties.  

For the purpose of deciding this question on limitation, as noted  

hereinabove, which was only urged by the learned counsel for  

the appellants before us and the High Court also decided the  

second appeal on this question of limitation, we need to state  

the facts which would be relevant for the purpose of deciding  

the question of limitation only. The facts are as follows:

3. The  plaintiffs/appellants  were  the  owners  and  in  joint  

possession of  1/9th share in the entire land measuring about  

286 Kanals and 5 Marlas of Khewat No.359 Khatoni No.702-

710 situated in village Sukhchain falling under Sirsa Tehsil. Two  

other individuals named Jang Singh and Jangir Singh were the  

owners of 2/3rd share in the said total land. The appellants and  

the two individuals were co-owners in the said total land. These  

two individuals, namely, Jang Singh and Jangir Singh had sold  

their entire 2/3rd share to the respondents on 7th of June, 1965  

for a sale consideration of Rs.33,500/-. The said share of land  

was already under mortgage with the respondents. In 1965, the  

respondents got their names mutated in the relevant record of  

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rights as owners of the area purchased by them as indicated in  

the aforesaid sale deed. The appellants filed a pre-emption suit  

being  Pre-emption  Suit  No.377  of  1966  in  the  Court  of  the  

Subordinate Judge, Class II, Sirsa against the respondents for  

possession of  2/3rd share sold to them and got it  decreed in  

their favour by the trial court by a judgment and decree dated  

30th of November, 1967.  

4. The  respondents  appealed  against  the  aforesaid  decision  

before the Appellate Court, namely, District Judge, Hissar who  

dismissed their appeal on 15th of June, 1968. Feeling aggrieved  

against the aforesaid concurrent judgments of the courts below,  

a second appeal was filed before the Punjab and Haryana High  

Court which was dismissed on 26th of May, 1972. Subsequent  

to the dismissal of the second appeal, the appellants and the  

respondents compromised their dispute and such compromise  

was reduced into writing on 26th of October, 1972. According to  

this compromise, the appellants were entitled to retain half of  

the 2/3rd share of the land in dispute and the respondents were  

to  retain  the  other  half.  The  respondents  admitted  in  their  

compromise deed that the appellants had taken possession of  

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their  share  of  land.  When  this  compromise  was  presented  

before  the  Division  Bench  of  the  High  Court  of  Punjab  and  

Haryana in Letters Patent Appeal which came to be registered  

as LPA No.86 of 1973,   the Division Bench of the High Court  

disposed of the said Letters Patent Appeal in terms of the said  

compromise petition. From the records, it would also be evident  

that the report of the Kanoongo dated 16th of January, 1976 and  

the Roznamcha No.252 dated 14th of April, 1996 recorded that  

the  possession  of  95  Kanals  and  8  ½  Marlas  had  been  

delivered  to  the  appellants.  After  such  compromise  was  

effected, the appellants thereafter filed a suit for declaration that  

they were in possession as owner of 1/9th share and in joint  

possession of half of 2/3rd share (thus totaling of 4/9th shares) of  

land measuring 286 Kanals and 5 Marlas of  Khewat No.359  

Khatoni No.702-710 along with respondents and the entries in  

the revenue record of  rights  should only  be corrected in  the  

Court of the Senior Subordinate Judge, Sirsa. In paragraphs 15  

and 16 of the plaint of this suit which concerned the question of  

limitation, the plaintiffs/appellants had averred as follows :  

“15.  That  the  defendants  were  approached  and  requested to admit the claim of the plaintiffs and to  

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get  the  revenue  entries  corrected  accordingly  in   their favour, the defendants have refused to do so,   hence this suit.

16. That the cause of action for this suit first arose  on 26.10.1972 when the parties filed a compromise  in the Hon’ble High Court and then on 14.4.76 when  the plaintiffs were delivered possession of 1/3 share  of land in the khewat at the spot and now about a  week back when the plaintiffs have for the first time  come  to  know  about  the  wrong  entries  in  the  revenue  records  and  now  when  the  defendants  have refused to admit the claim of the plaintiffs.”  

On the basis of the averments made as noted herein above, the  

plaintiffs/appellants filed the aforesaid suit for the following reliefs:  

“a) That the plaintiffs are the joints owners in possession,   

in equal share of 1/3rd share in land measuring 286 kanal   

5 marlas comprised in khewat No.359, Khatoni NO.702 to  

710,  all  land  as  per  jamabandi  for  the  year  1985-86,   

situated  in  the  area  of  village  Sukhchain,  Tehsil  and  

Distt.Sirsa  and  that  the  revenue  records  showing  the  

defendants to be the owners of  12/18th share of  2/3rd  

share in the aforesaid land is wrong and is hence liable to  

be corrected in favour of the plaintiffs, and

b)   That  the  defendants  are  the  owners  of  only  1/3rd  

share in the aforesaid khewat, and

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c) That the plaintiffs who are already the owners of 2/18th   

share of 1/9th share in the khewat have thus become the  

total owners of 4/9th share in the entire khewat No.359  

and that the plaintiffs are entitled to get the mutation of  

change  of  ownership  sanctioned  accordingly  in  their   

favour, may please be passed in favour of the plaintiffs  

and against the defendants with cost of this suit.”    

5. The  respondents  entered  appearance  and  filed  written  

statement denying the material allegations made in the plaint.  

Leaving aside the other facts in the present case, we may state  

here that a specific defence taken by the respondents in their  

written statement was to the effect that the suit was barred by  

limitation in view of Article 58 of the Act because the suit having  

been filed after about 18 years of entering into the compromise  

by the parties in the High Court in the Letters Patent Appeal,  

must be filed within three years from the date of entering into  

the  alleged  compromise  by  the  parties.  Accordingly,  the  

respondents  alleged  that  the  suit  must  be  dismissed  on  the  

ground  of  limitation.  We  make  it  clear  that  since  the  only  

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question involved in this appeal is relating to the question of  

limitation,  we  have  not  considered  the  other  aspects  of  the  

matter  in  this  judgment.  After  the  parties  had  entered  

appearance  and  led  evidence  in  support  of  their  respective  

cases also on the point of limitation, the trial court held,  inter  

alia, that the suit was barred by limitation in view of Article 58 of  

the Act as the cause of action arose in 1972 i.e. on the date of  

compromise entered into by the parties.  Accordingly, the suit  

was dismissed by the trial court also on the ground of limitation.  

Feeling  aggrieved,  the  plaintiffs/appellants  filed  an  appeal  

before the Additional District Judge, Hissar who also dismissed  

the appeal of the appellants, inter alia, holding that the suit was  

barred  by  limitation.  Consequent  thereupon,  the  appellants  

approached  the  High  Court  in  second  appeal  and  the  High  

Court also dismissed the appeal holding that under Article 58 of  

the Act a declaratory suit  must be filed within three years of  

arising the cause of action for filing the suit.  The High Court  

held in the impugned judgment that the cause of action arose  

when the parties had entered into the compromise, that is, on  

26th of October, 1972 and, therefore, the suit having been filed  

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on 21st of August, 1990 was barred by time since it was filed  

after 18 years from the date of the said compromise.  

6. The appellants still feeling aggrieved by the impugned judgment  

of the High Court have filed the instant Special leave petition  

and on grant of leave the appeal was heard in the presence of  

the learned counsel for the parties.  

7. As  noted  herein  earlier,  the  only  question,  therefore,  to  be  

decided is whether  the mere existence of  an adverse entry  in the  

revenue records had given rise to cause of action as contemplated  

under Article 58 or it  had accrued when the right was infringed or  

threatened to be infringed. Let us,  therefore,  consider whether  the  

suit was barred by limitation in view of Article 58 of the Act in the  

background  of  the  facts  stated  in  the  plaint  itself.  Part  III  of  the  

schedule which has prescribed the period of limitation relates to suits  

concerning  declarations.  Article  58  of  the  Act  clearly  says  that  to  

obtain any other declaration, the limitation would be three years from  

the  date  when  the  right  to  sue  first  accrues.  In  support  of  the  

contention that the suit was filed within the period of limitation, the  

learned senior counsel appearing for the plaintiffs/appellants before  

us  submitted that  there could be no right  to  sue until  there  is  an  

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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 support of this contention the  

learned  senior  counsel  strongly  relied  on  a  decision  of  the  Privy  

Council reported in AIR 1930 PC 270 [Mt.Bolo vs. Mt. Koklan and  

others]. In this decision their Lordships of the Privy Council observed  

as follows :-  

“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.”

8. A  similar  view  was  reiterated  in  the  case  of  C.Mohammad  

Yunus vs. Syed Unnissa and others [AIR 1961 SC 808] in which  

this Court observed  :

“the period of 6 years prescribed by Article 120 has  to be computed from the date when the right to sue  accrued  and  there  could  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.”

9. In the case of  C.Mohammad Yunus (supra),  this Court  held  

that  the cause of  action for  the purposes of  Article  58 of  the  Act  

accrues only when the right asserted in the suit is infringed or there is  

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atleast a clear and unequivocal threat to infringe that right. Therefore,  

the  mere  existence  of  an  adverse  entry  into  the  revenue  record  

cannot give rise to cause of action.

10. Keeping these principles in mind, let us consider the admitted  

facts of the case. In para 16 of the plaint, it has been clearly averred  

that the right to sue accrued when such right was infringed by the  

defendants about a week back when the plaintiffs had for the first  

time come to know about the wrong entries in the record of rights and  

when the defendants had refused to admit the claim of the plaintiffs.  

Admittedly, the suit was filed on 21st of August, 1990. According to  

the  averments  made  by  the  plaintiffs  in  their  plaint,  as  noted  

hereinabove,  if  this statement is accepted,  the question of  holding  

that  the  suit  was  barred  by  limitation  could  not  arise  at  all.  

Accordingly, we are of the view that the right to sue accrues when a  

clear and unequivocal threat to infringe that right by the defendants  

when they refused to admit the claim of the appellants, i.e. only seven  

days before filing of the suit. Therefore, we are of the view that within  

three years from the date of infringement as noted in Paragraph 16 of  

the plaint, the suit was filed. Therefore, the suit which was filed for  

declaration on 21st of August, 1990, in our view, cannot be held to be  

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barred by limitation. Therefore, the courts below including the High  

Court had proceeded entirely on a wrong footing that the cause of  

action  arose  on  the  date  of  entering  into  the  compromise  and,  

therefore,  the  suit  was  barred  by  limitation,  whether  or  not  the  

compromise  decree  was  acted  upon  and  whether  delivery  of  

possession  had  taken  place  has  to  be  decided  by  the  trial  court  

before it could come to a proper conclusion that the suit was barred  

by limitation. In this view of the matter, we do not find any ground to  

agree with the findings of the High Court that the suit was barred by  

time  because  of  its  filing  after  18  years  of  entering  into  the  

compromise. The question of filing the suit before the right accrued to  

them by compromise could not arise until and unless infringement of  

that right was noticed by one of the parties. The High Court in the  

impugned judgment, in our view, had fallen in grave error in holding  

that the suit was barred by time and had ignored to appreciate that  

the rights of the appellants to have the revenue record accrued first  

arose in 1990 when the appellants came to know about the wrong  

entry and the respondents failed to join the appellants in getting it  

corrected. In our view, the High Court was not justified in holding that  

mere existence of a wrong entry in the revenue records does not, in  

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law, give rise to a cause of action within the meaning of Article 58 of  

the Act. No other point was urged before us by the learned counsel  

for the parties.  

11. In view of our discussions made herein above, the impugned  

judgment of the High Court on the question that the suit was barred  

by limitation cannot be sustained. Therefore, the judgment of the High  

Court is set aside and the matter may be remitted back to the High  

Court for decision on merits.  The High Court is requested to dispose  

of the second appeal at an early date preferably within six months  

from the date of supply of a copy of this order to it.  

12. Accordingly, the impugned order of the High Court is set aside.  

The appeal is allowed to the extent indicated above. There will be no  

order as to costs.

…………………….J. [Tarun Chatterjee]

New Delhi;        ……………………..J. January 07, 2010.          [Aftab Alam]

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