- (1.) THIS is a defendants' appeal and he only question involved is whether the suit was barred by limitation.
(2.) THE plaintiff's filed the suit out of which this appeal has arisen for a declaration that a mutation entry of 1892 and the Collector's order dated the 25th of March, 1944,are ineffective. It was alleged that the property given in the plaint had formerly belonged to the ancestors of the defendant but as they were heavily indebted they applied to the civil courts to transfer the property to the ancestors of the plaintiffs for the discharge of their debts. THE order of the civil court clearly meant that the property be transferred absolutely to the plaintiffs ancestors but by some mistake in the revenue papers an entry had been made showing that the plaintiffs ancestors were mortgagees. It was alleged that the plaintiffs did not know till the year 1944 that the entry showing them as mortgagees has been made in revenue papers and they came to know about it only in the said year when the defendants filed an application under the provisions of the Alwar State Redemption of Mortgages Act of 1936 (hereinafter to be referred to as the Act) and it was ordered by the Collector, Alwar, on the 25th of March, 1944, that the defendants were entitled to redeem the property. THE plaintiffs alleged that the cause of action arose to them on the 25th of March, 1944, when the order of the Collector by which they were aggrieved was made. The defendants pleaded inter alia that the cause of action for the suit did not arise to the plaintiffs on the 25th of March, 1944, but on the 18th ofdecember, 1892 when the impugned entry was made. The learned Munsif of Behror who tried the case held that the suit was time barred but on appeal, the learned District Judge has held that it was within time as cause of action to the plaintiffs arose on the 25th March, 1944,when the adverse order was made against the plaintiffs under the provisions of the Act and the suit having been filed within one year from the said date, it could not be held to be time barred. Against this judgment and decree of the learned District Judge, Alwar, the defendants have come in appeal. I have heard Mr. J. P. Jain on behalf of the appellants and Mr. B. K. Bhargava or. behalf of the respondents. The point for determination in this appeal is whether the cause of action for the suit is to be taken to have arisen in the year 1892 when the alleged wrong entry was made or on the 25th of March, 1944, when the order of the Collector, Alwar, was made under the Act. If it is found that the cause of action for this suit arose in the year 1892 and not thereafter, the suit will certainly be time barred. If, however it is held that the cause of action arose on the 25th of March, 1944, it would be within time because the suit was filed |without one year from the aid order and Art. 14 applies to the case which provides one year's limitation from the date of the order complained against. If Art. 14 did not apply then Art, 120 of the Limitation Act wo)uld apply which provides a limitation of six years from the date the cause of action arose and the cause of action arose to the plaintiffs on the date of the Collector's order. The plaintiffs had nothing to complain so long as there was no threat to their possession even though the entry in the revenue papers was wrong and they had necessity to complain only when the right of possession was threatened by the Collectors order. Mr. J. P. Jain on behalf of the appellants argued that the plaintiffs could be entitled to the limitation of one year from the date of the Collector's order only if their objections before the Collector hat! been with respect to the right of the defendants as mortgagors to redeem the (property or with respect to the amount for which redemption could be ordered and the Collector had given his decision against the objections of the plaintiffs under sec 10 read with sec 9 (b) of the Act. It was argued that in this case the abjection of the plaintiffs was not that the defendants had no right to redeem the property because they were not the legal representatives of the original mortgagors or the mortgagee rights had been extinguished by lapse of time. The plaintiffs did not admit the mortgage at all and said that they were the absolute owners of the property and therefore, it cannot be said that by his order the Collector had decided the question of the defendant's rights to redeem the property or about the amount on which redemption could be ordered. It was, therefore, argued that the order was altogether irrelevant for the purposes of limitation and the plaintiffs could not take any advantage of the said order. They impugned the entry of 1892 and for that cause of action had arisen in, the year 1892 and more than six years having been lapsed since that entry the suit was barred under Art. 120 of the Limitation Act. ' Reliance was placed upon a ruling of Lahore High Court in the case of Rahmat vs. Mohammed Ali (i) in which it was held that: - "under Sec. 12 of Punjab Redemption of Mortgages Act the suit must relate to rights arising out of or based on the mortgage. " I have not got a copy of the Punjab Redemption of Mortgages Act before me and in the ruling which has been produced by the learned counsel for the appellants even the provisions of sec. 12 of the Punjab Act have not been given. All that appears from the report is that sec. 12 of the Punjab Act related to rights arising out of or based on the mortgage, In that case the suit concerned rights created about a year before the mortgage and it was held that they created quite a different relationship between the parties. In the present case no rights are said to have been created before the alleged mortgage. The ruling of Lahore High Courts therefore, does not apply to the facts of the present case. Sec. 12 of the Act says that any party aggrieved by any order of the Collector under sec. 6, 7, 8, 9, 10 or 12 would be entitled to bring a civil suit. Sec. 9 says that if the mortgagee objects to the application for redemption on any ground other than relating to the amount deposited the Collector will make a summary inquiry in the light of the mortgagee's objection. Sec. 9 is in general terms and allows the alleged mortgagee to make any objection to the application for redemption. This entitles the alleged mortgagee to raise an objection that the alleged mortgage is not a mortgage at all. This was in fact an object on raised by the plaintiffs before the Collector and it was disallowed after summary inquiry. 'the plaintiffs therefore, were entitled to bring the suit-by virtue of sec. 19 of the Act and limitation for that is one year from the date of the order. The date of the order as has been said above was 25th of March, 1944 and, suit was brought on the 28th April, 1944, i. e. , within less than a month. The suit was, therefore within time. The appellants' another objection is that the plaintiffs want that a declaration be given that the mutation of 1892 is ineffective. It was argued that this is the man relief prayed for by the plaintiffs and the entry having been made on ! 892 the suit was beyond six years and was consequently, barred under Art. 120 of the Limitation Act Reliance was placed upon the decision of a Division Bench of Calcutta High Court in the case of Abdul Gafur Chaudhury vs. Abdul Jabbar Mia (2) and that of Division Bench of Allahabad High Court in the case of Raghunath Prasad vs. Kaniz Rasul (3 ). In the case of Calcutta High Court referred to above, the only cause of action to the plaintiff was a wrong entry in the settlement Khatian It was made more than six years before the suit but no other subsequent Act which gave as to a cause of action to the plaintiff was mentioned. It was argued on behalf of the defendant that there being no allegation in the plaint that the plaintiffs' possession had in any way been disturbed by the defendant, the only cause of action was the incorrect entry in the record of rights. The learned Judge held that under the circumstances of the case, the cause of action arose from the date of the wrong entry, but as the allegation of the plaintiff was that he was kept out of the knowledge of the said entry till within six years before the suit an inquiry should be made as to whether the plaintiff was kept out of knowledge of the entry in the record of right by the fraud of the defendants and if so when he had knowledge of that fraud. In the Allahabad case referred to above, in execution of a decree which had been transferred to the Collector for execution under the provisions of sec. 320 of the Civil Procedure Code. certain immovable property was sold by auction on the 22nd of September, 1891. But the judgment-debtors applied to the Collector to have the sale set aside, and on the 30th October, 1891, the Collector set aside the sale and ordered a fresh proclamation of sale to be issued. The order of the Collector setting aside the sale was on appeal confirmed by the Commissioner on the 4th of May, 1892. After the setting aside of the sale of the judgment-debtors, on the 14th of December, 1891, with the permission of the Collector mortgaged the bulk of property. The mortgage money was paid into Court in discharge of the decree, and satisfaction of the decree was entered up. and on the 21st of December, 1891, the execution case was struck off On the 12th of September, 1894,the auction purchaser, who after the sale had been set aside had withdrawn the purchase money paid in by her, brought a suit to have the sale in her favour confirmed. It was held that inasmuch as the plaintiff's claim involved the setting aside of the Collector's order of the 30th October. 1891, by which the sale to the plaintiff had been set aside, the suit was barred by limitation having regard to Art. 14 of the second schedule to Act No. XV of 1877. In that case the Collector's order having been made against the auction purchaser, it was necessary for the auction purchaser to have brought a suit to set aside the order of the Collector and the Commissioner within one year from the date of the order, under Art. 18 of the Limitation Act of 3 877 which was the same as Art. 14 of the present Limitation Act. This ruling would have applied if the plaintiffs had allowed one year to pass after the date of the Collector's order of the 25th of March, 1944, and then have filed a suit for a declaration that they were not the mortgagee or the entry in the order of rights was wrong. In the present case, however, the suit has been brought within one year of the Collector's order and the ruling of Allahabad High Court quoted above does not apply. To my mind a mere wrong entry in the record of rights does not compel a person against whom it goes to file a suit within six years of the said entry if he is in possession of the property. He would be perfectly entitled to base his cause of action on every threat to his possession which is advanced after the wrong entry has been made. I am supported in this view by a ruling of a Division Bench of Madras High Court in the case of Pothukutchi Appa Rao vs. Secretary of State (9 ). It was held in that case - "there is nothing in law which says that the moment a person's right is denied. he is bound at his peril to bring a suit for declaration, It would be most unreasonable to hold that a bare repudiation of a person's title, without even an overt act, would make it incumbent on him to bring a declaratory suit. A party surely has a right to elect as to when he may bring a suit for vindicating his right, when there are several or successive denials. True, a mere combination of a prior cause of action does not give right to fresh right, for instance, where property is attached, the procuring of the attachment is the wrongful denial and the cause of action arises when the attachment is effected; in such a case is wrong to hold that there has been a 'continuing wrong' so as to give a fresh starting point during the whole period the attachment subsists. But from this it does not follow that an owner can never ignore an attack against his title, however casual or trivial, without his right to sue being imperilled in respect of a subsequent invasion. It is for the plaintiff to decide at his option, on which act he chooses to found his cause of action and when he does so, it is with reference to the particular infringement he alleges that the limitation should be reckoned. " In that case the Collector had made an order dated the 2nd August, 1908, which amounted to a denial of plaintiff's title but the Government beyond passing the order did nothing to disturb the plaintiffs' possession. The plaintiff however, filed a suit sometime in the year 1929 within six months from the 27th of March, 1929, on which penal assessment was levied against the plaintiff under the Land Encroachment Act, It was held that the suit for declaration was within limitation and could not be barred on account of the denial by the Government of the plaintiff's right by the Collector's order dated the 2nd August, In the case of Ram Samujh vs. Kirpadutt (5), it was held that - "it is always open to a person in respect of whom a wrong entry in revenue papers is made or upon whose title some cloud is cast to ignore that entry or that cloud if he does not consider it worthwhile to get the entry corrected or to remove the cloud. If, however, he bases his cause of action upon that wrong entry or upon the casting of that cloud then he must bring the suit within six years of his knowledge of the wrong entry or of the cloud that has been cast upon his title since Art. 120 would apply. " In the present case, there is no allegation that any overt act was done for the dispossession of the plaintiffs after the impugned entry. According to the plaintiffs the first time when a cloud was cast upon their right was when the Collector made his order on the 25th of March, 1944. The plaintiffs had been in possession of the property all along after the impugned entry and they could ignore that entry so long as no attempt was made to interfere with their possession on the basis of that wrong entry. If, of course, they had allowed the present order of the Collector to become final after the lapse of one year their suit for declaration would have been barred by virtue of the said order. They, however did not allow the grass to grow under their feet and immediately rushed to the civil court for obtaining a declaration within a month of the said order. The plaintiffs' suit could not therefore, be held to be time barred and the learned District Judge was perfectly justified in holding it to be within time. The appeal is dismissed with costs to the contesting respondents. . ;