2026:HHC:18430

IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA

RSA No. 31 of 2012

Reserved on: 01.04.2026

Date of Decision: 20.05.2026

State of H.P. & Ors ...Appellants

Versus

Jai Dev (deceased) through LRs ...Respondents

Coram

Hon’ble Mr Justice Rakesh Kainthla, Judge.

Whether approved for reporting?

1

Yes

For the Appellants No.1 &

2

:Mr Ashok Sood, Senior

Advocate, with Mr Khem Raj,

Advocate.

For the Appellant No.3 :M/s Akhil Mittal and Abhinav

Purohit, Advocates.

For the Respondents No. 1

(a) to 1(c)

:Mr V.S. Chauhan, Senior

Advocate, with Mr Arsh

Chauhan, Advocate.

For the Respondents No.

1(d) to 1(f)

:None

Name of respondents No.1(g) deleted vide order dated

29.09.2023.

1 Whether reporters of Local Papers may be allowed to see the judgment? Yes.

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Rakesh Kainthla, Judge

The present appeal is directed against the judgment

and decree dated 30.09.2011 passed by the learned District Judge,

Mandi (learned Appellate Court) vide which the judgment and

decree dated 19.11.2008 passed by the learned Civil Judge (Junior

Division) Court No.2, Mandi, District Mandi, H.P. (learned Trial

Court) were set aside. (The parties shall hereinafter be referred to

in the same manner as they were arrayed before the learned trial

Court for convenience).

2. Briefly stated, the facts giving rise to the present

appeal are that the plaintiff filed a civil suit seeking a declaration

that he has become the owner of the suit land described in para-

1 of the plaint by way of the adverse possession and the revenue

entries to the contrary are null and void. A decree of permanent

prohibitory injunction for restraining the defendants from

interfering with the suit land was also prayed. It was asserted

that some portion of the suit land was in exclusive ownership

and possession, and some portion was in exclusive possession of

the plaintiff’s grandfather in the year 1955-56. The defendant

No.1 acquired about one thousand bighas of land, including the

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suit land. However, no compensation was paid to the plaintiff or

his grandfather. The defendants did not take possession of the

acquired land, and the suit land remained in the exclusive

possession of the plaintiff's grandfather, the plaintiff's father

and the plaintiff. Defendant No.3 tried to take forcible

possession of the suit land and dispossess the plaintiff on

15.12.1969, but they were not allowed to do so. The plaintiff’s

possession over the suit land is continuous, hostile, notorious,

uninterrupted, and to the knowledge of the defendants, and the

plaintiff has become the owner by way of adverse possession.

The plaintiff filed an application for restoration of the land

under the standing order No. 28, para No. 87 A of the Land

Acquisition Act. The proceedings remained pending before the

learned Deputy Commissioner, and no order was passed. The

defendants started interfering with the plaintiff's possession.

Hence, the suit was filed to seek the relief mentioned above.

3. The suit was opposed by the defendants by filing a

written statement taking preliminary objections regarding lack

of maintainability, cause of action, locus-standi and the suit

being barred by limitation. The contents of the plaint were

denied on the merits. It was asserted that the defendants have

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been in possession of the suit land since the year 1955-1956,

after its acquisition by the State. The defendants had taken

possession of the suit land from the plaintiff’s predecessor, and

they used the suit land for producing fodder and grazing

animals. Year-wise record of green fodder produced from the

farm area was entered in the Crop Register maintained in the

Government Livestock, Farm Kamand, District Mandi, H.P. The

defendants also raised buildings and improved the suit land. The

suit was filed without any basis. Hence, it was prayed that the

suit be dismissed.

4. A replication denying the contents of the written

statement and affirming those of the plaint was filed.

5. The following issues were framed by the learned

Trial Court on 21.07.2007:

1.Whether the plaintiff has become the owner of the suit

land by way of adverse possession, as alleged? OPP.

2. Whether the plaintiff is entitled for the relief of

permanent prohibitory injunction, as prayed? OPP.

3. Whether the suit is not maintainable, as alleged? OPD

4.Whether the plaintiff has no locus standi to sue as

alleged? OPD

5. Whether the suit is barred by limitation, as alleged? OPD

6.Whether the plaintiff is having no cause of action to file

the present suit, as alleged? OPD

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7.Relief.

6. The parties were called upon to produce the evidence,

and the plaintiff examined himself (PW1), Tula Ram (PW2) and

Shiv Kumar (PW3). The defendants examined Yograj (DW1).

7. Learned Trial Court held that the plaintiff failed to

prove the adverse possession. The plaintiff had not challenged

the correctness of the acquisition . The evidence of the

defendants showed that the land was being used for grazing

cattle and growing fodder. Hence, the learned Trial Court

answered issues 1 to 5 in negative, issue No.6 in the affirmative

and dismissed the plaintiff’s suit.

8. Being aggrieved by the judgment and decree passed

by the learned Trial Court, the plaintiff filed an appeal, which

was decided by the learned District Judge, Mandi, District

Mandi, H.P. (learned Appellate Court). Learned Appellate Court

held that it was not disputed that some portion of the suit land

was in exclusive ownership, and some portion was in possession

of the plaintiff’s grandfather. The defendants claimed that the

suit land was acquired along with the other land, but they did

not produce any evidence of acquisition. The defendants failed

to prove that they had taken possession of the suit land after its

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acquisition. The revenue entries and the mutation were

insufficient to prove the defendants’ possession. Learned Trial

Court erred in holding that the suit land was validly acquired by

the State of H.P. Hence, the learned Appellate Court allowed the

appeal and set aside the judgment and decree passed by the

learned Trial Court.

9. Being aggrieved by the judgment and decree passed

by the learned Appellate Court, the defendants have filed the

present appeal, which was admitted on the following substantial

questions of law vide order dated 24.12.2012: -

1.Whether First Appellate Court committed error of law in

ignoring 56 years long standing entries of ownership and

possession of the defendants over the suit land for the

last 56 years simply on the ground that the defendants

have not produced the supporting documents of

acquisition proceedings and Award of suit land on the

basis of which revenue entries were made in favour of the

defendants in the year 1955-56, particularly when fact of

acquisition of suit land admitted by the plaintiff?

2.Whether the First Appellate Court had committed

illegality in granting relief of declaration of ownership

and possession to the plaintiff when only the claim of title

on the basis of adverse possession as pleaded by the

plaintiff was rejected, not upheld by both the Courts

below?

3. Whether under law, a strong presumption of truth is

attached to constant, long-standing revenue entries of

ownership and possession of the defendants, which have

not been rebutted by any oral or documentary evidence by

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the plaintiff, the onus of rebutting the same heavily lies

on the plaintiff?

4.Whether, once the acquired land and property vests in the

defendants free from all encumbrances under Section 16

of the Land Acquisition Act, whether its original owner or

their successors (in the present case, the plaintiff) has

any right to claim adverse possession on such acquired

land?

5.Whether the courts below erred in not deciding the issue

of limitation when apparently the suit is time-barred on

the face of it as land was acquired and mutation was

attested 56 years ago in favour of the defendants?

6.Whether the First Appellate Court misconstrued and

misread the case law referred to in the impugned

judgment, which is neither applicable nor attracted to the

facts and circumstances of the present case by any stretch

of imagination?

10. I have heard Mr Ashok Sood, learned Senior Counsel,

assisted by Mr Khem Raj, learned counsel for appellants No.1

and 2, M/s Akhil Mittal and Abhinav Purohit, learned counsel for

appellant No.3, and Mr V.S. Chauhan, learned Senior Counsel,

assisted by Mr Arsh Chauhan, learned counsel for respondents

No.1 (a) to 1(c).

11. Mr Ashok Sood, learned Senior Counsel for

appellants No.1 and 2, submitted that the learned Appellate

Court erred in reversing the well-reasoned judgment passed by

the learned Trial Court. The plaintiff had not obtained any

demarcation to identify the land in his possession. The plaintiff

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had admitted in the plaint that the land was acquired by the

State of H.P., and this fact was not in dispute. The ingredients of

adverse possession were not satisfied, and the learned Appellate

Court erred in decreeing the suit. Hence, he prayed that the

present appeal be allowed and the judgment and decree passed

by the learned Appellate Court be set aside. He relied upon the

judgments in Himat Rai vs. Kehar Singh 2008(4) CCC 778, H.N.

Jagannath and others vs. State of Karnataka and others (2018) 11

SCC 104, Indira Nehru Gandhi vs. Raj Narain AIR 1975 SC 2299,

Mandal Revenue Officer vs. Goundla Venkaiah and another (2010)

2 SCC 461, R. Hanumaiah and another vs. Secretary to Govt of

Karnatka, Revenue Department and others (2010) 5 SCC 203,

Charan Dass vs. State of H.P. 2024 (3) Shim. LC 1382, Jeet Singh

(since deceased) through LRs vs. Molu Ram (since deceased)

through L.Rs 2010(4) CCC 417, Karnatka Board of Wakf vs

Government of India & Ors. 2004(3) CCC 326, Gajinder Singh & Ors.

vs. Narotam Singh & Ors. 1996(1) CCC 384 (2) and Komiah vs.

Subbulakshmiamal and Soundaraja decided on 01.03.2002 in

support of his submission. He has also filed written arguments,

which have been perused by me.

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12. Mr Akhil Mittal, learned counsel for appellant No.3,

submitted that the ingredients of adverse possession were not

satisfied. It is not possible for the State and its instrumentalities

to keep vigilance over a vast track of the open land owned by it.

Therefore, a plea of adverse possession against the State should

be viewed differently from the plea against a private person. The

learned Appellate Court held that the defendants had failed to

prove the taking of possession. An official act is presumed to be

validly done. The revenue entries are recorded in the

defendants’ favour, which proves their possession. There was no

necessity to prove the delivery of possession. Learned Appellate

Court erred in allowing the appeal. Hence, he prayed that the

present appeal be allowed and the judgment and decree passed

by the learned Appellate Court be set aside. He relied upon the

judgments in Bangalore Development Authority vs. N. Jayamma

(2017) 13 SCC 159, State of Kerala vs. Bhaskaran Pillai (1197) 5 SCC

432 and Smt. Mitra vs. State of Karnataka 2024 Supreme (Online)

(KAR) 8868 in support of his submission.

13. Mr V.S. Chauhan, learned Senior Counsel for the

respondents No.1 (a) to 1(c), submitted that the defendants had

failed to produce any evidence to prove the delivery of

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possession to them. The learned Trial Court had not adverted to

this aspect, and the learned Appellate Court had rightly set aside

the judgment passed by the learned Trial Court. Hence, he

prayed that the present appeal be dismissed.

14. I have given a considerable thought to the

submissions made at the bar and have gone through the records

carefully.

CMP No. 9616 of 2025

Application for Additional Evidence

15. Before adverting to the merits of the case, it is

necessary to dispose of an application for leading the additional

evidence. It has been asserted that the learned Appellate Court

had reversed the well-reasoned judgment passed by the learned

Trial Court on the ground that the defendants had not produced

the record of the acquisition of the suit land. The defendant

remained under the impression that the acquisition of the suit

land was not in dispute. Mutation No. 41 was attested in the

defendants’ favour on 24.03.1958 based on the acquisition,

notification and the award. The record of acquisition could not

be traced earlier, despite the best efforts. The copies of two

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notifications published in H.P. Rajpatra on 21.06.1955 and

06.07.1956, and a letter written by the Land Acquisition

Collector to Assistant Animal Husbandry Officer, Mandi,

regarding taking possession of the suit land and disbursement

of compensation to interested persons were traced. The

applicants/defendants want to produce the letters to establish

their defence. The documents are copies of public record and

are, per se, admissible. Hence, it was prayed that the present

application be allowed and the documents be taken on record.

16. The application is opposed by filing a reply, making a

preliminary submission regarding the lack of maintainability.

The contents of the application were denied on the merits. It was

asserted that the applicants had failed to establish what

prevented them from producing the record at the time of leading

the evidence before the learned Trial Court. The record was in

the applicants’ possession at the time of filing the main suit and

leading the evidence. No explanation has been provided for not

producing the documents earlier. The ingredients of Order 41

Rule 27 of CPC have not been satisfied. The application has been

filed to fill the lacuna left by the applicants/defendants in their

evidence. The additional evidence would cause a serious

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prejudice to the other side. Therefore, it was prayed that the

application be dismissed.

17. A rejoinder denying the contents of the reply and

affirming those of the application was filed.

18. It was laid down by the Hon’ble Supreme Court in

Sanjay Kumar Singh v. State of Jharkhand, (2022) 7 SCC 247:

(2022) 3 SCC (Civ) 699: 2022 SCC OnLine SC 292 that the Appellate

Court should not generally travel beyond the record of the Trial

Court, but an exception has been created under Order 41 Rule 27

of CPC. It was observed at page 249: -

“7. It is true that the general principle is that the

appellate court should not travel outside the record of the

lower court and cannot take any evidence in appeal.

However, as an exception, Order 41 Rule 27 CPC enables

the appellate court to take additional evidence in

exceptional circumstances. It may also be true that the

appellate court may permit additional evidence if the

conditions laid down in this Rule are found to exist and

the parties are not entitled, as of right, to the admission

of such evidence. However, at the same time, where the

additional evidence sought to be adduced removes the

cloud of doubt over the case, and the evidence has a direct

and important bearing on the main issue in the suit, and

the interest of justice clearly renders it imperative that it

may be allowed to be permitted on record, such

application may be allowed. Even one of the

circumstances in which the production of additional

evidence under Order 41 Rule 27 CPC by the appellate

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court is to be considered is whether or not the appellate

court requires the additional evidence so as to enable it to

pronounce judgment, or for any other substantial cause

of like nature.

8. As observed and held by this Court in A. Andisamy

Chettiar v. A. Subburaj Chettiar [A. Andisamy Chettiar v. A.

Subburaj Chettiar, (2015) 17 SCC 713 : (2017) 5 SCC (Civ)

514], the admissibility of additional evidence does not

depend upon the relevancy to the issue on hand, or the

fact, whether the applicant had an opportunity for

adducing such evidence at an earlier stage or not, but it

depends upon whether or not the appellate court requires

the evidence sought to be adduced to enable it to

pronounce judgment or for any other substantial cause. It

is further observed that the true test, therefore, is

whether the appellate court is able to pronounce

judgment on the materials before it without taking into

consideration the additional evidence sought to be

adduced.”

19. It was held in Sopanrao v. Syed Mehmood, (2019) 7

SCC 76: (2019) 3 SCC (Civ) 467: 2019 SCC OnLine SC 821 that where

the documents were not filed before the learned Courts below,

and no application was filed for leading additional evidence, the

documents cannot be taken on record. It was observed at page

81:

“13. At this stage, it would be pertinent to point out that

the appellant-defendants, during the course of this

appeal, have filed a number of applications to place on

record certain documents which were not on the record of

the trial court. No explanation has been given in any of

these applications as to why these documents were not

filed in the trial court. These documents cannot be looked

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into and entertained at this stage. The defendants did not

file these documents before the trial court. No application

was filed under Order 41 Rule 27 of the Code of Civil

Procedure, 1908, for leading additional evidence before

the first appellate court or even before the High Court.

Even the applications filed before us do not set out any

reasons for not filing these documents earlier, and do not

meet the requirements of Order 41 Rule 27 of the Code of

Civil Procedure. Hence, the applications are rejected, and

the documents cannot be taken into consideration.”

20. It was held in Jagdish Prasad Patel v. Shivnath, (2019)

6 SCC 82: (2019) 3 SCC (Civ) 112: 2019 SCC OnLine SC 492 that the

additional evidence can be led when the Trial Court had refused

to admit the evidence, the evidence was not available despite the

exercise of due diligence and the evidence is required by the

Court to effectively adjudicate the dispute pending before it. It

was observed at page 96: -

“29. Under Order 41 Rule 27 CPC, the production of

additional evidence, whether oral or documentary, is

permitted only under three circumstances, which are:

(I) where the trial court had refused to admit the

evidence, though it ought to have been admitted;

(II) the evidence was not available to the party despite

the exercise of due diligence; and

(III) the appellate court required the additional

evidence so as to enable it to pronounce judgment or

for any other substantial cause of like nature.

An application for the production of additional evidence

cannot be allowed if the appellant was not diligent in

producing the relevant documents in the lower court.

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However, in the interest of justice and when satisfactory

reasons are given, the court can receive additional

documents.”

21. It was laid down by the Hon’ble Supreme Court in

Sanjay Kumar Singh v. State of Jharkhand, (2022) 7 SCC 247, that

additional evidence can be taken if the conditions laid down

under Order 41 Rule 27 are satisfied. It was observed: -

7. It is true that the general principle is that the appellate

court should not travel outside the record of the lower

court and cannot take any evidence in appeal. However, as

an exception, Order 41 Rule 27CPC enables the appellate

court to take additional evidence in exceptional

circumstances. It may also be true that the appellate court

may permit additional evidence if the conditions laid

down in this Rule are found to exist and the parties are

not entitled, as of right, to the admission of such

evidence. However, at the same time, where the

additional evidence sought to be adduced removes the

cloud of doubt over the case, and the evidence has a direct

and important bearing on the main issue in the suit, and

the interest of justice clearly renders it imperative that it

may be allowed to be permitted on record, such

application may be allowed. Even one of the

circumstances in which the production of additional

evidence under Order 41 Rule 27CPC by the appellate court

is to be considered is whether or not the appellate court

requires the additional evidence so as to enable it to

pronounce judgment or for any other substantial cause of

like nature.

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22. A similar view was taken in the North Eastern Railway

Administration. vs. Bhagwan Das, (2008) 8 SCC 511, wherein it was

observed: -

“13. Though the general rule is that ordinarily the

appellate court should not travel outside the record of the

lower court and additional evidence, whether oral or

documentary, is not admitted, but Section 107 CPC, which

carves out an exception to the general rule, enables an

appellate court to take additional evidence or to require

such evidence to be taken subject to such conditions and

limitations as may be prescribed. These conditions are

prescribed under Order 41 Rule 27 CPC. Nevertheless, the

additional evidence can be admitted only when the

circumstances as stipulated in the said Rule are found to

exist. The circumstances under which additional evidence

can be adduced are:

(i) the court from whose decree the appeal is preferred

has refused to admit evidence which ought to have

been admitted [clause (a) of sub-rule (1)], or

(ii) the party seeking to produce additional evidence

establishes that, notwithstanding the exercise of due

diligence, such evidence was not within the knowledge

or could not, after the exercise of due diligence, be

produced by him at the time when the decree appealed

against was passed [clause (aa), inserted by Act 104 of

1976], or

(iii) the appellate court requires any document to be

produced or any witness to be examined to enable it to

pronounce judgment, or for any other substantial

cause [clause (b) of sub-rule (1)].

14. It is plain that under clause (b) of sub-rule (1) of Rule

27 Order 41 CPC, with which we are concerned in the

instant case, evidence may be admitted by an appellate

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authority if it “requires” to enable it to pronounce

judgment, or for any other substantial cause. The scope of

the Rule, in particular of clause (b), was examined way

back in 1931 by the Privy Council in Parsotim Thakur v. Lal

Mohar Thakur [AIR 1931 PC 143]. While observing that the

provisions of Section 107 as elucidated by Order 41 Rule 27

are clearly not intended to allow the litigant, who has

been unsuccessful in the lower court, to patch up the

weak parts of his case and fill up omissions in the court of

appeal, it was observed as follows : (AIR p. 148)

“… Under clause (1)(b), it is only where the

appellate court ‘requires’ it (i.e. finds it needful)

that additional evidence can be admitted. It may be

required to enable the court to pronounce

judgment, or for any other substantial cause, but in

either case, it must be the court that requires it.

This is the plain grammatical reading of the sub-

clause. The legitimate occasion for the exercise of

this discretion is not whenever before the appeal is

heard a party applies to adduce fresh evidence, but

‘when on examining the evidence as it stands some

inherent lacuna or defect becomes apparent’.”

15. Again in K. Venkataramiah v. A. Seetharama Reddy [AIR

1963 SC 1526 : (1964) 2 SCR 35] a Constitution Bench of this

Court while reiterating the aforenoted observations in

Parsotim case [AIR 1931 PC 143] pointed out that the

appellate court has the power to allow additional evidence

not only if it requires such evidence “to enable it to

pronounce judgment” but also for “any other substantial

cause”. There may well be cases where even though the

court finds that it is able to pronounce judgment on the

state of the record as it is, and so, it cannot strictly say

that it requires additional evidence “to enable it to

pronounce judgment”, it still considers that in the

interest of justice something which remains obscure

should be filled up so that it can pronounce its judgment

in a more satisfactory manner. Thus, the question

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whether looking into the documents, sought to be filed as

additional evidence, would be necessary to pronounce

judgment in a more satisfactory manner, has to be

considered by the Court at the time of hearing of the

appeal on merits.”

23. In the present case, the only reason assigned for

non-production of the evidence is that the learned Appellate

Court had reversed the judgment of the learned Trial Court on

the ground that the record of acquisition of the suit land was not

produced, and it has become necessary to produce the record,

which shows that the purpose of the application is to get rid of

the findings recorded by the learned Appellate Court. This is not

permissible, and the application is liable to be dismissed on this

short ground alone.

24. The documents sought to be produced on record are

not relevant to the adjudication of the dispute pending before

the Court. The applicant is relying upon the photocopy of

Rajpatra containing the notifications dated 21.06.1955 and

06.07.1956. The plaintiff has not disputed the fact that the suit

land was acquired by the State. The only dispute is whether the

possession was taken by the State as per the law or not. The

applicant is seeking to produce on record a letter dated

11.04.1957 in which a request was made to Tehsildar, Sadar,

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regarding the taking of possession. This document does not

show whether the possession was, in fact, taken pursuant to the

letter. The applicant also relied upon a letter dated 16.05.1957,

which mentions the disbursal of the compensation of

₹1,50,000/- for the cattle breeding farm Katola. This document

also does not show the delivery of the possession. Reliance is

also placed upon the letter dated 17.06.1957. However, this letter

mentions that all the houses and land had been vacated by the

inhabitants, but in some cases, the threshing floors were still

being occupied by ex-tenants due to the bad weather and foot

and mouth disease among the livestock. These persons could not

thrash their crop and were likely to finish it within a day or two,

after which they would vacate the thrashing floor as well. The

letter does not mention the suit land and will not assist the

Court in adjudicating the dispute pending before the Court.

25. The applicant is seeking to rely upon the copies of

Missal Haqiyat and jamabandies, which are not material in the

absence of evidence of taking possession.

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26. Therefore, the additional evidence cannot be taken

on record. Consequently, the present application fails, and it is

dismissed.

Substantial Question of Law Nos. 1, 3 and 4:

27. These substantial questions of law are

interconnected with each other and are being taken together for

consideration.

28. It is undisputed that the suit land was acquired by the

State. The plaintiff specifically asserted this fact in para 3 of the

plaint. He admitted, while appearing as PW1, that he had filed an

application (Ext.PW1/M). This application specifically mentions

that the suit land and other land were acquired by the State for

the Department of Animal Husbandry from the year 1955-56.

Therefore, the fact that the suit land was acquired by the State of

H.P. is undisputed.

29. Section 16 of the Land Acquisition Act provides that

when the Collector has made an award under Section 11, he may

take possession of the land, which shall thereupon vest

absolutely in the Government free from all encumbrances. It was

laid down by the Hon’ble Supreme Court in Prahlad Singh v.

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Union of India, (2011) 5 SCC 386, that the vesting of the acquired

land in the government takes place as soon as possession is

taken by the Collector after passing an award under Section 11. A

legal presumption of vesting cannot be raised in favour of the

acquiring authority without taking possession. It was observed:

“13. We have given our serious thought to the entire

matter and carefully examined the records. Section 16

lays down that once the Collector has made an award

under Section 11, he can take possession of the acquired

land. Simultaneously, the section declares that upon

taking possession by the Collector, the acquired land shall

vest absolutely in the Government free from all

encumbrances. In terms of the plain language of this

section, vesting of the acquired land in the Government

takes place as soon as possession is taken by the Collector

after passing an award under Section 11. To put it

differently, the vesting of land under Section 16 of the Act

presupposes actual taking of possession, and till that is

done, the legal presumption of vesting enshrined in

Section 16 cannot be raised in favour of the acquiring

authority. Since the Act does not prescribe the mode and

manner of taking possession of the acquired land by the

Collector, it will be useful to notice some of the judgments

in which this issue has been considered.

14. In Balwant Narayan Bhagde v. M.D. Bhagwat [(1976) 1

SCC 700] Bhagwati, J. (as he then was), speaking for

himself and Gupta, J., disagreed with Untwalia, J., who

delivered a separate judgment and observed: (SCC pp.

711-12, para 28)

“28. … We think it is enough to state that when the

Government proceeds to take possession of the

land acquired by it under the Land Acquisition Act,

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1894, it must take actual possession of the land,

since all interests in the land are sought to be

acquired by it. There can be no question of taking

‘symbolical’ possession in the sense understood by

judicial decisions under the Code of Civil Procedure.

Nor would possession merely on paper be enough.

What the Act contemplates as a necessary condition

of vesting of the land in the Government is the

taking of actual possession of the land. How such

possession may be taken would depend on the

nature of the land. Such possession would have to

be taken as the nature of the land admits of. There

can be no hard-and-fast rule laying down what act

would be sufficient to constitute the taking of

possession of land. We should not, therefore, be

taken as laying down an absolute and inviolable

rule that merely going on the spot and making a

declaration by beat of drum or otherwise would be

sufficient to constitute taking of possession of land

in every case. But here, in our opinion, since the land

was lying fallow and there was no crop on it at the

material time, the act of the Tahsildar in going on the

spot and inspecting the land for the purpose of

determining what part was waste and arable and

should, therefore, be taken possession of and

determining its extent, was sufficient to constitute

taking of possession. It appears that the appellant was

not present when this was done by the Tahsildar, but

the presence of the owner or the occupant of the land is

not necessary to effectuate the taking of possession. It

is also not strictly necessary as a matter of legal

requirement that notice should be given to the

owner or the occupant of the land that possession

would be taken at a particular time, though it may

be desirable where possible, to give such notice

before possession is taken by the authorities, as

that would eliminate the possibility of any

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fraudulent or collusive transaction of taking of

mere paper possession, without the occupant or the

owner ever coming to know of it.”

(emphasis supplied)

15. In Balmokand Khatri Educational and Industrial Trust v.

State of Punjab [(1996) 4 SCC 212] the Court negatived the

argument that even after finalisation of the acquisition

proceedings possession of the land continued with the

appellant and observed: (SCC p. 215, para 4)

“4. It is seen that the entire gamut of the

acquisition proceedings stood completed by 17-4-

1976, by which date possession of the land had been

taken. No doubt, Shri Parekh has contended that

the appellant still retained their possession. It is

now a well-settled legal position that it is difficult

to take physical possession of the land under

compulsory acquisition. The normal mode of taking

possession is drafting the panchnama in the

presence of panchas, and taking possession and

giving delivery to the beneficiaries is the accepted

mode of taking possession of the land. Subsequent

thereto, the retention of possession would

tantamount only to illegal or unlawful possession.”

16. In P.K. Kalburqi v. State of Karnataka [(2005) 12 SCC

489], the Court referred to the observations made by

Bhagwati, J., in Balwant Narayan Bhagde v. M.D. Bhagwat

[(1976) 1 SCC 700] that no hard-and-fast rule can be laid

down as to what act would be sufficient to constitute

taking of possession of the acquired land, and observed

that when there is no crop or structure on the land, only

symbolic possession could be taken.

****

18. In Sita Ram Bhandar Society v. Govt. of NCT of Delhi

[(2009) 10 SCC 501 : (2009) 4 SCC (Civ) 268] and

Omprakash Verma v. State of A.P. [(2010) 13 SCC 158 : (2010)

24

2026:HHC:18430

4 SCC (Civ) 823] it was held that when possession is to be

taken of a large tract of land then it is permissible to take

possession by a properly executed panchnama. A similar

view was expressed in the recent judgment in Brij Pal

Bhargava v. State of U.P. [(2011) 5 SCC 413 : (2011) 2 Scale

692]

19. The same issue was recently considered in Banda

Development Authority v. Moti Lal Agarwal [(2011) 5 SCC

394], decided on 26-4-2011. After referring to the

judgments in Balwant Narayan Bhagde v. M.D. Bhagwat

[(1976) 1 SCC 700], Balmokand Khatri Educational and

Industrial Trust v. State of Punjab [(1996) 4 SCC 212], P.K.

Kalburqi v. State of Karnataka [(2005) 12 SCC 489], NTPC

Ltd. v. Mahesh Dutta [(2009) 8 SCC 339 : (2009) 3 SCC (Civ)

375], Sita Ram Bhandar Society v. Govt. of NCT of Delhi

[(2009) 10 SCC 501 : (2009) 4 SCC (Civ) 268], Omprakash

Verma v. State of A.P. [(2010) 13 SCC 158 : (2010) 4 SCC (Civ)

823] and Nahar Singh v. State of U.P. [(1996) 1 SCC 434] this

Court laid down the following principles:( Banda

Development Authority case [(2011) 5 SCC 394], SCC p. 411,

para 37)

“(i) No hard-and-fast rule can be laid down as to

what act would constitute taking of possession of

the acquired land.

(ii) If the acquired land is vacant, the act of the

State authority concerned to go to the spot and

prepare a panchnama will ordinarily be treated as

sufficient to constitute taking of possession.

(iii) If a crop is standing on the acquired land or a

building/structure exists, mere going on the spot by

the authority concerned will, by itself, not be

sufficient for taking possession. Ordinarily, in such

cases, the authority concerned will have to give

notice to the occupier of the building/structure or

the person who has cultivated the land and take

possession in the presence of independent

25

2026:HHC:18430

witnesses and get their signatures on the

panchnama. Of course, the refusal of the owner of

the land or building/structure may not lead to an

inference that the possession of the acquired land

has not been taken.

(iv) If the acquisition is of a large tract of land, it

may not be possible for the acquiring/designated

authority to take physical possession of each and

every parcel of the land, and it will be sufficient that

symbolic possession is taken by preparing an

appropriate document in the presence of

independent witnesses and getting their signatures

on such a document.

(v) If the beneficiary of the acquisition is an

agency/instrumentality of the State and 80% of the

total compensation is deposited in terms of Section

17(3-A), and a substantial portion of the acquired

land has been utilised in furtherance of the

particular public purpose, then the court may

reasonably presume that possession of the acquired

land has been taken.”

20. If the present case is examined in the light of the facts

which have been brought on record and the principles laid

down in the judgment in Banda Development Authority

case [(2011) 5 SCC 394] it is not possible to sustain the

finding and conclusion recorded by the High Court that

the acquired land had vested in the State Government

because the actual and physical possession of the

acquired land always remained with the appellants and no

evidence has been produced by the respondents to show

that possession was taken by preparing a panchnama in

the presence of independent witnesses and their

signatures were obtained on the panchnama.

26

2026:HHC:18430

30. This Court also held in Jit Ram v. State of H.P., 2013

SCC OnLine HP 1376 that the delivery of symbolic possession or

the possession merely on paper is not enough. It is essential that

actual possession be taken. It was observed:

11. In Mrityunjoy Bose v. State of Bihar, AIR 1967 Patna 286,

the Division Bench has held that the taking of possession

referred to in Sections 16, 17(1), 34 and 48(1) of the Land

Acquisition Act is of the same nature. Their Lordships

have further held that unless the party to the suit can

show that possession over that portion of the disputed

land, which is notified as having been withdrawn from

acquisition, is of the nature required by either Section 16

or Section 17(1) of the Act, the legality of the order of

withdrawal cannot be successfully challenged. Their

Lordships have further held that the Government loses its

rights to withdraw from acquisition only from the date

when the Collector takes possession under Sections 16 or

17, so that title vests free from all encumbrances in the

Government. Their Lordships have held as under:

“44. So far as the application of S. 48(1) is

concerned, it seems clear that the Government

loses its right to withdraw from acquisition only

from the date when the Collector takes possession

under Section 16 or S. 17 of the Act, so that title

vests free from all encumbrances in the

Government. There seems to be no reason to

suppose that the word ‘possession’ in sub-section

(1) of Section 48 means possession of a kind

different from that taken over under Section 16 or

Section 17 of the Act. It is also from the date of

taking over such possession that interest becomes

payable under Section 34 of the Act.

27

2026:HHC:18430

45. As I have been unable to find that the

Government took possession of the lands in

question under any law, much less under Section 16

or Section 17 of the Act, I am unable to hold that

they acted illegally in withdrawing portions of the

lands from acquisition. For the same reason, I

cannot hold that the petitioners are entitled to

interest from any particular date.

53….Possession for the purpose of Ss. 17 and 17(1)

must be possession as a full owner, in consequence

of which lands vest absolutely in the Government

free from all encumbrances. It cannot be of the

same nature as any previous possession which the

Government might have taken either as a lessee, or

mortgagee, or licensee, or under some other colour

of title, or even as a trespasser. Though the Act is

silent as to the mode of taking possession either

under S 16 or S 17(1) of the Act, there seems to be no

doubt that either actual occupation by the Collector

or his agents, or taking symbolic possession (where

actual possession is already with the Collector), or

doing something equivalent to effective possession

is contemplated. Here, admittedly, no such formal

taking of possession either under S. 16 or under S.

17(1) has been alleged to have been done. The

petitioners' case all along has been that by virtue of

the appropriate notification, any resistance by the

petitioners, the Forest Department took over actual

possession from 1954. That possession cannot,

therefore, be held to be possession for the purpose

of S. 48(1) of the Land Acquisition Act. Hence, there

is no illegality in the withdrawal from acquisition in

respect of a portion of the disputed lands.”

*****

14. The Apex Court in Jethmull Bhoraj v. State of Bihar

(1972) 1 SCC 714 has held that the Government becomes

the owner of the lands notified for acquisition only when

28

2026:HHC:18430

the Collector takes possession of those lands either under

Section 16 or under Section 17(1). Their Lordships have

further held that the possession of any land notified for

acquisition is taken when the Collector has made an

award under Section 11 and not before it. But an exception

is provided under Section 17(1). In cases of urgency, if the

Government so directs, the Collector may, though no

award has been made under Section 11, on the expiration

of the 15 days from the publication of the notices

mentioned in Section 9(1), take possession of any waste

or arable land and the land shall thereupon vest

absolutely with the Government free from all

encumbrances. Their Lordships have further held that the

Collector cannot take possession of the land in question

unless the Government directs him to do so. Their

Lordships have held as under:

“10. The next point that arises for decision is

whether the delivery of the lands notified for

acquisition was taken under Section 17(1) as

contended by the appellant. The Government

becomes the owner of the lands notified for

acquisition only when the Collector takes

possession of those lands either under Section 16 or

under Sec. 17(1). Both those provisions provide that

when the Collector takes possession under those

provisions, the lands notified for acquisition shall

vest absolutely in the Government free from all

encumbrances. Until and unless possession is taken

under either of those provisions, the lands notified

for acquisition do not vest in the Government.

Section 48(1) of the Act provides:

“Except in the case provided for in Section

36, the Government shall be at liberty to

withdraw from the acquisition of any lands of

which possession has not been taken.”

11. Section 36 is not relevant for our present

purpose. Possession referred to in Section 48

29

2026:HHC:18430

necessarily is the possession taken either under

Section 16 or under Section 17(1). Section 17(1) says:

“In cases of urgency, whenever the

appropriate Government so directs, the

Collector, though no such award has been

made, may, on the expiration of fifteen days

from the publication of the notice mentioned

in Section 9 sub-section (1), take possession

of any waste or arable land needed for public

purposes or for a Company. Such land shall

thereupon vest absolutely in the Government

free from all encumbrances.”

Ordinarily, possession of any land notified for

acquisition is taken when the Collector has made an

award under Section 11 and not before it. But an

exception is provided under Section 17(1). In cases

of urgency, if the Government so directs, the

Collector may, though no award has been made

under Section 11, on the expiration of the 15 days

from the publication of the notice mentioned in S.

9(1), take possession of any waste or arable land

and the land shall thereupon vest absolutely with

the Government free from all encumbrances. From

this provision, it is plain that the Collector cannot

take possession of the land in question unless the

Government directs him to do so. The Government

directs him to do so only in cases of urgency. Even

when the Government directs the Collector to take

possession, he cannot do so until the expiration of

15 days from the publication of a notice under

Section 9(1). There is no material on record to show

that the Government had given to the Collector any

direction under Section 17(1); nor is there any

material to show that the lands in question had

been taken possession of by the Collector under

Section 17(1). It is true that in the order-sheet

30

2026:HHC:18430

maintained by the Land Acquisition Officer, a note

was made on October 17, 1959:”

“Shri B.P. Yadav Kgo, to deliver possession at

the spot to the representative of the R.O. on

16-11-59. Draft addressed to R.O. is signed.”

But there is nothing to show that this order was

implemented. According to the respondent, this

order was not implemented.”

In the instant case, no direction was ever issued by the

State Government to the Collector to take over the

possession.

15. In Balwant Narayan Bhagde v. M.D. Bhagwat (1976) 1

SCC 700, Hon'ble Justice Untwalia, J. has taken the view

that even the delivery of so-called “symbolical”

possession is delivery of “actual” possession of the right

title and interest of the judgment-debtor. However, the

majority view is contrary to the same. His Lordship

Bhagwati, J. (concurring) (for himself and Gupta, J.) has

held that there can be no question of taking ‘symbolical’

possession in the sense understood by judicial decisions

under the Code of Civil Procedure. Nor would possession

merely on paper be enough. What the Act contemplates as

a necessary condition of vesting of the land in the

Government is the taking of actual possession of the land.

The majority view reads as under:

“Bhagwati, J. (on behalf of himself and Gupta J.): -

We agree with the conclusion reached by our

brother Untwalia, J., as also with the reasoning on

which the conclusion is based. But we are writing a

separate judgment as we feel that the discussion in

the judgment of our learned brother Untwalia, J., in

regard to delivery of ‘symbolical’ and ‘actual’

possession under Rules 35, 36, 95 and 96 of Order

XXI of the Code of Civil Procedure, is not necessary

for the disposal of the present appeals and we do

not wish to subscribe to what has been said by our

31

2026:HHC:18430

learned brother Untwalia, J., in that connection, nor

do we wish to express our assent with the

discussion of the various authorities made by him

in his judgment. We think it is enough to state that

when the Government proceeds to take possession

of the land acquired by it under the Land

Acquisition Act, 1894, it must take actual

possession of the land since all interests in the land

are sought to be acquired by it. There can be no

question of taking ‘symbolical’ possession in the

sense understood by judicial decisions under the

Code of Civil Procedure. Nor would possession

merely on paper be enough. What the Act

contemplates as a necessary condition of vesting of

the land in the Government is the taking of actual

possession of the land. How such possession may

be taken would depend on the nature of the land.

Such possession would have to be taken as the

nature of the land admits of. There can be no hard

and fast rule laying down what act would be

sufficient to constitute the taking of possession of

land. We should not, therefore, be taken as laying

down an absolute and inviolable rule that merely

going on the spot and making a declaration by beat

of drum or otherwise would be sufficient to

constitute taking of possession of land in every

case. But here, in our opinion, since the land was

lying fallow and there was no crop on it at the

material time, the act of the Tehsildar in going on

the spot and inspecting the land for the purpose of

determining what part was waste and arable and

should, therefore, be taken possession of and

determining its extent, was sufficient to constitute

taking of possession. It appears that the appellant

was not present when this was done by the

Tehsildar, but the presence of the owner or the

occupant of the land is not necessary to effectuate

the taking of possession. It is also not strictly

32

2026:HHC:18430

necessary as a matter of legal requirement that

notice should be given to the owner or the occupant

of the land that possession would be taken at a

particular time, though it may be desirable where

possible, to give such notice before possession is

taken by the authorities, as that would eliminate

the possibility of any fraudulent or collusive

transaction of taking of mere paper possession,

without the occupant or the owner ever coming to

know of it.

We are of the view, on the facts and circumstances

of the present case, that the Tahsildar took actual

possession of that part of the land which was waste

or arable and handed it over to the Principal of the

Agricultural College. It is true that the Special Land

Acquisition Officer in his letter dated 13

th

December,

1961 to the Commissioner stated that possession of

the entire land was still with the appellant and it

was not actually taken possession of by the

Principal, Agricultural College, But it is obvious that

this statement was made by the Special Land

Acquisition Officer because he thought that actual

possession of the land could not be regarded as

having been taken, unless the appellant was

excluded from the land and since the appellant

immediately, without any obstruction, entered

upon the land and continued in possession, “the

land was not actually taken possession of by the

Principal, Agricultural College”. This was a plainly

erroneous view, for the legal position is clear that

even if the appellant entered upon the land and

resumed possession of it the very next moment

after the land was actually taken possession of and

became vested in the Government, such an act on

the part of the appellant did not have the effect of

obliterating the consequences of vesting. There

can, therefore, be no doubt that actual possession

of 19 acres 16 gunthas of waste and arable land was

33

2026:HHC:18430

taken by the Tahsildar on 3

rd

April, 1959, and it

became vested in the Government. (Neither the

Government nor the Commissioner could

thereafter withdraw from the acquisition of any

portion of this land under S. 48(1) of the Act.”

16. Their Lordships of the Hon'ble Supreme Court in

Balmokand Khatri Educational and Industrial Trust,

Amritsar v. State of Punjab, (1996) 4 SCC 212 have laid down

that the normal mode of taking possession is drafting the

panchnama in the presence of panchas and taking

possession and giving delivery to the beneficiaries is the

accepted mode of taking possession of the land. Their

Lordships have held as under:

“4. It is seen that the entire gamut of the

acquisition proceedings stood completed by April

17, 1976, by which date possession of the land had

been taken. No doubt, Shri Parekh has contended

that the appellant still retained their possession. It

is now a well-settled legal position that it is

difficult to take physical possession of the land

under compulsory acquisition. The normal mode of

taking possession is drafting the Panchanama in

the presence of Panchas, and taking possession and

giving delivery to the beneficiaries is the accepted

mode of taking possession of the land. Subsequent

thereto, the retention of possession would be

tantamount only to illegal or unlawful possession.

17. Their Lordships of the Hon'ble Supreme Court in

National Thermal Power Corporation Limited v. Mahesh

Dutta (2009) 8 SCC 339 have again discussed the

principles of taking of possession of acquired land in

cases of urgency. Their Lordships have held as under:

“16. It is a well-settled proposition of law that in

the event possession of the land, in respect whereof

a Notification had been issued, had been taken

over, the State would be denuded of its power to

withdraw from the acquisition in terms of Section

34

2026:HHC:18430

48 of the Act. Whether actual or symbolic

possession had been taken over from the land

owners is essentially a question of fact. Taking over

possession in terms of the provisions of the Act

would, however, mean actual possession and not

symbolic possession. The question, however, is as

to whether the finding of fact arrived at by the High

Court that physical possession, indeed, had been

taken over by the Collector is correct or not.

“26. These decisions, as noticed hereinbefore, do

not lay down an absolute rule. The question as to

whether actual physical possession had been taken

in compliance with the provisions of Section 17 of

the Act or not would depend upon the facts and

circumstances of each case.

27. When possession is to be taken over in respect

of the fallow or Patit land, a mere intention to do so

may not be enough. It is, however, the positive

stand by the appellant that the lands in question are

agricultural land and crops used to be grown

therein. If the lands in question are agricultural, not

only must actual physical possession be taken, but

also they were required to be properly demarcated.

If the land had standing crops, as has been

contended by Mr Raju Ramachandran, steps in

relation thereto were required to be taken by the

Collector. Even in the said certificate of possession,

it had not been stated that there were standing

crops on the land on the date on which possession

was taken. We may notice that delivery of

possession in respect of immovable property

should be taken in the manner laid down in Order

XXI Rule 35 of the Code of Civil Procedure.

28. It is beyond any comprehension that when

possession is purported to have been taken of the

entire acquired lands, actual possession would be

taken only of a portion thereof. The certificate of

35

2026:HHC:18430

possession was either correct or incorrect. It cannot

be partially correct or partially incorrect. Either the

possession had actually been delivered or had not

been delivered. It cannot be accepted that

possession had been delivered in respect of about 10

acres of land, and the possession could not be taken

in respect of the remaining 55 acres of land. When

the provisions of Section 17 are taken recourse to,

vesting of the land takes effect immediately.”

18. The Apex Court in Prahlad Singh v. Union of India

(2011) 5 SCC 386 has held that no hard-and-fast rule can

be laid down as to what act would be sufficient to

constitute taking of possession of the acquired land, and

when there is no crop or structure on the land, only

symbolic possession could be taken. Their Lordships have

held as under:

“16. In P.K. Kalburqi V. State of Karnataka, the

Court referred to the observations made by

Bhagwati, J., in Balwant Narayan Bhagde V. M.D.

Bhagwat that no hard-and-fast rule can be laid

down as to what act would be sufficient to

constitute taking of possession of the acquired

land, and observed that when there is no crop or

structure on the land, only symbolic possession

could be taken.

20. If the present case is examined in the light of

the facts which have been brought on record and

the principles laid down in the judgment in Banda

Development Authority case it is not possible to

sustain the finding and conclusion recorded by the

High Court that the acquired land had vested in the

State Government because the actual and physical

possession of the acquired land always remained

with the appellants and no evidence has been

produced by the respondents to show that

possession was taken by preparing a panchanama

36

2026:HHC:18430

in the presence of independent witnesses and their

signatures were obtained on the panchnama.

21. A reading of the Khasra girdawari and

jamabandis, copies of which have been placed on

record, shows that actual and physical possession

of the acquired land is still with the appellants.

Jamabandis relate to the year 2005-2006. Copies of

notice dated 10-2-2011/11-2-2011 issued by the

Uttar Haryana Bijli Vitran Nigam Ltd., relate to

Appellant 1, Prahlad Singh and this, prima facie,

supports the appellants' assertion that physical

possession of the land is still with them.

22. Respondents 3 to 6 have not placed any

document before this Court to show that actual

possession of the acquired land was taken on the

particular date. Therefore, the High Court was not

right in recording a finding that the acquired land

will be deemed to have vested in the State

Government.”

19. Their Lordships of the Hon'ble Supreme Court in

Banda Development Authority, Banda v. Moti Lal Agarwal

(2011) 5 SCC 394 have again discussed the rule of taking

possession. Their Lordships have held as under:

“37. The principles that can be culled out from the

above-noted judgments are:

(i) No hard and fast rule can be laid down as to what

act would constitute the taking of possession of the

acquired land.

(ii) If the acquired land is vacant, the act of the

concerned State authority to go to the spot and

prepare a panchnama will ordinarily be treated as

sufficient to constitute taking of possession.

(iii) If a crop is standing on the acquired land or a

building/structure exists, mere going on the spot by

the concerned authority will, by itself, not be

sufficient for taking possession. Ordinarily, in such

37

2026:HHC:18430

cases, the concerned authority will have to give

notice to the occupier of the building/structure or

the person who has cultivated the land and take

possession in the presence of independent

witnesses and get their signatures on the

panchnama. Of course, the refusal of the owner of

the land or building/structure may not lead to an

inference that the possession of the acquired land

has not been taken.

(iv) If the acquisition is of a large tract of land, it

may not be possible for the acquiring/designated

authority to take physical possession of each and

every parcel of the land, and it will be sufficient that

symbolic possession is taken by preparing an

appropriate document in the presence of

independent witnesses and getting their signatures

on such a document.

(v) If the beneficiary of the acquisition is an

agency/instrumentality of the State and 80% of the

total compensation is deposited in terms of Section

17(3A), and a substantial portion of the acquired

land has been utilised in furtherance of the

particular public purpose, then the Court may

reasonably presume that possession of the acquired

land has been taken.

38. In the light of the above discussion, we hold that

the action of the concerned State authorities to go

to the spot and prepare a panchnama showing

delivery of possession was sufficient for recording a

finding that actual possession of the entire acquired

land had been taken and handed over to the BDA.

The utilisation of the major portion of the acquired

land for the public purpose for which it was

acquired is clearly indicative of the fact that actual

possession of the acquired land had been taken by

the BDA. Once it is held that possession of the

acquired land was handed over to the BDA on

38

2026:HHC:18430

30.6.2001, the view taken by the High Court that the

acquisition proceedings had lapsed due to non-

compliance with Section 11A cannot be sustained.

20. In Brij Pal Bhargava v. State of Uttar Pradesh (2011) 5

SCC 413, their Lordships of the Hon'ble Supreme Court

have held that whether the possession was taken is a

question of fact, which is required to be taken into

consideration pragmatically. Their Lordships have held as

under:

“12. Shri Vikas Singh, learned senior counsel

appearing on behalf of Mathura Vrindavan

Development Authority (respondent No. 3), pointed

out that it would be impossible for the Collector or

Revenue officers to enter each bigha of land for

taking possession thereof and, therefore, the

pragmatic approach has to be adopted by the Court

while considering whether possession has been

taken or not. The learned senior counsel also

pointed out that the documents show that actual

possession was taken. He also tried to point out the

photograph, suggesting that not only the

possession has been taken, but a number of other

activities of construction were going on at the land,

including drawing the layout thereof and building

the roads therefor. The learned senior counsel

relied on the reported decision in Sita Ram Bhandar

Society, New Delhi v. Lieutenant Governor,

Government of NCT, Delhi [(2009) 10 SCC 501], as

also in Dahyabhai Ranchhoddas Dhobi v. State of

Gujarat [(2010) 7 SCC 705], where the view has been

taken about the pragmatic approach to be adopted

by the Courts in deciding as to whether the

possession was taken or not.

13. Seeing the report and the orders passed, we are

thoroughly convinced that not only the possession

was taken, but there are activities going on at the

behest of the Mathura Vrindavan Development

39

2026:HHC:18430

Authority. This is apart from the fact that this is a

pure question of fact, which has been answered by

the High Court in no uncertain terms. In this view

of the matter, we are of the clear opinion that even

on this count, the appellants must fail.

21. Their Lordships of the Hon'ble Supreme Court in

Raghbir Singh Sehrawat v. State of Haryana (2012) 1 SCC

792 have again discussed the mode of taking possession

as under:

“23. The respondents have not produced any other

evidence to show that actual possession of the land,

on which the crop was standing, had been taken

after giving notice to the appellant or that he was

present at the site when possession of the acquired

land was delivered to the Senior Manager of

HSIIDC. Indeed, it is not even the case of the

respondents that any independent witness was

present at the time of taking possession of the

acquired land.

29. In view of the above discussion, we hold that the

record prepared by the revenue authorities showing

delivery of possession of the acquired land to

HSIIDC has no legal sanctity, and the High Court

committed a serious error by dismissing the writ

petition on the specious ground that possession of

the acquired land had been taken and the same

vested in the State Government in terms of Section

16.

31. A similar view was expressed in C. Padma v.

Deputy Secretary to the Government of Tamil Nadu

(supra), Star Wire (India) Ltd. v. State of Haryana

(supra), Municipal Council, Ahmednagar v. Shah

Hyder Beig (supra) and Swaika Properties (P) Ltd. v.

State of Rajasthan (supra). In all the cases, the

challenge to the acquisition proceedings was

negatived primarily on the ground of delay. An

additional factor that influenced this Court was that

40

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physical possession of the acquired land had been

taken by the concerned authorities. In none of these

cases, the landowners appear to have questioned

the legality of the mode adopted by the concerned

authorities for taking possession of the acquired

land. Therefore, these judgments cannot be relied

upon for sustaining the High Court's negation of

the appellant's challenge to the acquisition of his

land.”

22. The possession of Khasra No. 161 has not been taken

over as per the modes prescribed by the Hon'ble Supreme

Court in the judgments cited hereinabove. It is settled law

by now that only when the possession is taken under

Section 17(1) of the Act, the Government cannot withdraw

from acquisition under Section 48 of the Act.

31. Therefore, the defendants were required to prove

that they had taken possession as per Section 16 of the Land

Acquisition Act to complete the acquisition proceedings.

32. Yog Raj Chauhan (DW1) stated that the suit land is in

possession of the department. The compensation for the suit

land was also paid. The fodder is grown on the acquired land.

The mutation (Ext.DW1/A1 to Ext.DW1/D21) of the acquisition

was made in the defendants’ favour.

33. The report of the Patwari on the mutation

(Ext.DW1/B1) reads that the State had acquired the land in

favour of the Animal Husbandry Department. Therefore, the

mutation was being prepared. The order dated 24.03.1958 reads

41

2026:HHC:18430

that as per the order of the Land Acquisition Collector, the land

was acquired, and the ownership and possession be transferred

in the name of the Animal Husbandry Department.

34. The mutation is silent regarding the delivery of the

possession by the land owners to the Collector. It merely relies

upon the letter written by the Collector regarding the

acquisition. Therefore, this mutation does not show the delivery

of the possession.

35. Yog Raj Chauhan (DW1) stated in his cross-

examination that he had joined the previous month. He could

not identify the suit land, but he had heard that the land

adjacent to the temple was the suit land. This statement shows

that this witness is not aware of the location of the suit land, and

his testimony that the suit land is in possession of the

defendants is not believable. Further, he had joined in the year

2008, as per his testimony, and he cannot be a witness to prove

the delivery of possession to the defendants.

36. Therefore, there is no infirmity in the findings

recorded by the learned Appellate Court that the suit land had

42

2026:HHC:18430

not vested in the State as per the provisions of the Land

Acquisition Act.

37. A heavy reliance was placed upon the revenue record

to submit that the defendants are in possession. However, it has

been found above that the entry in favour of the State was made

by way of the mutation recorded on the basis of a letter written

by the Land Acquisition Collector. The mere writing of the letter

is not sufficient unless evidence of delivery of possession is

brought on record, which is lacking in the present case.

Therefore, the revenue entries in favour of the defendants would

be of no benefit to them, and the learned Appellate Court had

rightly held that the revenue entries are not sufficient to

establish the defendants’ possession.

38. The judgments cited at the bar relate to the adverse

possession. Once it has been found out that the land had not

validly vested in favour of the State, these judgments would

become meaningless, and, no advantage can be derived from

Bangalore Development Authority (supra), Bhaskaran Pillai

(supra), Smt. Mitra (supra), Mandal Revenue Officer (supra),

43

2026:HHC:18430

Charan Dass (supra), Jeet Singh (since deceased) through LRs

(supra), and Himat Rai (supra).

39. The judgment in Indira Nehru Gandhi (supra) deals

with the election petition and is not relevant. Similarly, the

judgment in H.N. Jagannath (supra) deals with the challenge to

acquisition and is not relevant because no one has challenged

the acquisition in the present case. The judgment in Komiah

(supra) deals with a paper entry, but the same cannot be

followed in view of the binding precedents of the Hon’ble

Supreme Court and this Court, as noticed above. Therefore, no

advantage can be derived from the cited judgments by the

defendants.

40. The record of the delivery of possession was essential

to prove that the suit land was acquired as per the law, and mere

production of the revenue record was not sufficient in the

present case. The presumption of truth attached to the revenue

entries was rebutted by the fact that there was no proof of the

taking of possession, and revenue entries were based merely on

the letter written by the Land Acquisition Collector. The

acquisition was not complete unless there was proof of delivery

44

2026:HHC:18430

of possession, which is lacking in the present case. Therefore,

these substantial questions of law are answered accordingly.

Substantial Question of Law No.2:

41. The learned Trial Court had passed a decree of

declaration declaring the plaintiff as owner in possession of the

suit land and the revenue entries to be null and void. A

consequential relief of permanent prohibitory injunction was

granted to the plaintiff. Therefore, no decree for possession was

passed, as noticed in the substantial question of law, and this

substantial question of law does not arise.

Substantial Question of Law No.5:

42. It has been found above that the acquisition was not

complete in the absence of proof of taking over the possession.

Further, the right to sue would not accrue by the attestation of

the mutation. It was laid down by the Karnataka High Court in

State of Karnataka v. Mohammed Kunhi, 1990 SCC OnLine Kar 396:

ILR 1991 Kar 1500 that a mere adverse entry in the revenue

record will not have the effect of commencement of the period

of limitation. It was observed at page 1512:

45

2026:HHC:18430

18. Unlike the Limitation Act, 1908, the Limitation Act,

1963, contains only three Articles in respect of suits

relating to declarations, i.e., Articles 56, 57 and 58.

Undoubtedly, the relief of declaration sought in the suit

does not fall under Article 56 or under Article 57.

Therefore, it has to necessarily fall under Article 58,

which is a residuary article insofar as the suits relating to

declarations are concerned. Article 58 of the Limitation

Act, 1963, is equivalent to Article 120 of the Limitation

Act, 1908, with the difference that the limitation begins to

run in the case of Article 58 when the right to sue first

accrues, whereas in the case of Article 120 of the

Limitation Act, 1908, the limitation begins when the right

to sue accrued. Therefore, the word “first” contained in

Column No. 3 of Article 58 after the words ‘right to sue’ is

not found in Article 120 of the Limitation Act, 1908. The

contention of the learned Government Advocate is that

the right to sue first accrued to the plaintiffs when the

entries in the revenue records were changed from

redeemed to unredeemed in the year 1918 and continued

till the date of filing of the suit; that the plaintiffs were

also aware of this fact of changing the description of the

land from redeemed to unredeemed when they purchased

the suit property on 21st June 1965 as per Exs. P-1 to P-3.

There is no doubt that P.W. 1 stated in the cross-

examination that when they purchased the suit property,

the revenue record described the suit property as an

unredeemed estate. The learned Government Advocate

also brought to our notice the averments made in the

plaint as to how the cause of action arose. In Para-12 of

the plaint, the plaintiff has stated thus:

“12. The cause of action for this suit accrued to the

plaintiffs against the Defendant on and from 17-8-

1966, 18-8-1966, 30-11-1966, 9-10-1967, 9-9-

1969, 14-1-1971, 18-1-1971, 2-6-1973 and

subsequently at Kundacherry Village,

Bhagamandala Nadu, Mercara Taluk, Coorg District

46

2026:HHC:18430

and at Mercara, Coorg District, within the

jurisdiction of this Honourable Court.”

It is not each and every entry in the Record of Rights that

would give rise to a cause of action. As to when a cause of

action would accrue to the plaintiffs has been the subject

of interpretation in several decisions. In Mt. Bolo v. Mt.

Koklan [AIR 1930 PC 270], their Lordships considered the

meaning and effect of the right to sue in Column No. 3 of

Article 120 of the Limitation Act, 1908 and held thus:

“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.”

This was again reaffirmed in Annamalai Chettiar v.

A.M.K.C.T. Muthukaruppan Chettiar. [AIR 1931 PC 9.] The

Supreme Court in Mst. Rukhmabai v. Lala Laxminarayan

[AIR 1960 SC 335.] after referring to the decisions of the

Privy Council in A.I.R. 1930 P.C. 270 [AIR 1930 PC 270.] and

A.I.R. 1931 P.C. 9 [AIR 1931 PC 9.] has held that if there are

successive invasions or denials of a right, then it can be

held that a person's right has been clearly and

unequivocally threatened so as to compel him to institute

a suit to establish that right. The Supreme Court has also

further held thus:

“The legal position may be briefly stated thus: The

right to sue under Article 120 of the Limitation Act

accrues when the defendant has clearly and

unequivocally threatened to infringe the right

asserted by the plaintiff in the suit. Every threat by

a party to such a 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. Whether a particular threat gives rise to a

compulsory cause of action depends upon the question

whether that threat effectively invades or jeopardises

the said right.” (Emphasis supplied)

47

2026:HHC:18430

It may be relevant to notice the facts of Rukmabai's case

[AIR 1960 SC 335] as stated in Para-34 of the very

Judgment, which are as follows:

“The facts relevant to the question of limitation in

the present case may be briefly restated: The trust

deed was executed in 1916. The suit house was

constructed in 1920. If, as we have held, the trust

deed as well as the construction of the building

were for the benefit of the family, its execution

could not constitute any invasion of the plaintiff's

right. Till 1926, the plaintiff's father, Ratanlal, was

residing in that house. In 1928, when Daga

challenged the trust deed, the family compromised

the matter and salvaged the house. From 1936

onwards, the plaintiff has been residing in the suit

house. It is conceded that he had knowledge of the

litigation between Rukmabai and Chandanlal

claiming the property under the trust deed; but, for

that suit, he was not a party and the decision in that

litigation did not in any way bind him or affect his

possession of the house. But in the execution of the

decree, the Commissioner appointed by the Court

came to the premises on February 13, 1937, to take

measurements of the house for effecting partition

of the property, when the plaintiff raised an

objection, and thereafter, in 1940, filed the suit.

From the aforesaid facts, it is manifest that the

plaintiff's right to the property was not effectively

threatened by the appellant till the Commissioner

came to divide the property. It was only then that

there was an effectual threat to his right to the suit

property, and the suit was filed within six years

thereafter. We, therefore, hold that the suit was

within time.”

From the aforesaid facts, it is clear that the mere adverse

entry in the Record of Rights in respect of the property in

possession of the plaintiff cannot be taken as a real threat

to the right of the plaintiff to the property in his

48

2026:HHC:18430

possession. Rukhamabai was not a party to the

proceeding. Her right to the property came to be

threatened only when the order was tried to be executed,

and she was tried to be dispossessed. Their Lordships

further held that even if it was considered that

Laxminarayan had the knowledge of the litigation

between Rukhmabai and Chandanlal claiming the

property under the trust deed, but, for that suit, he was

not a party and the decision in that litigation did not in

any way bind him or affect his possession. In the instant

case, it may be relevant to notice that the entries on

which the reliance was placed changing the suit land from

redeemed to unredeemed to form a basis for a starting

point of limitation, even if it were in the knowledge of the

plaintiffs the same could not affect the right of the

plaintiffs adversely because those entries were not made

in accordance with law, after due notice to the plaintiffs.

As such as held by the Supreme Court in Khader's case

[(1990) 2 SCC 271: AIR 1990 SC 1225], they were void and

non est. Therefore, they cannot be of any value as it

cannot be held that the same affected the rights of the

plaintiffs in any manner. In C. Mohammad Yunus v. Syed

Unnissa [AIR 1961 SC 808], it has been further reiterated

that ‘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’. There is no such clear and

unequivocal infringement of the right of the plaintiffs or

real threat to the right of the plaintiffs by the entries

which have no legal effect in the eyes of the law. Further,

the very order dated 17th August 1966 - Ex. P-9 itself

shows that the Government was not sure whether the

suit-scheduled property was redeemed sagu or

unredeemed sagu. They also did not assert in the

Government Order dated 17

th

August 1966 that the suit

schedule property was redeemed sagu only. This conduct

on the part of the Government would also show that the

entries made from the year 1918 till the date relied upon

by the learned Government Advocate to non-suit, the

49

2026:HHC:18430

plaintiffs were not treated even by the State Government

as final and conclusive and affecting the right of the

plaintiffs. We may also refer to two more decisions of the

Supreme Court having a bearing on the point. In Gannon

Dunkerley and Co. Ltd. v. The Union of India [(1969) 3 SCC

607: AIR 1970 SC 1433.] It has been held thus:

“In our Judgment, there is 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.”

Thus, in Gannon's case [(1969) 3 SCC 607: AIR 1970 SC

1433.] the decision of the Privy Council in A.I.R. 1930 P.C.

270 [AIR 1931 PC 9.] was again restated. In Raghubir Jha v.

State of Bihar [1986 Supp SCC 372: AIR 1986 SC 508], the

Supreme Court held that the limitation would begin to

commence only on the communication of the termination

of the proceedings and not on the date the order was

passed by the first authority. In the instant case, there is

no evidence adduced by the defendant, nor is there any

material brought on record in the cross-examination of

P.W. 1 that the right to sue accrued much earlier than the

date of the suit. As in the instant case, the entries in the

record of rights, being non-est, cannot be held to affect

the right, title and interest of the plaintiffs and their

predecessors-in-title in possession of the suit property.

Such entries cannot also be held to be a threat to the title

of the plaintiffs who are in possession of the suit property

so as to give rise to the cause of action sufficient for the

commencement of the period of limitation. However, the

learned Government Advocate has placed reliance on a

decision of this Court in Dada Jinnappa Khot v.

Shivalingappa Ganapati Bellaniki ILR 1989 Kar 993. That

was a case in which a learned single Judge of this Court

recorded a specific finding that, in the light of the

application filed by the defendant before the Tahsildar in

the year 1967 denying the title of the plaintiff, there was a

real threat to the plaintiff's right and therefore on that

50

2026:HHC:18430

date the right to sue accrued because the plaintiff was

also a party to that application. Thus, it is clear that the

Decision in D.J. Khot's case [ILR 1989 Kar 993] is confined

to the facts of that case. Therefore, the contention of the

learned Government Advocate that the change of entries

from redeemed to unredeemed in the year 1918 and the

continuation of the same in the subsequent years was a

real threat to the rights of the plaintiffs cannot be

accepted, because those entries are held to be void and

non est. Therefore, the contention based on the change of

entries from redeemed to unredeemed is rejected.

43. A similar view was taken by the Punjab and Haryana

High Court in Ibrahim v. Sharifan, 1979 SCC OnLine P&H 186: AIR

1980 P&H 25, wherein it was observed at page 26:

7. It may be observed at the outset that the word ‘first’

occurring in Article 58 of the Act is of no significance at

all for deciding the issue of limitation so far as the facts of

the case in hand are concerned as the main point that

requires determination is whether mere entry of a

mutation in the name of the defendant would furnish a

cause of action to the plaintiff to file a suit for declaration

or not. There is no dispute that mutation was sanctioned

in favour of the defendant after the death of Akbar, and in

case such an entry furnishes a cause of action, then

certainly the suit would be barred by limitation. Even Mr

Aggarwal very fairly conceded this proposition. But what

was argued by him was that mere entry of a mutation did

not furnish any cause of action, and in support of his

contention, he relied on a Division Bench judgement of

this Court in Niamat Singh v. Darbari Singh etc., (1956) 58

PLR 461. In our view, the contention of the learned

counsel has considerable force. The plaintiff continued to

be in possession of the entire property even after the

sanction of the mutations in the name of the defendant

after the death of her father, Akbar or her mother, Smt.

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2026:HHC:18430

Nanhi or her uncle Bhiku. The defendant was never given

any share in the rent, nor was she given any produce out

of the land of her share. In this situation, no cloud was

cast on the title of the plaintiff by the mere entry of the

mutation in the name of the defendant. Further, there is

no proof on the record to show that before April 1969, by

any act or assertion of the defendant, the right of the

plaintiff was ever actually jeopardised. The defendant is

occupying a house in the village.

8. The assertion of the plaintiff is that it was given by him

to her out of compassion, while the plea of the defendant

is that she occupied it as of right. Be that as it may, the

fact remains that so far as the agricultural land is

concerned, the defendant, after the sanction of the

mutations, never asserted her right to her share in the

land in dispute; nor did she ever get any rent or produce,

and it was in the year 1969 that she tried to assert her

right and interfere with the possession of the plaintiff. In

this situation, mere entry of a mutation in the name of

the defendant would not furnish any cause of action to

the plaintiff. This view of ours finds full support from the

judgment of the Division Bench in Niamat Singh's case.

Thus, we do not agree with the learned single Judge that

the cause of action arose when the mutation was entered

in the name of the defendant and consequently, reverse

the finding on issue No. 4 and hold that the suit filed by

the plaintiff is within limitation.

44. It was held by this Court in Prakasho Devi versus

Basheshar Singh (2001) 2 ShimLC 354 that the attestation of

mutation does not confer a right to sue upon a person. It was

observed:

12. Article 58 of the Limitation Act, 1963 provides for a

limitation of three years to obtain a declaration, and the

period begins to run "when the right to sue first accrues".

52

2026:HHC:18430

Article 58 is a residuary Article under the Limitation Act,

1963. The suit for declaration, which was not governed by

any other Article in the Act, was covered by residuary

Article 120 of the 1908 Act, and such a suit now indeed is

governed by Article 58 of the 1963 Act.

13. It may be noticed that the limitation period of three

years commences from the date when the right to sue

first accrues, but the question is when the right to sue

accrues. In my view, the right to sue would accrue when

the right in respect of which a declaration is sought is

denied or challenged. A mere entry in the revenue papers

of the name of the defendants as co-owner of the

property, without any act of denial on the part of such

defendant(s), will not provide a cause of action. There is

no scope of dispute that the mutation of a l/4th share of

Chuhru was wrongly attested in favour of the defendants,

and it is only because of this illegal attestation of

mutation that entries in the revenue record showing the

defendants as co-sharers to the extent of l/4th share of

Chuhru were incorporated. In these circumstances, the

right to sue would accrue to the plaintiffs only when their

possession was threatened or an application for partition

on the basis of these entries was filed in the Revenue

Court.

14. As far back as 1930, in Mst Bolo appellant v. Aft. Koklan

and others, respondents, AIR 1930 Privy Council 270, a

Judicial Committee interpreting the provisions of Article

120 of the 1908 Act observed:

"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. No doubt Mt.

Koklan's right to the property arose on the death of

Tara Chand, but in the circumstances of this case,

their Lordships are of the opinion that there was no

infringement of, or any clear and unequivocal

threat to her rights till the year 1922, when the suit,

53

2026:HHC:18430

as stated above, was instituted" (Emphasis

supplied)

15. This principle was re-stated and followed in

Annamalai Ct-ieitiar v. Muttukaruppan Chettiar, AIR 1931

PC 9. In Mst Rukhmabai, appellant v. Lal Laxminarayan and

others, respondents, AIR 1960 Supreme Court 335 , a

contention was raised that plaintiff respondent had

knowledge of fraudulent character of the trust deed for 10

years, during the pendency of the partition suit instituted

in the year 1929, but the suit was filed in the year 1940

much after the limitation of six years under the 1908 Act

from the date of knowledge and therefore, the suit would

be barred under Article 120 of the 1908 Act. The Apex

Court, interpreting the provisions of Article 120 of the

Limitation Act of 1908 and heavily relying upon Mt Bolo,

held:

"33. The legal position may be briefly stated thus:

The right to sue under Article 120 of the Limitation

Act accrues when the defendant has clearly and

unequivocally threatened to infringe the right

asserted by the plaintiffs in the suit. Every threat by

a party to such a 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. Whether a particular threat gives rise to a

compulsory cause of action depends upon the

question whether that threat effectively invades or

jeopardises the said right" (Emphasis supplied)

16. In Zorawar Singh and another Appellants v. Dip Chand

and others, respondents, AIR 1929 Allahabad 331, it was

observed that a suit for declaration may be a repeated

cause of action and each new cause would give a fresh

right to sue.

17. In Faqira and another, plaintiffs-appellants v. Hardewa

and others, defendants-respondents, AIR 1928 Allahabad

172, the Full Bench of the Allahabad High Court had

occasion to interpret Article 120 of the Limitation Act,

54

2026:HHC:18430

1908. In that case, there was a wrong entry in the khewat,

and the advantage of that wrong entry was likely to be

taken by the defendants. The fact of such an entry was

never brought to the notice of the plaintiffs. In this

background, the Full Bench speaking through Mukerji, J.

held :

"The right to sue, within the meaning ot Article 120

of the Limitation Act, accrued to the plaintiff on the

filing of the application for partition and not

earlier," (Emphasis supplied)

18. It tlitis, is settled law that the cause of action to obtain

a declaration under Article 58 of the Limitation Act will

only accrue when the rights of a plaintiff are invaded by

an overt act.

19. In Thakurain Chhabraj Kuer, defendant-appellant v.

Ram Deo Singh and others, plaintiffs-respondents, AIR (29)

1942 Oudh 346, a Division Bench of Oudh High Court held

that so long as a mutation does not injure the plaintiff, he

need not come to the Court at all and, therefore, a

plaintiff is not out of time if he institutes a suit within six

years (under the 1908 Act) of the injury which the entry

creates and which is his cause of action. This statement of

law was reiterated in C. Mohammad Yunus, appellant v.

Syed Unnissa and others, respondents, AIR 1961 Supreme

Court 808. In this case, their Lordships emphasised that a

suit for a declaration of a right and an injunction

restraining the defendants from interfering with the

exercise of that right is governed by Article 120 (now

Article 58), and 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.

20. In Fateh Ali Shah and others v. Muhammad Bakhsh and

others, AIR 1928 Lahore 516, a Division Bench of the

Lahore High Court held that the plaintiff in possession

need not bring a suit on first denial of his title, and he

needs to take proceedings within six years (under the old

55

2026:HHC:18430

Act) from the time when his rights are actually

jeopardised. The Division Bench observed:

"If a plaintiff is in possession or enjoyment of the

property in suit, he is not obliged to sue for a

declaration of title on the first or each succeeding

denial of his title by the defendant. He may look

upon each denial with complacency or, at his

option, may institute a suit to falsify the assertions

of the other side. But when he finds that his rights

are being actually jeopardised by the action or

assertion of the defendant, then he must take

proceedings within six years from the date of such

actions or assertions: AIR 1922 Lah. 94, AIR 1925

Lah. 391 and 140 P.R. 1907; Dist."

45. This position was reiterated in Dharam Singh &

others versus Prem Singh & Ors 2002 (1) Shim. LC 49, wherein it

was held:

17. Article 58 of the Limitation Act specifically provides a

limitation of three years to obtain a declaration that is not

provided under any other Article. Under this Article, the

limitation period of three years commences from the date

when the right to sue first accrues. However, the question

would be when a right to sue accrues. In my view, the

right to sue accrues when the right in respect of which a

declaration is sought is denied or challenged. A mere

entry in the revenue papers, in the name of appellants, in

the column of possession, without any act of denial of the

possession of the respondent on the part of appellants,

will not provide a cause of action.

18. The Supreme Court in Mst. Rukhmabai v. Lala

Laxminarayan and others, AIR 1960 SC 335, interpreting

the provision of Article 120 of the Limitation Act of 1908

and relying upon Mt. Bolo v. Mt. Koklan and others, AIR

1930 Privy Council 270, held:

56

2026:HHC:18430

'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. No doubt Mt.

Koklan's right to the property arose on the death of

Tarn Chand, but in the circumstances of this case,

their Lordships are of the opinion that there was no

infringement of, or any clear and unequivocal

threat to her rights till the year 1922, when the suit,

as stated above, was instituted".(Emphasis

supplied)

19. In Fateh AH Shah and others v. Muhammad Bakhsh and

others, AIR 1928 Lahore 516, a Division Bench of the

Lahore High Court held that the plaintiff in possession

need not bring a suit on the first denial of his title, and he

needs to take proceedings within six years (under the old

Act) from the time when his rights are actually

jeopardised. The Division Bench observed:

"If a plaintiff is in possession or enjoyment of the

property in suit, he is not obliged to sue for a

declaration of title on the first or each succeeding

denial of his title by the defendant. He may look

upon each denial with complacency or, at his

option, may institute a suit to falsify the assertions

of the other side. But, when he finds that his rights

are actually being jeopardised by the action or

assertion of the defendant, then he must take

proceedings within six years from the date of such

actions or assertions: AIR 1922 Lah 94, AIR 1925

Lah. 391 and 140 RR. 1907: Dist".

20. It is no longer res-integra that persons continuing in

possession in spite of adverse entry in the revenue papers

need not seek any declaration until their possession is

threatened. Reference may be made to Ghulam

Mohammad Khan and others v. Sammundar Khan and

others, AIR 1936 Lahore 37. In that case, the adverse entry

was made in the year 1905-06. The suit was filed much

57

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after the period of limitation under Article 120 of the 1908

Act. In the plaint, it was urged that the entry was made in

the jamabandi behind the back of the plaintiffs, and they

learnt about these entries for the first time in the year

1929-30. The defendants traversed the allegations. In this

background, the Division Bench held that the cause of

action in all such cases "would accrue when the plaintiff

feels aggrieved, and in these circumstances, on the

plaintiff's allegations, these suits will be within time."

21. Otherwise, also, entries in the revenue record for

which there is no foundation do not create any title (See

Jattu Ram v. Hakam Singh and others, JT 1993 (5) SC 423;

Guru Amarjit Singh v. Rattan Chand and others, AIR 1994 SC

227; Guru Amarjit Singh v. Rattan Chand and others, (1993)

4 SCC 349).

46. A similar view was taken in Sairu Ram vs. Prem

Chand, Latest HLJ 2004(1) 663 (HPHC)and held as under:

22. It was next contended on behalf of the defendant that

even if Art. 113 is applied, the suit having been filed

beyond three years of the order of mutation would be

barred by time.

23. There is no merit in the contention; it is well settled

that mutation does not confer title. A cause of action

would accrue to the plaintiffs only when there is an

invasion of or a threat to his rights and title. The order of

mutation, even otherwise, having been passed by an

authority having no jurisdiction, was a nullity and

capable of being ignored.

24. In Ghulam Mohammad Khan and others Vs. Samundar

Khan and others [1936 Lahore 37] dealing with a suit filed

under Section 45, Punjab Revenue Act, 1887, which

provision is para material to Section 46 of the HP. Land

Revenue Act, 1953, it has been held that to such suits

Article 120, Limitation Act, 1908 (corresponding to Article

113, Limitation Act, 1963) applies and the terminus a quo

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in such cases is when the cause of action accrues and that

reading Article 120, Limitation Act 1908 with Section 45,

Punjab Land Revenue Act, 1887, the cause of action would

accrue when the plaintiff feels aggrieved.

25. It has been held in Kewal Krishan Purl and another vs.

The State of Punjab and others [1977 P&H 347] that the

right to sue will accrue only where there is an unequivocal

threat to infringe the right of the plaintiff.

26. Taking into consideration the averments in the plaint

as to the threat to infringe the rights of the plaintiff, the

suit is well within time under Article 113, Limitation Act,

1963.

47. It was laid down by the Hon’ble Supreme Court in

Daya Singh v. Gurdev Singh, (2010) 2 SCC 194: 2010 SCC OnLine SC

136 that the period of limitation starts running when the actual

right is infringed. It was observed (at page 198 of SCC):

14. In support of the contention that the suit was filed

within the period of limitation, the learned Senior

Counsel appearing for the appellant-plaintiffs before us

submitted that 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 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 in Bolo v. Koklan [(1929-30) 57 IA 325: AIR

1930 PC 270]. In this decision, Their Lordships of the Privy

Council observed as follows: (IA p. 331)

“… 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.”

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15. A similar view was reiterated in C. Mohammad Yunus v.

Syed Unnissa AIR 1961 SC 808, in which this Court

observed: (AIR p. 810, para 7)

“7. … The period of six years prescribed by Article 120

has to be computed from the date when the right to

sue accrues, 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.”

In C. Mohammad Yunus [AIR 1961 SC 808], 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 at least a clear and unequivocal

threat to infringe that right. Therefore, the mere

existence of an adverse entry in the revenue records

cannot give rise to a cause of action.

16. 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 21-8-

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 accrued when a clear and

unequivocal threat to infringe that right by the

defendants was made when they refused to admit the

claim of the appellants, i.e. only seven days before the

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

three years from the date of infringement, as noted in

Para 16 of the plaint, the suit was filed. Therefore, the

suit, which was filed for declaration on 21-8-1990, in our

view, cannot be held to be barred by limitation.

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48. It was laid down in versus Rulda Ram v. Sanju Ram,

2013 SCC OnLine HP 4341, that mere entry of the name does not

confer a person the right to sue. The right to sue accrues when

the rights of a person are threatened. It was observed:

14. In Mt. Bolo v. Mt. Koklan, AIR 1930 Privy Council 270,

the expression “right to sue” has been succinctly

explained as under:

“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. No doubt Mr

Koklan's right to the property arose on the death of

Tara Chand, but in the circumstances of this case,

their Lordships are of the opinion that there was no

infringement of, or any clear and unequivocal

threat to her rights till the year 1922, when the suit,

as stated above, was instituted.”

15. In Shiam Lal v. Mohamad Ali Asghar Husain, AIR 1935

Allahabad 174, a learned single Judge has held that a mere

entry of names does not debar the person against whom

the entry is made for all time to come from suing for a

declaration. Any new invasion of rights which amounts to

a fresh denial of title confers on the owner in possession a

fresh right to sue. The right to sue accrues when 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.

16. In Rukhmabai v. Lala Laxminarayan, AIR 1960 SC 332,

their Lordships of the Hon'ble Supreme Court have held

that there can be “right to sue” until there is an accrual of

the right asserted in the suit and its infringement, or at

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least a clear and unequivocal threat to infringe that right,

by the defendant against whom the suit is instituted.

Their Lordships have held as under:

“31. The argument on the question of limitation is

put thus: The plaintiff, respondent herein, had

knowledge of the fraudulent character of the trust

deed as early as 1917 or, at any rate, during the

pendency of the partition suit between Rakhmabai

and Chandanlal instituted in the year 1929, and the

suit filed in 1940, admittedly after six years of the

said knowledge, would be barred under Art. 120 of

the Limitation Act. Article 120 of the Limitation Act

reads:

Description of suit: Period of limitation

Time from which period begins to run.

120. Suit for which no period of Limitation is provided

elsewhere in this Schedule.

Six years, when the right to sue accrues.

This Article was subject to judicial scrutiny both by the

Judicial Committee as well as by the High Courts of

various States. The leading decision on the subject is that

of the Judicial Committee in Mt. Bolo v. Mt. Koklan, 57 Ind

App 325 at p. 331 : (AIR 1930 PC 270 at p. 272). Therein Sir

Benod Mitter observed:

“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.”

32. The said principle was restated and followed by the

Judicial Committee in Annamalai Chettiar v.

Muthukaruppan Chettiar, ILR 8 Rang 645 : (AIR 1931 PC 9),

and in Gobinda Narayan Singh v. Sham Lal Singh, 58 Ind

App 125 : (AIR 1931 PC 89). The further question is, if there

are successive invasions or denials of a right, when it can

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be held that a person's right has been clearly and

unequivocally threatened so as to compel him to institute

a suit to establish that right. In Pothukutchi Appa Rao v.

Secy. of State, AIR 1938 Mad 193 at p. 198, a Division Bench

of the Madras High Court had to consider the said

question. In that case, Venkatasubba Rao, J., after

considering the relevant decisions, expressed his view

thus:

“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. The

Government, beyond passing the order, did nothing

to disturb the plaintiff's possession. 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.”

He adds at p. 199:

“It is a more difficult question, what is the extent of

the injury or infringement that gives rise to, what

may be termed, a compulsory cause of action?”

17. Their Lordships of the Hon'ble Supreme Court in C.

Mohammad Yunus v. Syed Unnissa, AIR 1961 SC 808 , have

held that a suit for declaration of a right and an injunction

restraining the defendants from interfering with the

exercise of that right is governed by Article 120. Under the

Article, 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. Their Lordships have held as under:

“7. The surplus income of the institution is

distributed by the trustees, and the plaintiffs are

seeking a declaration of the right to receive the

income and also an injunction restraining the

defendant from interfering with the exercise of

their right. The High Court held that plaintiff No. 1

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was at the date of the suit 19 years of age and was

entitled to file a suit for enforcement of her right

even if the period of limitation had expired during

her minority within three years from the date on

which she attained majority by virtue of Ss. 6 and 8

of the Indian Limitation Act, Apart from this

ground which saves the claim of the first plaintiff

alone, a suit for a declaration of a right and an

injunction restraining the defendants from

interfering with the exercise of that right is

governed by Art. 120 of the Limitation Act and in

such a suit the right to sue arises when the cause of

the action accrues. The plaintiffs claiming under

Fakruddin sued to obtain a declaration of their

rights in the institution, which was and is in the

management of the trustees. The trial judge held

that the plaintiffs were not “in enjoyment of the

share” of Fakruddin since 1921, and the suit filed by

the plaintiffs more than 12 years from the date of

Fakruddin's death must be held barred, but he did

not refer to any specific article in the first schedule

of the Limitation Act which barred the suit. It is not

shown that the trustees have ever denied or are

interested in denying the right of the plaintiffs and

defendant No. 2; and if the trustees do not deny

their rights, in our view, the suit for declaration of

the rights of the heirs of Fakruddin will not be

barred under Article. Section 120 of the Limitation

Act merely because the contesting defendant did

not recognise that right. The period of six years

prescribed by Art. 120 has to be computed from the

date when the right to sue accrues, 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. If the trustees were willing to give a share and

on the record of the case it must be assumed that

they being trustees appointed under a scheme

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would be willing to allow the plaintiffs their

legitimate rights including a share in the income if

under the law they were entitled thereto, mere

denial by the defendants of the rights of the

plaintiffs and defendant No. 2 will not set the

period of limitation running against them.”

18. In Rukshmanibehn v. Vadilala N. Jadawala, 1994 (1)

G.L.H. 237, a Division Bench of the Gujarat High Court has

explained the expression “right to sue” as under:

‘7. As already noted, Article 58 of the Limitation

Act, 1963, which Article learned counsel for the

defendant wants to use to apply to the pleas of the

plaintiffs, stipulates that the time of three years for

a suit to obtain any other declaration would begin

to run “when the right to sue first accrues”. The

word “first” found in Article 58 could not have a

separate or an independent significance, unless the

right to sue accrues. It is the element of accrual of

the right to sue that is decisive, and only when the

right to sue has accrued, then it has got to be found

out as to when it “first” accrued. Hence, the

pronouncement which has been spoken on Article

120 of the Old Limitation Act, 1908, does form a

firm guidance to find out as to when the right to sue

accrues for the purpose of Article 58 of the

Limitation Act, 1963.

8. There must be accrual of the right to sue for the

plaintiff, in the sense that infringement or at least a

clear and unequivocal threat to infringe that right

by the defendant should happen. So far, the right of

the plaintiff is not infringed, or there is no positive

and overt act on the part of the defendant to

infringe the right of the plaintiff, there would not

be accrual of the right to sue. When the plaintiff

states and proves his case that on a particular date

there was an infringement or at least a clear and

unequivocal threat to infringe the right of the

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plaintiff, the defendant, if he wants to demonstrate

a contrary position, must plead and prove the same.

Some overact on the part of the defendant towards

infringement or threat to infringe is expected to

make it incumbent for the plaintiff to institute the

suit. Then only could it be stated that the right to

sue has accrued. A hostile attitude remaining

dormant in the mind of the defendant and which

never got expressed in any overt act of his, by

infringing or at least clearly and unequivocally

threatening to infringe the right of the plaintiff,

will not bring the case within the purview of the set

of expressions “right to sue accrues”. The above

propositions gleaned from the pronouncements

which we have referred to above, though do not

require reiteration, yet we have recapitulated them

for the purpose of guiding ourselves to assess the

facts of the case to find out as to whether the suit of

the plaintiffs is barred as contended by the

defendant.”

19. In Dhanno v. Hari Ram, (1997-2) 115 P.L.R. 393, learned

Single Judge of Punjab and Haryana High Court has held

that the plaintiff can file suit as and when a cloud has

been cast on the title of the plaintiff and the cause of

action arises in such like cases when the

defendant/defendants threaten the plaintiffs to take

forcible possession of the land from him. Learned Single

Judge has held as under:

“13. Reliance upon Section 108 of the Indian

Evidence Act is wholly misplaced. This section deals

with the burden of proving as to whether a person

is alive who has not been heard of for seven years.

In view of the fact that Smt. Dhanno is stated to

have married Gainda sometime in the year 1943;

she automatically stands divested of her right in the

land on account of section 59 of the Punjab Tenancy

Act. This way, the plaintiffs, along with Punnu,

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became owners of the extent of l/3

rd

share in the

joint holding. Admittedly, the land has remained in

cultivating possession of the plaintiffs as well as

defendants, and so the mere entries in the revenue

record specifying certain shares do not cast any

doubt on their valuable right, and the plaintiffs are

well within their right to seek correction of these

revenue entries in the register of mutation, etc., as

and when an attempt is made to dispossess them.

Thus, a cause of action arises in such like cases

when the defendant/defendants threaten the

plaintiffs to take forcible possession of the land

from him. Mere entry of mutation in the name of

the defendant does not furnish any cause of action

to the plaintiffs. This precise point came up for

consideration in Ibrahim's case (supra), and the

Court, after considering the provisions contained in

Article 58 of the Limitation Act, held that the use of

the word ‘first’ in Article 58 is of no significance at

all, and so the plaintiff can file suit as and when a

cloud has been cast on the title of the plaintiff.

Reliance was placed on the earlier decision of the

Division Bench in the case reported as Niamat Singh

v. Darbari Singh, (1956) 58 PLR 461, wherein it was

held as under:

“If an adverse entry is made against a person

who is in actual physical possession of the

property and if he continues to retain

possession of the said property despite this

entry in the revenue papers, he is under no

obligation to bring a suit.

If, however, his rights are actually

jeopardised by the actions or assertions of the

defendant, then he must take proceedings

within six years from the date of such actions

or assertions. In other words, the time begins

to run not from the date on which an adverse

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entry is made but from the date on which

there is a fresh denial of the plaintiff's

rights.”

20. In Bhagwanti Devi v. Mat Ram, (2003-3) 135 P.L.R. 585,

a learned Single Judge of the Punjab and Haryana High

Court, while discussing Article 58 of the Limitation Act,

has held that when the plaintiff continues to be in

possession of the suit land along with the defendant,

cause of action in such case would arise when there is

threat to his title.

“13. It could not be disputed that the plaintiff is a

partner of the firm, and as a partner, he enjoys the

benefits of the firm, including the possession of the

property purchased by virtue of the conveyance

deed dated 29.4.1968, Ext. D1. Since the plaintiff

continues to be in possession of the suit land along

with the defendant, his suit could not be dismissed

on the ground that it is beyond the period of

limitation. The cause of action in such a case would

arise only when there is a threat to his title.

According to the plaintiff, such a threat arose when

Improvement Trust, Hansi, served a notice under

Section 9 regarding the acquisition of land

comprising Khasra No. 1075. At this stage, on

inspection of the record, he came to know about the

omission of his name in the sale deed and in the

mutation.”

21. In Manti v. Sarwati Devi, (2004-1) 136 P.L.R. 397, a

learned Single Judge of the Punjab and Haryana High

Court has held that even if entries in the revenue record

are wrong, a party can choose to ignore the same till a

real threat to title is apprehended. Learned Single Judge

held as under:

11. I have considered the rival submission and

perused the record. There is no serious dispute

about the substantive rights of the parties. Even

learned counsel for the appellants does not dispute

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that Mata Chand, having pre-deceased Dalip

Chand, the heirs of Mata Chand will not be entitled

to the share of Dalip Chand in view of Entry-II of

Class II

nd

of the Schedule to the Hindu Succession

Act read with Section 8 of the said Act. The only

question is of limitation. I am of the view that

Article 58 of the Schedule to the Limitation Act will

govern the limitation, and the lower appellate court

was in error in observing that Article 58 of the Act

cannot apply. Even so, the contention of the learned

counsel for the appellants that the suit is barred by

limitation cannot be accepted. Though the

limitation is three years, the time from which this

period begins to run is when the right to sue first

accrues. It is not possible to accept that the right to

sue accrued in the year 1966 when mutation was

sanctioned, as rightly held by the lower appellate

court, nor did it accrue when a gift of part of the

land was made. The parties were in joint

possession, and it is not shown that their shares

were separated. Though learned counsel for the

appellants mentioned that there was a separation

of joint holding, there is no material on record to

indicate the separation of shares and the date of

separation, if any. Even if entries in the revenue

record are wrong, a party can choose to ignore the

same till a real threat to the title is apprehended.

Reference in this regard may be made to the

decision of a Division Bench of this Court in

Ibrahim v. Smt. Sharifan, AIR 1980 P&H 25, it was

observed: “it may be observed at the outset that

that the word ‘first’ occurring in Article 58 of the

Actis of no significance at all for deciding the issue

of limitation so for as the facts of the case in hand

are concerned as the main point which requires

determination is whether mere entry of a mutation

in the name of the defendant would furnish a cause

of action to the plaintiff to file a suit for declaration

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or not.” It was further held that where no cloud is

cast on the title of the plaintiff, mere entry of

mutation in the name of the defendant in the

absence of any other act of the defendant, cause of

action does not accrue to the plaintiff for the

purpose of Article 58 of the Schedule to the

Limitation Act.”

22. In Ibrahim v. Sharifan, 1979 P.L.J. 469, a Division Bench

of the Punjab and Haryana High Court has held that mere

entry of a mutation in the name of the defendant would

not furnish any cause of action to the plaintiff, and a

cause of action arose to the plaintiff when the defendant

actually threatened to take forcible possession of the land

from the plaintiff. The Division Bench has held as under:

“6. While controverting the aforesaid findings of

the learned Single Judge, it was contended by Mr.

Aggarwal, learned counsel for the appellant, that

cause of action arose to the plaintiff in April, 1969,

when the defendant actually threatened to take

forcible possession of the land from the plaintiff

and that mere sanction of the mutation with

respect to half share of the land in dispute in the

name of the defendant did not give any cause of

action to the plaintiff, especially when he had

continued to be in exclusive possession of the land

without any interference of any kind by the

defendant. ON the other hand, it was contended by

Mr. Kapur, learned counsel for the respondent, that

a cloud was actually cast on the right of the plaintiff

in the year 1957 after the death of Akbar mutation

of inheritance was sanctioned in favour of the

plaintiff, the defendant and their mother in equal

shares; that the right to sue first accrued to the

plaintiff, on the date when the said mutation was

sanctioned and the suit having been filed beyond

the period of three years was clearly barred by time.

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7. After giving our thoughtful consideration to the

entire matter, we find that there is considerable

force in the contention of the learned counsel for

the appellant.

8. It may be observed at the outset that the word

‘first’ occurring in article 58 of the Act is of no

significance at all for deciding the issue of

limitation so far as the facts of the case in hand are

concerned as the main point that requires

determination is whether mere entry of mutation in

the name of the defendant would furnish a cause of

action to the plaintiff to file a suit for declaration or

not. There is no dispute that the mutation was

sanctioned in favour of the defendant after the

death of Akbar, and in case such an entry furnished

a cause of action, then certainly the suit would be

barred by limitation. Even Mr Aggarwal very fairly

conceded this proposition. But what was argued by

him was that mere entry of mutation did not

furnish any cause of action, and in support of his

contention, he relied on a Division Bench judgment

of this Court in Niamat Singh v. Barbari Singh, 1956

P.L.R. 461. In our view, the contention of the

learned counsel has considerable force. The

plaintiff continued to be in possession of the entire

property even after the sanction of the mutations in

the name of the defendant after the death of Akbar

or her mother, Smt. Nanhi or her uncle Bhiku. The

defendant was never given any share in the rent,

nor was she given any produce out of the land, her

share. In this situation, no cloud was cast on the

title of the plaintiff by the mere entry of the

mutation in the name of the defendant. Further,

there is no proof on the record to show that before

April, 1960, by any act or assertion of the

defendant, the right of the plaintiff was ever

actually jeopardised. The defendant is occupying a

house in the village. The assertion of the plaintiff is

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that it was given by him to her out of compassion,

while the plea of the defendant is that she occupied

it as of right. Be that as it may, the fact remains that

so far as the agricultural land is concerned, the

defendant, after the sanction of the mutations,

never asserted her right to her share in the land in

dispute, nor did she ever get any rent or produce

any that it was in the year 1969 that she tried to

assert her right and interfere with the possession of

the plaintiff. In this situation, mere entry of a

mutation in the name of the defendant would not

furnish any cause of action to the plaintiff. Our view

finds full support from the judgment of the Division

Bench in Niamat Singh's case. Thus, we do not agree

with the learned Single Judge that the cause of

action arose when the mutation was entered in the

name of the defendant and consequently, reverse

the finding on issue No. 4 and hold that the suit

filed by the plaintiff is within limitation.”

23. Their Lordships of the Hon'ble Supreme Court in Daya

Singh v. Gurdev Singh (dead) by LRs., (2010) 2 SCC 194 have

held that the right to sue accrues when there is a clear and

unequivocal threat to infringe a right. Their Lordships

have held as under:

“13. 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.

14. 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

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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 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 v. Mt. Koklan]. 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.”

15. A similar view was reiterated in the case of C.

Mohammad Yunus v. Syed Unnissa [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.”

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 at least 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 a cause

of action.

16. 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

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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 the 21

st

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 is made when they refused to

admit the claim of the appellants, i.e. only seven

days before filing 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 21

st

of August, 1990, in

our view, cannot be held to be barred by

limitation.”

24. This Court in Shiam Singh v. Chaman Lal, 2011 (2)

Shim. L.C.-1 has held that the limitation begins to run not

from the date of the entry affecting the right of the

person concerned, but from the date when he feels

aggrieved by the entry, and it is the satisfaction of such

person as to when he feels aggrieved by the entry. This

Court has held as under:

“14. It is well settled that for a suit for declaration,

referred to in Section 46, limitation begins to run

not from the date of the entry affecting the right of

the person concerned, but from the date when he

feels aggrieved by the entry, and it is the

satisfaction of such person as to when he feels

aggrieved. Defendant cannot be heard to say that he

(the plaintiff) felt aggrieved by the entry at some

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earlier point of time or when the entry was actually

made.”

49. A similar view was taken in Shankar Lal v. Ramesh

Chander, 2016 SCC OnLine HP 3993, wherein it was held:

15. The learned counsel appearing for the defendants has

contended qua the suit of the plaintiffs being barred by

limitation, it standing instituted beyond the prescribed

period mandated in Article 58 of the Limitation Act.

However, the aforesaid submission cannot stand accepted

by this Court, as the aforesaid apposite article of the

Limitation Act while prescribing the commencement of the

relevant period of limitation proclaims qua the relevant

commencement for computing therefrom the period of

limitation encapsulated therein occurring on an accrual of

“right to sue”, right to sue whereof holds a connotation qua

its spurrings or occurrings arising on actual and threatened

invasion(s) qua the settled right of the plaintiff(s) upon the

suit property. In sequel when the connotation borne by the

apposite statutory parlance ‘right to sue’ is qua its

upsurging on the defendant(s) committing overt act upon

the suit property hence theirs explicitly pronouncing theirs

casting cloud qua the title of the plaintiff(s) qua the suit

land whereupon even if mutations qua the suit property

stood attested on 24.12.1994 and 20.11.1999 whereas the suit

of the plaintiff stood instituted in the year 2001 would not

render it to be construable to stand instituted beyond

limitation, as merely on attestation of relevant mutations

which palpably are nonest besides stand recorded in

deprivation of the vested rights of the plaintiffs qua the suit

property no title hence standing invested upon the suit land

qua defendant No. 2 rather when the plaintiffs' title to the

suit land stood explicitly annulled besides came under a

cloud by the proactive overt act of defendant No. 2

executiing sale deeds respectively on 3.11.1999 and 5.5.2001,

with defendant No. 1 constituted the latter period to enliven

thereat the relevant cause of action or it begot the

commencement of the relevant period of limitation for the

plaintiffs' instituting a suit. In sequel thereto, with the

75

2026:HHC:18430

plaintiffs therefrom instituting the suit within the

statutorily mandated period of limitation prescribed in the

relevant Article of the Limitation Act renders it to be

construable to be within limitation.

50. Therefore, the suit cannot be held to be barred by

limitation, and this substantial question of law is answered

accordingly.

Substantial Question of Law No.6:

51. The learned Appellate Court had not misconstrued or

misread the case law. Hence, this substantial question of law is

answered accordingly.

Final Order:

52. In view of the above, there is no infirmity in the

judgment and decree passed by the learned Appellate Court.

Hence, the present appeal fails, and it is dismissed

53. Pending application(s), if any, also stand(s) disposed

of.

54. Records of the learned Courts below be sent down

forthwith.

(Rakesh Kainthla)

Judge

20

th

May, 2026

(Nikita)