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TMI Blog2018 (3) TMI 1391X X X X Extracts X X X X X X X X Extracts X X X X ..... ourt below committed a grave error in holding that since the defendant No.1 had not filed a suit for declaration of title, it could not be said that cause of action for the respondent No.1 herein had arisen. The suit filed on 21.12.1994 was on the basis that the plaintiff therein was the absolute owner of the suit property and in exclusive possession thereof. There was no question of seeking declaration of title at that point in time. The court below has also erred in holding in the impugned order that the question of limitation in the facts of the present case would require evidence and that therefore, it could be decided only at the time of trial of the suit. As stated above, on an interpretation of the law pertaining to the accrual of the cause of action in the context of Article 58 of schedule to the Limitation Act, 1963, in the present case, on the face of record, it is evident that the suit filed on 20.11.2011 by the respondent No.1 was barred by limitation and that therefore, the application for rejection of plaint filed on behalf of the defendant No.1 (vendor of the applicants) deserved to be allowed on this count. The suit filed by respondent No.1 is barred by limita ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... om the account of partnership firm M/s. Jaswant Saw Mill of which the respondent Nos.1, 2 and 3 along with another family member were partners. Details of the dates of payment were given and it was claimed that from the very beginning the respondent No.1 was in possession of the said suit property. 4] It was claimed that the defendant No.1 had completed her M.B.B.S. qualification and that she had no income of her own when the said suit property was purchased in her name in 1972. It was further contended that all the taxes pertaining to the said suit property were regularly paid by the respondent No.1 and further that when penalty of a certain amount was imposed by the Nagpur Improvement Trust for failure to commence construction on the suit property within prescribed period of time, the said penalty was also paid by the respondent No.1 himself. 5] In the plaint itself, reference was made to an earlier litigation in respect of the suit property. It was stated that the defendant No.1 had filed a suit for declaration and permanent injunction in respect of the suit property on 22.12.1994, wherein she claimed that she was the owner and in possession of the suit property and furthe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the present case that during the pendency of the said application before the court below, the defendant No.1 sold the suit property to the applicants herein by registered sale-deed dated 11.06.2012. As a consequence, the respondent No.1 moved an application for the purchasers, i.e. applicants herein, to be joined as parties to the suit, which was allowed, whereby the applicants became parties to the suit. Since they are the affected parties, having purchased the suit property, they are aggrieved by the impugned order passed by the court below and they have challenged the same by way of this civil revision application. 8] Mr. S.V. Purohit, learned counsel appearing on behalf of the applicants contended that the suit filed by respondent No.1 was hit by the provisions of the Benami Transactions (Prohibition) Act, 1988. He claimed that since the respondent No.1 himself admitted in the suit that the suit property was purchased in the name of the defendant No.1 (vendor of the applicants), he was prohibited by Section 4 of the said Act from claiming any title or ownership in the suit property. In this regard, the learned counsel placed reliance upon the judgment of the Hon'ble Ap ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 63. It was contended that only contents of the plaint could be seen and that if the claim of the respondent No.1 of being in possession of the suit property was disputed, it was matter for trial and not for rejection of plaint at the threshold. As regards the suit being hit by the provisions of Benami Transactions (Prohibition) Act, 1988, the learned counsel contended that the judgment of the Hon'ble Supreme Court in the case of Marcel Martins (supra) relied upon by the applicant, was in fact, in favour of respondent No.1, because there were sufficient pleadings in the plaint itself demonstrating that the respondent No.1 stood in a fiduciary capacity in respect of the defendant No.1 in whose name the property stood. 11] On the question of limitation, the learned counsel appearing on behalf of the respondent No.1 contended that any and every reason giving rise to cause of action could not trigger the period of limitation, because the law as interpreted by various courts laid down that a person is required to approach the court when the cause of action is clear and unequivocal and in clear terms threatens the right claimed by such person. It was contended that mere filing o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ectively stood in a fiduciary capacity in respect of the defendant No.1. There are details given about the amounts and the dates regarding payment of consideration made in respect of the purchase of the suit property in the name of the defendant No.1. In the aforesaid judgment of the Hon'ble Supreme Court in the case of Marcel Martins (supra) it has been held that in determining whether the relationship is based on trust or confidence and whether a person stands in a fiduciary capacity, the court shall take into consideration factual context for deducing existence of such relationship. This demonstrates that it would be a matter of evidence. Whether the provisions of the Benami Transactions (Prohibition) Act, 1988, would apply to a transaction of the year 1972 is another matter, but, in view of pleadings in the suit filed by respondent No.1, it cannot be said that this could be a ground for rejection of the plaint at the threshold. It would certainly be a matter requiring evidence, particularly when the defendant No.1 would dispute the claim made by the respondent No.1 in the plaint. Thus, this ground also does not hold good and the court below was justified in holding in fa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... th the words when the right to sue first accrues used in Article 58 of the schedule to the Limitation Act, 1963. Therefore, the position of law deducible is that when a clear and unequivocal threat to the right of a person first occurs, the right to sue accrues and the period of limitation is triggered. The addition of the word first in the said Article 58 of the 1963 Act, has been taken note of by the Hon'ble Supreme Court in the case of Khatri Hotel Private Limited and Anr. v. Union of India and Anr. (supra) and it has been held therein as follows: 27. While enacting Article 58 of the 1963 Act, the legislature has designedly made a departure from the language of Article 120 of the 1908 Act. The word 'first' has been used between the words 'sue' and 'accrued'. This would mean that if a suit is based on multiple causes of action, the period of limitation will begin to run from the date when the right to sue first accrues. To put it differently, successive violation of the right will not give rise to fresh cause and the suit will be liable to be dismissed if it is beyond the period of limitation counted from the day when the right to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... .1 along with other defendants appeared in the said suit and claimed that the defendant No.6 therein, being another sister of the respondent No.1, was a co-owner with the plaintiff therein (defendant No.1 in the present proceeding). The court in the said proceedings granted temporary injunction order in favour of the plaintiff restraining the defendants, including the respondent No.1 herein, from interfering in the construction work being carried out by her. The aforesaid pleading and the facts claimed by the defendant No.1 herein, show that she had in clear and unequivocal terms stated that she was the absolute owner of the suit property and in exclusive possession thereof, seeking an injunction against defendants, including respondent No.1 herein. As stated above, temporary injunction order was, in fact, granted in her favour against respondent No.1 and others. This was the first occasion when such clear and unequivocal infringement with the right of the respondent No.1 was manifested. But, it is an admitted fact that neither did the respondent No.1 file a counter claim in the suit filed by his sister (defendant No.1 herein) nor did he file any suit in the nature that he has now ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... .1 filing suit on 21.12.1994 for declaration and permanent injunction against respondent No.1. 21] The court below committed a grave error in holding that since the defendant No.1 had not filed a suit for declaration of title, it could not be said that cause of action for the respondent No.1 herein had arisen. The suit filed on 21.12.1994 was on the basis that the plaintiff therein was the absolute owner of the suit property and in exclusive possession thereof. There was no question of seeking declaration of title at that point in time. At the same time, such clear statement in the aforesaid suit filed in the year 1994 did trigger cause of action for the respondent No.1 and he ought to have filed a suit or counter claim for claiming the right that he is now claiming in respect of right, title and ownership in the suit property. The said reasoning of the court below is unsustainable. The court below has also erred in holding in the impugned order that the question of limitation in the facts of the present case would require evidence and that therefore, it could be decided only at the time of trial of the suit. As stated above, on an interpretation of the law pertaining to the acc ..... X X X X Extracts X X X X X X X X Extracts X X X X
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