JUDGMENT
1. This is a plaintiffs' appeal arising out of a suit for a declaration that the plaintiffs are the owners entitled to four out of ten sihams in certain village properties and house property. The facts mentioned in the plaint were that the property originally belonged to Mt. Hussain Bibi who is shown in the pedigree at p. 8, that on her death the heirs to her estate were her daughters and certain collaterals who are the ancestors of the present plaintiffs. In her lifetime she had mortgaged this property with possession to certain mortgagees whose descendants are not impleaded as such. Paras. 8 and 9 of the plaint stated that on account of the wrong entries in the khewat, only the names of defendants 1 to 4 (who are descendants of Mt. Sakina), stand recorded as mortgagors against the property mortgaged and the names of the plaintiff's are not recorded; and that although the entries are null and void and ineffectual as against the rights of the plaintiffs yet the defendants were asked to rectify them because their existence was contrary to fact and not proper, but they did not pay any heed. In para. 10 of the plaint it was alleged that the cause of action accrued in April 1926 when the defendants refused for the last time. In para. 4 it was stated that the ancestors of defendants 1 to 4 had died about six years ago. Heading these paragraphs together it is clear that the plaintiffs' case was that the names of defendants 1 to 4 were wrongly entered in the revenue papers as the mortgagors about six years ago, and although the entries were not binding on the plaintiffs, the defendants were asked to rectify them but they did not pay any heed and refused to do so. The plaintiffs wanted a declaration of their right against the defendants.
2. In the written statements which were filed it was stated that after Mt. Husaini Begam the name of her daughter only was recorded about fifty years ago and that of no one else was ever recorded. The defendants' case was that Mt. Husaini had gifted the property to her daughter. It was further pleaded that the claim was barred by limitation and also pleaded that the suit had been brought without any cause of action and ought to be dismissed on that very ground. It was also stated that a declaratory suit had been filed without any necessity. There were a number of other pleas which it is not necessary to mention.
3. The learned Subordinate Judge framed no less than eight issues but ultimately dismissed the suit on the sole ground that the suit for declaration was barred by limitation. The basis of the ground is that the name of Mt. Sakina Bibi was entered in the revenue papers about 1878 and the cause of action in favour of the plaintiffs' ancestors arose at that time and that there has been no fresh cause of action since then and a subsequent refusal on the defendants' part cannot create a new cause of action. The learned Subordinate Judge has placed reliance on the case of Akbar Khan v. Turaban [1909] 31 All. 9 and has considered that case is not distinguishable. The suit has accordingly been dismissed on the ground of limitation only.
4. We may point out at the very outset that there is nothing on the record to indicate that when the name of Mt. Sakina Bibi alone was entered in the revenue papers in 1878 there was any contest between rival claimants or any definite adjudication of their rights by the revenue Court. On the other hand, a certified copy of the report of the Naib Tahsildar indicates that the mutation of names took place on his report. Thus it was an uncontested case in which Mt. Sakina Bibi's name was entered. Another important feature which we may point out is that Mt. Sakina Bibi died long ago and the names of her heirs have been substituted from time to time. It was alleged in the plaint and not disputed in the written statements that the names of the defendants 1 to 4 were entered in the revenue papers on the death of Fazal Ali Khan which took place about six years ago. It is, however, not clear whether this happened within six years or just beyond six years.
5. In our opinion the learned Judge has misapplied the ruling in Akbar Khan's case. That was a very special case which had certain peculiar features and accordingly that case has been distinguished in numerous subsequent cases. There in 1895 the defendant's name had been entered in the revenue paper in respect of the property in dispute after contest and after the title of the plaintiff had been specifically denied. Nothing more happened except a refusal in 1903 on the part of the defendant to get the entry corrected. The learned Judges accordingly held that the cause of action accrued when there was a definite denial by the defendant in 1895 and his subsequent refusal to get the the entry corrected which entry he had himself procured, was a mere continuance of the original cause of action and not a fresh denial of title. The learned Judges took care to point out that there may be cases where a fresh invasion of the plaintiff's right would give him a fresh cause of action. But they hold that in the peculiar circumstances of that case there was no such fresh invasion of the right. Of course, a mere refusal to get the entries corrected is not necessarily a clear denial of title. It does not amount to omitting to do a thing which a man is bound to do, nor even doing a thing which he is not entitled to do.
6. 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, if once six years are allowed to expire, is quite clear on the authorities. Any new invasion of rights which amounts to a fresh denial of title undoubtedly confers on the owner in possession a fresh right to sue. In the case of Ilahi Bakhsh v. Harnam Singh [1898] A.W.N. 215 a fresh application to the Municipal Board was considered sufficient to give a fresh cause of action. In the case of Sheopher Singh v. Deonarain Singh [1912] 10 A.L.J. 413 a fresh suit for profits after the mutation of names was held to confer a fresh cause of action. In the case of Rahmatulah v. Shamsuddin [1913] 11 A.L.J. 877 fresh partition proceedings in the revenue Court were held to constitute a fresh cause of action in favour of the plaintiffs against whom adverse entries had been made at the previous revision of settlement. In the case of Allah Jilao v. Umrao Husain [1914] 36 All. 492 a fresh order for assessment of rent was held to give the plaintiffs a fresh cause of action in spite of the previous refusal to have the village papers corrected. In the case of Kali Prasad v. Harbans Misir [1919] 17 A.L.J. 588 a private transfer subsequent to the entry of names was treated as creating a fresh cause of action in favour of the plaintiffs. It will thus be seen that any fresh act on the part of the defendants which can amount to a fresh invasion of the plaintiffs' right or a fresh attempt to cast a cloud on his title would create a new cause of action in his favour, and his suit for declaration cannot be dismissed on the mere ground that the cause of action first accrued more than six years ago when an adverse entry was made against him. Indeed it may be argued whether an entry in an uncontested case, standing by itself necessarily creates a cause of action for a suit by one cosharer against another cosharer.
7. In the present case the learned Subordinate Judge has overlooked the fact that the plaintiffs did not in the plaint allege the entry of Mt. Sakina Bibi's name to be the initial basis of the cause of action in their favour. The rule in Akbar Khan's case cannot undoubtedly be extended to fresh mutations of names which may take place in favour of heirs in subsequent years. We may further point out that one of the properties in dispute is a house in the city of Saharanpur and the ruling in Akbar Khan's case can by no means apply to it. The plaintiffs in the present case alleged their cause of action to have arisen from the wrong entries of the names of the contesting defendants 1 to 4 and not their ancestor Mt. Sakina Bibi. It is not clear from the record whether this occurred within six years of the suit, and the present action, therefore, cannot be thrown out simply on the ground of limitation. We may note that we cannot accept the argument of the learned advocate for the appellants, that no rule of limitation applies to a declaratory suit where the defendants are interested in denying the plaintiffs' right within the meaning of Section 42, Specific Relief Act. This point in our opinion has been set at rest by the Full Bench decision in Francis Legge v. Ram Baran Singh [1897] 20 All. 35. Article 120 undoubtedly applies to all declaratory suits.
8. We are, however, of opinion that this is not a fit case in which a declaratory decree should be granted to the plaintiffs. Our reasons are as follows: An alleged wrong entry was first made in favour of Mt. Sakina Bibi about 1878. For nearly 40 years the plaintiffs and their ancestors have remained idle and not sought any relief. We may note that it is admitted in para. 2 of the plaint that the actual possession is with the mortgagee who is not impleaded in the suit as such. Any decree that is passed in favour of the plaintiffs would not bind the heirs of the mortgagee who would still be entitled to challenge the plaintiffs' right. Thus the decree cannot be necessarily effective. Sixty years are about to expire and the plaintiffs would have to bring a suit for redemption very soon. In that suit for redemption the whole question of title can be gone into in a manner which would bind all the parties who are interested in the property. Furthermore, we find that one of the defendants Ahmad Ali Khan was out of British India when the suit was filed or was pending. The summons was sent to him by post to Arabia and he received it after the date fixed for the appearance and stated that he should be allowed time to come back to India. By the time he could arrive the suit was actually dismissed. If, therefore, we were now to allow the plaintiffs to amend their plaint, as asked for by the counsel, we would have to give an opportunity to the various defendants to file supplementary written statements and the case would have to go back to the Court of first instance with directions to admit fresh evidence if tendered. This can more conveniently be done in a fresh suit in which the mortgagee also is impleaded. Having regard to these circumstances we are of opinion that this is not a fit case in which we should exercise our discretion under Section 42, Specific Relief Act, and grant the plaintiffs the declaration asked for, even assuming that they are entitled to such a declaration.
9. The parties are not agreed as to the extent of the properties mortgaged and the properties are still in the possession of the mortgagee. We express no opinion on this matter which will have to be fought out hereafter. Nor do we consider it necessary to go into the question of title, gift or adverse possession. We accordingly dismiss this appeal. In view of the fact that we have confirmed the decree of the Court below on a different ground we direct that the plaintiffs should bear their own costs and pay the costs of the defendants in the Court below. The parties should bear their own costs of this appeal.