Himachal Pradesh High Court
Reserved On: 01.04.2026 vs Of on 20 May, 2026
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
of
Jai Dev (deceased) through LRs ...Respondents
Coram
rt
Hon'ble Mr Justice Rakesh Kainthla, Judge.
Whether approved for reporting?1 Yes
For the Appellants No.1 & : Mr Ashok Sood, Senior
2 Advocate, with Mr Khem Raj,
Advocate.
For the Appellant No.3 : M/s Akhil Mittal and Abhinav
Purohit, Advocates.
For the Respondents No. 1 : Mr V.S. Chauhan, Senior
(a) to 1(c) Advocate, with Mr Arsh
Chauhan, Advocate.
For the Respondents No. : None
1(d) to 1(f)
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
of
Division) Court No.2, Mandi, District Mandi, H.P. (learned Trial
Court) were set aside. (The parties shall hereinafter be referred to
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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
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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
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15.12.1969, but they were not allowed to do so. The plaintiff’s
possession over the suit land is continuous, hostile, notorious,
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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
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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
of
Government Livestock, Farm Kamand, District Mandi, H.P. The
defendants also raised buildings and improved the suit land. The
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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::: Downloaded on – 23/05/2026 10:49:00 :::CIS
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7. Relief.
6. The parties were called upon to produce the evidence,
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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
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the correctness of the acquisition. The evidence of the
defendants showed that the land was being used for grazing
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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.
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9. Being aggrieved by the judgment and decree passed
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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 thelast 56 years simply on the ground that the defendants
have not produced the supporting documents ofacquisition 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 ofacquisition 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
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2026:HHC:18430the plaintiff, the onus of rebutting the same heavily lies
on the plaintiff?
4. Whether, once the acquired land and property vests in the
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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
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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
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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
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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
of
judgments in Himat Rai vs. Kehar Singh 2008(4) CCC 778, H.N.
Jagannath and others vs. State of Karnataka and others (2018) 11
rt
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
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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
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learned Appellate Court held that the defendants had failed to
prove the taking of possession. An official act is presumed to be
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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
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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
of
submissions made at the bar and have gone through the records
carefully.
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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
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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
of
their defence. The documents are copies of public record and
are, per se, admissible. Hence, it was prayed that the present
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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
of
Sanjay Kumar Singh v. State of Jharkhand, (2022) 7 SCC 247:
(2022) 3 SCC (Civ) 699: 2022 SCC OnLine SC 292 that the Appellate
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Court should not generally travel beyond the record of the TrialCourt, 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 inexceptional circumstances. It may also be true that the
appellate court may permit additional evidence if theconditions 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
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2026:HHC:18430court 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 theof
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
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pronounce judgment or for any other substantial cause. It
is further observed that the true test, therefore, iswhether 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
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2026:HHC:18430into 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 notmeet 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.”
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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
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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: –
of
7. It is true that the general principle is that the appellate
court should not travel outside the record of the lower
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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 exceptionalcircumstances. 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 arenot entitled, as of right, to the admission of such
evidence. However, at the same time, where the
additional evidence sought to be adduced removes thecloud of doubt over the case, and the evidence has a direct
and important bearing on the main issue in the suit, andthe interest of justice clearly renders it imperative that it
may be allowed to be permitted on record, suchapplication 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, whichof
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
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prescribed under Order 41 Rule 27 CPC. Nevertheless, the
additional evidence can be admitted only when thecircumstances 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, beproduced 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)
of
“… 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
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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
of
the ground that the record of acquisition of the suit land was not
produced, and it has become necessary to produce the record,
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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
of
also placed upon the letter dated 17.06.1957. However, this letter
mentions that all the houses and land had been vacated by the
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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
of
interconnected with each other and are being taken together for
consideration.
28.
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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:
of
“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
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land. Simultaneously, the section declares that upon
taking possession by the Collector, the acquired land shallvest 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 Collectorafter 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 isdone, 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 theCollector, 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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22
2026:HHC:18430
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
of
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
rt
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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23
2026:HHC:18430
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)
of
“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
rt
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)
::: Downloaded on – 23/05/2026 10:49:00 :::CIS
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
of
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
rt
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
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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
of
symbolic possession is taken by preparing an
appropriate document in the presence of
independent witnesses and getting their signatures
on such a document.
rt
(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.
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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 possessionof
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
rt
land, which is notified as having been withdrawn from
acquisition, is of the nature required by either Section 16or 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 datewhen 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 possessionunder 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.
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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
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
rt
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
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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
of
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
rt
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) ascontended by the appellant. The Government
becomes the owner of the lands notified for
acquisition only when the Collector takespossession of those lands either under Section 16 or
under Sec. 17(1). Both those provisions provide thatwhen the Collector takes possession under those
provisions, the lands notified for acquisition shall
vest absolutely in the Government free from allencumbrances. 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
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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 mentionedin Section 9 sub-section (1), take possession
of any waste or arable land needed for public
purposes or for a Company. Such land shallof
thereupon vest absolutely in the Government
free from all encumbrances.”
Ordinarily, possession of any land notified for
rt
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
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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
of
State Government to the Collector to take over the
possession.
15. In Balwant Narayan Bhagde v. M.D. Bhagwat (1976) 1
rt
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::: Downloaded on – 23/05/2026 10:49:00 :::CIS
31
2026:HHC:18430learned 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 actualpossession 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 theof
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
rt
the land in the Government is the taking of actual
possession of the land. How such possession maybe 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 hardand fast rule laying down what act would be
sufficient to constitute the taking of possession of
land. We should not, therefore, be taken as layingdown an absolute and inviolable rule that merely
going on the spot and making a declaration by beatof drum or otherwise would be sufficient to
constitute taking of possession of land in every
case. But here, in our opinion, since the land waslying 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::: Downloaded on – 23/05/2026 10:49:00 :::CIS
32
2026:HHC:18430necessary 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 collusivetransaction of taking of mere paper possession,
without the occupant or the owner ever coming to
know of it.
of
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
rt
or arable and handed it over to the Principal of the
Agricultural College. It is true that the Special LandAcquisition 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 thePrincipal, Agricultural College, But it is obvious that
this statement was made by the Special Land
Acquisition Officer because he thought that actualpossession of the land could not be regarded as
having been taken, unless the appellant wasexcluded from the land and since the appellant
immediately, without any obstruction, entered
upon the land and continued in possession, “theland 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::: Downloaded on – 23/05/2026 10:49:00 :::CIS
33
2026:HHC:18430taken 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
of
possession and giving delivery to the beneficiaries is the
accepted mode of taking possession of the land. Their
Lordships have held as under:
rt
“4. It is seen that the entire gamut of the
acquisition proceedings stood completed by April17, 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 isdifficult to take physical possession of the land
under compulsory acquisition. The normal mode of
taking possession is drafting the Panchanama inthe presence of Panchas, and taking possession and
giving delivery to the beneficiaries is the acceptedmode of taking possession of the land. Subsequent
thereto, the retention of possession would betantamount 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::: Downloaded on – 23/05/2026 10:49:00 :::CIS
34
2026:HHC:1843048 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 HighCourt that physical possession, indeed, had been
taken over by the Collector is correct or not.
“26. These decisions, as noticed hereinbefore, doof
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
rt
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 areagricultural land and crops used to be grown
therein. If the lands in question are agricultural, not
only must actual physical possession be taken, butalso they were required to be properly demarcated.
If the land had standing crops, as has beencontended by Mr Raju Ramachandran, steps in
relation thereto were required to be taken by theCollector. 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::: Downloaded on – 23/05/2026 10:49:00 :::CIS
35
2026:HHC:18430possession 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. Whenthe 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
of
(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
rt
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 acquiredland, and observed that when there is no crop or
structure on the land, only symbolic possessioncould 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::: Downloaded on – 23/05/2026 10:49:00 :::CIS
36
2026:HHC:18430in 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 ofnotice 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,of
supports the appellants’ assertion that physical
possession of the land is still with them.
22. Respondents 3 to 6 have not placed any
rt
document before this Court to show that actual
possession of the acquired land was taken on theparticular 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::: Downloaded on – 23/05/2026 10:49:00 :::CIS
37
2026:HHC:18430cases, 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
of
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
rt
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
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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:
of
“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
rt
Revenue officers to enter each bigha of land for
taking possession thereof and, therefore, thepragmatic 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 actualpossession was taken. He also tried to point out the
photograph, suggesting that not only the
possession has been taken, but a number of otheractivities of construction were going on at the land,
including drawing the layout thereof and buildingthe roads therefor. The learned senior counsel
relied on the reported decision in Sita Ram BhandarSociety, 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::: Downloaded on – 23/05/2026 10:49:00 :::CIS
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2026:HHC:18430Authority. 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:
of
“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
rt
present at the site when possession of the acquired
land was delivered to the Senior Manager ofHSIIDC. 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 showingdelivery of possession of the acquired land to
HSIIDC has no legal sanctity, and the High Courtcommitted a serious error by dismissing the writ
petition on the specious ground that possession of
the acquired land had been taken and the samevested 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
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2026:HHC:18430
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
of
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
rt
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
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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
of
upon the letter written by the Collector regarding the
acquisition. Therefore, this mutation does not show the delivery
rt
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
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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
of
by way of the mutation recorded on the basis of a letter written
by the Land Acquisition Collector. The mere writing of the letter
rt
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),
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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
of
acquisition and is not relevant because no one has challenged
the acquisition in the present case. The judgment in Komiah
rt
(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
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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
of
suit land and the revenue entries to be null and void. A
consequential relief of permanent prohibitory injunction was
rt
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:
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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
of
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
rt
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::: Downloaded on – 23/05/2026 10:49:00 :::CIS
46
2026:HHC:18430and 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
of
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
rt
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)::: Downloaded on – 23/05/2026 10:49:00 :::CIS
47
2026:HHC:18430It 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 trustdeed 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’sof
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
rt
onwards, the plaintiff has been residing in the suit
house. It is conceded that he had knowledge of thelitigation 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 hispossession 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 takemeasurements of the house for effecting partition
of the property, when the plaintiff raised anobjection, and thereafter, in 1940, filed the suit.
From the aforesaid facts, it is manifest that theplaintiff’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
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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
of
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
rt
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 17th 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
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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 theof
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.
rt
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
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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
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
rt
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 ofthe 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 acause of action to the plaintiff to file a suit for declaration
or not. There is no dispute that mutation was sanctionedin favour of the defendant after the death of Akbar, and in
case such an entry furnishes a cause of action, thencertainly 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.::: Downloaded on – 23/05/2026 10:49:00 :::CIS
51
2026:HHC:18430Nanhi 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
of
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
rt
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 354that 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”.
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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
of
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
rt
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,::: Downloaded on – 23/05/2026 10:49:00 :::CIS
53
2026:HHC:18430as 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 hadknowledge 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 1940of
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
rt
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 andunequivocally threatened to infringe the right
asserted by the plaintiffs in the suit. Every threat by
a party to such a right, however ineffective andinnocuous it may be, cannot be considered to be a
clear and unequivocal threat so as to compel him tofile a suit. Whether a particular threat gives rise to a
compulsory cause of action depends upon the
question whether that threat effectively invades orjeopardises 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,::: Downloaded on – 23/05/2026 10:49:00 :::CIS
54
2026:HHC:184301908. 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)of
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
rt
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, aplaintiff 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 oflaw was reiterated in C. Mohammad Yunus, appellant v.
Syed Unnissa and others, respondents, AIR 1961 SupremeCourt 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 theexercise 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::: Downloaded on – 23/05/2026 10:49:00 :::CIS
55
2026:HHC:18430Act) 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 hisoption, 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 orof
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.
rt
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 notprovided under any other Article. Under this Article, the
limitation period of three years commences from the datewhen 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 adeclaration 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:
::: Downloaded on – 23/05/2026 10:49:00 :::CIS
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,of
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
rt
Lahore High Court held that the plaintiff in possession
need not bring a suit on the first denial of his title, and heneeds 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 succeedingdenial of his title by the defendant. He may look
upon each denial with complacency or, at hisoption, 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 orassertion 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
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57
2026:HHC:18430
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
of
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)
rt
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 bebarred 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 aninvasion 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::: Downloaded on – 23/05/2026 10:49:00 :::CIS
58
2026:HHC:18430in 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
of
suit is well within time under Article 113, Limitation Act,
1963.
47. It was laid down by the Hon’ble Supreme Court in
rt
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 SeniorCounsel appearing for the appellant-plaintiffs before us
submitted that there could be no right to sue until there isan 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 thesuit 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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2026:HHC:18430
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 andits infringement or at least a clear and unequivocal
threat to infringe that right.”
In C. Mohammad Yunus [AIR 1961 SC 808], this Court held
of
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
rt
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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60
2026:HHC:18430
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 succinctlyof
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
rt
threat to infringe that right by the defendant
against whom the suit is instituted. No doubt MrKoklan’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 noinfringement 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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61
2026:HHC:18430
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 thependency of the partition suit between Rakhmabai
and Chandanlal instituted in the year 1929, and the
suit filed in 1940, admittedly after six years of theof
said knowledge, would be barred under Art. 120 of
the Limitation Act. Article 120 of the Limitation Act
reads:
rt
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 ofvarious States. The leading decision on the subject is that
of the Judicial Committee in Mt. Bolo v. Mt. Koklan, 57 IndApp 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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62
2026:HHC:18430
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 atof
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
rt
most unreasonable to hold that a bare repudiation
of a person’s title, without even an overt act, wouldmake 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::: Downloaded on – 23/05/2026 10:49:00 :::CIS
63
2026:HHC:18430was 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 plaintiffalone, a suit for a declaration of a right and an
injunction restraining the defendants from
interfering with the exercise of that right isof
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
rt
rights in the institution, which was and is in the
management of the trustees. The trial judge heldthat 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 ofFakruddin’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 notshown that the trustees have ever denied or are
interested in denying the right of the plaintiffs anddefendant 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 bebarred 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::: Downloaded on – 23/05/2026 10:49:00 :::CIS
64
2026:HHC:18430would 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:
of
‘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
rt
a suit to obtain any other declaration would begin
to run “when the right to sue first accrues”. Theword “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 theright 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 Article120 of the Old Limitation Act, 1908, does form a
firm guidance to find out as to when the right to sueaccrues 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::: Downloaded on – 23/05/2026 10:49:00 :::CIS
65
2026:HHC:18430plaintiff, 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
of
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
rt
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,::: Downloaded on – 23/05/2026 10:49:00 :::CIS
66
2026:HHC:18430became 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 theserevenue 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 casesof
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
rt
to the plaintiffs. This precise point came up for
consideration in Ibrahim‘s case (supra), and theCourt, 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 atall, 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 theDivision Bench in the case reported as Niamat Singh
v. Darbari Singh, (1956) 58 PLR 461, wherein it washeld as under:
“If an adverse entry is made against a person
who is in actual physical possession of theproperty 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::: Downloaded on – 23/05/2026 10:49:00 :::CIS
67
2026:HHC:18430entry 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.
of
“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
rt
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::: Downloaded on – 23/05/2026 10:49:00 :::CIS
68
2026:HHC:18430that 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 IInd 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
of
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
rt
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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2026:HHC:18430
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
of
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
rt
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 takeforcible 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 thename of the defendant did not give any cause of
action to the plaintiff, especially when he hadcontinued to be in exclusive possession of the land
without any interference of any kind by thedefendant. 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 oflimitation 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 inof
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
rt
sanctioned in favour of the defendant after the
death of Akbar, and in case such an entry furnisheda 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 notfurnish 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, 1956P.L.R. 461. In our view, the contention of the
learned counsel has considerable force. Theplaintiff 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 Akbaror 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::: Downloaded on – 23/05/2026 10:49:00 :::CIS
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2026:HHC:18430that 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 produceany 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 aof
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
rt
with the learned Single Judge that the cause of
action arose when the mutation was entered in thename 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 Actin 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::: Downloaded on – 23/05/2026 10:49:00 :::CIS
72
2026:HHC:18430could 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
of
accrual of the right asserted in the suit and its
infringement or at least a clear and
rt 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 beno right to sue until there is an accrual of the
right asserted in the suit and its infringementor 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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2026:HHC:18430
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
of
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
rt
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::: Downloaded on – 23/05/2026 10:49:00 :::CIS
74
2026:HHC:18430earlier 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.
of
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
rt
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
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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.
of
Substantial Question of Law No.6:
51. The learned Appellate Court had not misconstrued or
rt
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
20th May, 2026
(Nikita)
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