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Second Appeal No. 25 of 1953, decided on 2nd July 1957, against the decree of N. Ahmed, Additional District Judge Dacca, affirming the decree of K. K. Maitra, Munsif, Munshiganj.
"Continuing wrong" --Test for determining‑Erection of permanent structure over pathway constitutes a complete ouster not a "continuing wrong" ‑Suit for removal of obstruction after limitation not competent.
In considering whether the particular act complained of constitutes a "continuing wrong" within the meaning of section 23 of Limitation Act for which the cause of action arises de die in diem it is necessary to keep in mind the distinc tion between an injury" and the "effects of that injury". Where the injury complained of is complete on a certain date, there is no "continuing wrong" even though the damage caused by that injury might continue. In such a case the cause of action to the person injured arises, once and for all, at the time when the injury is inflicted, and the fact that the effects of the injury are felt by the aggrieved person oil subsequent occa sions, intermittently or even continuously does not make the injury a "continuing wrong" so as to give him a fresh cause of action on each such occasion. If however the act is such that the injury itself is continuous then there is a "continuing wrong" and the case is governed by section 23.
Erection of permanent structures over a pathway consti tutes a complete ouster and not a "continuing wrong" within meaning of section 23, Limitation Act and, therefore a suit brought after the period of limitation for the removal of the obstruction from the pathway would not lie.
Khair Muhammad Khan anti another v. Mst. Jannat and others A I R 1940 Lah. 359 and Kuseshwar Jha and another v, Uma Kant Jha and others A I R 1942 Pat. 188 fol.
Aptabuddin Khan and another v. Johar Ali Kazi and others A I R 1935 Cal. 201 ; Sarat Chandra Mukherjee v. Nirode Chandra Mukherjee and others A I R 1935 Cal. 405 , Dwarka Nath Sen and others v. Tara P asanna Sen and others A I R 1923 Cal. 356 and Raj pur Koer v. Abul Hossain 6 Cal. 394 dissented from.
A. F. M. Mesbahuddin for Appellant.
A. W. Chowdhury for Respondents.
N. L. Das for the Deputy Registrar.
The plaintiff is the appellant and the appeal arises out of a s"it for declaration of plaintiff's title to the disputed lands described in the schedule to the plaint after demarcation of their boundaries and for recovery of khas possession of the same by removing all obstacles therefrom. The plaintiff also prayed for a permanent injunction restrain ing the defendants from entering into the suit lands in future and causing any obstruction to plaintiff's peaceful possession.
The suit lands and the homestead originally were owned by two persons, Samiruddin and Ahad Mia. Samiruddin had 8 annas 2 karas share and Ahad Mia had 7 annas 191 gandas share. The plaintiff's story is that she acquir8 annas 2 karas share of the property that originally belonged to Samiruddin. In the year 1911, Ahad Mia brought a partition suit, being Suit No. 1739 of 1911, in the Subordinate judge's 5th Court, Dacca, and in that suit the homestead and other lands in question were partitioned by metes and bounds. After partition, Ahad Mia got his saham on the eastern side of the homestead. The two pathways marked L and M of the present Commissioner's map were kept ejmali between the two co‑sharers. These pathways were meant as passages to the eastern tank which was ejmali between the two co‑sharers. Both parties were given 8 annas title in the said pathways. The western boundary of the plaintiff's portion of the homestead was also fixed by the Commissioner. Plaintiff's predecessor did not take any delivery of possession in his saham although Ahad got possession in his allotment. It is also the plaintiff's story that the parties actually took possession according to the alleged saham, the saham for Samiruddin's heirs having gone to the plaintiff subse quently. The plaintiff's present suit was filed on account of certain encroachments by Ahad's successor, the present defen dant No. 1. The plaintiff's story is that the present defendants obstructed the two pathways L and M by erecting huts some four or five years before the suit and that the defendants also raised another but in part on the western boundary of his portion of the homestead and encroaching on some portion of the plaintiff's land.
Defendant No. 1 contested the suit. He contended that the plaintiff's suit was barred by limitation and was not main tainable ; that the plaintiff has no right, title and interest in the suit‑lands. He further contended that the huts on the northern, southern and western portion of the homestead were built about 20 years before at the time his father got delivery of possession in the saham. He further denied the western boundary of his homestead, as alleged by the plaintiff, and contends that the boundary is demarcated by a row of jika trees, gazari posts and bamboo fencing since the date of parti. tion. The defendants also allege that the plaintiff never used the eastern tank which is always full of water hyacinth and the plaintiff never used the pathways L and M of the Commis sioner s map and that, even if the plaintiff had any right, that had been extinguished by adverse possession in assertion of a hostile title.
The learned Munsif by his judgment, dated 31st May 1946, decreed the plaintiff's suit in part. Plaintiff's title to the lands outside the, pathways L and M was declared in which she was allowed khas possession. Plaintiff's case as to the eastern boundary of her homestead and the pathways L and M were dismissed and it was ordered that the eastern boundary was defined in the locality by the row of jika trees, gazari posts and bamboo fencings as depicted in the present Commissioner's map and all claims of the plaintiff on lands outside the partition allotment were dismissed on admission. Commissioner's map, report and field book were made part of the decree. There was an appeal before the Additional District judge and a second appeal before the High Court. This Court, by its judgment, dated 5th of September 1950, set aside the decree passed by the (earned Additional District judge and the appeal was remanded to that Court for disposal according to law. After remand, the appeal was heard by the Additional District judge who, by his judgment, dated 12th of April 1952, dismissed the plaintiff's appeal on contest against the respondent and the judgment and decree of the trial Court were affirmed. There were some cross‑objections by the defendants which were rejected as not pressed, The plaintiff thereafter preferred this second appeal before this Court.
Mr. Mesbaliuddin appearing on behalf of the appellant confines his appeal to the pathways L and M alone. He does not press the rest of his claim. He urges before this Court that the lower appellate Court has not considered that the passage indicated by letters L and M in the Commissioner's map was a common passage and, as such, he erred in law in holding that the plaintiff‑appellant's claim in respect of that passage was barred by limitation. The learned Advocate has relied in support of his argument on two cases : one of Sarat Chandra Mukherjee v. Nirode Chandra Mukherjee and others (A I R 1935 Cal. 405) and another of Aptabuddin Khan and another v. Johar Ali Kazi and others (A I R 1935 Cal. 201).
Mr. Abdul Wadud Chowdhury appears for the respon dents while Mr. lV. L. Das appears for the Deputy Registrar on behalf of the minor respondents. '
Mr. Chowdhury appearing ,for the respondents has again contended that the plaintiff's claim is hopelessly barred by limitation'' in respect of the passages marked by L and M. There was a complete ouster by the defendants' predecessor about 20 years before when he took delivery of possession and this case is not covered by section 23 of the Limitatiori Act as contended by the learned Advocate for the appellant and it is 'not a case of any contiruing wrong. There was a complete breach when there was the ouster of the plaintiff by ‑the erec tion of the permanent structures. The learned Advocate has relied on two cases, the case of Khair Muhammad Khan and another v. Mst. Jannat and others (A I R 1.940 Lah. 359) and the case of Kusesh war alha and another v. Uma Kant dha and others (A I R 1942 Pat. 188).
In the written statement filed in this suit, the defendants made a case of; complete ouster of the plaintiff. It is an admitted fact that Ahad Mia, the predecessor of the defen dants, took delivery of possession in his allotment about 20 years before and he erected permanent structures complete blocking the passages L and M. The learned Advocate for the appellant; however, relies on section 23 of the Limitation Act and contends that it is a continuing wrong and, as such, Limi tation Act does not apply to the facts of the case and his interest as a co‑sharer was not extinguished by any adverse possession on the part of the defendants. This principle is alleged to have been laid down in the case of Aptabuddin Khan and another v. Johar Ali Kazi, where it has been held that limitation does not apply in a case of obstruction to a right of way, it being a continuing nuisance. The case refers to an earlier decision of the Calcutta High Court in the case of Nazimulla v. Wazidulla and others (A I R 1916 Cal. 733), where Mookerjee and Richardson, JJ., referred to the Privy Council decision in 6 Cal cutta 394 and observed at page 733
"It was pointed out by their Lordships of the Judicial Committee in Rajrup Koer v. Abul Hossain (6 Cal. 394), where the suit was instituted for the removal of obstructions to a water‑course used by the plaintiff from'time immemorial, that the obstructions which interfered with the flow. of water were in the nature of continuing nuisances as to which the cause of action was renewed de Gie in diem so long as the obstructions causing such interference were allowed to continue".
Later on their Lordships further observed
"But it has been argued on behalf of the appellant that the cases mentioned related to water‑courses. and that although an obstruction to a water‑coarse may rightly be described as a continuing nuisance, an obstruction to a way does not fall within that category. We are of opinion that wrongful interference with aright of way constitutes a nuisance".
In the case of Sarat Chandra Mukherjee v. Nirode Chandra Mukher jee and others, Lort‑Williams and Jack, JJ., also took tile view
"Where the plaintiff has a right to use the land on which certain sheds have been erected as a passage and those sheds are obstructing his passage‑way, there is a continuing wrong and a suit for declaration of plaintiff's right to use the land and for removal of sheds is governed by section 23."
Their Lordships relied on the cases in A I R 1923 Cal 356 and I L R 6 Cal. 314. In, the case of Dwaraka Nath Sen and others Tara Prasanna Sen and others (A I R 1923 Cal. 356.), Richardson and Suhrawardy, JJ., took the view
"Article 144 governs a suit by a co‑sharer for removal of obstruction on land reserved by usage and agreement for common use. Under the article, the burden is on the defendants to prove facts which would entitle them to say that the plaintiff had lost his rights by reason of something in , the nature of adverse possession for the prescribed period."
Section 23 of the Limitation Act provides :
"In the case of a continuing breach of contract and in the case of ,i continuing wrong independent of contract, a fresh period of limitation begins to run at every moment of the time during which the breach or the wrong, as the case may be, continues."
The question is whether, in our present case, the obstruc tion put up by, the defendants for over 20 years indicating a complete ouster of the plaintiff is a continuing wrong. Of course, under section 3 of the Limitation Act it has been provided
"Subject to the provisions contained in sections 4 to 25 (inclusive), every suit instituted, appeal preferred, and appli cation made, after the period of limitation prescribed there for by the first schedule shall be dismissed, although limitation has not been set up as a defence".
he case in A I R 1935 Cal. 405 was dissented from in a later Full Bench decision of the Lahore High Court in the case of Khair Muhammad Khan and another v. Mst. Jannat and others. The Calcutta view taken in the cases cited above was not approved by the Lahore High Court. That was also a case for perpetual injunction directing the defendants to demolish a platform constructed by them on a portion of a courtyard which was the joint property of the parties and had been reserved for their common user. The plaintiffs' grievance was that the platform obstructed the passage of carts and other vehicles from outer thoroughfare into the courtyard and caused great inconvenience to them and other persons living in the mahalla. In that suit also the defendants raised a plea that the suit was barred by limitation as the platform had been in existence for more than six years before the institution of the suit. The trial judge found against the defendants and decreed the suit. On appeal, the decree of the trial Court was modified to the extent that the defendants were only directed to demolish that portion of the platform which had been constructed recently and the suit as regards the portion which had been in existence for over six years was dismissed. There was a second appeal to the High Court. Tek Chand, J., at page 360 of the report observed
"In considering whether the particular act complained of constitutes a "continuing wrong" within the meaning of section 23 for which the cause of action arises de die in diem it is necessary to keep in mind the distinction between an "injury" and the "effects of that injury". Where the injury complained of is complete on a certain date, there is no "continuing wrong" even though the damage caused by that injury might continue. In such a case the cause of action to the person injured arises, once and for all, at the time when the injury is inflicted, and the fact that the effects of the injury are felt by the aggrieved person on subsequent occasions, intermittently or even continuously does not make the injury a "continuing wrong" so as to give him a fresh cause of action on each such occasion. If however the act is such that the injury itself is continuous then there is a "continu ing wrong" and the case is governed by section 23. As observed by Mukherjee. J., in 311 C 242 , the essence of a continuing wrong is that
"the act complained of creates a continuing source of injury and is of such a nature as to render the doer of it responsible for the continuance ; in such cases a fresh cause of action arises de die :n diem. To put the matter in another way, where the wrongful act produces a state of affairs every moment's continuance of which is a new tort, a fresh cause of action for the continuance lies."
His Lordship then discussed some Patna cases and observed that the view taken by the Patna High Court was not uniform. The decision in the Patna case Bhagwan Dutt v. Ashrafi Lal (A I R 1934 Pat. 34) was disapproved in Bibhuti Narayan v. Mahadeo Asram Prasad (19 Pat. 208), where the Calcutta view stated above was criticised at length and it was observed
"Where the wrong amounts to dispossession of the plaintiff, then although it may be a continuing wrong, the plaintiff cannot recover possession after twelve years, because under section 28, Limitation Act, he himself has got no right left. With great deference to the learned Judges who decided that case,. while agreeing with their criticism of the Calcutta decisions, I find myself unable to accept their ultimate conclusion. If the wrong is really a "continuing wrong" it is difficult to see how the plaintiff's right will be lost by lapse of 12 years from the date when it was first committed. Ex hypothesi, the cause of action to the plaintiff arises de die in diem so long as the obstruction exists, and, if this be so, section 28 will not apply so as to extinguish his title".
His Lordship finally concluded at page 363 that
"Where the act complained of amounts to complete ouster of the plaintiff, the injury is complete at the date of the ouster. To such cases, section 23 does not apply, and the plaintiff has six years from the date of obstruction to sue for declaration or injunction and 12 years for possession".
13hide, J., concurred in the same view and held at page 363
"But where there is a complete dispossession and ouster by building a permanent structure in assertion of an adverse title as in this case, can the case be properly treated as one of "trespass" only The real wrong complained of in this case was the dispossession of the plaintiffs by the defendants in assertion of a hostile title. This took place when the chabutra
was built I am, therefore, inclined to agree that the injury in this case was completed and the cause of action, whether for the removal of the chabutra
or for possession of tile land underneath, arose once for all when the chabutra
was built, and the plaintiffs were thereby dispossessed of the land."
1 (1) (2)
Later on His Lordship further observed
"But the current of decisions in this Court is in favour of the view that an encroachment of the kind in dispute in the present instance does not constitute a continuing wrong".
Din Muhammad, J., also concurred in the same view and held at the same page of the report
"It requires a very acute brain to distinguish between the case of a dam that diverts the flow of water and that of a permanent structure which blocks a public way as was the case in 19 Mad. 154 or encroaches upon the common land and thus interferes with the rights of persons interested therein which is dealt with in some Lahore judgments. In spite of the difficulty involved, however, some working principle must be evolved from the cases so far decided which may serve as a guide for the subordinate Courts in future, and, as at present advised, I am of opinion that the rule enunci ated by my learned brother Tek Chand, J., is in accord with the bulk of authority in this Court at least."
This view was also adopted in the case of Kuseshwar Jha and another v. Uma Kant Jha and others, where Fazl Ali and Meredith, JJ., took the view
"There is nothing in section 23 upon which a distinction can be made between the case of encroachment upon private land and upon public land and if in the one case limitation may run, there is no reason why it should not also run in the case of a precisel7 similar act committed upon public land. Whether the wrong is continuing or not must depend upon the nature of the wrong and not upon the nature of the land over which it is committed. A distinction must further be made between the continuance of a legal injury and the continuance of its injurious effects; and there is no perpetual right of suit under section 23, whether a wrong be continued or not, when the trespass itself gives rise to rights extingu ishing any right of suit. The real question in a case of trespass or encroachment is not whether the wrong is continuing or not, but whether the wrong amounts to a complete ouster of the plaintiff, that is, to his dispossession. Where it is a case of dispossession and the suit is for recovery of possession by ejectment of the defendant, then Article 142 provides a period of 12 years' limitation from the date of the plaintiff's ouster. Reading with that Article section 28, it is clear that the plaintiff: can have no right of suit after the expiry of 12 years from his dispossession. And once it is held that the plaintiff's right is extinguished, it is quite irrelevant whether the wrong is technically continuing or not, so far as the question of recovery of possession of that property is concerned. The plaintiff cannot recover it because he has no longer any right in that property."
I respectfully agree with the view taken in the Full Bench decision of the Lahore High Court, which is also in accord with the principle laid down in the Patna case A I R 1942 Pat. 188 and with all deference to the judges of the Calcutta High Court, who decided the cases referred to above, I am not prepared .to accept their view which was dissented from in the Lahore High Court. There was a complete ouster of the plaintiff by the defendant by the erection of the permanent structures more than 12 years before the suit and both the Courts have concurrently held that the plaintiff's claim was barred by limi tation. I cannot accept the contention of the learned Advocate E for the appellant that it is a case of continuing wrong and, as such, Limitation Act has no application to the facts of this case, as decided in the case of Aptabuddin Khan and another v. Johar Ali Kazi. The contention of the learned Advocate for the appellant, therefore, cannot be accepted.
The appeal is, therefore, dismissed but, in the circumstan ces of the case, I make no order as to costs.
M. S.
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