The Court held that a bare denial in mutation proceedings against a minor does not necessarily constitute a clear and unequivocal threat so as to start the limitation clock. The Court allowed the Civil Second Appeal, set aside the judgment of the First Appellate Court, and restored the decree passed by the Trial Court.

The Court was hearing a Civil Second Appeal filed under Section 100 of the Code of Civil Procedure, challenging the judgment and decree passed by the District Judge, Kishtwar, whereby the judgment and decree passed by the learned Sub Judge, Kishtwar, in the original suits was reversed and the suits were dismissed. The appeal was admitted on substantial questions of law concerning the accrual of the right to sue, the cause of action, and the determination of limitation.

The appeal was heard by Justice Shahzad Azeem, who observed,

“A bare denial in mutation proceedings against a minor does not necessarily constitute a clear and unequivocal threat so as to start the limitation clock.”

Background

The appellant (plaintiff) filed a suit seeking a declaration that she is the only daughter of Late Sonu and is entitled to a half share in the land, along with a consequential relief of ejectment and possession. She challenged the mutation which was attested exclusively in favour of another person, to the extent of her share. A second suit was filed against the respondents after the death of the said person, and both suits were clubbed. Sonu died around the year 1963 when the appellant was a minor, approximately 6-7 years of age.

The respondents (defendants) denied the paternity of the appellant and raised pleas of limitation and non-maintainability. The trial Court, after appreciating the evidence, decreed both suits in favour of the appellant. However, the First Appellate Court reversed the decree primarily on the grounds of limitation and non-proof of paternity, which led to the filing of the present appeal.

The counsel for the appellant contended that the trial Court had correctly appreciated the documentary and oral evidence and rightly held that the appellant is the daughter of Late Sonu.

It was submitted that the First Appellate Court completely overlooked the evidence, misapplied Section 50 of the Evidence Act, reversed the burden of proof on the issue of limitation contrary to the issue framed, and failed to consider the minority of the appellant under Section 6 of the Limitation Act, thereby rendering its findings perverse.

Per contra, the Senior Counsel for the respondents supported the reasoning of the First Appellate Court and prayed for dismissal of the appeal.

Court's Observation

The Court observed that to determine when the right to sue and cause of action accrue, the Court is required to examine the pleadings and evidence of the plaintiffs. It added that the First Appellate Court was not entitled to deviate from the appellant's pleadings and evidence in the complete absence of any contrary material from the defendants.

The plaint had specifically averred that the defendants were asked to admit the appellant's rights and hand over possession but they refused, thereby constituting the cause of action, Justice Azeem opined.

The Court referred to Mst. Rukhmalbai v. Lala Laxminarayan and ors. (1960), wherein the Hon'ble Supreme Court held that the right to sue under the residuary article accrues only when there is a clear and unequivocal threat to the right, and not on every ineffective or incomplete denial.

The Court noted that Section 6 of the Limitation Act provides that limitation does not run against a minor until he attains majority, and subsequent refusals by the respondents after the death of the original beneficiary, as pleaded, could give rise to a fresh cause of action.

The Court further observed that the First Appellate Court, while reversing the Trial Court's finding, did not properly examine or give effect to the pleadings and evidence of the appellant on the point of accrual of cause of action, nor did it consider the effect of minority.

The Court noted that the findings on paternity were intertwined with the issue of limitation. The Trial Court had correctly held that the appellant is the daughter of Late Sonu on the basis of consistent oral evidence of witnesses and contemporaneous revenue entries in the mutation records.

Regarding the evidentiary value of the witnesses, the Court held,

“Section 50 of the Evidence Act, makes relevant the opinion of a person having special means of knowledge as to relationship 'as a member of the family or otherwise'. The expression 'or otherwise' is significant.”

The Court observed that a domestic help who lived in the house and persons who saw the child with the father possess special means of knowledge, and non-examination of the mother is a relevant circumstance but is not fatal when other cogent evidence is available. The Court referred to Chowdamma (D) by LR and Anr. v. Venkatappa (D) by LRs and Anr. (2025), wherein the Hon'ble Supreme Court held that a witness who is not a blood relative but has demonstrated long-standing familiarity with the parties can be accepted.

The Court observed that the First Appellate Court, by completely overlooking the oral and documentary evidence and by misapplying Section 50 of the Evidence Act, recorded a perverse finding. The Court further noted that the issue of limitation was framed with the onus on the defendants, but the First Appellate Court decided the issue against the appellant without the defendants discharging this onus. The Court noted that the respondents led no evidence whatsoever to prove the exact date when the right was first unequivocally denied or the exact date of birth of the appellant.

The Court held,

“The finding of the First Appellate Court that 'it is for the plaintiff to show that the suit is within time' incorrectly reverses the burden cast by the trial Court. Where the defendants fail to lead evidence on a mixed issue of limitation, the issue must be decided against them.”

The Court further noted that if the First Appellate Court was of the view that the burden had been wrongly cast, it was required to re-cast or amend the issue and, if necessary, exercise power under Order XLI Rules 25 and 27 of the Code after giving the parties an opportunity.

Answering the above substantial questions of law in favour of the appellant, the bench set aside the judgment and decree passed by the First Appellate Court. It thus allowed the appeal and restored the judgment and decree passed by the Trial Court.