spb/- 1 cra38-07.sxw IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE SIDE JURISDICTION CIVIL REVISION APPLICATION NO. 38 OF 2007 Shri Vithoba @ Vithhal Kashinath Takawane and others. ... Applicants. V/s. Dilip Nandev Takawane & Ors. ... Respondents. ----- Mr. Sagar Joshi for the Applicants. ----- CORAM : D. G. KARNIK, J. DATE : 01st JULY, 2011. P.C. : 1 This revision application is directed against the order dated 12th January, 2007 passed by the Civil Judge, Jr. Division, Daund, deciding the preliminary issue of limitation against the applicants. 2 The applicants and the respondents are neighbouring land owners. There is dispute between them about encroachment on a portion of the land. According to the applicants, the respondents have committed encroachment on a portion of their land (hereinafter referred to as “the suit property”). spb/- 2 cra38-07.sxw 3 The respondents filed a suit against the applicants, bearing Regular Civil Suit No. 135 of 2003 in the court of Civil Judge, Jr. Division at Daund for declaration that they had become owners of the suit property by adverse possession and for an injunction restraining the applicants from disturbing their possession. The suit was contested by the applicants by filing the written statement. In the suit, the respondents made an application at Exh. 21, praying that an issue regarding limitation be framed and tried as a preliminary issue. Accordingly the issue was framed and was answered against the applicants. Aggrieved applicants have challenged that order in the Revision. 4 Learned counsel for the applicants submitted that the suit was governed under Article 58 of the Limitation Act, 1963 and since the suit was filed more than three years after the measurement of the land made on 19th January, 2000, the suit for declaration was barred by limitation. An owner of the property can file a suit for declaration of his title and injunction whenever his title is sought to be impeached and his possession is threatened. Successive denials of the title would give rise to a fresh cause of action. Similarly every attempt for disturbance of possession would give rise to fresh cause of action. It is not obligatory on the owner of the property to file a suit for injunction every time whenever spb/- 3 cra38-07.sxw any attempt is made to disturb his possession. He may be able to defend his possession without aid of court. In case he apprehends that he would be unable to protect his own property without an aid of the court then he would approach the court. In the circumstances, in my view, mere measurement of the land in which it was disclosed that the respondents had committed encroachment on the site of the property was not a starting point of limitation as their possession was not threatened. The starting point of limitation was when his possession was threatened. There is nothing on record to show that the suit was filed after expiry of 3 years of the date when his possession was last threatened. In the circumstances, the trial court committed no error in deciding the preliminary issue in favour of the respondents. 5 The Revision Application is accordingly rejected. Rule is discharged. All interim orders stands vacated. Inform the trial court. [D.G. KARNIK, J.] .....