HIGH COURT OF CHHATHSGARH AT BELASPUR Second Appeai No.244l20ti6 Singie Bench: Han’bie Shri DEM: Raosahebbeshmukh, J. iappeiianis Plaint§ffs Smt. Kuntaia Mahanti, W/o Late Ram Narayan Mahanti. A‘ged about 41 years, 2. Ramesh @ Rinku Sio Late Ram Narayan Mahanti, Aged about 20 years, 1. Both are the Rio :Bhagat Singh Ward, Jagdalpur, District Bastar (C.G.) Versus espondents 1. Asha Kiran Mahanti, Dfo Unknown, Aged about 37 years efendams Shri Akasi'r Rama Mahanti, Sio iateRam Narayara Mahanti, Aged about 19 years, Shri Abash Raina Mahanti, S/o late Ram Narayan Mahanti, Aged about 16 years, Shri Vibaeh Rama Mahanti, S/o iate Ram Narayan Mahanti, Aged about ’i 4 yeare, From 3 t0 4 are the minor through their mother Smt. Asha Ktran Mahanti. Ali are the-RIO Pathraguda Ward, Behind PrEmary Schooi Kosa Kendra (Behind BRBhaw‘an) ‘Jagdarpur, Ursa. Basrar (C.G.) Shri Gcpi Nath Mahanti S/o unknown Aged about 86 years, ’R/o Civil Line: Jagdalpur (C.G.) {Died} 6. Up Sarichaiak, Panchayat evam 8amaj Sewa Vibhag, Easter, Jagdaipur (C.G.) WV"’ 3econd Appeal under $ection 1 00 of the Code of Civil Pracedure, 1903 Pregame, Shri Sanjay Patei, ceunsei for the appellants. ORAL ORDER (Passed on 05m November, 2am) Heard on admission. (2) " The appeliants are being aggrieved by an order dated 09-O’5—20Q6 passed by the let Additioriai District Judge, Bastar at Jagdalpur in'Civil R D M v ‘ Appeal No.11-A/2004 whereby the order dated 25141-2003 passed by the l 2nd Civi! Judge Class ll, Bastar at Jagdalpur En §Civ§l Suit Now50—A/2002 I dismEssing the piaintiffs’ suEt, was affhmed. (3) Brief facts are that one Ram Narayan Mahanti died on 28-03-1998. The appellantslplaintitfs as aiso the respondentsidefendants claimed the retirai dues of Ram Narayan Mahanti from the. Up Sanchalak, Panchayat evam Samaj Sewa Vihhag, Bastar at Jagdaipur. By a letter dated 15-04-1998 the appeltant/plaintiff Noland the respondentfdefendant No.1 Smt. Asha Klran Mahantl were directed to get succession certificate from the competent Court. The appetlants/plaintiffs ftlled an application (Succession Case No.08/98) before the Civil Judge Class-l, Jagdalpur under Section 372 of indiah Succession Act. The applieation was dismissed onthe ground that Smt. Kuntaia Mahanti was not the tegally married Wife of Ram Narayan .Mahahti. The succession certificate was ordered to be issued in favour of the respondehtidefendant Not Smt. Asha Kiran' Mahanti. Being aggrieved, the appeilantlpiaintift No.1 Smt. Kuh‘tala Mahanti preferred ah appeal La. (Nam/2001) before the Distrtct Judge, Bastar at Jagdaipur which was also 3‘ dismissed on 2§-06-2002. y (4) Aggrieved by the concurrehtdismissai of his appiication and the appeal, the appellantsipiaihtiffs instituted, civii suit No.50-A/2002 before the 2“ Civil Judge Class It, Jagdaipur on 25437-2002. An objection was raised by the respondents/defendants that mere suit for deciaration of title was hot maintainable. However, the triat Court in para-20 of the order dated 25-1 1-2003 considered the question of iimitation and held that the cause of action first accrued to the appeiiants/piaihtitfs herein on the death of Ram Narayan Mahanti for institution of Civil Suit and therefore, civil suit fited on 25-07-2002 was barred by iimitation under Section [ 1963. i (5) Aggneved by *he said order the appeiiants/piamtifis preferred First Appeal No 11-A/2004 oefore the ist Additionai District Judge Jagdalpur The iearned First Additionai DistriCI Judge, Jagdaipur Vide order dated 09-05—2006 dismissed the appeal whiie agreeing with the triai Court. 58 of the Limitation Act, (6) Shri Sanjay Patei, learned counse'lfor the appellants/plaintiffs has placed reliance on Bharat $ingh vs.>Kunwar Singh'and another AIR 1991 Madhya Pradesh 368 for the proposition that that a mere denial by the defendants of the rights of the plaintiffs would not set the period of limitation running against them since there was no unequivocai threat to the piaintiffs right and no ciear or unequivocal assertion of a right by the respondentioefendant No 1 on the other hand it was urged that the period of limitation under Article 58 of the Limitation Act i963 starts to run from the date of the appellate Court judgment dated 29—06—2002 in Appeal No.04i2001. Therefore, the ctvtt suit having been instituted on 25-07-2002 was within timitation‘ Reiiance was also placed on Rakshmaniben vs. Vadiiai Narayanaias Jadawaia ‘8‘ another Current Civil Cases-1994 Volume-1 -205 in support of the above submission. it) Having heard teamed counsel for the appeilants, l have perused the record. L (8) Articie 58 of the Limitation Act, 1%3 reads as under:- l Description of suit ‘ Period of imitation ' “’TTime from which / period begins torun To Obtain any other Three years. When the right to’sue declaration. / ' first accrues. ' WJ / The word ”First“ is very important. Therefore, Ethe question would be when the \right to sue can be saEd to have first accrued to the appelhantsipiaintiffs. (9) lt rs well settled lhat a right to sue flrst accrues when there rs a poe ove act on the rt of the efendants asrg a clear ht over the property cialmed by the plaintiffs. A overt act on the part of he dea quca tat t r e ou th t h c srtiv rt pa d setm ng n t fendnts whtch lnfrtnges or creates an uneivol hre to infringe he ight of th plaintiff wld be e dae on which te ause of action "can be said to have fir accrued to the piaintiff. n the present ce, Ram Narayan Mahanti died on 28-03-1998. Both the apellantlpiaintiff No.1 and respondentidefendant o.1 moved an application befor the respondent No.6 herein claiming te retiral benefitsof Ram Narayan Mahanti. ln this aner there was a clear assertion of right by the respondentldefendant No.1 ove the retiral benets ofRam Narayan Mahantl prior to the fing of appllcat under Seion 372 of lndiah Succession Act before the 2w Civil Judge Class . Jgatur. l adp is? 1) in tis vi of the matter, the right to sue first accrued to the appeant/laintiff on the ate when the respondentfdefendant No.1 asserted hr right y clatmthg the rettral “beefits before the repondent .6 herein as widow of Ram Naraya’n Mahanti. tn this view of the matter, civll suit fited by the appellantiptaintiff on 25-07-2002 i.e.. beyond the period of 3 years from the date on which the right first accrued in favour of appellant/plaintiff was barred by limitation. i st i as p N e h mn, r fi li ton ct (0 h ew llp d e b n s No _I“ (11), In the light of aforeéaid discussion‘ I am bf the considered opinion ‘ that both the Courts below were rlght m holding that the suit was barred by hmttatron under artrcie 58 of the irmrtatron Act 1%5 i, (12) In\the result, this appeal being devoid of any merit falls and is dismissed at the stage of admission. (13) M.(C.)P.No.933 of 2006 which is an application under Order 39 Rule 1 & 2 ofCRC. for grant of injunction/Status quo also stangidismissed. d—/ l Dillp Raosaheb Deshmukh 1‘ Judge a, e v1 l ’1 W R L,.