P. VENKATARAMA REDDY, J.

( 1 ) THIS Civil Revision Petition is filed against an order refusing amendment of the plaint so as to seek the relief of declaration of title in respect of the suit schedule land which is described as a passage. The suit was filed for perpetual injunction restraining the defendant-Municipal Corporation from interfering with the possession of the suit schedule land shown in yellow colour in the plan. The plaintiffs claimed the same as being an integral part of their building bearing Municipal Nos. 4-l-ll/d/3, 4-1-11/d/4 and 4-1-11/d/5 situate at tilak Road, Hyderabad. It is the contention of the defendant-Corporation that the vendors of the plaintiffs had no right to sell the suit-schedule land describing it as common passage meant for their exclusive use. It is the contention of the Corporation that the land in question is part of the road set apart as such in the approved lay-out. It is also stated that the lay-out was sanctioned subject to the condition of leaving 20 feet wide road and if the disputed portion is excluded, the road will be only 15 feet. The 2nd respondent herein who is a neighbour impleaded himself as a defendant in the suit.

( 2 ) DURING the pendency of the suit, a road was laid by the Municipal corporation. The petitioners sought for amendment to add the relief of mandatory injunction to remove the road. As that amendment was refused, crp No. 2308 of 1996 was filed by the plaintiffs. While dismissing that CRP it was observed that the petitioners were not entitled to seek mandatory injunction on the footing that the land on which the road was laid belonged to the petitioners exclusively, without seeking for a declaration. The CRP was dismissed without prejudice to the petitioners right to file a fresh petition seeking declaration and mandatory injunction. Thereafter, the petitioner filed la. No. 627 of 1996 praying the Court to allow the amendment of plaint by adding the relief of declaration and mandatory injunction. That application was rejected by the learned 14th Assistant Judge on the ground that the declaratory relief was barred by time under Art. 58 of the Limitation Act. The trial Court relied on the recent decision of the Supreme Court in Muni Lal vs. Oriental Fire and General Insurance Company Limited wherein the principle was reiterated that the amendment of plaint seeking an alternative relief of mandatory injunction cannot be permitted if the suit for such relief became barred by limitation during the pendency of the proceedings.

( 3 ) THE learned Counsel for the petitioner contends that the real cause of action for seeking the amendment arose only when the road was actually laid and if that is taken as starting point of limitation, the relief sought to be introduced is not barred by time. It is contended that mere denial of the petitioners claim by the defendant in the written statement does not set in motion the period of limitation provided under Article 58.

( 4 ) IN Mohd. Yunus vs. Syed Unnisa the Supreme Court while construing article 120 of the Old Limitation Act Corresponding to Article 58 of the new limitation Act laid down the legal position as follows: "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 atleast a clear and unequivocal threat to infringe that right. "

( 5 ) APPLYING above test, it is to be seen that the right to sue accrued to the petitioners only after the road was actually laid, but not at an anterior stage of the proceedings. In this context, it is relevant to refer to the pleadings.

( 6 ) IN paragraphs 2 and 3 of the plaint it is stated as follows:- "the Defendant herein having no right, interest or title in the above said yellow coloured portion of the sketch plan which is exclusively belongs to the plaintiffs and Smt. Arundhathi Devi started measuring the said land which is the exclusive approach for the plaintiffs. The plaintiffs protested illegal interferenc

Click Here to Read the rest of this document