The right to immoveable properties stands prescribed as per the period provided in the schedule of the Limitation Act, and mere entry in the survey records does not give a cause of action to file a suit for declaration unless the right to enjoy the property has been infringed or there is a clear threat to infringe the right of the plaintiff in the suit property.

1. Heard Mr. R. G. Ramani, learned counsel appearing for the appellants, Mr. Sudesh Usgaonkar, learned counsel appearing for the respondent nos.1(A) to 1(L) and Mr. P. Kamat, learned counsel appearing for the respondent nos. 5 (a) and 5(b).

2. The above appeal came to be admitted by an order dated 07.01.2009 on the following substantial questions of law:

(1) Whether the Trial Court fell in error in holding that the plaint did not disclose the cause of action?

(2) Whether the Trial Court fell in error in holding that the suit was barred by limitation particularly, when the appellants were claiming only declaration and not possession?

3. During the course of the hearing of the above appeal, Mr. Ramani, learned counsel appearing for the appellants has pointed out that an additional substantial question of law needs to be framed which is as under:

“When the plaintiffs' case was that the plaintiffs were the owners and in possession of the suit property, the learned Lower Appellate Court was right in holding that without seeking further relief for declaration of ownership and possession in respect thereof on 12.02.1999 was not within limitation since the survey thereof was promulgated in the year 1972 ?

4. By consent, though Mr. Usgaonkar, learned counsel appearing for the respondent nos.1(A) to 1(L) has seriously disputed that such substantial question of law arises in the present appeal considering that the matter is being heard for final hearing the appeal is also being examined on the said substantial question of law.

5. With regard to the first and second substantial questions of law, while disposing of Second Appeal No. 82 of 2007 by judgment passed today, this Court relying upon the judgment of the Apex Court has observed at para 5 thus:

“5. I have carefully considered the submissions of the learned Counsel. I have also gone through the records. Shri J. E. Coelho Pereira, learned Senior Counsel appearing for the Appellant, is justified to contend that the averments in the plaint that the Appellant obtained the certified copy of the survey records only in August, 1996 have not been disputed by the Respondents in the written statement. Be that as it may, the suit filed by the Appellant is for declaration of title. Under the provisions of the Limitation Act, specially Section 27 of the Limitation Act of 1963, the right to immoveable properties stands prescribed as per the period provided in the schedule of the said Act. Article 65 and 66 of the Limitation Act, 1963, provides that title to the property is lost only by adverse possession for the specified period. In the present case, the finding of the learned Judge that the suit for declaration of title is barred by limitation, cannot be accepted. The cause of action to file a suit for declaration of title is continuous and, as such, a suit can be filed as long as the title to the property subsists. In the present case, unless and until the Respondents establish that they have become owners by adverse possession, the findings of the learned Judge that the suit is barred by limitation is unsustainable and deserves to be quashed and set aside. The Apex Court in the Judgment reported in (2010) 2 S.C.C. 194 in the case of Daya Singh & anr. vs. Gurudev Singh (Dead) by LRs & Ors., has observed at Para 18 has stated thus :

“18. In this view of the matter, we do not find any ground to agree with the findings of the high Court that the suit was barred by time because of its filing after 18 years of entering into the compromise. The question of filing the suit before the right accrued to them by compromise could not arise until and unless infringement of that right was noticed by one of the parties. The High Court in the impugned Judgment, in our view, had fallen in grave error in holding that the suit was barred by time and had ignored to appreciate that the rights of the appellants to have the revenue record accrued first arose in 1990 when he appellants came to know about the