In the case of a continuing breach of contract, a fresh period of limitation begins to run at every moment of time during which the breach continues.

N.K. Kapoor, J. - This is defendants regular second appeal against the judgment and decree of the Additional District Judge dismissing her appeal filed against the judgment and decree of the trial Court.

2. Facts of the case lie within a very narrow compass. Lachhman Dass defendant leased out land measuring 96 Kanals 17 Marlas for digging earth as per details given in the plaint for a period of 12 years at the rate of Rs. 3,000/- per killa for a total amount of Rs. 36,000/- per annum. As per terms of the lease deed, the plaintiff was to dig earth to the extent of 4 feet and a lease deed was executed by defendant No. 2 in favour of the plaintiff. It is alleged that the defendant did not allow the plaintiff to dig earth from Killa Nos. 16, 25 of recxtangle No. 17, Killa No. 20, 21 of rectabgke No. 16 and Killa No. 1 of rectangle No. 19 and so the plaintiff claimed a sum of Rs. 20,000/- as damages.

3. Defendants No. 1, 3 and 4 contested the suit, inter alia, on the ground that the suit is bad for misjoinder of defendants No. 3 and 4; that the suit is time barred; that the plaintiff is barred by his act and conduct; that the plaintiff is guilty of breach of contract as he has dug earth from 8 killas out of 12 killas to the extent of 7 to 8 feet against the agreement which was for digging earth upto four feet deep only.

4. On the pleadings of the parties a number of issues were framed. The trial Court ultimately decreed the suit for a sum of Rs. 20,000/- with costs.

5. Before the appellate Court, the matter was again agitated. The lower appellate Court examined the matter in all its details and finally came to the conclusion that the plaintiff is entitled to be awarded damages for a sum of Rs. 12,000/-. Accordingly, the decree of the trial Court was modified to that extent.

6. Before me, learned counsel for the appellant has primarily challenged the findings of the Court below in respect of issue No. 2 which reads as, "whether the suit is within limitation ? OPP". According to the counsel, admittedly, lease deed Exhibit P-1 was executed in the year 1969 and the lease was to commence form 21.3.1969 whereas the suit has been filed on 1.6.1979 which per se is beyond limitation. According to the counsel, as per case set up by the plaintiff the defendants prevented him digging earth from an area approximately four acres from the very inception of the lease deed and so cause of action, in fact, arose to the plaintiff some time in the year 1969 and such a suit could only the failed within three years of such a breach. To support his legal submission, the counsel placed reliance upon the decision in case reported as Bai Manchha widow of Nathubhaj v. Sardar Sajjadanashin Saiyad Mahamed Baker-el-Edros, AIR 1963 Gujarat 168; Marimuthu Gounder v. Ramaswamy Gounder, AIR 1979 Madras 189; and Rameshwar Proshad Khandelwal v. Commissioner, Land Reforms Jagirs, Madhya Bharat (now Madhya Pradesh) and others, AIR 1959 Supreme Court 498.

7. On the other hand, learned counsel for the respondent argued that present is a case of continuing breach and so as per section 22 of the Limitation Act a fresh period of limitation begins to run at every moment of the time during which the breach or tort, as the case may be, continues. Elaborating, the counsel argued that the plaintiff has time to dig the land during the period of lease i.e. from the year 1969 to 1981 and so the present suit is well within limitation as per Article 55 of the Limitation Act.

8. Having heard learned counsel for the parties, I am of the view that the plea raised by the appellant is deviod of any substance. Admittedly, the plaintiff was given land measuring 96 Kanlas 17 Marlas on lease for digging earth for making bricks for a period of 12 years for a consideration of Rs. 3,000/- per acre. Concededly, the plaintiff had not been permitted to dig earth from the laid measuring 4 acres thereby causing monetary lost to him. As averred by the plaintiff, a suit was filed by the defenda