A suit for declaration of traditional boundaries under Section 13 of the Kumaun Nayabad and Waste Lands Act, 1948, can be filed within limitation from the date of accrual of the cause of action, i.e., within 6 years from the date of the first accrual of the cause of action, which is the date when the boundaries were determined by the settlement. However, if the plaintiffs continued to enjoy their customary rights without any disturbance on the land affected by the wrong fixation of boundaries, they were not bound to file a suit for declaration immediately.

( 1 ) THIS is a plaintiffs second appeal in a suit for declaration of the traditional boundary between two villages Ginthali and Kyard in the district of Pauri Garhwal, under Section 13 of Kumaun nayabad and Waste Lands Act, 1948.

( 2 ) IN brief the plaintiffs case was that a part of the boundary of their village had wrongly been fixed in the settlement made in the year 1935, for not being in accordance with the boundaries fixed in the settlements of Sal 80 (1823 A. D.) and Sal 96 (1839 ). The defendants contested the case of the plaintiffs. It is not necessary for the purposes of the decision of this appeal to refer to the pleadings of the parties in this case. Issues framed by the trial court bring out the controversy between the parties. They were:-

(i) Whether the land lies within villages Ginthali and Maindwari according to Sal 80 and 96, boundary description ? (ii) If so whether the boundary line running by pillars Nos. 41, 42 and 43 has been wrongly fixed during the present settlement ? (iii) Whether the plaintiffs have been exercising exclusive customary rights of user of Gauchar, grass, fuel, panghat, paraw and passage over the land in suit ? (iv) Whether the plaintiffs are entitled to the permanent injunction restraining the defendants from forming the panchayat forest within the land in suit and also from interfering with the rights of user of plaintiffs ? (v) Whether the suit of the plaintiffs is barred by limitation as the plaintiffs knew of the boundary proceedings in the year 1935-36? (vi) Whether the plaintiffs are estopped from filing the suit as plaintiffs acquiesced the construction of the boundary wall? (vii) Whether the suit of plaintiffs is bad or misjoinder of causes of action in respect of the boundary of defendants villages? (viii) Whether the suit is not maintainable as the villages boundaries already fixed are traditional boundaries?

( 3 ) IT appears that initially the trial court dismissed the suit by a judgment dated 8th December, 1956. That was set aside on first appeal and the matter was remanded to the trial court for a fresh trial. After remand, the trial court held on an appraisal of the evidence on the record, on issue no. 1, that the land in suit lies within the boundary of village Ginthali i. e. the plaintiffs village, according to Sal 80 and 96 boundary descriptions; on issue No. 2, that the settlement of 1935-36 was incorrect and had been made without any reference to the boundary descriptions of Sal 80 and 96; on issue No. 3, that the plaintiffs have been exercising exclusively the custompary rights of Gauchar, grass, fuel, pan-ghat, paraw and passage over the land in suit; on issue No. 4, that the land in suit lay within the traditional boundary of the plaintiffs village and that they have been exercising customary rights over it and are entitled to a permanent injunction as prayed; on issue No. 5, that notwithstanding the settlement of 1935-36, the plaintiffs had throughout been enjoying the customary rights over the land in suit as part of their village and that being so they were not bound to bring the suit so long as they continued to enjoy those rights uninterruptedly and in this view of the matter the suit was not barred by limitation; issues Nos. 6 and 7, appear to have not been pressed before the trial court; and on issue No. 8, it held that the suit was maintainable. In the result the trial court decreed the suit declaring that the land shaded red in map 301-A was within the traditional boundary of village Ginthali and that the plaintiffs had customary rights of Gauchar, grass, fuel, panghat, paraw on the land in suit, and the defendants were restrained from raising any communal forest over the land or in any manner interfering with the plaintiffs right thereon.

( 4 ) THE lower appellate court has by the judgment under appeal reversed the decree of the trial court, basically on the finding that the suit was barred by limitation although it has also recorded findi