Limitation for a suit for declaration of title starts from the date of clear and unequivocal threat to infringe the right claimed by the plaintiff.

( 1 ) THE defendant in a suit for declaration of title and issuance of a mandatory injunction who succeeded fully from the Trial Court, but lost partially in the plaintiff's appeal before the lower Appellate Court has come up in second appeal.

( 2 ) THE suit property consists of two parts. The plaint alleges that the property shown by letters (also in red colour) is plaintiffs' property, a part of their residential house, while the property shown by letters is a passage meant for approach to their house. In the month of August 1967, the defendant committed trespass over the passage and started raising construction over it. This led to initiation of proceedings before the Revenue authorities as also under the Criminal Law. However, the defendant did not desist. As the defendant denied the title and right of the plaintiffs, the plaintiffs sued for a declaration that the property was owned and possessed by them and also for a mandatory injunction against the defendant requiring removal of obstruction created by him in their way. The defendant denied in his written statement all the material averments made in the plaint and also took a plea that the suit was barred by time.

( 3 ) THE Trial Court decided all the issues against the plaintiffs and hence dismissed the suit. The lower Appellate Court in an appeal preferred by the plaintiffs, has confirmed the judgment and decree of the Trial Court in so far as it refused mandatory injunction touching the property but in so far as the property, is concerned it held that the property does belong to the plaintiffs and hence granted a declaration to that effect. The plaintiffs have not chose to prefer a further appeal nor a cross-objection and hence to the extent to which their suit has been dismissed, the decree of the courts below has achieved a finality. The sole question surviving for consideration is that whether the lower Appellate Court was justified in granting a declaration of title to the plaintiffs touching the property.

( 4 ) IN so far as the finding as to the title of the plaintiffs is concerned it is purely a finding of fact based on appreciation of evidence adduced, not open to interference in second appeal. At the hearing, the learned counsel for the defendant/appellant has also not laid any serious challenge to that finding.

( 5 ) WHAT has been seriously argued is that the plaintiff's suit was barred by time under Art. 58 of the Limitation Act 1963, inasmuch as the cause of action arose to the plaintiffs in the month of August 1967 and the suit was instituted on 11-1-1972, i. e. beyond 3 years of the accrual of the cause of action. The learned counsel for the appellant has placed reliance on Balkrishna v. Shree Dhyaneshwar Maharaj AIR 1959 SC 798 to contend that the plaintiff/respondents could not have had resort to S. 22 of the Limitation Act, 1963 which refers not to a continuing right but to a continuing wrong.

( 6 ) THE learned counsel for the plaintiff/respondents has rightly pointed out that in the facts and circumstances of the case it is not necessary to examine whether there was a continuing wrong or a continuing right because the plaintiff/respondents were not claiming exemption from limitation by submitting that they had a continuing cause of action but their suit was within limitation because there was no clear and unequivocal threat to the right of the plaintiffs made beyond 3 years of the date of the institution of the suit.

( 7 ) IT is common plea of the learned counsel for the parties that the suit in so far as it relates to declaration shall be governed by Art. 58 of the Limitation Act, 1963 which prescribes a period of limitation of 3 years commencing when the right to sue first accrues. It is trite law that the limitation would not commence unless there has been a clear and unequivocal threat to infringe the right claimed by the plaintiff. See C. Mohd. Yunus v. Syed Unnissa AIR 1961 SC 808; Rukhmabai v. Laxminarayan AIR 1960 SC 335; Mt. B