# RAJENDER SINGH & ORS v. SANTA SINGH & ORS

- **Citation:** [1974] 1 S.C.R. 381
- **Court:** Supreme Court of India
- **Decided:** 1973-08-16
- **Bench:** K. K. Mathew, M. ff. BEG
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/rajender-singh-ors-v-santa-singh-ors-5984
- **Pages:** 10

## Headnote

B
Lis pendens-Transfer of Property Act, (4 of 1882)-Sectio11 52-Whether
arrestis "the running of the period of /imitation during the pendency of the suit.
c
D
E
F
G
H
Umi1ation Act (9 of 1908), Art. 142-Scope of.
The respondents had filed a suit in 1940 claiming title to and possession of
certain lands in the pos~ession of the appellants and the suit ended in favour of
the appellants in 1958.
Jn 1959. the appellar/s filed a suit for possession against the
re·spondents
asserting that the respondents had taken illegal and forcible possession of those
lands after the decision of the High Court in 1958. The respondents, however,.
claimed that they had taken possession of the lands even in 1944 and that they
bad been sin.:e then in adverse possession openly, continuously and exclusively
as owners.
The trial court found that the respondents had been in possession of the lands
from 1946· to the date of the appelJants' suit. The firsti appellate i;ourt, however,
held that the doctrine of /is pendens prevented the rights of the respondents from
maturing. The fligh Court, accepting the concurrent findings as to the iact of
posses'lion of the respondents held that the adverse possession of the tleflCndants
commenced during th!! pendency of the earlier suit and once having begUn to
run would not stop running merely because of the pendency of the defendantis'
suit for possession which was dismiissed in 1958.
In appeal to this Court, it was contended that,
(i) a portion of the lruid entered in revenue record as Banjar could not be
adversely possessed at all and must be deemed to be in the possession of plaintiffs on the principle that possession follows title;
(ii) Art. 141 of the Limitation Act was not applicable; and
(iii) the doctrine of /is pend>ens CO"tained in s. 52 of the T.P. Act
188Z
arrested 1he running of the period of 1imitation during the pendency of the
respondents' suit filed in 1940.
Dismi,.;;ing the appeal,
HELD: (I) It is not correct that b•njar land was incapable of adverse
possession. Even if Banjar land could not be cultivated it was not per se incapable of being actually a.nd physically possessed by use for other purposes such
as building or storing of wood or crops, apart from cultivation. Further, this
question which involved investigation of fresh facts, was not raised in the court•
below. [3850-E]
·
(2) (o) On the allegations of the ap~llants in their plaint of •lleged pesscssion and dispossession, the case fell within the ambit of art.
142, Limitation
Act. The question whethe-r the suit was within time when assertions were made
attracting the .ipplication of the article became a question of proof of title itself~
Without proof of subsisting title the suit must fail; [385F-G]
Bindhva<lwl Chand & OrS v. Ram Gharib Chand & Oro, A.I.R. 1934 All.
993 (F.ll.) approved.
2(b) Tt is not necessary tha<t the issue frained must mention the provision Of
law tc be applied. It is the duty of the court, in view of s. 3 of the Limitation
Act, to npply the bar of limitation, whether on patent facts it is applicable even
though not specifically pleaded. [386D-E]
382
SUPREME COURT REPORTS
( 1974) l S.C.R.
(3) (a) An c.\tinction of title will not be hit by the doctrine of /is pende11s
simply b-;!cau·.;e it was an extin::tion during the pendency.~f a suit. If so \.Vide was
1he sweep of ~. 52, Transfer of Property Act, the provision would
have been
differently worded. [386A-ll]
( b) .f·urther such a case in \Vhich. the extinction of title took place by an
applic1ttion of ihe specific afid mandatory provisions of the
Limitation
Act,
would not b~ governed by provision of an Act relating to "transfer" as defined
by ·s. 3 of the Transfer of Property Act but by·the Limitation Act exdusively.
(3868]
Jayara111 Muda/iar v. Ayyaswan1j & Ors. [1972] 2 S.C.C. 200 followed.
A
B
( c) The do::trine of /is pcndens was intended to strike at attempts by parties
to a litigation to circumvent the jurisdiction of a court, in which a c!ispute on
iights or

## Text

381
A
RAJENDER SINGH & ORS.
v.
SANTA SINGH & ORS.
August 16, 1973
[K. K. MATHEW AND M. ff. BEG, JJ.J
B
Lis pendens-Transfer of Property Act, (4 of 1882)-Sectio11 52-Whether
arrestis "the running of the period of /imitation during the pendency of the suit.
c
D
E
F
G
H
Umi1ation Act (9 of 1908), Art. 142-Scope of.
The respondents had filed a suit in 1940 claiming title to and possession of
certain lands in the pos~ession of the appellants and the suit ended in favour of
the appellants in 1958.
Jn 1959. the appellar/s filed a suit for possession against the
re·spondents
asserting that the respondents had taken illegal and forcible possession of those
lands after the decision of the High Court in 1958. The respondents, however,.
claimed that they had taken possession of the lands even in 1944 and that they
bad been sin.:e then in adverse possession openly, continuously and exclusively
as owners.
The trial court found that the respondents had been in possession of the lands
from 1946· to the date of the appelJants' suit. The firsti appellate i;ourt, however,
held that the doctrine of /is pendens prevented the rights of the respondents from
maturing. The fligh Court, accepting the concurrent findings as to the iact of
posses'lion of the respondents held that the adverse possession of the tleflCndants
commenced during th!! pendency of the earlier suit and once having begUn to
run would not stop running merely because of the pendency of the defendantis'
suit for possession which was dismiissed in 1958.
In appeal to this Court, it was contended that,
(i) a portion of the lruid entered in revenue record as Banjar could not be
adversely possessed at all and must be deemed to be in the possession of plaintiffs on the principle that possession follows title;
(ii) Art. 141 of the Limitation Act was not applicable; and
(iii) the doctrine of /is pend>ens CO"tained in s. 52 of the T.P. Act
188Z
arrested 1he running of the period of 1imitation during the pendency of the
respondents' suit filed in 1940.
Dismi,.;;ing the appeal,
HELD: (I) It is not correct that b•njar land was incapable of adverse
possession. Even if Banjar land could not be cultivated it was not per se incapable of being actually a.nd physically possessed by use for other purposes such
as building or storing of wood or crops, apart from cultivation. Further, this
question which involved investigation of fresh facts, was not raised in the court•
below. [3850-E]
·
(2) (o) On the allegations of the ap~llants in their plaint of •lleged pesscssion and dispossession, the case fell within the ambit of art.
142, Limitation
Act. The question whethe-r the suit was within time when assertions were made
attracting the .ipplication of the article became a question of proof of title itself~
Without proof of subsisting title the suit must fail; [385F-G]
Bindhva<lwl Chand & OrS v. Ram Gharib Chand & Oro, A.I.R. 1934 All.
993 (F.ll.) approved.
2(b) Tt is not necessary tha<t the issue frained must mention the provision Of
law tc be applied. It is the duty of the court, in view of s. 3 of the Limitation
Act, to npply the bar of limitation, whether on patent facts it is applicable even
though not specifically pleaded. [386D-E]
382
SUPREME COURT REPORTS
( 1974) l S.C.R.
(3) (a) An c.\tinction of title will not be hit by the doctrine of /is pende11s
simply b-;!cau·.;e it was an extin::tion during the pendency.~f a suit. If so \.Vide was
1he sweep of ~. 52, Transfer of Property Act, the provision would
have been
differently worded. [386A-ll]
( b) .f·urther such a case in \Vhich. the extinction of title took place by an
applic1ttion of ihe specific afid mandatory provisions of the
Limitation
Act,
would not b~ governed by provision of an Act relating to "transfer" as defined
by ·s. 3 of the Transfer of Property Act but by·the Limitation Act exdusively.
(3868]
Jayara111 Muda/iar v. Ayyaswan1j & Ors. [1972] 2 S.C.C. 200 followed.
A
B
( c) The do::trine of /is pcndens was intended to strike at attempts by parties
to a litigation to circumvent the jurisdiction of a court, in which a c!ispute on
iights or interests in immovable property was pending by private dealings which
niight ren1ove the subject matter of litigation from the ambit of
the,
court's
power to decide a pendnig dispute or frustrate its decree. Alienees acqu:ring any
C
hnmovabie property during a litigation over it were held to be boun_d,, by .an
application of the doctrine, by the decree pa-.>sed in the suit even though they
might not have been impleaded in it. The act of taking illegal possession of
immovable property or continuance of wrongful possession, even if the wr-0ng
doer be a party to the pending suit, was not a "dealing
with"
the property
otherwise than by its transfer so as to be covered by s. 52 of the Transfer of
Property Act. The prohibition which jJreve:its the immovable property being
"transferred or otherwise dealt with'' hy a parry is apparently directed against
some action which would have an immediate effe.:t, similar to or comparable
D
with 'hat of transfer, but for the p-rinciple of /is pendens. Taking of illeg .. l pas·
"Session or it·s con:inut1nc·~ are one sided wrongful act£ and not bilate-ral transac·
tions of a kicd ~·hich ordinarily constitute "deals" or dealings with
property.
They cannot confer itnmediate rights on the possessor. Contin11ed illegal posses·
"Sion ripe·ns into a: legally enforceable right only after the prescribed period of
time has elapsed. It matures into a right due to inaction ar.d not due
to the
a:tion of tlh: injured party which can approach a court of appropriate jurisdk·
lion for redress by a suit to regain possession. Section 52 of the Transfer of
E
Property Act was not meant to serve indirt..;tly as a provision or a subs!itute for
a provision of the Limitation Act to exclude time. [387E-388C]
The object of the law of Limitation was to prevent disturbance or depriva.
tion of what might have been acquired in equity and justice by long enjoyment
or what might have been Jost by a party's own inaction, negligence or laches. If
section 52 of the Tr~nsfer of Property Act was really intended to strike at the
running of the period of ]imitation, it would have made it clear that the law
excludes the period spent in ar.y litigation from computalion. Exclusiun of ti1ne
F
in compu!ing periods of limitation \Vas a diffeTent subject altogether to which
the whole of Part TII of the Limitation Act was devoted. Section 14 deals with
exclusion of time of proceeding ho11a .fide in court without jurisdiction. Where a
suit was instituled Jong after the period of limitation bad expired, section 52 of
the Transfer of Prop~rty A;.:t .:;ould nnt apply at all. The effect of s. 3 Limitation
Act was that it expressly precluded exclusion of time on a ground outside the
Limitation Act. [388E-H]
'
Subhaiya Panda,.·anz v. Moha111111ad /IJustapha Afarcayar, 1.L.R. 46 l\f3J. 751:
G
Narayan Jira11gouda Patif & Anr. ·v. Purtobai & Ors. A.LR. 1945 P.C. 5
approved.
(d) Courts of justice cannot legislate for reconstruct law
contained in
a
statute Or introduce C"xceptions when sta!utory law debars them from doing so.
Even hard ciJ.:um'Hances of a case do not justify the adoption of such a course.
-389E!
(e) Jt is not necessary to give any decision on any dispute
b~tween co·
<lefendanfs-re·sponden 1s regardini:r the right to possess any property which n1ight
have vested _i~ the Custodian, Evacuee Property, who was a co.respondent. be·
-cause, a dec1s1on on such a dispute was not necessary for deciding the instant
case. [389G-HJ
H
RAJENDER SINGH V. SANTA SINGH '(Beg, J.)
383
.A
CIVIL APPELLATE JURISDICTION : Civil Appeal No. 10'27 of ·1967.
Appeal by certificate from the judgment and decree
da.ted
~e
4th day of March 1965 of the Punjab High Court at Chandigarh 1n
Regular Second Appeal No. 1532 of 1961.
Urmila Kapoor and Kam/ash Bansal, for the appellants.
:B
S. C. Manchanda, N. K. Aggarwal and M. L. Aggarwal, for resH
pondent; 1-14 and 16-30.
S. N. Prasad and S. P. Nayar, for respondent No. 15
The Judgment of the Court was delivered by
BEG, J .-The plaintiffs-appellants, before us by grants of certificate
of fitness of the case for an appeal had filed a suit on 20-4-1959 for
possession against the defendants-respondents, of 331 Kanals and 11
Marlas of laqd the Khasra numbers of which are given in the plaint. The
plaintiffs were the sons of Smt. Premi, a daughter of Sham Singh
(Deceased), the original owner of the plots, and of Smt. Malan, who
was the widow of Sham Singh, had gifted the plots in dispute in 1935,
half and half. to the plaintiffs and Smt. Khemi, the younger sister of
their deceased mother, Smt. Premi.
It appears that Smt. Khemi, who
was issueless, had also made a gift in favour of the plaintiffs before her
death in 1944.
The plaintiffs are said to have obtained possession of
the whole land in dispute thus gifted to them. But, as there was considerable uncertainty at that time about the rights of the daughters and the
powers of a-widow to donate during her ,life time under the customary
law in Punjab, whicb was applicable to \he parties, the defendants-respondents, the 8th degree collaterals of Sham Singh, had filed a suit on
3-7-1940 for possession of the land in dispute.
\!'his suit had been
stayed from 1941 to 29-5-1946, under the Indian So! liers (Litigation)
Act, 1925, to the benefits of which the plaintiffs were entitled. It
appears that there was also a dispute over mutation of names between
the plamtiff5 and defendants-respondents in revenue courts which ended
finally by an order in favour of the appellants donees passed by the
Financial Commissioner of Punjab on 13-12-1946. Defendants-Respondents' suit of 1940, for declaration of rights and possession, renumered in 1949, ended with the judgment and decree of a Division
Bench of the Punjab High Court passed in favour of the appdlants on
21-11-1958.
The plaintiffs asserted, in their suit No. 179 of 1959
filed on
16-4-1959'. now before u~ in appeal, .that the
defendants-;~spondents
had. t.aken illegal ~nd forcible possess10n of the land in dispute after the
dec1s10n of the High Court on 21-11-1958, and that, as the dcfendantsrespondents refused to deliver possession of the Ja:nd to the plaintiffs,
~hey were compelled to fil.e their suit for possession.
The defendants-
' espondents, however, claimed that they had taken possession over the
whole of the Ian~ in dispute after the death of Smt. Khemi, issueless, in
1944, and that, smce then, they had been in open, continuous, exclusive
possession as owners, adversely to the rest of the world.
Hence, accordm& to the defendants-respondents, the plaintiffs' suit was barred by limitat10n.
384
SUPREME COURT REPORTS
( 1974 J 1 S.C.R.
Ther~ cannot be the least doubt, after looking at the plaint, that the
plaintiffs-appellants, having alleged possession and dispossession, for
which they claimed ·•lief by delivery back of possession of the land in
dispute to them, the case fell squarely within the ambit of Art. 142 of
the Limitation Act of 1908 .. The aefendants-respondents had, however, pleaded the bar of limitation as well as acquisition of title by their
adverse possession for over 12 years.
The Trial Court had framed the first three issues which had a direct
bearing on the question whether Art. 142 or 144 of the Limitation Act
ot 1908 would be applicable.
These issues were :-
"I. Whether the plaintiffs obtained the possesston of the
land in dispute through the Tehsildar near about the date
13-12-1946 as alleged by them in para 3 of the plaint'/ O.P.
2. Wltether the defendants took J?OSSession of the land in
dispute after 21-11-1958 as alleged m para S of the plaint?
O.P.
3. Whether the defendants have become owners of the
land in dispute through adverse possession ? 0 .P ."
The Trial Court rightly placed the burden of proof of the first two
issues on the plaintiffs and of tlfo third issue upon the defendants.
It
took up and decided the three issues together holding that the plaintiffs'
suit is barred by Art. 142 of the Limitation Act. The first Appellate
Court also rejected the plaintiffs' case of acquisition of possession on
13-12-1946 and then of dis-possession after 21-11-1958. It accepted
the clefendants' version. It observed that the "oral evidence coupled
with the entries in the revenue records conclusively established that the
poss~ssion over the suit land right from 1946 up to the present time was
not that of the plaintiffs, but, that of the defendants", who had been
asserting their own vroprietary rights as collaterals of Sham Singh, the
husband of Smt. Malan.
Although, no issue was framed on the applicability of Section 52 of the Transfer of Property Act, 18.82, to such a
case, yet, the question appears to have been argued for the first time
before the first Appellate Court which, relying upon a decision of the
Nagpur High Court in Sukhubai v. Eknath Bellappa(l), held that, despite the established possession of the defendants-respondents for over
twelve years, the doctrine of /is pendens prevented the rights to the defendants-respondents from maturing by adverse possession. It held
that the possession of the defendants-respondents became adverse when
their appeal in their suit for possession was dismissed by the Punjab
High Court on 21-11-1958. Thus, the first Appellate Court had ~eally
used Section 52 of the Transfer of Property Act as though it was a provision for excluding the penod of time spent in litigation in computing
the prescribed period of limitation.
The question whether the doctrine ,
of /is pendens. contained in Sec. 52 of the Transfer of Property Act,
would go\'ern such a ease was referred by a Division Bench to a Full
Bench of the Punjab High Court.
A. N. Grover, J., giving the majority opinion of the Full Bench of
three judges of the Punjab High Court, held that, 0n the concurrent
(1) "'.l.R. 1918 Nagpur 97.
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RAJENDER SINGH V. SANTA SINGH (Beg,/.)
38 5
findings of fact recorded by the Courts below, the adverse possession of
the defendants, who were appellants before the High Court, commenced
during the pendency of the earlier suit, and, once having begun to run,
could not stop i:unning merely because of the pendency of the defendants' suit for possession which was finally dismissed by the High Court
on 21-11-1958.
On the other hand, I. D. Dua, J., expressing his minority opinion of the Full Bench of the High Court, held that the doctrine
of /is pendens, contained in Section 52 of the Transfer of Property Act,
would enable the plantiffs-appellants to overcome the consequences of
defendants' adverse possession until 21-11-1958 so tha\ the doctrine Qi
/is pendens could operate as a provision enabling exclusion of time during the pendency of the defendants' suit of 1940.
One of the questions attempted to be raised here, involving investi-·
gation of fresh facts, was that a portion of the land, entered in revenue
records as "Banjar", cannot be adversely possessed at all because it is
vacant so that it must be deemed to be in the possession of plaintiffs on
the principle that possession follows title.
The plaintiffs had not taken.
such a case even in tbeir replication in answer to the written statement
of the defendants.
Apart from the fact that the question does not·
appear to have been raised in the courts below, we think that the plaintiffs' admission of dispossession by the defendants, implying that the
defendants-respondents were in actual adverse fJOSSession of all the land·
in dispute, debars pl?intiffs' learned Counsel from raising such a question now.
Furthermore, the patent fallacy undedying such a contention is that Banjar land is incapable of adverse possession. It may be
that Banjar land cannot be cultivated, but, we do not think that it coμld
possibly be urged that it is per se incapable of being actually physically
possessed by use for other purposes, such as building or storing of wood
or crops, aparts from cultivation. We will say no more about this unsusta:oable contention.
It was then urged that Art. 142 was no· applicable to lhi3 ca'e and
that no question as to its applicab"li.y should have been decided.
We
fail to see how such a contentio~ cnuld be ad,,anced iP view or the·
assertions in the plaint which clear!" compelled the application of
Article 142
As was held bv a Full Bench of the Allahabad High
Coun. in Bindhyachal Chand & Ors. v. Ram Gharib Chand & Ors.(').
the question whether the suit is within time, when the J?laintiffs make
as<ertions attracting the application of Article 142, becomes a question
of proof of title itself.
Without proof of subsisting title the plaintiffs'
suit must obviously fail.
It was said there by Sulaiman, C.J. (at page
999) :-
"In cases falling strictly under Art. 142, in which the only
qu~stion is one of discont;nuance of possession of the plaintiff
and not of adverse possession of the defendant, the question of
limitation in one sense becomes the ouestion of title, because
bv virtue of S. 28, Limitation Act. if the claim is barred by
time, the title must be d~emed to be extinguished."
(ll A.l.R. t934 (FB) All. 993 at 999.
\
386'
SUPREME COURT REP!>aTS
[ 1974] 1 S.C.R.
It is true that the extinction of title took place in the case before us·
.during the pendency of the suit.
But, it has to be borne in mind that
an extinction of title will not hit by the doctrine of Us pendens simply
because it is an extiiiction during the pendency of a suit.
If so wide
was the sweep of Section 52 of Transfer of Property Act.this provision
would have been differently worded.
We are of opinion that a case in
which the extinction of title takes place by an application of the specific
1111d mandatory provisions of the Limitation Act falls outside the scope
of Section 52 of the Transfer of Property Act.
It would not be governed by provisions of an Act relating to "transfer", defined by Section 3
of ~he Transfer of Property Act, but by the Limitation Act exclusively.
It is immaterial in the case before us, from.the point of view of extincuon of title by an application of Section 28 of the Limitation Act of
1908, whether Article 142 or Article 144 of the Limitation Act is applible. The findings of the Courts below, accepted as corerct and binding by
A. N. Grover, J., in the majority judgment of the Punjab High Court,
would make Article 144 also of fhe Act clearly applicable to the case.
All the elements of an open, adverse, hostile, continuous, and exclusive
possession of the Defendants for over 12 years were present here.
It would be idle to contend in the case before us, in view of the pleadings of the parties and the issues framed and decided, that the applicability of Article 142 of the Limitation Act was either not put in issue by
pleadings of the parties or an issue on its applicability was not framed.
The first two issues framed have a direct hearing on the applicabHity of
Article 142. It is not necessary that the issue farmed must mention the
provision of law to be applied.
Indeed, it is the duty of the Court, in
view of Section 3 of the Limitation Act, to apply the bar of limitation
where, on patent facts, it is applicable even though not specifically
·pleaded.
Therefore, we find no force in the submissions based on the
supposed inapplicability of Article 142 of the Limitation Act of 1908
·or assumed defects in procedure adopted in applying it.
The only question of some importance which could be said to ari~e
·m this case is : Voes the doctrine of Lis pendens, contained in Sec. 52 of
·the Transfer of Property Ac., arrest the running of the period of limitation during the pendency of the suit of the defendants-respondents filed
on 3-7-1940, and, finally decided in •econd appeal by the High Court
on.21-11-58?
We may here set out i>ection 52 of the Transfer of Property Act
·which runs as follows :
"52. During the pendency in any Court having authori.ty
within the limits of India excluding the State of J ammu &
Kashmir or established beyond such limits by the
Cen~ral
Government of any suit or proceeding which is not collusive
and in which any right to immovable property is directly and
specifically in question, the p:·operty cannot be transferred or
other wise dealt with by any party to the suit or proceeding so
as to affect'the rights of any other party thereto under any
decree or order which may be made therein, except under the
authority of Court and on such terms as it may impose.
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RAJINDER SL'IGH V, SANTA SINGH (Beg, J.)
387
Explanation.-For the purposes of this section, the pendency of a suit or proceeding shall be deemed to commence
from the date of the presentation of the plaint or the instit11uon of the ,Proceeding in· a Court of competent jurisdiction,
and to contmue until the suit or proceeding has been disposed
of by a final decree or order and complete satisfaction or discharge· of such decree or order has been obtained, or has
become unobtainable by reason of the expiration of any periDd
of limitation prescribed for the execution thereof by any law
for the time being in force".
. .
·
The background of the provision set out above was indicated by
011.e of us (Beg, J.) in Jayaram Mudaliar v. Ayyaswami &
Ors.(1 ).
There, the following definition of /is pendens from Corpus Juris Secundum (Vol. LIV, p. 570) was cited:
"Lis pendens literally means a pending suit, and the doctrine of /is p_endens has been defined as the jurisdiction, power,
·or control which a court acquires over property involved in a
· suit pending the continuance of the action, and until final judgment therein".
It was observed there :
"Expositions of the doctrine indicate that the need for it
arises from the very n~ture of the jurisdiction of Court~ and
their control over the subject-matter of litigation so that parties litigating before it. may not remove' any part of the subjectmatter outside the power of the Court to deal with it and thus
make the proceedings infructuous."
It was observed there :
The doctrine.of /is pendens was intend>'d to strike at attempts by
parties to a litigation to circumvent the jurisdiction of a court, in which
a dispute on rights or interests in immovable property is pending, by
private dealings which may remove the subject matter of litigation from
the ambit of the court's power to decide a pending dispute of frustrate
its decree. Alienees acquiring any immovable property_ during a litigation over it are held to be bound, by an application of the docume, oy
the decree passed in the suit even though they may not have been
tmpleaded in 1t. The whole object of the doctrine of fzs pendens is to
subject parties to the litigation as well as others, who seek to acquire
rights in immovable property which are the subject matter of a litigation, to the power and jurisdiction of the Court so as to prevent the
cbject of a pending action from being defeated,
· It is very difficult to view the act of taking illegal possession of immovable property or continuance of wrongful possession, even if the \\Tong
doer l:e a party to the pending suit, as a "dealing with" the property
otherwise than by its transfer so as to be covered by Section 52 of the
Transfer of Property Act. The prohibition which prevents the immovable property being ~·transferred or otherwise dealt with" by a party is
apparently directed against some action which would have · an imme- ·
diate effect, similar to or comparable with that of transfer, but for the
principle of lis pendens.
Taking of illegal possession or its continuance
(!) (19721(2) s.c.c 200@ 217.
388
SUPREME COURT REPORTS
[ 1974] 1 S.C.R.
neither r~mble nor are comparable to a transfer.
They are one >ided
wrongful aots and not bilateral transactions of a kind which ordinarily
constitute "deals" or dealings with property (e.g. contracts to sell).
They cannot confer immediate rights on the possessor.
Continued
illegal possession ripens into a legally enforceable right only after the
prescribed period of time has elapsed.
It matures into a right due to
inlfction and not due to the action of the injured party which can approach a Court of appropriate jurisdiction for redr~s by a suit to regain
possession.
The relief against the wrong done must be soug\lt within
the time prescribed.
This is the only moJe of redress provided by law
for such cases .. Section 52 of the Transfer of Property Act was not
meant to serve, indirectly, as a provision or a substitute for a provision
of the Limitation. Act to exclude time.
Such a provision c6uld anJ
would have been there in the Limitation Act, where it would appropriately belong, if the policy behind the law was lo have such a provision.
The policy underlying statutes of limitation, spoken of as statutes of
"repose" or of "peace",,mas been thus stated in Ha/sbury's Laws of
England Vol. 24, p. 181 (para 330) :
"330. Policy ,of Limitation Acts. The courts have expressed at least three differing reasons supporting the existence of
statutes of limitation1 namely, ( 1) that long dormant claims
have more of c~uelty than justice in them, (2) that a defendant might have lost the evidence to disprove a stale claim,
and (3) that persons with good causes of actions should pursue them witll reasonable diligence."
The object or ·the law of limitation is to prevent disturbance or
depreviation of wh~t may have been acquired in equity and justice by
long enjoyment or what may have been lost by a party's own inaction,
negligence, or !aches.
•.
If Section 52 of the Transfer of Property Act was really intended
to strike at the running of the period of limitation, based on the ccinsiderations mentioned above, it would· have made it clear that the law'
excludes the period speqt in any litigation from computation. Exclusion
of time in computing periods of limitation is a· different subject alto·
gether to which the whole of Part III of the Limitation Act is devoted.
There, we find Section 14, which deals with "exclusion of time of proceeding bona fide in Court without jurisdiction". There are certain
conditions for the applicability of Section 14 of the Limitation Act.
One of these is that the plaintiff should have prosecuted, with due diligence, civil proceedings "founded upon the same cause of ac(ion". In
the case before us, the cause of action arose, according to the plaintiffs,
after the decision of the previous suit.
The cause of action in the
previous suit was entirely different.
Indeed, it was the defendantsrespondents who had sought relief there and set up a cause of action.
Section 14 of the Limitation Act of 1908, which is the only provision
of the statute specifically dealing with exclusion of time spent in an·
other litigation, could not obviously apply to the case now before us.
The only mod~ of relief open to the plaintiffs was to have instituted
a suit of their own within the prescribed period of limitation. They
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RAJINDER ijJNGH v. SANTA SINGH (Beg, J.)
389
did institute .the suit now before us but did so long after the peripd of
limitation had expired. In su<fu a case Section 52 of the Transfl!r of
Property Act could not, in our opinion, apply at all. The matter could
only be covered, if at all, by some provision of the statute of limitation
which. as already observed, makes no provision for such a case. The
effect of Section 3 of Limitation Act is that it expressly
precfudes
iexclusion of time on a ground outside this Act even if it parades
under the guise of a doctrine which has no application whatsoever
here.
The majority judgment of the Punjab High Court cites several cases
to support the view that limitation would start running agai,nst the.,
plaintiffs-appellants when the defendants-respondents took pos;ession.
We need mention only two of these cases : Subbaiya Pandaram v.
Mohammad Mustapha .IJarcayar('), and, Narayan Jivanouda Patil &
Ans. v. Puttabai & Ors.( 2 )
We are in complete agreement with the
majority view.
It is not possible, in the absence of any provision which would entitle the plaintiffs to exclude time and thus bring their suit within 12
years period of limitation, to accept a contention which would enable
the plaintiffs to escape the mandatory provisions of Sec. 3 of the Act
read with Section 28 and Article 142 and 144 of the Limitation Act of
1908. Courts of justice cannot legislate or reconstruct law contained
i!1 a statnate or introduce exceptions when statntory law debars them
from doing so. Even hard circumstances of a case do not justify the
adoption of such a course. Moreover, we fail to see how the plaintiffs
could colllPlain of hardship when their own neglige11£!e or failure to act
in time enabled defendants to acquire rights by reason of the operation
of a law of limitation with the wisdom or justice of which we are not
concerned here.
A claim was sought to be advanced on behalf of the Custodian of
Evacuee Property, who is also a defendant-respondent, based on the
provisions of Section 8, sub. sec. 4 of the Administration of E~ee
Property Act 1950. This question was not gone into by the Punjab
High Court. As we are affirming the Full Bench decision of the Punjab
High Court, dismissing t])e plaintiffs' suit on the ground that it is barred
by limitation, it is not necessary for us to give any decision on any
dispute between co-defendants-respondents regarding the right to possess any property which may have vested in, the Custodian. Evacnee
Property. A decision on such a dispute is not necessary for deciding
11
the case before us.
There is, therefore, no question of res-judicata
between co-defendants on the points raised. And, we cannot allow
(1) I.L.R. 46 Mad. 751.
(2) AIR 1945 P.C. 5.
390
SUPREME COURT REPORTS
[ 1974 j 1 S.C.R.
the plaintiffs-appellants to raise any such question on behalf of the
A
Custodian, Evacuee Property, as their learned Counsel seemed to be
attempting to do, in a desparate attempt to clutch at a straw.
The result is that we affirm the judgment and decree of the Punjab
High Court and dismiss this appeal. An application on behalf of the
plaintiffs-appellants (C.M.P. No. 2487 of 1967), seeking permission to
introduce additional questions in respect of Banjar land, is al~o disB
missed for the reasons already given. In the circumstances of this case,
we order that the parties will bear their own costs throughout.
P.B.R.
Appeal dismissed.