Rajender Singh & Ors. v. Santa Singh & Ors.

Judgment

CIVIL APPELLATE JURISDICTION : Civil Appeal No. 10'27 of ·1967. Appeal by certificate from the judgment and decree da.ted 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. S. C. Manchanda, N. K. Aggarwal and M. L. Aggarwal, for respondent; 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. ( 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. IJt ti 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. RAJINDER SL'IGH V, SANTA SINGH (Beg, J.)

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 instit11- uon 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. [ 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 8 RAJINDER ijJNGH v. SANTA SINGH (Beg, J.) 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. [ 1974 j 1 S.C.R. the plaintiffs-appellants to raise any such question on behalf of the 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 dismissed 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.