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TMI Blog1973 (8) TMI 159X X X X Extracts X X X X X X X X Extracts X X X X ..... session 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, which was applicable to the parties, the defendats-respondents, the 8th degree collaterals of Sham Singh, had filed a suit on 3-7-1940 for possession of the land in dispute. This suit had been stayed from 1941 to 29- 5-1946, under tbe-Indian Soldiers (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 plaintiffs 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 appellants on 21-11-1958. The plaintiffs asserted, in their suit No. 179 of 1959, filed on 16-4-1959, now before us in appeal, that the defendants-responde ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as not that of the plaintiffs, but, that of the defendants", who had been asserting their own proprietary 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, 1882, 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 (1), held that, despite the established possession of the defendants-respondents for over twelve years, the doctrine of lis 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 really used Section 52 of the Transfer of Property Act as though it was a provision for excluding the period of time spent in litigation in computing the prescribed period of limitations. The question whether the doctrine of lis pendens, contained in Sec. 52 of the' Transfer of Prope ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rged that Art. 142 was not applicable to this case and' that no question as to its applicability should have been decided. We fail to see how such a contention could be advanced in view of the assertions in the plaint which clearly compelled the application of Article 142 As was held by a Full Bench of the Allahabad High Court, in Bindhyachal Chand & Ors. v. Ram Gharib Chand & Ors. (1), the question whether the suit is within time, when the plaintiffs make assertions 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 pager 999) :- "In cases failing strictly under Art. 142, in which the only question is one of discontinuance of possession of the plaintiff and not of adverse possession of the defendant, the question of limitation in one sense becomes the question of title, because by virtue of S. 28, Limitation Act. if the claim is barred by time, the title must be deemed to be extinguished." 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... finally decided in second appeal by the High Court on 21-11-58 ? We may here set out Section 52 of the Transfer of Property Act which runs as follows : "52. During the pendency in any Court having authority with in the limits of India excluding the State of Jammu & Kashmir or established beyond such limits by the Central 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 property 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. 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 institution of the proceeding in a Court of competent jurisdiction, and to continue 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... arently directed against some action which would have an immediate effect,.similar to or comparable with that of transfer, but for the principle of lis pendens. Taking of illegal possession or its continuance neither resemble nor are comparable to a transfer. They are one sided wrongful acts 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 inaction and not due to the action of the injured party which can approach a Court of appropriate jurisdiction for redress by a suit to regain possession. The relief against the wrong done must be sought within the time prescribed. This is the only mode 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 could and would have been there in the Limitation Act, where it would appropria- ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of limitation had expired. In such a case Section 52 of the Transfer 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 precludes exclusion 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 against the plaintiffs-appellants when the defendants-respondents took possession. We need mention only two of these cases : Subbaiya Pandaram v. Mohammad Mustapha Marcayar(1), 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 Sect ..... X X X X Extracts X X X X X X X X Extracts X X X X
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