Facts

1. On April 20, 1959 the plaintiffs-appellants filed a suit for possession against the
defendants-respondents, of 331 Kanals and 11 Marlas of land.
2. 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, as 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.
3. It appears that Smt Khemi, who was issueless, had also made a gift in favour of the
plantiffs before her death in 1944. The plaintiffs are said to have obtained possession
of the whole land in dispute thus gifted to them.
4. Since 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 defendants-respondents, the 8th
degree collaterals of Sham Singh, had filed a suit on July 3, 1940, for possession of
the land in dispute which ended in favour of the appellant.
Suit filed in Trial Court
The trial court formulated three issue which were;
a. Whether the plaintiffs obtained the possession of the land in dispute through the
Tehsildar near about the date December 13, 1946 as alleged by them in para 3 of the
plaint?
b. Whether the defendants took possession of the land in dispute after November 21,
1958, as alleged in para 5 of the plaint?
c. Whether the defendants have become owners of the land in dispute through adverse
possession?
The civil court took up and decided the three issues together holding that the plaintiffs’
suit is barred by Article 142 of the Limitation Act. It accepted the defendants’ version.
The court observed that the “oral evidence coupled with the entries in the revenue records
conclusively established that the possession 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 proprietory rights as collaterals of Sham Singh, the husband of Smt
Malan
Punjab High Court Division Bench
Although no issue was framed on the applicability of Section 52 of the Transfer of Property
Act, 1882, to such a case, yet the Plaintiff have first time before the first appellate court
brought up this contention which, relying upon a decision of the Nagpur High Court in
Sukhubai v. Eknath Bellappa [AIR 1948 Nag 97] the Division bench 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 November
21, 1958
Punjab High Court Full Bench
Justice A.N. Grover, giving the majority opinion of the Full Bench of three Judges of the
Punjab High Court held that, on the concurrent 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 running merely because of the pendency of the dependents’ suit for possession which
was finally dismissed by the High Court on November 21, 1958
Aggrieved by the decision passed by Punjab High Court the Plaintiff filed an Appeal before
the Supreme Court.
Question of law before Supreme Court
1. Does the doctrine of lis-pendens, contained in Sec. 52 of the Transfer of Property Act,
apprehend the running of the period of limitation during the pendency of the suit of
the defendants-respondents filed on 3-7-1940,
Arguments by Petitioner
1. The plaintiffs asserted, in their Suit that the defendants-respondents had taken illegal
and forcible possession of the land in dispute after the decision of the High Court on
November 21, 1958, and that, as the defendants- respondents refused to deliver
possession of the land to the plaintiffs, they were compelled to file their suit for
possession;
2. The Plaintiff contended that a portion of the land 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;
3. The Plaintiff asserted that Art. 142 of the Limitation Act was not applicable; as the
doctrine of lis pendens contained in s. 52 of the T.P. Act 1882 apprehend the running
of the period of limitation during the pendency of the respondents’ suit filed in 1940.
HELD
The Supreme Court of India affirmed the judgment and decree of the Punjab High Court and
dismiss the appeal. An application on behalf of the plaintiffs-appellants seeking permission to
introduce additional questions in respect of Banjar land, was also dismissed.
Ratio Decidendi
The entire purpose of the lis pendens doctrine is to submit parties to the litigation as well as
individuals who attempt to acquire rights in immovable property that are the subject of a
litigation to the power and jurisdiction of the Court in order to prevent the acquisition of such
rights preventing the target of a pending action from being defeated. The prohibition which
prevents the immovable property being “transferred or otherwise dealt with” by a party is
apparently directed againstsome action which would have an immediate effect, similar to or
comparable with that of transfer, but for the principle of lis pendens.
The policy underlying statutes of limitation, spoken of as statutes of “repose”, or of “peace”
has been thus stated in Halsbury’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 limitation, namely: (1) that long dormant claims have
more of cruelty 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
with reasonable diligence.”
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 action” The only mode of relief open to the plaintiffs was to
have instituted a suit of their own within the prescribed period of limitation. They did
institute the suit now before us but did so long after the period 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
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.
Courts of Justice cannot legislate, reconstruct, or create exceptions to statutes when statutory
law prohibits them from doing so.
Analysis
Section 52 of the Transfer of Property Act provides for the principle that prohibits immovable
property from being "transferred or otherwise dealt with" by a party appears to be directed
against some conduct that would have an instantaneous effect similar to or comparable to that
of transfer. Illegal Possession or its continuance is different and in-comparable to that of
transfer.
Illegal Possession are one sided wrongful act and not bilateral transactions (which ordinarily
constitute “deals” or dealings with property e.g. contracts to sell) which 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.
The object of the law of limitation is to prevent disturbance or deprivation of what 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 laches 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 appropriately belong, if the
policy behind the law was to have such a provision.