Case: Rajender Singh &amp; Ors Vs. Santa Singh &amp; Ors

1. The plaintiffs-appellants, before us by grant of special leave, had filed a suit on 20-4-l959 far possession against Me defendants respondents, of 331 Canals and 11 Marlas of land 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 at the plots, and of Smt. Malan, who, as the widow of Sham Singh, had gifted the plots in dispute 1935, half and half, to the plaintiffs and Sent. 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, which was applicable to the parties, the defendants-respondents, the 8th degree collaterals of Sham Sink, 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 the 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, renumbered 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.

Reasoning: The plaintiffs had not taken such a case even in their 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 thes were in actual adverse possession of all the land in dispute, debars plaintiffs learned Counsel from raising such a question now. Furthermore, the patent fallacy underlying 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 could 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, apart from cultivation. We will say no more about this unsustainable contentionWe 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 v. Ram Gharib Chand, AIR 1934 All 993 at p. 999 (FB) 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 fait10. It is Immaterial in the case before us, from the point of view of extinction of title by an application of Section 28 of the Limitation Act of 1908, whether Article 142 or Art. 144 of the Limitation Act is applicable11. 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 bearing on the applicability of Art. 142. It is not necessary that the issue framed 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 Art. 142 of the Limitation Act of 1908 or assumed defects in procedure adopted in applying in it21. It is not possible, in the absence of any provision which should entitle the plaintiffs to exclude time and thus bring their suit within 12 years period of period of limitation, to accept a contention which would enable the plaintiffs to escape the mandatory provisions of Section 3 of the Act read with S.28 and Arts. 142 and 144 of the Limitation Act of 1908.Courts of justice cannot legislate or reconstruct law contained in a statue or introduce exceptions when statutory 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 complain of hardship when their own negligence 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 hereThis question was not gone into by the Punjab High Court. As we are affirming the Full Bench decision of the Punjab High Court, dismissing the 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 codefendants respondentsregarding the right to possess any property which may have vested in the Custodian, Evacuee Property. A decision on such a dispute is not necessary for deciding the case before us. There is, therefore, no question of res judicata betweens on the points raised And we cannot allow the plaintiffs appellants to raise any such question on behalf of the Custodian, Evacuee seemed to be attempting to do, in a desperate attempt to clutch at a straw.