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PETITIONER: RAJENDER SINGH & ORS.

       Vs.

RESPONDENT: SANTA SINGH & ORS.

DATE OF JUDGMENT16/08/1973

BENCH: BEG, M. HAMEEDULLAH BENCH: BEG, M. HAMEEDULLAH MATHEW, KUTTYIL KURIEN

CITATION:  1973 AIR 2537            1974 SCR  (1) 381  1973 SCC  (2) 705

ACT: Lis  pendens-Transfer of Property Act, (4  of  1882)-Section 52-Whether  arrests the running of the period of  limitation during the pendency of the suit. Limitation Act (9 of 1908), Art. 142-Scope of.

HEADNOTE: The  respondents had filed a suit in 1940 claiming title  to and  possession  of certain lards in the possession  of  the appellants and the suit ended in favour of the appellants in 1958. In 1959, the appellants filed a suit for possession  against the  respondents  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 had been since 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 appellants’ suit.  The first appellate court, however,  held that the doctrine of lis pendens prevented the rights of the respondents  from maturing.  The High Court,  accepting  the concurrent  findings  as to the fact of possession  of  the respondents   held  that  the  adverse  possession  of   the defendants commenced during the pendency of the earlier suit and  once having begun to run would not stop running  merely because  of  the  pendency  of  the  defendants’  suit   for possession which was dismissed in 1958. In appeal to this Court, it was contended that, (i)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; (ii)Art. 142 of the Limitation Act was not applicable; and (iii)the doctrine of lis pendens contained in s. 52  of the  T.P.  Act 1882 arrested ’,he running of the  period  of limitation  during  the pendency of the  respondents’ suit filed in 1940. Dismissing the appeal, HELD : (1) It is not correct that banjar land was  incapable of  adverse  possession.  Even if Banjar land could  not  be

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cultivated it was not per se incapable of being actually and 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  courts below. [385D-] (2)(a)  On  the  allegations of the  appellants  in  their plaint  of  alleged possession and dispossession,  the  case fell  within  the ambit of art. 142,  Limitation  Act.   The question  whether the suit was within time  when  assertions were made attracting the application of the article became a question   of  proof  of  title  itself  Without  proof   of subsisting title the suit must fail; [385F-G] Bindhyadchar Chand & Ors v. Ram Gharib Chand & Ors.   A.I.R. 1934 All. 993 (F.B.) approved. 2(b) It is not necessary that the issue framed must  mention the  provision ’of law to be applied. it is the duty of  the court,  in view of s. 3 of the Limitation Act, to apply  the bar of limitation, whether on patent facts it is  applicable even though not specifically pleaded. [386D-E] 3 82 (3)(a)  An  extinction  of title will not be  hit  by  the doctrine of lis pendens simply because it was an  extinction during the pendency of a suit.  If so wide was the sweep of s.  52, Transfer of Property Act, the provision  would  have been differently worded. [386A-B] (b)Further, such a case, in which the extinction of  title took  place by an application of the specific and  mandatory provisions  of the Limitation Act, would not be 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 exclusively. [386B] Jayaram  Mudaliar  v. Ayyaswami & Ors. [1972] 2  S.C.C.  200 followed. (c)The  doctrine of lis pendens was intended 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 was  pending  by  private dealings which might remove the subject matter of litigation from  the  ambit of the court’s power to  decide  a  pending dispute  or  frustrate its decree.  Alienees  acquiring  any immovable property during a litigation over it were held  to be  bound, by an application of the doctrine, by the  decree passed  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 wrong ,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 prevents the  immovable property  being "transferred or otherwise dealt with"  by  a party is apparently 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  are  one  sided wrongful acts and not bilateral transactions of a kind which ordinarily  constitute  "deals" or dealings  with  property. 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.  Section 52 of the Transfer  of Property  Act  was  not  meant  to  serve  indirectly  as  a

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provision or a substitute for a provision of the  Limitation Act to exclude time. [387E-388C] The  object  of  the  low  of  Limitation  was  to   prevent disturbance or deprivation of what might have been  acquired in  equity and justice by long enjoyment or what might  have been  lost by a party’s own inaction, negligence or  laches. If  section 52 of, the Transfer of Property Act. was  really intended  to  strike  at  the  running  of  the  period   of limitation,  it  would  have  made it  clear  that  the  law excludes   the   period  spent  in   any   litigation   from computation.   Exclusion  of time in  computing  periods  of limitation  was a different subject altogether to which  the whole  of  Part  III  of the  Limitation  Act  was  devoted. Section 14 deals with ,exclusion of time of proceeding  bona fide  in  court  without jurisdiction.   Where  a  suit  was instituted long after the period of limitation had  expired, section  52 of the Transfer of Property Act could not  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] Subbaiya  Pandaram v. Mohammad Mustapha Marcayar, I.L.R.  46 Mad. 751: Narayan Jivangouda Patil & Anr. v. Puttabai & Ors. A.I.R. 1945 P.C. 5 approved. (d)Courts of justice cannot legislate for reconstruct  law contained   in  a  statute  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.[389E] (e)It is not necessary to give any decision on any dispute between  codefendants-respondents  regarding  the  right  to possess  any  property  which  might  ’have  vested  in  the Custodian.   Evacuee Property, who was a co-respondent.  be- cause,  a decision on such a dispute was not  necessary  for deciding the instant case. [389G-H] 38 3

JUDGMENT: CIVIL  APPELLATE  JURISDICTION : Civil Appeal  No. 1027 of 1967 Appeal by certificate from the judgment and decree dated the 4th day of March 1965 of the Punjab High Court at Chandigarh in Regular Second Appeal No. 1532 of 1961. Urmila Kapoor and Kamlash Bansal, for the appellants. S.C.  Manchanda, N. K. Aggarwal and M. L.  Aggarwal,  for respondents 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 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 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

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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-respondents   had  taken  illegal  and   forcible possession of the land in dispute after the decision of  the High  Court  on  21-11-1958, 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. rhe defendantsrespondents, however, claimed that they  had  taken possession over the whole of  the  land  in dispute after the death of Smt.  Khemi, issueless, in  1944, and  that,  since then, they had been in  open,  continuous, exclusive possession as owners, adversely to the rest of the world.  Hence, according to the defendants-respondents,  the plaintiffs’ suit was barred by limitation. 384 There  cannot  be  the least doubt,  after  looking  at  the plaint,  that  the  plaintiffs-appellants,  having   alleged possession and dispossession, for which they claimed  relief 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 defendants-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  of 1908 would  be  applicable.   These issues were               "1.   Whether  the  plaintiffs  obtained   the               possession of the land in dispute through  the               Tehsildar  near a-bout the date 13-12-1946  as               alleged by them in para 3 of the plaint ? O.P.               2.Whether  the defendants took  possession               of  the  land in dispute after  21-11-1958  as               alleged ’in para 5 of the plaint?  O.P.               3.Whether   the  defendants  have   become               owners of the land in dispute through  adverse               possession ? O.P." The  Trial Court rightly placed the burden of proof  of  the first  two issues on the plaintiffs and of the  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 dispossession after 21- 11-1958.  It accepted the defendants’ version.  It  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

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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  Property Act,  would  govern such a case 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, on the concurrent (1) A.I.R. 1948 Nagpur 97. 385 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 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 lis 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 that  the doctrine  of  lis  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 investigation  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 oil the principle  that possession follows title.   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  plain- tiffs’   admission  of  dispossession  by  the   defendants, implying  that  the defendants-respondents  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  in-capable  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  unsustainable contention.

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It  was then urged 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." (1)  A.I.R. 1934 (FB) All. 993 at 999. 386 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 lis pendens simply. because  it  is  an extinction  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  and  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 the Transfer of Property Act, but by the Limitation Act exclusively. 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 Article 144 of the Limitation Act is applible.  The findings of  the Courts below, accepted as correct and binding by  A. N.  Grover, J., in the majority judgment of the Punjab  High Court,  would  make  Article 144 also  of  the  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 her,-. 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 or 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 arise  in this case is : Does the doctrine of  lis  pendens,

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contained in Sec. 52 of the Transfer of Property Act, 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 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.               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  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 by reason               of the expiration of any period 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  one of us (Beg, J.) in Jayaram Mudaliar v.  Ayyaswami  & Ors.(1). There, the following definition of lis pendens from Corpus Juris Secundum (Vol.  LIV, p. 570) was cited :               "Lis  pendens literally means a pending  suit,               and  the  doctrine  of lis  pendens  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 nature of the               jurisdiction of Courts and their control  over               the subject-matter of litigation so that  par-               ties  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  lis pendens was  intended  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 doctrine, by the  decree passed  in  the  suit even though they  may  not  have  been

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impleaded  in it.  The whole object of the doctrine  of  Its 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 object 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 wrong doer be 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  immov- able property being "transferred or otherwise dealt with" by a  party  is apparently 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 (1)  [1972] (2) S.C.C 200 @ 217. 388 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- tely belong, if the policy behind the law was to have such a provision. 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 130)               "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." The   object  of  the  law  of  limitation  is  to   prevent disturbance  or depreviation 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. 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 considerations mentioned above,  it would  have made it clear that the law excludes  the  period spent in any litigation from computation.  Exclusion of time in  computing periods of limitation is a  different  subject altogether 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

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these is that the plaintiff should have prosecuted, with due diligence, civil proceedings "founded upon the same cause of action".  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   defendants- respondents  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 another  litigation,  could not  obviously apply to, the case now before us.   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 389 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 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  Section 28  and Article 142 and 144 of the Limitation Act  of  1908. Courts  of  justice  cannot  legislate  or  reconstruct  law contained  in  a  statuate  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 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 Evacuee 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  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  co-defendants-respondents regarding  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 between co-defendants on the points raised.  And, we  cannot allow (1) I.L.R. 46 Mad. 751. (2) AIR 1945 P.C. 5.

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390 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  desperate 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 also 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. 391