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(2) Section 52 or the principles embodied therein had no applicability to the facts of the present case and even if Art. 142 did not apply, the appellants had succeeded in proving their adverse possession for over 12 years with the result that they have become the owners of the land in dispute.

Mr. S. L. Puri for the respondents, apart from supporting the decision of the Additional District Judge on the ground that S. 52 of the Transfer of property Act applied, has endeavoured to assail the concurrent findings of fact of the courts below relating to the factum of possession of the parties and the parcels of land over which they had possession.

(8) Mr. Puri has not been able to challenge the correctness of the decisions relating to the applicability of Art. 142 but according to him the appellants are not entitled to raise this question because it is not to be found as having been specifically raised in the grounds of appeal to this Court. It is true that no specific ground was taken on the point but Mr. Aggarwal has sought our permission to raise this matter and he says that on proved and admitted facts it would be a pure question of law whether Art. 142 governed the present case or whether it was governed by any other Article of the Limitation Act. He has further pointed out that the trial Court had given a decision, the relevant part of which has been reproduced by which it had applied Art. 142. It was the duty of the Additional District Judge to have given some reason for reversing the trial Court 's view on the point of limitation with reference to Art. 142. Mr. Puri submits that it is apparent from the judgment of the learned Additional District Judge that the question of the applicability of Art. 142 was neither raised nor pressed before him and his decision was invited on the basis that Art. 144 would be applicable. Although there is no mention or discussion relating to Art. 142 in the judgment of the Additional District judge and the normal rule is to hold in such circumstances that the matter was not argued bout in Lachhmi Sewak V. Ram Rup, AIR 1944 P.C. 24, their Lordships allowed the question of limitation to be raised even in the Court of last resort with the following observations:

(9) Before I proceed to discuss the second question raised by Mr. Aggarwal with regard to the applicability of S. 52 of the Transfer of property Act, it is necessary to dispose of the submission of Mr. Puri that the finding given by the Courts below relating to factum of possession for the parties was vitiated and erroneous in law. According to Mr. Puri, certain documentary evidence i.e., the Khasra girdawari entries which had been produced by the respondents to prove their possession within 12 years of the present suit was ignored. He has referred to the statement of defendant No. I Santa Singh who appeared as D. W. 6 and who stated that there was some banjar land comprised in the share of Mst. Khemi, the area being about 40/50 bighas, part of which had been reclaimed. He could not say how much area had been reclaimed by all the defendants but he had reclaimed about 14 Kanals of land. Mr. Puri says that with regard to the banjar land possession would follow title and on the admission of Santa Singh himself the Court s below were in error in holding that the appellants had been in possession of the entire land left by Mst. khemi from the year 1945 up to the present time. Three can be no doubt that when land is jungle land or land under water where no evidence of actual user in the ordinary sense can be expected to be adduced, the presumption that possession follows title may be called in aid but the presumption arising from title is not available where the land is capable of actual possession by cultivation or otherwise (see in this connection pages 393-394 of ILR (1958) 37 Pat 373: (AIR n1958 Pat 386 at p. 391) (FB). but Santa Singh had stated that some of the banjar land had been reclaimed and the matter was not pursued on behalf of the respondents as to how much exact area remained wholly uncultivated and in a condition in which acts of possession could not be exercised by the appellants. The learned Additional District Judge had considered with care the entire evidence including the statements of the witnesses of the respondents and had found that the oral evidence coupled with the entries in the revenue record conclusively established that the possession over the suit land right from 1946 up to the present time was of the appellants. It is not open to this Court in a second appeals to disturb a finding of this nature which is one of fact and, therefore, the contention pressed by Mr. Puri must be repelled.

(12) According to the commentary in Mulla's Transter of Property Act, the meaning of the words "or otherwise dealt with" is not so clear. They would probably include such transactions as a release or a surrender. They have been held to include a contract of sale and a partition between co-defendants. They also apply to any collusive decree or compromise by which the title of a party is affected during the pendency of a suit for the principle underlying the section is that a litigating party is exempted from taking notice of a title acquired during the litigation. It is wholly unnecessary to refer to all the authorities cited by Mr. Puri relating to transfer pendente lite. Two cases may be mentioned. One is Narain Singh V. Imam Din, A I R 1934 Lah 978 in which the principle of the section was applied by Abdul Rashid J, at the stage of execution of a decree. In the other Sakhubai v. Eknath Bellappa, AIR 1948 Nag 97 a learned Single Judge held that a person who had acquired a right of redemption by transfer or by adverse possession during the pendency of the mortgage suit was not a necessary party to the suit as the right which he acquired was hit by the principle of lis pendens. In my opinion, it is not possible to derive much assistance from these cases where the facts were very different.