JUDGMENT Hon’ble Sunil Ambwani, J.—The impleadment application of Shri Ram Gopal Verma and Shri Shiv Shanker Verma as appellant Nos. 5 and 6 was allowed by this Court on 5.8.2003. The impleadment has been carried out. 2. A compromise application under Order XIII Rule 3, Code of Civil Procedure of the claim regarding the share of, and as far as Shri Laxmi Nath and Shri Padamnath (respondent Nos. 1/2 and 1/3) verified by the Registrar General of this Court dated 23.9.2003 is pending. The application encloses the affidavits of Laxmi Nath and Shri Padamnath both sons of late Brij Bhushan stating that they have no concern with the house in dispute. The application is allowed. Both these applicants shall be treated to have given up their claims as against the appellants. 3. The dispute relates to house No. 46/35 and 46/36 Mohalla Manihari Tola, Dashashwamedh Ward, Varanasi. The upper portion of House No. 46/35 has fallen down. House No. 46/36 has three floors. The first and second floor of this house was vacated by Shri Sheo Sahai Ojha in favour of the appellants Laxmi Narain and others in pursuance to a release order passed by Asstt. Rent Control & Eviction Officer, Varanasi on which these floors were occupied by the appellants. 4. O.S. No. 446 of 1964 was filed by Laxmi Narain Upadhyaya and others, the plaintiff-appellants against Mangla Prasad Singh and others, the defendants, for their ejectment from house No. 46/35 and ground floor of house No. 46/36, and for a decree of Rs. 1440/- for use and occupation at the rate of Rs. 40/- per month, pendente lite and future mesne profits. The suit was decreed by the Trial Court on 18.12.1968. The Civil Appeal No. 35 of 1969 was, however, allowed by the 1st Addl. Civil Judge, Varanasi on 22.7.1969 and the suit stood dismissed. 5. This second appeal is pending in this Court for 37 years. The order-sheet bears testimony of the casual manner in which the second appeals are dealt with by the Counsels for the parties. Repeated illness slips, adjournments and applications, which were lost and found, shows a total lack of concern for expediency as well as lack of concern of case flow management in the Court. The fate of the case hangs in the hands of the Counsels, who are not accountable to the Court at all. Repeated illness slips, adjournments and applications, which were lost and found, shows a total lack of concern for expediency as well as lack of concern of case flow management in the Court. The fate of the case hangs in the hands of the Counsels, who are not accountable to the Court at all. The office of the Court has no priorities and the cases are listed, as and when the Section Officers or the Registrar (Listing) desire. The Court has not fixed responsibilities on the officers manning the registry, for explaining as to why the old cases are not listed and instead new cases are shown in the cause list. In this second appeal the first service report was given by the office, after eight years on 28.3.1977. Reminders after reminders were sent for service of summons. On 19.7.1982 the Court made observations about the manner in which the process servers, serve the summons of the High Court. They do not take trouble to visit the noticee for the second time. The reports ‘not met’ are given in a routine manner on which fresh steps are directed to be taken again and again. The substitution application filed in 1982, could be decided for six years. The matter was out of list between 1993 to 1995 and then again from 1995 to 1998 when it was not listed at all, and again from the year 2003 to 2006 inspite of the order dated 1.9.2003 that it should be listed immediately after the application for compromise and additional evidence are traced out. The Counsel for the appellant insisted that the application for additional evidence was filed on record but could not substantiate it as his office did not even served a copy on the respondents. During all these years that passed by, the Counsels sent illness slips, whenever they desired and got the matter adjourned on their own convenience. 6. In between there has been further litigation and more and more parties in the appeal expired. A stage has now reached where in order to decide cases quickly, and to restore confidence of people in the judiciary, serious exercise of case flow management has to be carried out fixing accountability on the officers of the registry at each level. The old cases must be listed on priority. A stage has now reached where in order to decide cases quickly, and to restore confidence of people in the judiciary, serious exercise of case flow management has to be carried out fixing accountability on the officers of the registry at each level. The old cases must be listed on priority. The office should not be allowed to list new cases unless the old cases are disposed of even if they are not heard on the date when they are listed. 7. In order to appreciate the long pending dispute, it is relevant to set out the admitted pedigree of the parties as under : Pedigree Shyam Behari Upadhyaya Sribhushan Chandrabhushan Brijbhushan (D3) =Smt. Gujrati =Smt. Roopwanti (died on 1.9.38) (died on 29.8.1952) Shashibhusan (died in 1935) Rangnath Ram Laxmi Radha Padma Bachcha =Smt. Shanti Lata (P4) (x) Nath Nath Raman Nath (D4) Lakshmi Ram Dhirendra Narayan Narayan (P3) (P1) (P2) 8. Brief facts arising from the pleadings are that late Shri Sri Bhushan lived jointly with his other brothers and they together formed a joint Hindu family. Brij Bhushan and Chandra Bhushan separated from the joint family and had no concern with the same. It is alleged in the plaint that the houses in dispute were acquired by Sri Bhushan from joint Hindu family funds. His name was recorded as owner as he was the head of the family. At the time of the death of Shashi Bhushan in 1935 they were all living jointly. After Smt. Gujrati the wife of Shashi Bhushan died on 1.9.1938 leaving plaintiff Laxmi Narain and others as her heirs Laxmi Narain and others became owners and are entitled to possession. Shri Sri Bhushan entered into second marriage with one Smt. Rupwanti daughter of Raghubar Upadhyaya. She died on 29.8.1952 leaving no issue. During her lifetime Shri Sheosahai Ojha was in occupation of the first floor of house No. 46/36 as tenant. He had vacated it on the release order passed by Assistant Rent Control and Eviction Officer, Varanasi on 18.3.1953. The plaintiff thus occupied the first and second floor of house No. 46/36. One Shri Hargen Singh son of Mangla Prasad Singh then a student resided on the ground floor. Shri Ram Narain Upadhyaya also resided with him in connection with his service. The plaintiff thus occupied the first and second floor of house No. 46/36. One Shri Hargen Singh son of Mangla Prasad Singh then a student resided on the ground floor. Shri Ram Narain Upadhyaya also resided with him in connection with his service. After the death of Smt. Rupwanti the licence granted to Hargen and his father was terminated and they were asked to vacate the ground floor of the house. They did not agree and had no intention to vacate and thus proceedings under Sections 107 and 117 CrPC were initiated in which Hargen and his father were acquitted on technical grounds. After sometime Brij Bhushan and Ramnath Upadhyaya were given possession on the ground floor of house No. 46/36. 9. At this stage it is necessary to refer to the previous litigation between the parties. The O.S. No. 25 of 1953 was filed on 12.1.1953 by Brij Bhushan against Laxmi Narain and others for permanent injunction restraining Laxmi Narain and others from interfering with their possession over the house No. 46/35 and ground floor of house No. 46/36. The suit was dismissed by the Trial Court on merits on 31.3.1958. First appeal No. 249 of 1958 was allowed by the Appellate Court and the matter was remanded to the Trial Court for deciding it afresh. The High Court in second appeal set aside the remand order and sent the matter back to the Appellate Court. The District Judge, thereafter, dismissed the appeal No. 249 of 1958 on 5.3.1963. The judgment dismissing the suit became final between the parties. It is alleged by the appellants in this second appeal that this judgment binds the parties on the principle of res-judicata. 10. During the pendency of original suit No. 25 of 1953 Shri Laxmi Narain (appellant in this second appeal) and others filed original suit No. 28 of 1956 on 20.11.1956 against Shri Ram Gareeb Upadhyaya (brother and heir of Smt. Rupwanti) for declaration and cancellation of the gift deed dated 21.3.1939 executed by Shri Sri Bhushan in favour of Smt. Rupwanti. This suit was decreed ex parte against Shri Ram Gareeb Upadhyaya and the gift deed was cancelled. 11. Shri Hargen Singh, the defendant filed a separate written statement. He denied that Smt. Rupwanti was legally wedded wife of Sri Bhushan. Shri Sri Bhushan was Asstt. Station Master of Nagatpur Railway Station. This suit was decreed ex parte against Shri Ram Gareeb Upadhyaya and the gift deed was cancelled. 11. Shri Hargen Singh, the defendant filed a separate written statement. He denied that Smt. Rupwanti was legally wedded wife of Sri Bhushan. Shri Sri Bhushan was Asstt. Station Master of Nagatpur Railway Station. Smt. Rupwanti was living in a village near the railway station. Sri Bhushan used to go to her village Chakia to recite Ram Katha and developed illicit relations with her on which his wife Smt. Gujrati and Shri Shashi Bhushan started living separately from him. Shri Sri Bhushan Upadhyaya earned a lot of money by reciting Ram Katha and acquired the house in dispute from his personal income. He, thereafter, pleased with Smt. Rupwanti transferred the house to her by gift deed dated 21.3.1939 and she became the owner of the house. Raghubar Upadhyaya and Ram Gareeb Upadhyaya, father and brother of Smt. Rupwanti were not happy with the relationship and wanted to kill Shri Sri Bhushan. Shri Hargen and his father Mangla Prasad Singh helped Shri Sri Bhushan Upadhyaya in protecting him on which Shri Hargen Singh was allowed to live in the house. Hargen treated Shri Sri Bhushan Upadhyaya and Smt. Rupwanti like his father and mother. Smt. Rupwanti gifted the house orally to him and since then he is in possession of the property for more than 12 years. 12. Shri Brij Bhushan and Shri Raghunath Upadhyaya filed separate written statements. They took same pleas as were pleaded by Shri Hargen Singh. They, however, in addition stated that Smt. Rupwanti was married in accordance with Hindu rites and sometime after the marriage she became widow. The property in dispute was her ‘Stridhan’ and devolved under the laws of inheritance on her father and brother. The decrees in suit No. 25 of 1953 and suit No. 28 of 1956 were collusive. They had no knowledge of the decree in suit No. 28 of 1956 by which the gift deed was cancelled and by virtue of doctrine of lis-pendens the decree will have no effect. The finding in suit No. 25 of 1953 that the plaintiffs have no right in the property in suit is binding on them. 13. The Trial Court held that Smt. Rupwanti was not legally wedded wife of Sri Bhushan Upadhyaya. The plaintiffs are owners of the house. The finding in suit No. 25 of 1953 that the plaintiffs have no right in the property in suit is binding on them. 13. The Trial Court held that Smt. Rupwanti was not legally wedded wife of Sri Bhushan Upadhyaya. The plaintiffs are owners of the house. The gift deed executed by Sri Bhushan on 21.3.1939 in favour of Smt. Rupwanti was void. The brothers never formed joint family with Shri Sri Bhushan and that the suit was not barred by res judicata, or limitation. The plaintiffs as such were found to be entitled to possession and damages. 14. The Appellate Court confirmed the findings that the houses were self-acquired property of Shri Sri Bhushan. He had acquired fame in reciting Ram Katha and had earned a lot of money. He developed intimacy with Smt. Rupwanti and executed a gift deed in her favour on 21.3.1939. This gift deed was cancelled in suit No. 28 of 1956 but since the decree in suit No. 28 of 1956 was obtained against the brother of Smt. Rupwanti, during the pendency of suit No. 25 of 1953, which was filed by Shri Brij Bhushan and others, the defendants, in the suit giving rise to this appeal, is not binding upon the plaintiffs on the principles of lis-pendens. Smt. Rupwanti was not legally wedded wife of Shri Sri Bhushan, and thus the succession would go to her father’s side. She died before the enforcement of Hindu Succession Act, 1956. In suit No. 25 of 1953 the question of title was not specifically an issue and was not finally adjudicated and thus the decree in this suit will not be binding upon the parties. The appellate Court concluded that since the plaintiff appellants have failed to prove their title, the defendants respondents, who are in possession cannot be evicted as even a trespasser cannot be evicted by any person other than the person, who is the true owner. 15. I have heard Shri V.K.S. Chaudhary, learned senior Counsel appearing for the appellants assisted by Shri A.N. Bhargava, and Shri Sankatha Rai, learned Counsel appearing for respondents. 15. I have heard Shri V.K.S. Chaudhary, learned senior Counsel appearing for the appellants assisted by Shri A.N. Bhargava, and Shri Sankatha Rai, learned Counsel appearing for respondents. Their submissions give rise to following two questions for consideration in this second appeal: (1) Whether a decree in original suit No. 28 of 1956 between Shri Laxmi Narain and others v. Shri Ram Gareeb Upadhyaya, for cancellation of gift deed dated 21.3.1939 executed by Shri Sri Bhushan in favour of Smt. Rupwanti during the pendency of O.S. No. 25 of 1953 for injunction will be hit by doctrine of lis-pendens, and will not be binding upon the parties in subsequent litigation, where the ownership of the suit property is in dispute? (2) Whether the plea of jus tertii cannot avail the defendant when the alleged true owner is impleaded as a party and admits the plaintiffs title to it? 16. Shri V.K.S. Chaudhary submits that the house in dispute was purchased by Shri Sri Bhushan. The plaintiffs as grand sons of Shri Sri Bhushan succeeded him as owners and filed the suit for possession against the defendants Mangla Prasad and others, who are rank trespassers. The defence put forward by the defendants is that Sri Bhushan gifted the houses to Smt. Rupwanti by gift deed dated 21.3.1939 and was thereafter not left with any interest in the houses. In O.S. No. 25 of 1953 while dismissing the appeal the Appellate Court recorded a finding that the defendants entered into possession over the ground floor with Hargen and his father Mangla Prasad in collusion with them. Shri Sheo Sahai Ojha, defendant No. 5 in O.S. No. 25 of 1953 was occupying first floor of the house as a tenant of Sri Bhushan and Hargen occupied the ground floor by courtesy of Smt. Rupwanti. He submits that the decree passed in O.S. No. 28 of 1956 dated 20.11.1956, cancelling the gift deed in favour of Smt. Rupwanti, operates as res-judicata between the parties. The plaintiffs being grand sons of Sri Bhushan are now owners of the property and entitled to the possession and damages. 17. Shri Chaudhary submits that the doctrine of lis-pendens, does not apply and has no effect on the decree passed in O.S. No. 28 of 1956. The plaintiffs being grand sons of Sri Bhushan are now owners of the property and entitled to the possession and damages. 17. Shri Chaudhary submits that the doctrine of lis-pendens, does not apply and has no effect on the decree passed in O.S. No. 28 of 1956. The doctrine incorporated in Section 52 of the Transfer of Property Act, secures the rights of the parties of a suit, from voluntary transfer or otherwise dealing with the property. It deals with transfers made by a party to the suit. The decree of the Court is not a voluntary transfer or a transfer dealing with the property by a party. He has relied upon Smt. Safali Roi Chawdhary v. A.K. Datta, AIR 1976 SC 1810 in which it was held that Section 52 of the Transfer of Property Act defines as an act by which a living person conveys property to another. When the legislature in exercise of its sovereign powers regulates the relations of landlord and tenant altering or abridging their rights, it is not transfer of property attracting the doctrine of lis-pendens. 18. In Cliford George Pinto v. M.R. Senava, AIR 2005 Kant 167 it was held that Section 52 of the Transfer of Property Act would apply in a case where the sales are made by way of private negotiations and not to a sale deed obtained in execution of a decree for specific performance of contract. Shri Choudhary has also relied upon Official Assignee v. Jagabandhu Mallik, AIR 1934 Cal 552 and Digambarrao v. Rangarao, AIR 1949 Bom 367 in which it was held that rule of res-judicata will prevail over the doctrine of lis-pendens. Shri Chaudhary submits that Explanation 1 of Section 11, Civil Procedure Code explains the expression ‘former suit’ to denote a suit, which has been decided prior to suit in question, whether or not it was instituted prior thereto. The O.S. No. 28 of 1956 has to be treated as previously instituted suit as it was decided prior to O.S. No. 25 of 1953. 19. Shri Chaudhary submits that the judgment in O.S. No. 28 of 1956 is res-judicata as against Smt. Rupwanti and her heirs. The defendants pleaded that Rupwanti had become owner on the basis of gift deed dated 21.3.1939 and hence plaintiffs did not inherit the houses. 19. Shri Chaudhary submits that the judgment in O.S. No. 28 of 1956 is res-judicata as against Smt. Rupwanti and her heirs. The defendants pleaded that Rupwanti had become owner on the basis of gift deed dated 21.3.1939 and hence plaintiffs did not inherit the houses. They also pleaded that Smt. Rupwanti executed an oral gift in their favour, which they could not prove. The judgment against the legal representatives of Smt. Rupwanti is, therefore, admissible in evidence under Section 13 of the Evidence Act. Since Hargen claimed to be licensee of Smt. Rupwanti, he was bound by the decree of cancellation of gift deed of Smt. Rupwanti. In Tirumala Tirpati Devasthanams v. K.M. Krishnaiah, AIR 1998 SC 1132 the Supreme Court held that previous judgment in respect of the same property is admissible in evidence under Section 13 of the Evidence Act. 20. Lastly it was contended by Shri Chaudhary that the respondents are trying to set up the title in a third person, which is not permitted under the law on the doctrine of jus tertii and relied upon Mt. Guda Kueri and another v. Adinath Pande and others, AIR 1938 All. 546; Mt. Ajodhia Prasad v. Mt. Sanjhari Kuar, AIR 1932 Oudh 342 and B. Gangayya v. V. Satyanarayana, AIR 1925 Mad 1021 . Explaining the doctrine Shri Choudhary submits that if the defendant desires to set up the command of some third person as a justification for an act alleged to be wrongful, he must name that third person, and plead that he did the act by his order. The plea of ‘jus-tertii’ can effectively be taken in suit for ejectment. It is no defence unless the defendant can show that the act was done by the authority of the true owner. Subsequent events do not afford one of the parties the advantage of a ‘jus tertii’ unless the third party comes forward and accepts the claim. The plea of jus tertii cannot avail the defendant when the alleged true owner is impleaded as a party and admits the plaintiffs title to it. (Prem’s Civil Practice 1955). 21. Subsequent events do not afford one of the parties the advantage of a ‘jus tertii’ unless the third party comes forward and accepts the claim. The plea of jus tertii cannot avail the defendant when the alleged true owner is impleaded as a party and admits the plaintiffs title to it. (Prem’s Civil Practice 1955). 21. Shri Sankatha Rai on the other hand has relied upon Section 52 of the Transfer of Property Act and the judgments in AIR 1954 SC 526 , 1976 A.L.J. 119 (D.B.) and AIR 1983 SC 684 in which according to him it was held that in order that any decision may operate as res-judicata, it is necessary that the same should be between the parties and the suit should be finally decided. Unless the judgment and decree is covered by Sections 40 to 43 of the Indian Evidence Act, Section 13 of the Evidence Act will not apply and further that the plaintiff in the ejectment suit must succeed on the strength of his own title by adducing sufficient evidence to discharge the burden, which is irrespective of the fact whether the defendant has proved his case or not. 22. Shri Sankatha Rai has relied upon the findings of the appellate Court, which held that the suit for declaring gift deed to be ineffective and inoperative during the pendency of suit No. 25 of 1953, and the ex parte decree obtained is hit by the principle of lis-pendens and will not affect the decision between the parties. Any document obtained during the pendency of the suit will be affected by the principles of lis-pendens and as such ex-parte judgment will not give any right to defendant Nos. 1 to 3. Ram Gareeb was only the heir of Smt. Rupwanti and that defendant Nos. 1 to 3 as grand sons of Sri Bhushan did not have a right to file a suit for declaration that Shri Sri Bhushan had not executed the gift deed. The principle of lis-pendens will be attracted as judgment cancelling the gift deed against the Ram Gareeb, brother of Smt. Rupwanti was obtained ex parte during the pendency of the suit. 23. From the admitted facts from the pleadings, judgments and arguments of the parties I find that the houses in dispute belongs to Shri Sri Bhushan. The principle of lis-pendens will be attracted as judgment cancelling the gift deed against the Ram Gareeb, brother of Smt. Rupwanti was obtained ex parte during the pendency of the suit. 23. From the admitted facts from the pleadings, judgments and arguments of the parties I find that the houses in dispute belongs to Shri Sri Bhushan. The plaintiff-appellants are the grand sons of Shri Sri Bhushan and are claiming the houses on the basis of succession against Mangla Prasad and others, who have not set up any title in themselves. Mangla Prasad and his son Hargen were allowed to occupy the house by Smt. Rupwanti, who was not legally married to Shri Sri Bhushan and became the owner of the houses by virtue of gift deed dated 21.3.1939. Although the defendants respondents tried to set up an oral gift from Smt. Rupwanti, the trial Court neither framed any issue nor any evidence was led on the execution of oral gift. At best they claimed to be licensee of Smt. Rupwanti. The plaintiffs are claiming by succession from Shri Sri Bhushan and the defendants as licensee of Smt. Rupwanti, the owner of the property through gift deed dated 21.3.1939 executed by Shri Sri Bhushan. An issue framed by the Trial Court as to whether defendant Nos. 3 and 4, formed a joint family with Shri Sri Bhushan but the fact was not proved and there is no further finding on this issue by the Appellate Court. Thus the plaintiffs claim to be owners by succession, and the defendants as licensees resisting their possession as against all but true owners. 24. The Counsels argued at length about the effect of ex parte decree in O.S. No. 25 of 1953 by which the gift deed dated 21.3.1939 executed by Shri Sri Bhushan in favour of Smt. Rupwanti was cancelled by impleading Shri Ram Gareeb Upadhyaya, the brother of Smt. Rupwanti. The appellate Court held that the decree is hit by doctrine of lis-pendens. Shri Sankatha Rai, learned Counsel for the defendants respondents submits that Shri Sri Bhushan and his heirs would not get any title over the properties. The houses would then relate back to the family of Smt. Rupwanti, who was not found to be the legally wedded wife of Shri Sri Bhushan. 25. Shri Sankatha Rai, learned Counsel for the defendants respondents submits that Shri Sri Bhushan and his heirs would not get any title over the properties. The houses would then relate back to the family of Smt. Rupwanti, who was not found to be the legally wedded wife of Shri Sri Bhushan. 25. Section 52 of the Transfer of Property Act provides that where 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 otherwise dealt with by any party to the suit or proceeding so as to affect the rights of any other party thereto under the decree or order which may be made therein, except under the authority of the Court and on such terms as it may impose. The explanation to Section 52, defines the date on which the pendency of the suit is to commence. 26. The object of Section 52 is to forbid any transfer during the pendency of the suit with respect to the property in dispute. The transaction, however, is not void altogether but is subject to result of the suit and is void only so far as it affects the right of any other party to the litigation. The pendency of the suit or proceeding, the non-collusive character of such suit or proceedings, the right to immovable property being directly or specifically in issue and the other parties having same rights under the decree in that suit or order are sine qua non to the applicability of the doctrine of lis-pendens. Section 52 not only protects the transfer during the pendency of the suit but also dealing with the property otherwise. Whether this dealing with the property otherwise will include a suit filed and decree obtained from a competent Court, is the question, which is required to be answered. 27. The Karnataka High Court in Cliford George Pinto (supra) as also by Patna High Court in Dulhan Girja Kumari, 1954 BLJR 356 held that the doctrine of lis-pendens does not apply to sale obtained in execution of a decree for specific performance of contract and Court sale in exchange of decree. It however applies to transfers inconsistent with right declared by the decree. It however applies to transfers inconsistent with right declared by the decree. Again there is an exception that a bona fide purchaser at execution sale may get no title notwithstanding subsequent variation of the decree. Further there is exception that creation of trust of the property for benefits of plaintiff and mortgage by plaintiff of the same property to pay off prior mortgage is not hit by lis-pendens. The bona fide purchaser for value, do not loose the property on the applicability of lis-pendens provided they prove that they had no knowledge of the previous transaction and had parted with valuable consideration for purchase of the property in suit. Lis-pendens also does not apply to co-defendants unless a decision is required for the relief claimed as between them. It is a doctrine based on sound principles of law and equity and is not applicable where legal proceedings are collusive. It operates to obtain status quo, unaffected by act of parties to the litigation till it is determined. It is intended to protect the parties to the litigation and applies as an exception to doctrine of res-judicata in case of subsequent suit between the same parties or the parties claiming under them filed in a Court of competent jurisdiction. It is a rule of estoppel and secures equity and good conscious in administration of justice. 28. In the present case the plaintiffs appellants were seeking eviction of the alleged trespassers. The cause of action to cancellation of gift deed dated 21.3.1939 executed by Shri Sri Bhushan in favour of Smt. Rupwanti, as heirs of Shri Sri Bhushan on the ground that gift deed was executed by exercising undue influence, was independent of their right to evict the trespassers. There is no bona fide dispute about the title between the parties. The suit was resisted mainly on the ground that only a rightful owner could evict the defendants. In the circumstances it cannot be said that the cancellation of gift deed dated 21.3.1939 obtained during the pendency of the suit even by an ex parte decree in O.S. No. 28 of 1956 against heirs of Smt. Rupwanti, who had died in the meantime, and the suit was decided before O.S. No. 25 of 1953 filed by Brij Bhushan and Ram Nath was decided and was dismissed, will be hit by doctrine of lis-pendens. The present suit was filed in the year 1964 much after O.S. No. 28 of 1956 was decreed against Ram Gareeb, the brother of Smt. Rupwanti on 20.11.1956. 29. The arguments of Shri Sankatha Rai, invoking doctrine of lis-pendens, appears to have been made only to non-suit the plaintiff appellants, who were grand sons of the true owner and had successfully avoided the gift deed by which the property had gone out of the family. The O.S. No. 25 of 1953, filed by Brij Bhushan and others, brother of Sri Bhushan was for an injunction restraining Laxmi Narain (the plaintiff appellant in this appeal) from interfering with his possession. Mangla Prasad and Hargen, the main contestants in O.S. No. 446 of 1964 were not parties to the earlier suit. The decree in O.S. No. 28 of 1956 also operated in favour of Brij Bhushan and others as it brought back the property within the fold of the family. Hargen and Mangla Prasad, therefore, cannot seek to avoid the decree cancelling the gift deed in suit for their eviction filed much later in the year 1964. 30. I, therefore, find that the Appellate Court grossly erred in law in invoking the doctrine of lis-pendens to avoid the decree in O.S. No. 28 of 1956 against the heirs of Smt. Rupwanti by which the gift deed dated 21.3.1939 was cancelled. The property as such continued to be the property of Shri Sri Bhushan to which the plaintiff appellants succeed and as such were rightly held to be the owners by the Trial Court. The first question as such is decided in favour of the plaintiff appellants. 31. The defendants respondents have not set up title in themselves. They are only protecting their possession as against all except the true owners and have sought to set up the title in third person namely the heirs of Smt. Rupwanti through the gift deed dated 21.3.1939 and a licence from her to occupy the houses. This plea in equity is not available to them at all. The plea of jus tertii is no defence unless the defendants can show that the act complained of was done by the authority of the owner. He must show that such third person had legal right to do the alleged act. This plea in equity is not available to them at all. The plea of jus tertii is no defence unless the defendants can show that the act complained of was done by the authority of the owner. He must show that such third person had legal right to do the alleged act. The third party in whom the defendants respondents have set up title lost her claim as the gift deed was cancelled by the Court of competent jurisdiction. It is thus held that plea of jus tertii cannot avail the defendants. The defendants were trespassers in the suit property of which plaintiff-appellants are true owners. 32. In the facts and circumstances, the second appeal is allowed. The judgment and decree passed by the Addl. District Judge, Varanasi allowing civil appeal No. 35 of 1969 on 22.7.1969 dismissing the suit is set aside. The suit is decreed in the same terms it was decreed by the Trial Court on 18.12.1968. Having regard to the facts and circumstances the defendants-respondents are also directed to pay costs of Rs. 43,200/- and also special cost of Rs. 9,800/- worked out on the basis of half of the mesne profit during the pendency of the second appeal for thirty seven years in this Court. Appeal Allowed. ———