DNYANU BABA CHOBE Vs. GULAB EKNATH BHAIS

JUDGEMENT

(1.) TWO very interesting questions of law have arisen on this application, firstly, as to whether a person who having been a tenant of an agricultural land under the Bombay Tenancy Act, becomes the purchaser thereof by virtue of Section 32 of that Act, can be said to be claiming through or under the owner -transferor of that land so that a charge on that land declared by a decree of a Court to the extent of the amount of earnest paid by a person to the owner of that land under an agreement of sale can be enforced against that land in the hands of the tenant -purchaser, and secondly, as to whether the transfer of such land to the tenant under the provisions of the Tenancy Act during the pendency of a suit filed by a person to whom that land was agreed to be sold for a declaration of a charge on that land to the extent of the earnest money paid by him to the owner of that land and recovery of that amount is hit by the doctrine of Us pendens so that the transfer to the tenant would be subject to the decision in the suit. These questions do not appear to have been raised in any of the two lower Courts and they have been raised for the first time in this Court in this revision application.

(2.) IT appears that survey No. 302/10 measuRINg 1 acre and 2 gunthas originally belonged to one Kashinath Ganpat. The petitioner in this application was in possession of this land as a protected tenant. On July 12, 1952, Kashinath agreed to sell this land to Gulab Eknath for Rs. 2,300 under an agreement of sale and received Rs. 1,000 by way of earnest. It was agreed that the sale -deed was to be passed in favour of Gulab after evicting the tenant and obtaining possession of the land. On April 15, 1953, Kashinath sold this land to another person altogether, namely, Ganpatsing Gulabsing by a registered sale -deed for Rs. 1,250. Thereafter, Gulab Eknath filed regular civil suit No. 218 of 1953 against Kashinath Ganpat and Ganpatsing Gulabsing for the return of the earnest money in Sangola Court on August 19, 1953. During the pendency of the suit, it appears, Kashinath Ganpat and the petitioner Dnyanu Balaram made an application to the Mamlatdar of Malsiras for determining the reasonable price of the suit land. This application apparently was made under Section 32 of the Tenancy Act. The Mamlatdar determined the reasonable price of the land at Rs. 1,200. Thereafter it appears, Kashinath Ganpat sold the land in question to the petitioner Dnyanu Balaram for Rs. 1,200 by a registered sale -deed dated October 18, 1954.

(3.) OUT of these three opponents in the execution proceedings only the petitioner Dnyanu filed his written statement. He contended that the regular civil suit No. 218 of 1953 was only for recovering the earnest amount and survey No. 302/10 was not the subject -matter of that suit at all. He further contended that the sale -deed in his favour dated October 18, 1954, was not affected by the doctrine of lis pendens. He submitted that on February 21, 1955, the day on which the decree was passed in Gulab's suit, Kashinath had no interest left in the land and that, therefore, no charge could be validly created on that land by a decree passed in that suit. He stated that he had purchased that land free from allin Cumbrances and that for that reason also no charge could be created on that land. According to him, it was Kashinath alone who was responsible to pay the decretal amount to Gulab. He was not a party to the decree and that survey No. 302/10 should not be sold in execution of that decree. The trial Court held that the property in dispute was liable for sale in execution of the decree in civil suit No. 218 of 1953 and, accordingly, sale warrant and proclamation were ordered to be issued by the Court. Against that order of the trial Court Dnyann, the petitioner, took an appeal to the District Court at Sholapur. In that appeal the question that was argued, was as to whether the charge in respect of the decretal amount created by the decree passed in regular suit No. 218 of 1953 could be enforced against survey No. 302/10 in the hands of Dnyanu. The learned Assistant Judge agreed with the conclusion of the trial Court holding that the charge under Section 55(6)(h) of the Transfer of Property Act was a statutory charge and that, the petitioner Dnyanu who claimed the property through Kashinath was bound by that charge. The learned Assistant Judge was also of the view that the transfer in favour of Dnyanu was effected during the pendency of the suit filed by Gnlab against Kashinath and that, therefore, it was affected by the doctrine of Us pendens. Accordingly, in the view of the learned Assistant Judge, the transfer in favour of Dnyanu was subject to the result of the suit between Gnlab and Kashinath and, inasmuch as that suit had resulted in a decree declaring a charge upon the property in question, the transfer in favour of Dnyann was subject to the charge on that property as declared by the decree passed in that suit. In the result, the appeal filed by Dnyanu was dismissed. It is against the order dismissing his appeal that Dnyanu has filed this revision application in this Court.