NARAYAN CHATURBHUJ MAHESHWARI Vs. INDULAL WALCHAND SARAF

JUDGEMENT

(1.) This second appeal is by the original defendants Nos. 3 and 4 against the decree passed by the two courts below in respect of field Survey No. 46/1, 23 acres 32 gunthas situated at Mouza Donad Buzruk.

(2.) Field Survey No. 46/1 originally belonged to defendants Nos. 1 and 2. One Ramnaresh obtained a decree against them in Regular Civil Suit No. 178-A of 1958 on 3rd March, 1959. The field was auctioned in execution of that decree in Regular Darkhast No. 363 of 1969 and in that auction sale the plaintiff was declared successful bidder. The sale was confirmed on 25-2-1972 and the plaintiff obtained possession of the land on 27-4-1972. During the pendency of the execution proceedings the land revenue accumulated and for the recovery of arrears of land revenue, field Survey No. 46/1 came to be auctioned. The third defendant Narayan purchased the land on 29th April, 1970. It may be mentioned here that a charge in respect of the decretal amount was created on the field Survey No. 46/1 and was registered on 11-10-1961.

(3.) The main points for decision before the Courts below were whether the sale of the field Survey No. 46/1 in favour of the defendant No. 3 Narayan for arrears of land revenue could take precedence over the charge created upon the land in execution of the decree obtained in Regular Civil Suit No. 178-A of 1958 and whether the sale in favour of the defendant No. 3 in view of the creation of the charge prior to the sale dated 29th April, 1970 in his favour would have precedence because of the principle of lis pendens. The trial Court held that in view of the language of section 169 of the Maharashtra Land Revenue Code, the third defendant could not have taken the land free from encumbrances and that the sale in his favour would be hit by the doctrine of lis pendens because of the pre-existing charge. In the appeal taken by defendants Nos. 3 and 4 against the decree passed against them by the trial Court, the only question raised was whether the third defendant was a bona fide purchaser for value without notice and that point was answered by the learned Extra Assistant Judge in the negative and he affirmed the decree for possession passed by the trial Court.