BHAGWAN DAS Vs. AKBAR HUSSAIN KHAN

JUDGEMENT

(1.) This is an appeal by the defendant of a suit for recovery of possession of certain immoveable property which the defendant had purchased in execution of a decree, and the plaintiff had purchased at a private sale, the question involved being which of the two sales should prevail. The facts are these: One Mahant Krishna Dayal Gir and defendants 2 to 7 were co-tenants of a certain mukarrari property the proprietors of which were Mt. Mujibunnisa and others. The proprietors instituted a suit for arrears of mukarrari rent against the Mahant and defendants 2 to 7, and in execution of the decree, brought the mukarrari tenure to sale. The Mahant paid up the entire decretal amount and, thereafter sued defendants 2 to 7 for contribution, praying that the decretal amount be declared a charge upon the shares of the defendants in the mukarrari. The suit was decreed ex parte on 10th December 1926. The order runs thus: This is a claim for contribution in mokarrari rent paid by the plaintiff for the defendants. Claim proved. Suit decreed modifiedly ex parte with proportionate costs against defendants 2 to 7 so far as their shares are concerned.

(2.) In execution of this decree the Mahant brought the mukarrari share in dispute in the present suit to sale which was purchased by defendant 1, the appellant in this Court. It appears, however, that in the meantime, during the pendency of the contribution suit of the Mahant, the plaintiff of this suit had purchased the disputed property at a private sale from defendants 5 and 6. When defendant 1 purchased the property including the shares of defendants 5 and 6 in execution of the decree of the Mahant, he dispossessed the plaintiff of the present suit who was in possession by virtue of the private sale in his favour. The plaintiff, therefore, brought the present suit for recovery of possession of the property from defendant 1. Both the Courts have decreed the suit of the plaintiff and the only point raised in this second appeal on behalf of the appellant, defendant 1, is that the purchase of the plaintiff having been made during the pendency of the contribution suit is governed by the doctrine of lis pendens and is, therefore, subject to the decree passed in that suit. This contention has been overruled by both the Courts below and in my opinion rightly.

(3.) At the time when the suit was instituted the unamended Section 52, Transfer of Property Act, was in force which, in order to make the doctrine of lis pendens applicable, required that the sale should be during the active prosecution of a contentious suit. It is needless for me to examine in detail the various decisions in which the word "contentious" has been interpreted. It is enough to say that taking the view most favourable to the appellant it means that at least the plaint must disclose some claim in an immoveable property. I have examined the plaint of the contribution suit. It was a simple money suit with a prayer added to it that the decree which may be passed be declared to be a charge upon the shares of the defendants of that suit of which the description was given at the end of the plaint. I have grave doubts whether such a plaint can be said to be a plaint involving a claim against immoveable property. A distinction has always been drawn between a charge and a mortgage, though the latter for certain purposes of enforcing it has got the incidents of a mortgage. A charge does not create an interest in the property while the mortgage does.