(1) The only question of law that arises for consideration in this appeal is whether the alienation in favour of the respondent effected on 3-3-1949 by Nanjundiah is hit by the doctrine of is pendens.
(2) The material facts are as follows :
(3) The appellants-- defendants sued the afore mentioned Nanjundian M.O.S. No. 126/45-46 on the file of the Munsiff at Hassan seeking partition and possession of three-fourth share in the southern half of survey No. 21/1 of Kittanakere village to the plaintiff -respondent. At the time of the sale in question, a Civil Revision Petition arising form O.S. No. 126/45-46 was pending in the High Court. In the High Court, the plaintiffs sought to amend their plaint by substituting the northern portion other S. No. 21/1 in the place of the southern portion originally mentioned. The application Fundamental Rules amendment was allowed and the amendment in question was made on 4-8-1949. The respondent was not a pretty either to O.S. No. 126/45-46 or to C. R.P.No.124/48-49. In these circumstances, can it be said that the alienation in favour of the plaintiff -respondent is hit by Section 52 of the Transfer of Property Act? The first appellate Court has come to the conclusion that the appellant is a bona fide purchaser for value without notice of the defect in title.
(4) It is contended by Sri M.L. Venkatanarsimhiah, the learned counsel for the appellants that as soon as pleading is amended, it relates back to the date of filing of the pleading. The said rule cannot be accepted as an absoulte proposition of law. The rule embodied in S. 52 is a rule of expediency. That rule has been enacted with a view to protect the parties who are litigating in a Court in respect of certain immovable properties. Legal title acquired by third parties cannot be put to the risk of being defeated by parties to a pending suit, by amending their pleading and including the property purchased by such third parties. It is settled trine of is pendens the property in suit must be described with sufficient procession. If there is such misdescription of the property as its identity cannot be established the doctrine of is pendens cannot apply. The Court have consistently taken the view that if by a subsequent amendment certain property is included in a plaint and before that amendment had been made the newly included property had already been purchased by a bona fide purchaser for value without notice of defect of title the doctrine of is pendens will have no application to such a case.
(5) The above question came up for consideration before a Bench of the Allahabad High Court in Mt. Walli Bandi Bibi v. Mt. Tabeya Bibi, reported in AIR 1919 All 320. Therein it was laid down that the rule that the amendment of a plaint relates back to the date of the institution of the suit cannot be applied to every possible case; as for instance, where there is a question of the applicability of the rule of is pendens, because in applying the rule of is pendens it is essential that the property should be directly and specifically to question in the suit ; where therefore a plaint contains no such description as to put the vendee on his guard or to give him notice that the property he is purchasing is sub judice, an amendment of the plaint by a change in the description of the property in suit would not for the purpose of the rule of lisx pendens, relate back to the date of the institution of the suit. A similar view was taken by the Oudh Chief Court in re,x Raj Bhadur Singh, AIR 1942 Oudh 226. IN the course of the judgment, it was observed in that case that all the persons who are not parties to the action and who have acquired interests based on the existing state of the judgment and decree, acting in good faith and being purchasers follow valuable consideration without notice, actual or implied of ht existence of the mistake in the judgment and decree, evidence of which has been supplied by the amendment, are not prejudiced thereby unless they have been accorded a hearing and the Court has determined that they have no such equities as to entitle them to be exonerated of the effect of the amendment. The same was the view taken by the Nagpur Judicial Commissioner's Court in Ramachandra v. Bhagwan, 57 Ind Cas 652: (AIR 1920 Ng 92(2). No decision taking contrary view was brought to my notice. The view taken in the above case accords with equity.
(6) Sri M.L. Venkatanarsimhiah, the learned counsel for the appellate tried to take some assistance from the decision of the Bombay High Court in Achut Sitaram v. Shivajirao Krishnarao, AIR 1937 Bom 244. In that case an item of property which was the subject -matter of a suit had been alienated during the pendency of the suit. The property had been correctly described in the plaint, excepting as regards the District in which it was situate. Because, of a clerical mistake instead of mentioning that the property is situate in Satara District it had been mentioned as having been situate in Poona District. This mistake was later found out and was corrected. But before the same was corrected, the property had been alienated. The alliance contended that the amendment in question could not defeat his title. That contention was repelled by the High Court with these observations :
' A lisx pendens will generally be created whether the property involved in suit is described, either by such definite and technically legal description that its identity can be made out by the description alone, or when there is such a general description of its character or status, and by such reference that upon inquiry the identity of the property involved in litigation can be ascertained.'
(7) I fail to see how this observation or the ratio of the decision in that case helps the present appellants. In my view, the first appellate Court was right in its conclusion that on the facts established in this case, no question of is pendens arises for consideration.
(8) It was next urged by the learned counsel for the appellants that the respondent is not a bona fide purchaser for value and that he was aware of the defect in the title of his vendor. This question does not appear to have been argued before the Courts below. In fact, the first appellate, Court has proceeded on the basis that the respondent is bona fide purchaser for value without notice of the defect in title. Therefore, this belated attempt to show that the respondent was aware of the defect in title of his vendor cannot bee countenanced.
(9) In the result this appeal fails and the same is dismissed with costs.
(10) Appeal dismissed.