ORDER
S.V. Maruthi, J.
1. These writ petitions are disposed of by a common judgment as the issue involved is common to all the writ petitions.
2. The petitioners in W.P. No. 16957/96 are bona fide purchasers of plots made in Acs. 9.00 of land situated in Survey No. 91 of Bowenpally Village, Rangareddy District known as 'Vadlavani Bhavi'. The said Vadlavani Bhavi was plotted out in the year 1970 after obtaining permission from the Gram Panchayat. The purchases were made between 27-11-1993 to 23-5-1996. The first petitioner is the Society known as 'Shiva Enclave Welfare Society'. The second petitioner is one of the members of the Society. The Vendors of the petitioners are the Legal Representatives of Sri Mustafa Shareif, Sri Veera Reddy and Malla Reddy respondents 6 to 11. At the time of purchase of these plots there were temporary structures in various plots. After purchasing the plots, 35 of them have constructed their houses. They have obtained electricty connection, telephone connection etc. In some of the plots, construction is in progress and in rest of the plots compound walls were constructed. The petitioners came to know that in a long standing litigation between respondents 6 to 11 and respondents 3 to 5, patta was granted in favour of respondents 3 to 5 on payment of Rs. 1,450/- on 16-8-96 in respect of Acs. 9.00 of land in S. No. 91 of Bowenpally known as Vadlavani Bhavi. The petitioners were not aware of the litigation between respondents 6 to 11 and 3 to 5 and neither respondents 6 to 11 nor respondents 3 to 5 brought to their notice the litigation pending between them. Though the plots were made and sold to the petitioners and construction was carried on by the petitioners, at no point of time the litigation pending between them was brought to their notice nor did they issue any notice saying that they should not proceed with the construction in view of the litigation pending between them. Under those circumstances, the first (sic. second) respondent (M.R.O) cannot deliver possession of the property to respondents 3 to 5 without paying the cost of the improvements made by the petitioners. In the alternative, the petitioners should be permitted to pay the market value of the land to respondents 3 to 5 and retain the land-
3. In W.P. Nos. 21783/96; 21878/96; 22020/96 and 21785/96 the petitioners are 10,18,16 and 9 in number. They are all purchasers of the plots in Survey No. 91 known as Vadlavani Bhavi,Bowenpalli Village. The petitioners contend that they have purchased these lands from the ostensible owners, namely, respondents 6 to 11. They being bona fide purchasers good faith from the ostensible owner, they have perfected their title and their title prevails over the title of respondents 3 to 5 and therefore, the possession cannot be delivered to respondents 3 to 5.
4. Before proceeding further, it is necessary to refer to the previous litigation between respondents 6 to 11 and 3 to 5. The judgment is reported in S. Veera Reddy v. Ch. Chandraiah, : 1995(2)ALT172 . I am one of the parties to the said judgment. The litigation was between respondents 6 to 11 and 3 to 5. Originally, this property known as Vadlavani Bhavi consisting of Acs. 9.00 of land in S. No. 91 of Bowenepalli Village of Secunderabad was an Inam Land. After the Inam's Abolition Act, one Atchi Reddy was declared as protected tenant. Respondents 6 to 11 claims to have purchased the land from the said Atchi Reddy, protected tenant under Ex.A-1 dated 8-2-1963. In the present writ petition respondents 3 to 5 are the heirs of one Satteyya who claims to have purchased the land on 20-11-1966 under an agreement of sale from the Original Inamdar Gulam Moinuddin in whose favour Atchi Reddy, protected tenant, surrendered his tenancy rights on 18th November, 1966. When there was a dispute about who was in possession of the land, proceedings under Section 145 Cr.P.C were instituted and the Executive Magistrate found that respondents 6 to 11 were in possession of the land. In a Revision in Crl.P.C. No. 310/1969 in the High Court, it was found that respondents 3 to 5 and their predecessors in title were in possession. Respondents 6 to 11 then filed O.S. No. 32/70 against respondents 3 to 5 for declaration of title and injunction against respondents 3 to 5 restraining them from interfering with their possession. Respondents 3 to 5 claimed title from the original Inamdar and that the protected tenant surrendered their interest in title in the property in favour of the original Inamdar. On the basis of the respective pleadings the Addl. Chief Judge, dismissed the suit of R-6 to R-11. The Appeal C.C..C.A. No. 62/80 was also dismissed by the learned Single Judge, against which L .P.A. No. 61 /1986 was preferred and the same was dismissed by Justice Syed shaw Mohammed Quadri and Justice S.V. Maruthi. The Special Leave Petition filed against the L.P.A was also dismissed by the Supreme Court. Along with the L.P.A the Revision Petition namely CRP. 665/94 was also disposed of. Briefly,. the facts in the C.R.P. are that respondents 6 to 11 and respondents 3 to 5 who claimed occupancy rights approached the concerned Revenue Officers. After prolonged litigation on March 9th, 1993 the Joint-Collector, Rangareddy District granted occupancy rights to respondents 6 to 11. Against the order granting occupancy rights to respondents 6 to 11, respondents 3 to 5 who are the predecessors in title filed CRP No. 665/96. The C.R.P. was allowed and remanded to the Revenue Divisional Officer for fresh disposal in accordance with law. Pursuant to the remand made by us in the C.R.P, the first respondent granted patta to respondents 3 to 5 who are the purchasers from the original Inamdars.
5. From the above, it is clear that the title of respondents 6 to 11 who claimed to have purchased the interest of the protected tenant Atchi Reddy was set aside and the title of respondents 3 to 5 who claimed to have purchased the interest of the original Inamdar after surrender of rights by the protected tenant in favour of the original Inamdar was upheld. Therefore, respondents 3 to 5 were the real owners of Acs. 9.00 of land is S.No. 91, Bowenpally village, Secunderabad known as Vadlavani Bhavi.
6. However, during the pendency of the various proceedings either in the Civil Court or before the Revenue Divisional Officer, respondents 6 to 11 converted Acs. 9.00 of land into plots and sold the same to third parties who are the petitioners in the present writ petition. During the pendency of the proceedings namely O.S. No. 32/1970 or CCA No. 62/1980 or LPA No. 61 /1986, respondents 3 to 5 have not obtained any injunction restraining respondents 6 to 11 from alienating the property. Respondents 6 to 11 on the other hand converted the entire land into plots and sold it to third parties knowing fully well that the litigation is pending in the Civil Court and High Court and that they have lost at every stage. Respondents 6 to 11 having lost in O.S. No. 32/70 and CCA No. 62/80 should not have sold the property to the petitioners. The sales were effected between 1993 to 1996. No doubt, it is stated that the plots were made from 1970 when the criminal revision petition was decided by this Court. It is also not disputed that the petitioners were neither aware of the proceedings nor were they impleaded in the pending proceedings. The fact remains that the title of respondents 6 to 11 is now set aside and the petitioners who have purchased the land from respondents 6 to 11 cannot get a better title than what their vendors have. The petitioners are bound by the judgment in LPA No. 62/1986. Before considering what is the relief to be granted to the petitioners who claimed to be the bona fide purchasers in good faith from respondents 6 to 11, whose title is now set aside in the long run litigation, it is necessary to consider the preliminary objection raised by the learned Counsel for the respondents. The counsel for the responsdent submits that the writ petition filed at the instance of second petitioner is not maintainable as he has no interest in the land. He also submits that the Writ Petition was not filed in a representative capacity as it is not a case where a Society was formed and land was purchased and thereafter, it was plotted and sold to the members of the Society. On the other hand, individual members purchased the plots and thereafter, when there was threat of dispossession formed into a Society as Welfare Society. Therefore, at the instance of petitioners 1 and 2, the writ petition is not maintainable. The Counsel submitted that under the Rules framed in exercise of the power under Article 226 of the Constitution of India, the Civil Procedure Code is applicable to the proceedings under Article 226 of the Constitution of India. Therefore, Order 1 Rule 8 CPC applies and the writ petition was not filed in a representative capacity. Therefore, the writ petition is not maintainable. In support of his contention he relied on Asst. Commissioner, H.R & C.E., Salem v. N.K.S.E. Mudaliar, : AIR1987Mad187 . while the Counsel for the petitioners relying on Puran Singh and others v. State of Punjab and others, : [1996]1SCR730 . contended that the High Court in exercise of the extraordinary jurisdiction under Article 226 and 227 is free to adopt its own procedure which is reasonable and expeditious. Provisions of CPC serve as guide and therefore, the mere fact that the writ petition was not filed in a representative capacity does not disentitle the petitioner to get the relief. Further the argument that the writ petition is not maintainable on the ground that the Society was registered for the welfare of the members of the Society does not survive and lost its significance in view of the fact that all the members of the Society are before this Court.
7. In Asst Commissioner, H.R. & C.E., Salem (2 supra) the Madras High Court was of the view that a person cannot seek to advance the claims of a group persons or community without adopting the procedure under Order 1 Rules 8 C.P.C, if the relief is prayed for only on the basis of the rights of the community as such. In case where the rights of the community are put forward in a suit the procedure under Order 1 Rule 8 CPC has to be followed and without doing so, no relief could be granted to the individual concerned. At the outset, it is pointed out that the judgment relates to a suit. Therefore, it is not relevant to the facts of the present case.
8. Further, under Article 226 of the Constitution of India, the Courts are aimed at securing a very speedy and efficacious justice to a person whose legal or constitutional rights have been infringed. As pointed out by the. Supreme Court if all the elaborate and technical rules laid down in the Code 15 are to be applied to writ proceedings, the very object and the purpose is likely to be defeated. It is well established that Rules of Procedure are hand maid of justice and the substantial justice should not be subservient to the rules of procedure. Further, their argument is technical and lost its significance as all the members who have purchased the plots are before this Court. It 20 is relevant to refer to the observations made by the Supreme Court in Punjab Singh v. State of Punjab (3 supra).
'When the constitution has vested extraordinary power in the High Court under Articles 226 and 227 to issue any order, writ or direction and the power of superitendence over all Courts and tribunals throughout the territories in relation to which such High Court is exercising such jurisdiction, the procedure for exercising such power and jurisdiction have to be traced and found in Articles 226 and 227 itself. No useful purpose will be served by limiting the power of. the High Court by procedural provisions prescribed in the Code. Of course, on many occassions, the provisions and procedures prescribed under the Code can be taken up as guide while exercising the power, for granting relief to persons, who have invoked the jurisdiction of the High Court. Different provisions and procedures under the Code are based on well recognised principles for exercise of discretionary power, and they are reasonable 35 and rational. But at the same time, many procedures prescribed in the said Code are responsible for delaying the delivery of justice and causing delay in securing the remedy available to a person who pursues such remedies. The High Court should be left to adopt a procedure which can be held to be not only reasonable but also expeditious.'
Further, finality is good thing but justice is better (Refer to Ras Behari Lal v. the King Emperor. Indian Appeals Vol. LX 1932-33). In view of the above, the argument of the learned Counsel for the respondent that the writ petition is not maintainable is rejected.
9. The facts disclosed above indicate that the petitioners purchased the property from the protected tenants whose title was set aside in the proceedings that were pending in the Civil Court. Respondents 3 and 5 succeeded in the litigation. During the pendency of the proceedings in the Civil Court, the petitioners purchased the property. In the normal circumstances, the sale of the property by respondents 6 to 11 to the petitioners is subject to the doctrine of lis pendens under Section 52 of the Transfer of Property Act. The Counsel for the respondents 3 to 5 relied on number of judgments in support of his contention that the transfer in favour of the petitioners is hit by the doctrine of lis pendens. The earliest decision is the judgment of Allahabad High Court in Asa Singh v. Naubat., AIR 1921 All, 105. It was held that
'Naubat's right to pre-empt therefore, continued right up to the date of the decree and the transfer pendente lite by Jhanda Singh in favour of Asa and Bijay, who had lost their right of pre-emption, cannot possibly affect the right of Naubat to take the property.'
In Moti Chand v. British India Corporation, AIR 1932 All. 210. it was held that
'The active prosecution of a suit must be deemed to continue so long as the suit is pending in appeal, since the proceedings in the appellate Court are merely continuation of these in the suit. In a mortgage suit the Us does not terminate with the preliminary decree, but must be deemed to continue at least till the passing of the final decree. In fact 20 the lis continues even after the final decree and subsists during the judgment of the proceedings in execution.'
It was also held that
'Section 51 applies to a transferee who has succeeded in proving that he believed in good faith that he was absolutely entitled to the property over which he made the improvement. He can put the person seeking to evict him upon election and cannot compel him to sell interest in the property to him. Section 51 cannot be taken advantage of by a person to whom the provisions of Section 52 apply.'
In Madholal v. Gajrabi, Judgment of Nagpore High Court. the High Court of Nagapur was of the view that the fact of the suit result in consent decree is no bar to the application of the doctrine of lis pendens. The suit was not collusive but clear.
10. The Andhra Pradesh High Court in A. Konda v. A. Pedademudu, AIR 1957 A.P. 454 =1956 (2) An. W.R. 549. held that after referring to the observation of Venkataramana Rao., J in Ramayya v. Rangaraju, AIR 1937 Madras 504. the learned Judges held that the Section 52 refers to
'Any suit or proceedings in which any right of immovable property is directly and specifically in question and subjects it to the doctrine of lis pendens. There can be little doubt that property to which the doctrine applies is property which is 'the subject matter of the suit.' One test 40 therefore, in order to ascertain whether any immovable property is the subject matter of a suit is whether a transfer of the property involved in it would be hit at by this provision.'
In Nagubai v. B. Shama Rao, : [1956]1SCR451 . it was held that
'The effect of Section 52 is not to wipe out a sale pendente lite altogether hut to subordinate it to the rights based on the decree in the suit. As between the parties to the transaction, however, it is perfectly valid and operates to vest the title of the transferor in the transferee.'
The words 'so as to affect the rights of any other party thereto under any decree or order which may be made therein' make it clear that the transfer is good except to the extent that it might conflict with rights decreed under the decree or order. It is this view that transfers pendente lite, have been held to be valid and operative as between the parties thereto. Hence, the contention that a transferor pendente lite must for purpose of Section 52 be treated as still retaining title to the properties cannot be accepted.'
The Bombay High Court in Manikchand v. Gangadhar, : AIR1961Bom288 . observed that 'a tenant put in possession pendente lite is liable to be removed in restitution of proceedings.'
11. A majority of Full Bench consisting of S.S. Dulat, A.N. Groverand I.D. Due, JJ. in Santa Singh v. Rajinder Singh, (F.B.). held that:
'The doctrine of Us pendens is expressed in the maxim' ut lite pendente nihil innoveture 'the principle being that' pendente lite neither party to the litigation can alienate the property in dispute so as to affect his opponent. The rule is based not on the doctrine of notice but of expediency. The effect of the maxim is not to annul the conveyance, but only to render it subservient to the rights of the parties to the litigation, Thus the word 'transfer' essentially has reference to alienations and not one of the parties to the suit taking forcible possession of the property in dispute which by no stretch of reasoning can be regarded to be an alienation.'
The judgment of the Full Bench in Punjab High Court was followed in Hari Bachan v. Har Bhajan, . and it was held that:
'The Rule of Us pendens contained in Section 52 is based, not on the doctrine of notice, but on expediency. The effect of this rule is not to annul the transfer but only to render it subservient to the rights of the parties to the litigation. According to this rule of lis pendens. Whosoever purchases a property during the pendency of a suit is held bound by the judgment that may be made against the person from whom he derived his title even though such a purchaser was not a party to the action or 40 had no notice of pending litigation.'
The alienee cannot claim any compensation for the improvements made by him on the property purchased during the pendency of the suit. He purchases the property subject to the result of the litigation, which will be binding on him whether he is a party to the case or not.'
The Andhra Pradesh High Court in K. Janardanam v. Motu Industries Pvt. Ltd., 1975(1) An. W.R. 264. held that:
'The doctrine of Us pendens is attracted even to the case of a suit which resulted in a compromise decree, provided the other requirements of Section 52 of the Transfer of property Act are satisfied.'
'The principle of lis pendens applies not only to a case where the plaintiff seeks to enforce a pre-existing charge, but also to a case in which the plaintiff asks for the grant of a charge; the transferee pendente lite takes the transfer from defendant to the action subject to the rights granted by and enforceable under the decree.'
The Supreme Court in Sarvinder Singh v. Dalip Singh, 1996 (6) SCALE 59 = 1996 (4) ALT 25 (D.N.). observed that:
'Section 52 of the Transfer of Property Act envisages that' during the pendency in any Court having authority within the limits of India...... of any suitor 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 proceedings 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.' It would, therefore, be clear that the defendants in the suit were prohibited by operation of Section 52 to deal with the property and could not transfer or otherwise deal with it in any way affecting the rights of the appellant except with the order or authority of the Court. Admittedly, the authority or order of the Court had not been obtained for alienation of those properties. Therefore, the alienation obviously would be hit by the doctrine of lis pendens by operation of Section 52.'
What merges from the above is that the Doctrine of lis pendens is expressed in the maxim' ut lite pendente uihil innoveture' and that neither party to the litigation can alienate the property in dispute so as to affect his opponent, 30 the rule is based not on the doctrine of notice but of expediency. The effect of the maxim is not to annul the conveyance, but only to render it subservient to the rights of the parties to the litigation. The effect of Section 52 is not to wipe out a sale pendente lite altogether but to subordinate it to the rights based on the decree in the suit. The transfer is good except to the extent that it might conflict with rights decreed under the decree or order. The doctrine applies irrespective of the fact whether the transferee has notice of the litigation or not and his rights are subject to the command of the Court.
12. On the other hand, the learned Counsel for the petitioners contended relying on Section 51 of the Transfer of Property Act that the petitioners are bona fide purchasers from respondents 6 to 11 and the pendency of the litigation was not brought to their notice. In good faith they proceeded with the construction of their houses and they have invested heavy amounts by taking loans from various Banks. At no point of time neither respondents 6 to 11 45 nor respondents 3 to 5 brought to the notice of the petitioners, though the respondents are residents of Bowenpally, the pendency of litigation between them warning that in case they proceed with the construction, it would be at their risk. Respondents 6 to 11 furnished the order issued by the R.D.O and the Collector granting patta in their favour, the panchayat lay out of 1970, the Pahani Patrikas, the assessment numbers of the temporary structures raised by them and proof of having paid tax thereon, mutation proceedings and non-encumbrance certificate of the property for a period of 35 years. Some of the purchasers consulted lawyers who had gone through the above documents furnished and advised that respondents 6 to 11 have clear and marketable title to the property. Since, the petitioners are bona fide purchasers and believed that the property belongs to respondents 6 to 11 and that they can have valid title proceeded in good faith with the construction in the plots and therefore, they are entitled for the return of the amount invested in purchasing the plots and the improvements made to the plots. In the alternative, if respondents 3 to 5 are not in a position to return the amount invested by the petitioners which includes the cost of the plot and improvements made to the plot, the petitioners should be permitted to purchase the land from respondents 3 to 5 at the market value. The Counsel relied on Section 51 of the Transfer of Property Act and brought to my notice number of decisions under Section 51 of the Act.
13. Section 51 of the Transfer of Property Act provides that 'when the transferee of immoveable property makes any improvement on the property, believing in good faith that he is absolutely entitled thereto, and he is subsequently evicted therefrom by any person having a better title, the transferee has a right to require the person causing the eviction either to have the value of the improvement estimated and paid or secured to the transferee, or to sell his interest in the property to the transferee at the then market value thereof, irrespective of the value of such improvement.' It also provides that the amount to be paid or secured in respect of such improvement shall be the estimated value thereof at the time of the eviction.
14. The earliest decision which may by relevant to the facts of the present case is the judgment of the Lahore High Court in Amir Chand v. Durga Das, AIR 1916 Lahore 379. Briefly, the facts of the case are that the property originally belonged to Diwanchand and, to his estate there were two rival claimants, Amir Chand the plaintiff and his late father on one side and Durga Das, defendant No. 1 on the other. There was litigation between Amir Chand and Durga Das from 1905 to 1908 and the property in dispute was sold pendente lite first by Durga Das to defendants 2 to 5 in 1905 and again by defendants 2 to 5 to defendant No. 6. In the litigation between Amir Chand and Durga Das, it was decided that Amir Chand was the heir of Diwan Chand. Therefore, Amir Chand filed a suit to recover the property from defendant No. 6. The Court below decreed the suit of the plaintiff on condition that he first pays Rs. 1,100/-to defendant No. 6 representing the increased value of the property due to the improvements effected by the first set of vendees. It was argued that the plaintiff is entitled to the house without payment of any compensation, that the improvements were not made bona fide and that in any case the plaintiff cannot raise Rs. 1,100/- and is entitled to alternative relief in the shape of a money decree for Rs. 500/- with all costs. It was held that 'the first vendees believed in good faith in the soundness of their title and acting on the principle enunciated in Section 51 of the Transfer of property Act, defendant Durga Das is entitled to compensation for the improvements effected by his vendors.'
15. The next decision to be considered is the judgment of Bombay High Court in Maneklal v. Keshav, MK 1938 Bombay 71. It was held that:
'Where an unauthorised sale by an executor or administrator is set aside, and a bona fide purchaser is deprived of the property purchased by him, then he is entitled in equity to be reimbursed for any expenditure incurred by him which has the effect of improving the permanent value of the property. If the transferee incurs expenditure out of caprice or mere whim or for luxurious purposes the ultimate owner is not bound. But if the result of improvement is to add to the permanent value of the property, 20 then in equity a right for restitution or reimbursement arises in favour of such transferee in respect of the expenditure incurred by him in that behalf. The principle is recognised in Section 64, Contract Act, in Section 51 T.P. Act, and in Sections 38 and 41, Specific Relief Act.'
16. The next decision to be considered is the judgment of Madras High Court in Venkataswami Naidu v. Muniappa Mudaliar, AIR (37) 1950 Madras 53. The facts of the case in brief are that under Ex.P-1 sale deed, one Muthuswami Konar sold the property for Rs. 800/- to one Duraiswami Naidu. Duraiswami Naidu sold the property to the plaintiff for a sum of Rs. 1,500/-. The plaintiff brought the suit for a declaration of their title to the suit house and possession of the same with damages for past use and occupation from the Defendants. The . defendants claimed that the purchase under Ex.P-1 by Duraiswami Naidu was on their behalf and that they have paid the consideration and that the thatched house which was standing on the property at the time of purchase was destroyed by fire and the first defendant built a new house with his own funds. Under these circumstances it was held that
'Where a person in bona fide belief that a certain property belongs to him spends money upon it and the true owner stands by and allows him to spend money and make improvements upon his land, the true owner is estopped from asserting his title to the land as against the person making improvements in such bona fide belief.'
it was also observed that
'It seems to me that in a state of things like this, the plaintiffs are not entitled to possession at all. The utmost they are entitled to is that defendant No. 1 should pay the cost of the site which Duraiswami Naidu had to pay to the vendor under Ex.F-1 with interest thereon.'
In Palanively v. K. Veradammal, : AIR1977Mad342 . it was held
'the owner did not do anything when the trespasser was putting up a portion of his main building on a portion of the trespassed land and sinking a major portion of the well and doing other acts on the trespassed land. The trespasser could not have done these things in a hurry. It must have taken several months for the tres-passer to complete them. The owner had not disclosed these things in the plaint and had not prayed for mandatory injunction for the removal of the structures put up by the trespasser on the trespassed portion of the suit property.'
It was further observed that the owner is deemed to have acquiescence and therefore, delivery of possession cannot be ordered and that it is a case where the owner should be compensated in money for the value of the trespassed portion.
17. R.B. Bharath Charyulu v. R.B. Alively Manga Tayaru, AIR 1966 A.P. 238. is a case where the plaintiff an.; defendant are the legally wedded wife and husband. But they were separated and living separately. The plaintiff alleged that the site on which a house was built was purchased with her gold jewellery by pledging them by the defendant and he constructed the house on her site and that she is the owner of the suit property and that she is entitled to possession of the same. The suit was decreed. On appeal, a learned single judge of this Court while dismissing the appeal referred to the judgment in Dayaram v. Shyam Sundari, : [1965]1SCR231 . and held that:
'the law settled in such a situation is that such a person improving the property on eviction be compensated in two ways, either (1) by being paid the value of the improvements, or (2) by buying out the better title at a valuation of the property irrespective of the improvements. It is settled that the option as to the mode of compensation is that of the evictor, who can either pay the value of the improvement and take the land or sell the land instead of evicting him.'
It was further held:
'if we borrow the 'rule of equity' from S. 51 of the Transfer of Property Act which is already extracted above, it is clear that the amount to be paid or secured in respect of such improvement shall be the estimated value thereof at the time of the eviction. In other words, in case if the plaintiff has to be put into possession of the site by passing a decree, she must be given the first option to have the building thereon, by paying the amount or the estimated value for that, prevailing at the time of eviction and not at the time of improvement. If she fails to avail the same, then the equity will move towards the defendant wherein he will have to pay the estimated value of the site prevailing at the time of eviction and not at the time of acquisition.'
What emerges from the above is that where a sale is set aside and a bona fide purchaser is deprived of the property purchased by him then he is entitled in equity to be reimbursed for any expenditure incurred by him which has the effect of improving the permanent value of the property. A right of restitution or reimbursement accrues in favour of such transferee in respect of the expenditure incurred by him in that behalf. In the alternative the bona fide purchaser is entitled to the site, on payment of the market value of the site on the date of eviction. In other words, the bona fide purchaser or evictor be compensated in two ways by being paid the value of the improvements or by buying out the better title at a value of the property irrespective of the improvements and the option as to the mode of compensation is that of the evictor, who can either pay the value of the improvement and take the land or sell the land instead of evicting the bona fide purchaser. That the amount to be paid or secured in respect of such improvement shall be the estimated value thereof at the time of eviction. The estimated value should be the value at the time of eviction and not at the time of improvement. The principle is based on rule of equity which is incorporated in Section 51 of the Transfer of Property Act i.e. on the equitable maxim that he who seeks equity must do equity. The above principle is applicable irrespective of the fact whether the purchaser had notice of the litigation pending between his vendor and holder of better title. The fact that he improved the property by investing huge amounts with the knowledge that litigation is pending and his title depends on the title of his vendor, which is the subject matter of the litigation does not disentitle him from recovering the cost of the improvements as the principle under Section 51 is based on equity. The only requirement of applicability of Section 51 is that he should believe in good faith in the soundness of his title and the title of his Vendor. In Maneklal v. Keshav (16 supra), the learned Judge took into account the circumstance that the purchaser spent considerable sum in improving the property which he purchased as an incident of good faith and soundness of his title and his vendors title.
18. The Counsel for the petitioners also relied on the following passages in Vol. 42 Corpus Juris Secundum Page -45.
'It is said that ordinarily a person is not entitled to reimbursement for improvements voluntarily made by him on the land of another, in the absence of an express contract requiring the land owner to pay therefor, and that while it is true and (sic. in) some cases that he is entitled to compensation for the improvements, the rule that he is so entitled is one of limited application.......................
However, Courts in applying the principle that he who seeks equity must do equity, hold that where an owner of land seeks equitable relief, as for instance, to recover the land or to obtain an accounting for rents and profits, he must make compensation to a bona fide occupant for permanent improvements made by such occupant, as a condition to his obtaining the relief sought, the occupant's right to compensation being governed by the particular facts of each case.
The right to compensation exists under the principles of equity independently of the statutory provisions which expressly grant it in certain actions or in certain cases. It is, however, of an equitable nature only and hence can be invoked against plaintiff only when he seeks to enforce some equitable right. The charge or equity for improvements is not a right, title or interest in the land.
The right to compensation for improvements may arise by estoppel, even though the occupant is one not entirely in good faith, where the owner has by his conduct encouraged him to make such improvements or has so conducted himself while they were being made as to make it a fraud in him to take them without paying therefor and under such circumstances a Court of equity may deny him the right to recover the land and compel him to surrender his title on receiving compensation. The doctrine of acquiescence, which is founded on the jurisdiction of the Courts of equity to relieve against fraud, operates by way of estoppel to prevent a person who refrains from interfering while a violation of his legal rights is in progress from taking advantage of his conduct to the disadvantage of the other. Acquiescence differs from estoppel in that for acquiescence it is not necessary that the person should have made any representation by words or conduct that he did not intend to enforce his rights.
If A spends money on B's land believing that the land belongs to A or that A has or will obtain some interest in the land and B, knowing of A's mistake belief stands by while the money is being spent or encourages the expenditure, B will not be heard to assert his title to the land so as to defeat A's expectation at least without compensating A for his expenditure'.
If follows that the principle that a person is not entitled to reimbursement for improvements voluntarily made by him on the land of another, in the absence of a contract express has an exception in the case where the owner of land seeks equitable relief, to recover possession of land, he must make compensation for permanent improvement made by such occupant as a condition to his obtaining the relief sought, the occupant's right to compensation being governed by the particular facts of the case. The right to compensation exists under the principles of equity independently of the statutory provisions which expressly grant it in certain actions in certain cases, the right to compensation being equitable can be invoked against the plaintiff when he seeks to enforce an equitable right, the charge or equity for improvements is not a right, title or interest in the land.
19. The right to compensation for improvements may arise by estoppel, even if the occupation is not entirely in good faith, where the owner by his conduct encouraged the improvements being made by the occupier, or has so conducted himself while they were being made as to make it a fraud in him to take them without paying therefor and under such circumstances a Court of equity may deny him the right to recover the land and compel him to surrender his lite on receiving compensation.
20. Applying the principles referred to above, it follows that the right of respondents 3 to 5 to recover possession of the property pursuant to the judgment in L.P.A.No. 62/80 is to be enforced subject to the rights of the petitioners' claim for compensation for the improvements made by them in improving the value of the property. The sale in favour of the petitioners is not wiped out, but it is subservient to the rights of respondents 3 to 5 to recover possession and the right of respondents 3 to 5 to recover possession is not based on expediency. Therefore, irrespective of the law whether the petitioners had notice of the litigation between respondents 6 to 11 and respondents 3 to 5 they are bound by the judgment in L.P.A.No. 62/80 and they have to surrender the possession of land as their rights are subject to the command of the Court. There cannot be any doubt that the transfer of property during the pendency of litigation by respondents 6 to 11 in favour of the petitioners is hit by the doctrine of lis pendens. Section 52 of the Transfer of Property Act makes the rights of the petitioners subordinate to the rights of the respondents 3 to 5. Section 52 regulates or deal with the rights of the successful litigant and protects his rights. It does not go beyond protecting the rights of successful litigants i.e. R-3 to R-5 and it does not annul the conveyance in favour of the petitioners. At that stage in my view, Section 51 steps in. The rights of successful litigant under Section 52 are subject to the right of compensation for the improvements made for improving the value of the property, by the purchaser who purchased the property during the pendency of litigation. The right to compensation does not depend on the knowledge of the petitioners about the pendency of litigation. The rights of the petitioners to get compensation for improvements is based on equity. Section 51 incorporates the principle of equity. Sections 51 and 52 of the Act should be interpreted harmoniously and Section 52 cannot be interpreted in isolation. Further Section 52 does not provide for a situation where the purchaser pendents lite makes improvements to the property. That situation has to be dealt with by the principle of equity incorporated by Section 51. In other words, Section 51 takes care of a case where the purchaser pendente lite makes improvements to the property and provides that he should be compensated. The provisions of an Act cannot be interpreted in a pedantic manner. However, while enforcing the right to compensation for the improvements made by the petitioners, the Court should give the option to the holder of better title who seeks to recover possession from the purchaser pendente lite. In the light of the above, the petitioners though bound by the decree in LPA 62/1980 are entitled for compensation for the improvements made to the property - improving the value of the property; in the alternative the petitioners have to pay the market value of the land on the date of eviction to respondents 3 to 5.
21. Alternatively, the jurisdiction under Article 226 is equitable. Therefore, applying the principle he who seeks equity must do equity, this Court can direct the first respondent to deliver possession of the property on payment of the estimated value of the improvements to the petitioners, in the alternative to pay the market value of the land on the date of eviction to the respondents.
22. In addition the right of compensation arises out of estoppel as neither the respondents 6 to 11 nor 3 to 5 warned the petitioners that any improvement made to the property by them would be at their risk in view of the pending litigation. Though they are living within the vicinity of the property they allowed the petitioners to go ahead with the construction, so conducted themselves encouraged the petitioners to make such improvements, as to make it a fraud to take the property without paying therefor. Therefore, this Court while exercising the jurisdiction in equity compels him to surrender his title by receiving compensation. In any view of the matter the petitioners are entitled to succeed.
23. It is vehemently contended by the learned Counsel for respondents 3 to 5 that it is not a case where this Court under Article 226 of the Constitution of India can grant relief to the petitioners. Even assuming that the petitioners are entitled to invoke the principle under Section 51 of the Transfer of Property Act, still the issues involved are disputed questions of fact as to the amounts spent by the petitioners in purchasing the land and constructing the houses making improvements and what should be the basis for the purpose of assessment of the cost of the improvements and what should be the cost of the land. To grant relief as prayed by the petitioners, this Court cannot go into the disputed questions of fact under Article 226 of the Constitution of India. Therefore, it should be thrown out at the first instance. He further, contended that it is a civil dispute and that the petitioners should be directed to approach the Civil Court. It is true that the Supreme Court in Bharat Singh v. State of Haryana, : AIR1988SC2181 . held that:
'When a point which is ostensibly a point of law if required to be substantiated by facts, the party raising the point, if he is the writ petitioner, must plead and prove such facts by, evidence which must appear from the writ petition and if he is the respondent, from the counter- affidavit. If the facts are not pleaded or the evidence in support of such facts is not annexed to the writ petition or the counter-affidavit, as the case may be, the Court will not entertain the point.'
The learned Judges also held that:
'There is distinction between a pleading under the Code of Civil Procedure and a writ petition or a counter-affidavit. While in a pleading, that is, a plaint or a written statement, the facts and not evidence are required to be pleaded, in a writ petition or in the counter-affidavit not only the facts but also the evidence in proof of such facts have to be pleaded and annexed to it.'
The learned judges therefore, refused to entertain the plea in the absence of evidence placed before it.
24. It is also true that in New Satgram Engg. Works v. Union of India, : [1981]1SCR406 . the questions essentially of fact to be determined according to the facts and circumstances of each particular case and therefore, when serious questions of title are raised the parties must get their rights adjudicated upon in a Civil Court.
25. In Sohal Lal v. Union of India, : [1957]1SCR738 . the Supreme Court held that:
'the Supreme Court will not enquire into the merits of rival claims of title to the property in dispute set up by the appellant and the respondent as it is a field of investigation which is more appropriate for a Civil Court 15 in a properly constituted suit rather than for a Court exercising the prerogative of issuing writs.'
26. In Mohan Pandey v. Usha Rani Rajgaria, 1992 (4) JT 572 = AIR 1992 SCW 3226. the Supreme Court refused to exercise the jurisdiction under Article 226 of the Constitution of India on the ground that Article 226 is not an appropriate remedy for the settlement of dispute relating to property rights between private persons and the remedy under Article 226 is available where there is violation of some statutory duty on the part of statutory authority and only in such cases, the Court will issue appropriate directions to the authority concerned.
27. There cannot be any dispute about the proposition referred to in the earlier paragraphs and the judgments relied on by the learned Counsel for the respondents i.e. if the issue involved disputed questions of fact, this Court cannot embark upon the investigation of facts in order to grant relief to any party. There cannot also be any dispute that Article 226 can be invoked for the 30 enforcement of rights but not for the establishment of title to the property.
28. The question, therefore, is: are the issues involved in the present writ petitions require an enforcement of legal rights already accrued or establishment of title to the property. In my view, the issue involved in the present writ petitions does not involve establishment of title but only involve enforcement of their rights. I am also of the view that question of investigating into the facts does not arise. The undisputed facts are that the petitioners are bona fide purchasers of the properties from respondents 6 to 11 and in good faith improved the property by investing huge amounts. In the litigation between R-6 to R-11 and R-3 to R-5, the title of respondents 6 to 11 is set aside and the title of R-3 to R-5 was declared.
29. Pursuant to the judgment of this Court in the litigation between R-3 to R-5 and R-6 to R-11, the Mandal Revenue Officer granted patta to respondents 3 to 5. While granting patta and directing delivery of possession, the Mandal Revenue Officer is not bound to deliver possession ignoring the change in the nature of property. The litigation commenced in 1970 and ended in 1996. During the period of 2.6 years, the very nature of the property is changed. Originally it is an agricultural land. Now it is converted into plots and land was included in the urban agglomeration. The very user of the property is changed and Acs. 9.00 of agricultural land is made into hundreds of plots and were sold to various persons who have invested their life time savings in the property. The Hyderabad Development Authority by its order dated 15-10-1991 certified that S.N. 91 Bowenpally is covered by the statutory plan/Zonal Development plan of Secunderabad for the Municipal area of Hyderabad Development Authority. According to it the land under reference is marked for residential use. In other words, there is change of user of the land. These are all undisputed questions of fact and the only point to be decided is while granting patta to respondents 3 to 5 and directing delivery of possession of property, are R-3 to R-5 are entitled for delivery of vacant possession of the property by demolishing the existing structure. In that context the principle under Section 51 of the Transfer of Property Act is relevant. If the principle under Section 51 of the Act is relevant, the only question that remains to be considered is whether the transferee be allowed to retain the property with the improvements on payment of the market value of the land which he purchased or the respondents who are better title holders be directed to pay cost of the improvement. Therefore, the Mandal Revenue Officer while delivering possession of the property should put it before the parties. It is left to the holder of better title to elect the remedy which in his view suits him; if the holder of better title is of the view that his interest would serve by payment of costs of the improvement he may be permitted to do so. If he is of the view that his interest would serve by taking the market value of the land, then also he should be permitted to do so. Therefore, the only question that remains before the Mandal Revenue Officer is to ascertain the market value of the land and the cost of improvements and on ascertaining the same, to direct the parties to act in accordance with Section 51 of the Transfer of Property Act. Under Section 51, the amount to be paid or secured in respect of such improvement shall be the estimated value of the property at the time of eviction. Therefore, the cost of the improvements shall be the estimated value on the date of delivery of possession. Similarly, the cost of the market value of the land should be the value on the date of eviction.
30. In these writ petitions they are seeking the relief of enforcement of their rights to receive compensation for the improvements made by them to the property in dispute. The petitioners are not requesting the Court to determine the amount of compensation payable to respondents 3 to 5. The petitioners are seeking the enforcement of the principle underlying Section 51 of the Act and direct the first respondent while delivering possession of the property to respondents 3 to 5, to pay compensation for the improvements made by them. Therefore, it is not necessary for the petitioners to adduce any evidence with pleadings or to establish any fact. It is within the realm of the Mandal Revenue Officer to decide this issue.
31. In the light of the view I have taken, it is not necessary to consider the arguments of the learned Counsel for the petitioners Mr. K, Raghava Rao in the connected writ petition. It follows from the above that the petitioners are entitled for the relief claimed in the writ petition. The petitioners are directed to file before the first respondent the total cost of the improvements . made to the land in question or the cost of the improvements and respondents 3 to 5 are directed to file the market value of the land in the case of each plot on or before 31st of January. Thereafter, the first respondent is directed to offer respondents 3 to 5 to elect either to pay the compensation to the petitioners namely the cost of improvements of the land, or accept the market value of the land and direct them to file before him in writing; if respondents 3 to 5 elect to pay the compensation i.e. cost of the improvements to the petitioners, they may be directed to deposit the same before him within six months thereafter. In the event of respondents 3 to 5 electing to accept the market value of the land, the petitioners may be directed to deposit the : same within three months thereafter. Depending on the election by respondents 3 to 5, the first respondent is directed to take action. The writ petitions are accordingly allowed. Before concluding, I would like to add that not only in the present case but in the whole of the State of Andhra Pradesh, there is no provision in the Transfer of Property Act enabling the authorities under the Registration Act while registering the transaction to record the pendency of litigation in respect of the said land. In this context, the amendment made to Section-52 of the Transfer of Property Act by the State of Maharastra and Gujarat are relevant. The amendment reads as follows:
Section 52(1): During the pendency in any Court having authority within the limits of India excluding the State of Jammu and Kashmir or established beyond such limits by (Central Government) of any suit or proceeding which is not collusive and in which any right to immoveable property is directly and specifically in question. If a notice of the pendency of such suit or proceeding is registered under Section 18 of the Indian Registration Act, 1908 after the notice is so registered 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 any decree, or order which may be made therein, except under the authority of the Court and on such terms as it may impose.
Sub-section (2): Every notice of pendency of a suit or a proceeding referred to in sub-section (1) shall contain the following particulars, namely:- (a) the name and address of the owner of immoveable property or other person whose right to the immoveable property is in question; (b) the description of the immoveable property the right to which is in question; (c) the Court in which the suit or proceedings is pending; (d) the nature and title of the suit or proceedings and (e) the date on which the suit or proceeding was instituted.
From the amendment incorporated by the State of Maharastra and Gujarat under Section 52 of the Act, it is dear that unless the litigation in relation to the property is registered under the Registration Act as provided under the amendment the transferee pendente lite gets valid and absolute title. Therefore, it is obligatory on the part of the parties to the litigation to register the same in accordance with Section 52 of the Act to enable the successful party to recover the property from the transferee pendente lite. The provision also protects the third party from purchasing the property which is subject to the litigation to avoid unnecessary litigation, and protects the innocent persons from being deceived by irresponsible litigants.
32. It is, therefore, necessary to have the provision similar to the provision incorporated by the State of Maharastra and Gujarat in Section 52 of the T.P.Act in order to avoid the litigation and protect the innocent persons purchasing the property which is the subject matter of the litigation. I, therefore, direct the Government of Andhra Pradesh the first respondent to amend section- 52 of the Transfer of property Act by incorporating a provision similar to that incorporated by the States of Maharastra and Gujarat within three months from the date of receipt of a copy of this judgment. If the Assembly is not in Session they are directed to issue an Ordinance and see that the Ordinance is made into law without lapsing.
33. I would further like to add that respondents 6 to 11 are responsible for the litigation right from 1970. Though they have lost in the High Court, they have dragged respondents 3 to 5 to the Courts and litigation went on right from 1970 to 1995. During the period of these 26 years they neither obtained permission from the Court nor brought to the notice of the purchasers the pendency of litigation and made the entire land into plots and sold them to the petitioners. The petitioners on the basis of the representation made by respondents 6 to 11 purchased the lands. Thus, they were deceived by respondents 6 to 11. Respondents 6 to 11 are also responsible for putting the rights of respondents 3 to 5 in jeopardy. In view of the above, the respondents 6 to 11 are directed to pay the costs of the petitioners and respondents 3 to 5 which are assessed at Rs. 15,000/- each.
34. In the result, the writ petitions are allowed with costs.