B RRANGASWAMY Vs. UPPARIGE GOWDA

JUDGEMENT

(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 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.

(3.) 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.