BHARGAVA, J - (1.) THIS appeal by the plaintiff raises an interesting question about the application of the doctrine of lis pendens to a sale after the institution of a suit for specific performance by another person in pursuance of an earlier agreement to sell made in his favour and arises from the following facts.
(2.) A plot of land situated in village Rani belonged to Tarachand who is alleged to have entered into an agreement to sell the said plot on his own behalf and of his two minor sons with plaintiff Mohanlal on 16th April, 1949, for Rs. 1500/- out of which Rs. 1000/ were then paid. This agreement to sell was renewed on 4th December, 1951, because the document of sale could not be executed in pursuance of the previous agreement. Subsequently Tarachand is said to have agreed to sell the same plot to Mishrimal respondent on 12. 10. 1949. Tarachand did not execute any sale-deed in favour of Mishrimal also and so the latter instituted a suit for specific performance of the agreement against Tarachand on the basis of the agreement dated 12. 10 49. The suit for specific performance was instituted on 3. 10. 53. During the pendency of this suit to which Mohanlal was not made a party, Tarachand executed a sale-deed in favour of Mohanlal on 1-10-54, and got it registered. Mishrimal's suit for specific performance was decreed against Tarachand and in execution of the decree he was resisted in delivery of possession by Mohanlal. Thereupon Mishrimal made an application under O. 21, R. 97 CPC to the executing court for the removal of the obstruction. Notice was given to Mohanlal and he submitted his reply that he was the true owner of the disputed plot on the basis of the sale-deed executed by Tarachand in his favour. The executing court found that Mohanlal was a representative of the judgment-debtor because he had purchased the property during the pendency of the suit for specific performance and as such dismissed the objection and possession was delivered to Mishrimal. Mohanlal again made an application for restoring possession of the property to him on the ground that he had purchased the property in pursuance of prior agreement and that the decree-holder was not entitled to take possession of the house which he had built on the plot after the sale in his favour. This objection was also dismissed by the executing court. Mohanlal then instituted the present suit for recovery of possession of the house and plot, and in the alternative for Rs. 11500/- for the cost of the building and Rs. 1500/- for the price of the plot. Tarachand was also impleaded as a party to the suit and a prayer for recovery of the amount paid to him and the cost of the building was also made against him. Separate written statements were filed on behalf of defendant No. 1, the vendee and defendants Nos. 4, 5 and 6, the vendor and his two sons. Defendants Nos. 4, 5 and 6 in their written statement admitted the execution of the agreements to sell the disputed plot of land in favour of the plaintiff on 16. 4. 49 and 4. 12. 51. They denied the execution of such agreement in favour of defendant No. 1. However, they admitted that defendant No. 1 bad obtained a decree for specific performance against them on 23-12-55. Defendant No. l in his written statement denied the existence of prior agreements to sell executed by defendant No. 4 in favour of the plaintiff. It was stated that the said agreements were fabricated for the purpose of the suit. It was further stated that the defendant had filed civil suit No. 190 of 1953 on 3-10-53 against defendants Nos. 4 to 6 for specific performance of his contract of sale dated 12-10-49 and for possession. It was after the institution of the said suit that defendants Nos 4 to 6, in collusion with the plaintiff and his father and uncle, brought about a bogus sale-deed in the name of the plaintiff on or about 1-10-1954. As soon as the defendant came to know about the execution of this deed, he immediately issued a registered notice to the plaintiff bringing to his notice that his suit for specific performance of the contract for sale was pending in the Pali Court and that if he made any constructions on the land in question, he would do so at his own risk. This notice was served on the plaintiff on 28th December, 1954. The plaintiff, however, kept quiet and did not give any reply to the said notice. It was stated that the plaintiff being a transferee during the pendency of the suit was affected by the doctrine of lis pendens and was also bound by the decree in civil suit No. 190 of 1953 passed by the Civil Judge Pali on 23rd December, 1955, that the present suit was barred by the principle of res judicata and also under the provisions of sec. 47 of the Code of Civil Procedure, that the plaintiff was not entitled to possession of the disputed property or any compensation for the constructions made by him because he had no title to the land and that the said constructions were unauthorised. On these pleadings, the trial court framed the following issues: (1) Whether Tarachand and his two sons had through Tarachand executed the agreement dated 16-4 49 in favour of the plaintiff for the sale of the disputed plot of land and possession was given to him? (2) Whether the agreement dated 16 4-49 was renewed by the agreement dated 4-12 1951? (3) Whether the sale-deed dated 1. 10. 1954 was executed by Tarachand on behalf of himself and his two sons? (4) Whether the plaintiff had constructed the super-structure standing on the disputed plot. If so, whether it cost Rs. 11,500/-? (5) Whether the sale deed dated 25. 7. 1959 executed by Shri Deonarain, Reader, Civil Judge Pali, and registered on 14. 11. 1959 by the Registrar Pali is invalid in law? (6) Whether the execution of the decree dated 13-12-1959 was time-barred and as such Misrimal and his two sons did not acquire any title to the disputed property and their possession was, therefore, illegal and void as against the plaintiff? (7) Whether the defendant Misrimal and his two sons became the owner of the disputed land and the super structure on or about 25-6-58? (8) Whether the suit is bad for misjoinder of causes of action and defendants? (9) Whether the plaintiff is barred by the principles of res judicata and the provisions under sec. 47 CPC to file this suit on account of the judgment in the execution case No. 96 of 1956 of the Civil Judge Pali dated 24-5-1958 as stated in paragraph Nos. 14 to 19 of the amended written statement? (10) Relief? In support of the above issues plaintiff gave his own statement as P. W. 1, and examined Chhogmal PW-2, Manmal PW-4 Jawerchand P. W. 5 Khimraj P. W. 6 and Joharmal P. W. 7. Besides, two more witnesses Jamandas Moolchand Ratnani and S. P. Mayakar, Advocates of Bombay, were examined on commission. In rebuttal Mishrimal gave his own statement as D. W. 1 but in spite of opportunities being given to him, he did not submit himself to complete cross-examination and his evidence has, therefore, not been considered by the lower court. One more witness Chhaganmal DW-2 was examined on behalf of the defendant. Both parties produced documentary evidence in regard to the above issues. The learned District Judge on a consideration of the evidence decided issues Nos. 1 and 2 against the plaintiff holding that the execution of the agreements dated 16. 4. 49 and 4-12-51 by Tarachand in favour of the plaintiff was not proved. He further held that the execution of the sale-deed by Tarachand on 1. 10. 54 in favour of the plaintiff was proved He further found that the plaintiff had raised constructions costing Rs. 11500/- over the disputed plot. The learned Judge further held that the sale-deed dated 1st October, 1954 in favour of the plaintiff was hit by the doctrine of lis pendens and was, therefore, void. That being so, it was further held that the plaintiff was not entitled to any relief against Misrimal. The plaintiff was also not allowed any relief against Tarachand vendor. The objection regarding the bar of res judicata and under sec. 47 C. P. C. was not decided by the learned Judge. In this appeal, learned counsel for the appellant has raised the following contentions: (1) that the finding of the lower court regarding the execution of the agreements in favour of the plaintiff by Tarachand dated 16 4-49 and 4-12-51 is not correct; specially in the absence of any evidence in rebuttal; (2) that the sale-deed in favour of the plaintiff dated 1st October, 1954, is not hit by the doctrine of lis pendens in as much as the said deed was executed in recognition of the pre-existing and subsisting right of the plaintiff on the basis of the two agreements; (3) in any event, plaintiff was entitled to a decree for the cost of the building which he had erected on the disputed land believing in good faith that he had a good title to the land; and (4) that the learned District Judge erred in not decreeing the suit against the vendor The first point, therefore, to be determined is whether Tarachand had agreed to sell the disputed plot to the plaintiff and had executed the agreements dated 16-4-49 and 4-12-1951 in his favour. On this point, the relevant evidence on behalf of the plaintiff is his own statement and that of Shri S. P. Mayakar and Shri Jamnadas Moolchand Ratnani, Advocate. Mohanlal has deposed that he had purchased the disputed plot of land from Tarachand who in pursuance of his oral agreement which took place at Bombay on 15th April, 1949, had executed an agreement of sale on 16th April, 1949, in his favour. Tarachand had signed Ex. 1 in his presence. On the same day, he paid Rs. 1000/- to Tarachand who delivered the patta of the land to him. Thereafter this agreement was renewed on 4-12-1951 and he executed Ex. 2 in his favour. Ex. 2 also was signed by Tarachand in his presence. Thereafter the plot was sold to him on 1st October, 1954. He had started making construction over the plot in October, 1954, and had spent about Rs. 11500/- for the constructions and that until 1st October, 1954, he had no knowledge of the agreement dated 12-10 1949 alleged to have been executed by Tara Chand in favour of Misrimal for the same plot. In cross-examination, Mohanlal has stated that on 15th April, 1949, Tarachand had come to Bombay for his own business. He had paid Rs. 1000/- to Tarachand at 2 P. M. on 16th April, 1949, and the agreement Ex. 1 was executed in the office of Shri S. P. Mayakar at 6 P. M. He stated that he had told one Mohan Sewag that he wanted to purchase some land on which he informed Tarachand and that is why the latter had come to him for selling the disputed plot. He has further stated that at the time of the execution of Ex. 1, both he and Tarachand thought that the sale deed would be registered within six months but he and Tara Chand had no occasion to come together to Rani Gaon between 16th April, 1949 and 1st October, 1954. He had withheld payment of Rs. 500/- to Tarachand for it was intended to be paid after the registration of the sale-deed. Neither he nor Tarachand after the execution of the agreement dated 16th April, 1949, gave notice to each other for registration of the sale deed. He has stated that at the time of the registration of the sale-deed on 1st October, 1954. agreements Exs. 1 and 2 were not with him at Rani Gaon as they had been left at Bombay. He has told his lawyer Shri Manakmal about both the agreements but he did not think it necessary to make a mention of them in the sale-deed. He admitted that Shri Moolchand Daga was his Vakil in execution proceedings No. 96 of 1956. He also admitted that he had received Misrimal's notice dated 20th December, 1954, but he was unable to trace it out. He has stated that his lawyer did not think it necessary to produce the agreements in the execution proceedings although he had mentioned them to him. He has stated that Shri S. P. Mayakar was his counsel for the last 15 years and that it was wrong to say that he colluded with Shri Mayakar and fabricated Exs. 1 and 2. He had paid Rs. 25/- to Shri Mayakar as his fee for preparing the agreements. Shri S. P. Mayakar has stated on seeing the agreements Exs. 1 and 2 that they were prepared by him. The stamp paper was also in his name and the agreements bear his attestation. The seller and the purchaser had also signed the agreements in his presence. He has further stated that Mohanlal plaintiff had come to him on 16th April, 1949, either in the morning or in the noon and gave him instructions to prepare these documents. He admits that he did not maintain any instruction-book and has also not noted the fee he received anywhere nor is the work noted down in; his diary because he did not maintain any diary except the desk calendar. He admits that he did not pay any income tax. He stated that Ex. C. was executed in his office between the hours of 6 to 7 P. M. but the amount of Rs. 1000/- was not paid in his presence although the seller had admitted the receipt of Rs. 1000/- and so he attested the receipt portion of the agreement. The second agreement was a sort of renewal of the previous agreement because the conveyance was not executed. He denied the suggestion that both agreements were made in the later part of 1956. He has stated that unless specifically instructed, he generally purchased agreement stamp papers in his own name. The witness is an advocate of Bombay High Court practising in Bombay Courts for the last 27 years. The third witness is Shri Jamanadas Moolchand Ratnani who is also an advocate of the Bombay High Court practising in the Bombay Courts for the last 18 years. On seeing a typed copy of letter dated 17th February, 1955, Ex. A, the witness stated that this letter was issued by him to the addressee Shri Mishrimal Gulabchand Ranka. He further stated that Ex. B, certificate of posting, related to letter Ex. A, and another letter issued from his office. In cross-examination, the witness was asked to identify the plaintiff and to say if Ex. A 1 was issued upon his instructions. The witness replied that at that length of time he could not identify Mohanlal plaintiff. He stated that from the rubber-stamp on Ex A and from Ex. B it appeared that Ex A had been issued from his office. He stated that Ex. B emanated from his office because the hand-writing thereon was of his managing clerk who was also his brother. He was asked in re-examination as to why he was not able to identify the plaintiff and he replied that he was not his permanent client, and that long time had elapsed and every day he had to handle large correspondence and therefore he could not identify him. It would be pertinent to note here that in Ex. A which is in reply to the defendant's letters dated 20th December, 1954, and 31st January, 1955, there is a mention of the two agreements dated 16th April, 1949, and 4th December, 1951, In para 2 of Ex. A, it is stated that - "the true facts of the case are that my client agreed to purchase the said plot from Tarachand Umedmal on 16-4-49 for total consideration of Rs. 1500/- and Rs. 1000/- had been paid on the said day i. e. , 16 4-49, and the terms of purchase were agreed in writing as per the agreement dated 16. 4. 49 executed between my client and said Tarachand. My client was given possession of the said plot since 16. 4. 49 and since then he is in possession. Later as the said deed could not be executed and got registered at Desuri, said Tarachand and my client again entered into agreement dated 4. 12. 1951, to complete the sale and in consequence of the said agreements, the sale was completed and the sale deed registered at Desuri on or about 1-10-1954. " No evidence in rebuttal was given on behalf of the defendant. Even the agreement dated 12. 10. 1949 said to have been executed by Tarachand in his favour was not produced in this case.
(3.) THE learned District Judge did not consider the evidence of Shri Jamana Das Moolchand Ratnani and the two documents Exs, A and B proved by him, and this fact by itself vitiates the finding of the learned Judge in regard to the execution of Exs. 1 and 2 by Tarachand in plaintiff's favour. THE learned District Judge did not find the execution of the two agreements proved because in the sale-deed there was no mention of the agreements and the payment of Rs. 1000/- to the vendor and the handing over of the patta of the land to the vendee and further that the plaintiff did not make any mention of the said agreements in the reply which he had submitted on 1st May, 1956, on the application of the decree holder under O. 21 R. 97 G. P. G. THEse omissions in the opinion of the learned Judge were very significant and the explanation given by the plaintiff that at the time of preparing the reply in the execution proceedings he had shown the agreements to his counsel but he did not think it necessary to mention them was not satisfactory. Besides, it was not believable that the plaintiff who was a petty trader would have allowed the amount of Rs. 1000/- to be locked up for such a long period and he did not even call upon the vendor to execute the sale-deed in his favour. Shri S. P. Mayakar's evidence was not believed because he had a very modest practice and he did not maintain any instructions-book or any diary or account-book in which fees received by him for preparing the agreements would have been entered Shri Mayakar also did not pay any income tax, and, therefore, his evidence, having regard to all the circumstances of the case, could not be believed. Further, the learned Judge observed that it had not been satisfactorily explained why Tarachand visited Bombay on 16th April, 1949, when he was not doing any business there nor was he a R/o Bombay. It is true that there is no mention of these agreements in the sale-deed nor does the sale-deed contain any recital about the receipt of Rs. 1000/- by the vendor from the vendee. It is also true that in the reply filed by the plaintiff to the defendant's application under O. 21 R. 97, there is no mention of these agreements. But it is to be remembered that the sale-deed dated 1st October, 1954, was not prepared by any expert draftsman but was done by some clerk working in Muffassil Tehsil. The plaintiff has explained that the two agreements were not with him when the sale-deed was executed but had been left at Bombay and that might be the reason why the sale-deed makes no mention of the previous agreements or it might be that the scribe of the sale-deed might not have attached any importance to the previous agreements when a completed sale was being effected between the parties. As regards the omission to mention the agreements in the reply during execution proceedings, it would appear that there the plaintiff only pointed out that he had purchased one plot of land from Tarachand openly and after it had raised constructions costing about 10,000/- rupees over it and that he was in its possession in his own right. It is a brief reply and probably, as explained by the plaintiff, his counsel might not have thought it necessary to give all the details of the previous agreements in it. However, when the plaintiff submitted another application to the executing court for restoration of possession of the disputed plot; he refuted the suggestion that he had purchased the plot during the pendency of Misrimal's suit against Tarachand. It was clearly averred that Tarachand had already agreed to sell the suit land to the plaintiff on 16th April, 1949, and 4th December, 1951. This fact would be clear from the copy of the order of the Civil Judge Pali dated 23rd September, 1958, Ex. A-15. Moreover, omission to mention these agreements of sale by the plaintiff in his reply to Misrimal's application under O. 21 R. 97 loses all its force when it is found that he had mentioned it in his reply Ex. A. Ex A is fully proved by the evidence of Shri Ratnani Advocate of Bombay. His evidence appears to be quite straightforward and true because he did not profess to identify even the plaintiff due to lapse of time. It is also proved by his evidence that the original of Ex A was sent by post to the defendant under certificate of posting. Thus if the agreements dated 16. 4. 49 and 4. 12. 51 were relied upon by the plaintiff as early as 7. 2. 55, it is of no consequence if he did not mention them in his reply Ex. A-12 dated 22. 9. 1956. I also do not agree with the finding and the reasons thereof that Shri Mayakar's evidence was not believable. It may be that Shri Mayakar was not a doyen of the bar and had only a modest practice but the affluence of a person is not the sole test of his credibility which by and large depends on his education and calling. It is difficult to see why a lawyer who has a modest practice at the bar should not be regarded as worthy of credit. Evidence of each Witness has to be weighed on its own merits and considered in the light of other circumstances in the case. The court is justified in regarding a witness as incredible when there are inherent improbabilities in his evidence. Learned District Judge has observed that Shri Mayakar did not maintain any instruction book, diary regarding work, account book regarding the fees received by him for drafting the agreements and also does not pay income-tax. That may be so. But many lawyers do not keep such records and yet their integrity remains beyond doubt. However, Shri Mayakar's evidence finds corroboration from the statement of Shri Ratnani whose evidence, as already said, is quite straight-forward and believable. Plaintiff had also produced Exs. A and B at the early stage of the case. It was urged by the respondent's counsel that the plaintiff himself did not say that he had instructed Shri Ratnani to write out Ex. A and Shri Ratnani has also failed to identify the plaintiff during his examination. Therefore there is no proof that Ex. A was written at the instance of the plaintiff. It is correct that no question was put to the plaintiff about Ex. A, but the reason seems to be as pointed out by the appellant's counsel that Ex. A was not on the court's file when plaintiff was examined because it had been already sent to the commissioner for the evidence of Shri Ratnani. However, hiving regard to the contents of Ex. A, it is clear that it must have been sent at the instance of the plaintiff and none else. The stamps for the agreements had also been purchased by Shri Mayakar on the date they had been executed. Learned District Judge has remarked that the plaintiff is not a man of means and he could ill afford to have a sum of Rs. 1000/- locked up for an indefinite period of time and did not even give notice to Tarachand to execute the sale deed when he had failed to do it within 4 to 6 months as envisaged by the parties at the time of the first agreement. However, I have not been able to find from the statement of the plaintiff that he could not even afford to spare Rs. 1000/- for a few years. He was making and selling gold ornaments in Bombay and must have been in a position to easily spare Rs. 1000/ -. He has also explained why sale-deed could not be executed by Tarachand within 4 to 6 months. There was no question of distrust between the parties and therefore no notice was required to be given to Tarachand. Sale-deed was to be registered at Tehsil Desuri and both parties did not have occasion to visit that place together and that is why the agreement was renewed in December, 1951 and sale-deed was Executed in Oct, 1954 Tarachand was also carrying business at Poona and there is nothing strange if the two agreements were executed in Bombay. Bombay is not far away from Poona and so Tarachand's presence in Bombay on the dates the agreements were executed cannot be regarded as a suspicious circumstance. In my view from the statement of Mohanlal plaintiff, Shri Mayakar Advocate and Shri Jamandas Moolchand Ratnani execution of the agreements to sell land on 16. 4. 1949 (Ex. 1) and 4. 12. 51 (Ex. 2) by Tarachand is well established and accordingly issues Nos. 1 and 2 are decided in favour of the plaintiff appellant. The next and the important point for consideration is whether the sale in favour of the appellant on 1-10-54 in pursuance of the prior agreements dated 16. 4. 49 and 4-12-51 is hit by the doctrine of lis pendens. Sec. 52 of the Transfer of Property Act reads as follows: "52. 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 the Central Government of any suit or 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 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. " This section enacts the doctrine of lis pendens which is expressed in the maxim 'ut lite pendente nihil innovetur'. The rule as stated in the leading English case Bellamy vs. Sabine (1) on the subject in the words of Lord Cranworth is: "where a litigation is pending between a plaintiff and a defendant as to the right to a particular estate, the necessities of mankind require that the decision of the Court in the suit shall be binding, not only on the litigant parties, but also on those who derive title under them by alienations made pending the suit, whether such alienee had or had not notice of the pending proceedings. If this were not so, there could be no certainty that the litigation would ever come to an end. " The legal effect of the doctrine is that the transactions pendente lite are not to be allowed to affect the right under the decree. However, it does not operate so as to defeat any right existing before the date of the suit. The appellant contends that a prior contractee for sale of immovable property has a right to purchase it in preference to a subsequent contractee who is enforcing his right by commencement of a suit against the common contractor. It is pointed out that a prior contractee can successfully defeat the claim of subsequent contractee if he is impleaded a party in the same suit or by a separate suit. He would therefore be not put in a worse position if instead of enforcing his right by means of a suit he purchases the property by a private sale, although after the commencement of the suit by the subsequent contractee. It would otherwise lead to very inequitable results and an unscrupulous vendor would get a handle to defeat the claim of previous contractee by entering into a subsequent agreement and getting a suit instituted against him by the subsequent contractee. For the above contention, strong reliance is placed on the following observation in Bishan Singh vs. Khazan Singh (2): "the doctrine of lis pendens applies only to a transfer pendente lite, but it cannot affect a pre-existing right. If the sale is a transfer in recognition of a preexisting and subsisting right, it would not be affected by the doctrine, as the said transfer did not create new right pendente lite; but if the preexisting right became unenforceable by reason of the fact of limitation or otherwise, the transfer, though ostensibly made in recognition of such a right, in fact created only a new right pendente lite. " It is argued that though the above observations were made in a suit for pre-emption and their Lordships only summarized the settled law of the Punjab in the aforesaid observations, the same principle can equally be applied in the case of agreements of sale because a prior contractee and a pre-emptor having an equal or a superior right stand on the same footing. ;