JAGAT NARAYAN, J. - (1.) THIS is an Execution Second Appeal by Ramchandra, Chhogalal and Ranglal against an appellate order of the District Judge, Partabgarh setting aside an order of the Civil Judge, Chittorgarh. The appeal has been contested by Kanakmal Respondent No. 1. Smt. Jadav Bai Respondent No. 2 executed a sale deed Ex. A/2 of a shop on 3-2-1954 in favour of Ramchandra and Chhogalal appellants. On 25-9-1954 she sold a house to Ranglal appellant by means of sale-deed Ex. A/1. Kanakmal and Nandlal brought a suit against Smt. Jadav Bai in the court of the Munsiff, Chittorgarh in 1934 in respect of the immovable properties originally belonging to one Kesrimal. That suit was finally decided by this Court on 10th August 1965. Amongst the properties in suit were the shop and the house sold by Smt. Jadav Bai by means of the above two sale deeds.
(2.) AFTER the suit was finally decreed in favour of Kanakmal plaintiff (Nand Lal having died before the decision of the suit, leaving Kanakmal as his only heir), he applied for execution of the decree. A warrant of possession was issued in his favour in respect of the shop and the house. Delivery of possession was resisted by Ramchandra and Chhogalal over the shop and by Ranglal over the house. The decree holder or then filed an application under Order 21, Rule 97 C. P. C. The appellants resisted the application on the ground that they had purchased the respective properties when there was no suit pending about them. On 15-3-67 the executing court upheld the objection. On 19-9-67 the District Judge set aside the order of the executing court on appeal and held that sec. 52 of the Transfer of Property Act was applicable to the two transfers in favour of the present appellants, and the decree-holder was consequently entitled to get possession over the shop and the house in dispute. In order to understand the dispute between the parties, it is necessary to state a few facts. One Lalji was the original owner of the properties in dispute, He had three sons, Ramsukh, Dhulchand and Prabhulal. Ramsukh had a son Kesrimal and a daughter Smt. Raj Bai. Kesrimal had a wife but had no child. Rajbai's son Bagmal used to live with him and he was brought up by him as his son. Between the parties it has been finally decided that Bagmal was not adopted by Kesrimal, as was alleged on behalf of Smt. Jadav Bai. Kesri Mal executed a gift deed in favour of Bagmal which was not registered. It has also been decided finally between the parties that this gift deed was invalid and ineffective, Bagmal died leaving his widow Smt. Jadav Bai. Nandlal was the heir of Dhulchand and Kanak Mal was the heir of Prabhulal in 1934 when they brought a suit against Smt. Jadav Bai for a declaration that the properties of Kesrimal of which a list was prepared by the Court of Wards were joint family properties of the plaintiffs. It may be mentioned here that Kesrimal died in Sambat 1985 leaving a widow and thereafter the widow and Ragmal both died. After their death, the Court of Wards took possession over the properties which were originally in possession of Kesrimal. It appears that Smt. Jadav Bai was a minor at that time. When she was about to attain majority in 1934 the suit referred to above was instituted. One of the prayers made in the suit was that these properties should not be delivered in the possession of Smt. Jadav Bai. The properties in suit were not described independently in the plaint. In 1934 the Code of Civil Procedure, which was in force in the British India, had not been applied to the courts in Mewar. It was applied there for the first time by resolution No. 3939 dated 9th September 19. 10. of the Government of Mewar with some adaptations. There were two grades of civil courts in Mewar, courts of Munsiffs having original civil jurisdiction up to Rs. 5,000 and courts of District Judges having unlimited civil jurisdiction. In the Mewar Gazette (Sajjan Kirit Sudhakar, Vol. LIT. No. 2, dated 21-7-1930), at Page 12 there is an order of Maha-kma Khas dated 9-7-30 in which a direction has been issued that the District Judges should themselves try original suits above Rs. 5,000/- valuation. The same jurisdiction of Munsiffs and District Judges was prescribed under the Mewar Subordinate Civil Courts Regulation, 1940, and Civil Courts Act, 1942. In 1950, as a result of the formation of Rajasthan, there was a reorganisation of courts in accordance with the Rajasthan Civil Courts Ordinance, 1950, which came into force on 24-1-50. Under this reorganisation there were grades of civil Courts - courts of Munsiff, having ordinary civil jurisdiction up to Rs. 2000/-, courts of Civil Judges having jurisdiction up to Rs. 10,000/- and courts of District Judges having unlimited civil jurisdiction. On the plaint of the suit filed in 1934 by Ranglal and Kanakmal there was an office report that it was defective inasmuch as no prayer for possession was made. There is an order on this office report that the plaintiffs only wanted a declaration and had stated that they would bring a suit for possession later on and that the case should be registered and further proceedings taken. On 23-3-38, the suit was however dismissed by the Munsiff because no prayer for the relief of possession had been made. The plaintiffs preferred an appeal to the District Judge. On 22-4-39 the appellate court remanded the case with the direction that the plaintiff may be allowed to amend the plaint by adding a prayer for possession. The record was received by the Munsiff on 23-5-39 and an order was passed that Rs. 25/- be paid as costs within 14 days and that the case be put up on 11-6-39. Before 11-6-39, an appeal was preferred against the order of the District Judge before the Mahad Raj Sabha. When intimation about it was received, the Munsiff ordered that the case be consigned to the Record Room, The plaintiffs were directed to apply for taking out the case after the decision of the appeal pending before the Mahad Raj Sabha. The record was later on sent to the Mahad Raj Sabha in connection with the appeal. On 27-3-1940 the Mahad Raj Sabha dismissed the appeal. The record was returned to the court of the District Judge who did not send it back to the court of the Munsiff. The plaintiffs also did not apply for taking out the record and fixing a date of hearing. After the formation of Rajasthan there was reorganisation of courts. Chittorgarh was included within the jurisdiction of the District Judge, Partabgarh. Formerly it was within the jurisdiction of the District Judge, Bhilwara. On 15 5-53 this record was taken out from the record room of the District Judge, Bhilwara and was sent to the District Judge. Partabgarh. The file was sent to the court of the Munsiff, Chittorgarh who received it on 11-5-54. He fixed 3-9 54 for the appearance of the parties On 3-9-54 Kanak Mal plaintiff filed an application. By then the other plaintiff had died and Kanakmal was his only heir. In this application it was stated by Kanakmal that the valuation of the properties in dispute was Rs. 2,800/- and it was prayed that the file be sent to the court of the Civil Judge, Nimbahera. The four properties which were in dispute were described in this application and their valuation was given. It may be mentioned here that at the time of the institution of the suit in 1934, the jurisdiction of the Munsiff, Chittorrlw 1969 garh extended up to Rs. 5,000/-/-, but as a result of re-organisation, it was reduced to Rs. 2,000/-/ -. No order was passed on this application either on that date, or on any subsequent date. On 3-9-54 the plaintiff was allowed 14 days to deposit Rs. 25/-/-as costs and to submit an amended plaint by 13-10-54. The costs were paid to the defendant on 16-9-54 and an amended plaint was filed on 28-9-54. In this amended plaint all the four properties in suit were fully described including the shop and the house which are now in dispute. The valuation was given as Rs. 2,800/-/ -. The Munsiff did not move the District Judge to transfer the case to the court of the Civil Judge as he should have done but rejected the plaint. The plaintiff filed an appeal against the order of the District Judge who allowed it on 21-4-54 and ordered that the case be transferred to the court of the Civil Judge, Nimbahera. The court of Civil Judge, Nimbahera was abolished and the suit was registered in the court of Civil Judge, Chittorgarh on 23-5-55. On behalf of the defendant an objection was raised to the competence of the Civil Judge, Chittorgarh to try the ease on the ground that the valuation of the properties in suit was more than Rs. 10,000/ -. This objection was ultimately rejected by the High Court. It was held that the proper valuation of the suit properties was Rs. 2,800/ -. The suit was decreed by the Civil Judge, Chittorgarh against Smt. Jadav on 30-5-60. The appeal was dismissed on 3-12-60 by the District Judge, Pratabgarh and the second appeal by the High Court on 10-8-65. S. 52 of the Transfer of Property Act runs as follows : - 52. Transfer of property pending suit relating thereto.- 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 can be made therein, except under the authority of the Court and on such terms as it may impose. Explanation - For the purposes of this section, the pendency of a suit or proceeding shall be deemed to commence from the date of the presentation of the plaint or the institution of the proceeding in a court of competent jurisdiction and to continue until the suit or proceeding has been disposed of by a final decree or order and complete satisfaction or discharge of such decree or order has been obtained, or has become unobtainable by reason of the expiration of any period of limitation prescribed for the execution thereof by any law for the time being in force.
(3.) THE first contention on behalf of the appellant is that on 3-2-54 when the sale deed Ex. 2 was executed, the file of the case was lying in the record room of the District Judge, Bhilwara and it cannot be said that the suit was pending in any court competent to try it. Further it is argued that on 25-9-54 when the sale-deed Ex. 1 was executed the file was pending in the court of the Munsiff, Chittorgarh who had no authority to dispose of the suit as the valuation of the properties in suit was Rs. 2,800/- which was beyond the pecuniary limits of his jurisdiction. I am unable to accept these arguments in view of the Explanation to sec. 52 of the Transfer of Property Act which was added in 1929. THE present suit was instituted in the year 1934 in the court of the Munsiff, Chittorgarh whose jurisdiction at that time extended to Rs, 5,000/- and the valuation of the properties in suit being Rs. 2800/-he was competent to try it. THE properties in dispute in the suit all lay within the territorial jurisdiction of that court. THE suit was finally decided by the judgment of the High Court in the second appeal in 1965. By virtue of the Explanation, the suit will be deemed to be pending in a court having authority to decide it during the whole of this period. On behalf of the appellants, it was contended that unless the suit remains registered in some court, the intending purchaser has no means to find out whether any suit about the property is pending. It is no doubt true that the suit was dismissed by the Munsiff, Chittor-garh in 1938. It is not known whether the result of the decision was entered in the register of suits of that court. The words of the Explanation to sec. 52 are, however, clear and effect has to be given to those words. Sec. 52 has to be read as a whole and the words of the opening part, ''during the pendency in any court having authority" have to be interpreted in the light of the Explanation which follows. The next contention is that as the properties in dispute were not specified in the plaint which was filed in 1934, Sec. 52 has no application because it says that the right to the immovable property should be specifically in question and it cannot be said to be specifically in question unless the properties are specifically described in the plaint. I am unable to accept this argument. By stating that the properties in respect of which a declaration was sought were those which were entered in a list prepared by the Court of Wards at the time of taking possession over Kesrimal's properties, the two properties in dispute in the present proceedings and the two other properties entered in that list became specifically and directly the subject matter of the suit. In order that a property may be specified it is not necessary to describe it by its boundaries as is required to be done under O. 7, r. 3 of the Code of Civil Procedure. As I have pointed out above, the Code of Civil Procedure was not in force in Mewar when the suit was instituted initially in 1934. I am accordingly of the opinion that the house and the shop in dispute were directly and specifically the subject matter of the suit which was instituted in 1934. Another contention which was put forward was that there is no evidence on record to show that the two properties in dispute in the proceedings were specified in the list prepared by the Court of Wards. This is a question of fact which cannot be raised for the first time in second appeal. In the application under 0. 21, r. 97 C. P. C. it was specifically stated that the two properties in dispute in the present proceedings were the subject matter of a suit which was instituted on Asoj Sudi 14 Sambat 1991 (corresponding to Sept. 10. 1934), that the suit was instituted for declaration of the title of the plaintiffs, that on 28-9-54 the plaint was got amended so as to add the relief of possession and that the suit was decreed in favour of the plaintiffs finally by the Civil Judge on 30-5-1960 and all appeals against that decision were dismissed. ;