1. Munsif, on remand by the Subordinate Judge, held that the plaintiff, who had obtained an assignment of the rights of one Kotta Athan, was bound by the decision in Original Suit No. 414 of 1907 (Exhibit VI). In that decision it was held that the land referred to in the plaint belonged to the second defendant and not to the said Athan. The plaintiff obtained from Athan the assignment on which he relies in January 1908 during the pendency of the said suit. Applying the doctrine of Us pendens the Munsif held that the plaintiff could not set up a title to the said land as against the second defendant. The Subordinate Judge on appeal refused to consider the plea of Us pendens because it was not raised specifically by the defendants in their written statement, and the Munsif by the remand order was directed to decide the case on the merits irrespective of the effect of the doctrine of lis pendens.
2. The argument based on the doctrine of Us pendens had evidently been argued before the Munsif. It was a pure question of law, and required for its disposal no additional evidence beyond what was already on record. It ought therefore in our opinion to have been considered by the Appellate Court.
3. That question has been fully argued before us. We agree with the decision of Maclean, C.J., and Banerjee, J., in Jogendra Chunder Ghose v. Fulkumari Dassi I.L.R. (1900) Calc. 77 that the words 'contentious suit' in Section 52 of the Transfer of Property Act are used in contradistinction to a friendly suit in which there is no contest. Every suit other than such a friendly suit, by its origin and nature, falls within the definition of a contentious suit. We think that the observations to the contrary in other cases [two of them Krishna Kamini Debt v. Dino Mony Chowdhurani I.L.R. (1904) Calc. 658 and Upendra Chandra Singh v. Mohri Lal Marwari I.L.R.(1904) Calc. 745] must be held to be erroneous in view of the dictum of their Lordships of the Privy Council in Faiyaz Husain Khan v. Prag Narain I.L.R.(1907) All 339.
4. In the result we reverse the Lower Appellate Court's decree and dismiss the plaintiff's suit. As the second defendant (appellant) has succeeded on a point not properly raised by him in the Lower Courts, we direct the parties to bear their respective costs throughout.