S.A. Kadar, J.
1. These two revision petitions arise out of the same matter and the parties are the same. CRP.No. 4800 of 1984 arises out of the order of the 10th Assistant Judge, City Civil Court, Madras in E.A. No. 1282 of 1984 in E.P. No. 342 of 1983 and the petitioner in the execution application is the revision petitioner. C.R.P. No. 219 of 1985 arises out of the order of the said judge in E.P. 342 of 1983 and the second respondent therein, who is the petitioner in E.A. No. 1282 of 1984 is the revision petitioner.
2. The brief facts of the case are these:- The first respondent herein filed the suit in O.S. No. 5540 of 1971 on the file of the City Civil Court, Madras against the second respondent for specific performance of an agreement for sale of the scheduled property, entered into between them on 30.10.1967. The suit was decreed on 24.1.1974. Pending suit, the second respondent herein, who is the defendant, has sold the suit property in favour of the revision petitioner by a deed of sale dated 11.5.1972. In E.P. No. 226 of 1979 the 1st respondent/decree-holder filed the execution against the 2nd respondent/defendant for the execution of the deed of sale. In E.A. No. 1523/79 in the said execution petition the 1st respondent/decree-holder sought to implead the revision petitioner herein as a party to the execution petition as he had obtained a deed of sale pendente lite. The application was resisted by the revision petitioner but was allowed on 24.7.1979 and the revision petitioner was impleaded as the 2nd respondent in the execution petition. The execution application was allowed and the deed of sale was executed by the Court. There after, the 1st respondent/decree-holder filed E.P. No. 342/83 for delivery of possession after removing the superstructure put up by the revision petitioner subsequent to the sale in her favour. The said execution petition was resisted by the revision petitioner, who contended that she had put up the superstructure worth several lakhs of rupees, that she is not bound by the decree for specific performance obtained by the 1st respondent/decree-holder/revision petitioner and that the decree-holder is not entitled to the relief for possession as against the revision petitioner. The revision petitioner then filed E.A. No. 1282/84 in the aforesaid E.P. No. 342/83 for a declaration that the decree in O.S. No. 5540/70 obtained by the 1st respondent/decree- holder is not executable against the revision petitioner and for the dismissal of the execution petition.
3. The learned 10th Asst. Judge by his order dated 16.11.1984 dismissed E.A. No. 1282/84 holding that the sale in favour of the revision petitioner was affected by lis pendens and she is not entitled to contend that the decree obtained by the 1st respondent against the 2nd respondent is not executable. Consequently he allowed E.P. No. 342/83 and directed delivery. The revision petitioner has, therefore, come forward with these two revisions.
4. It is an admitted fact that the deed of sale in favour of the revision petitioner executed by the defendant/2nd respondent herein is subsequent to the suit for specific performance filed by the plaintiff/1st respondent herein and the sale is therefore hit by the doctrine of lis pendens, embodied in Section 52 of the Transfer of Property Act, hereinafter referred to as the Act.
5. The main contention advanced by Mr. M. Srinivasan, learned senior Counsel for the revision petitioner is that the revision petitioner, believing in good faith that she is absolutely entitled to the property, has made vast improvements by putting up a superstructure at a cost of several lakhs of rupees and she has, therefore, a right to require the decree-holder/1st respondent herein, who is seeking to evict her on the basis of a better title either to have the value of the improvements estimated and paid to her or to sell his interest in the property to the revision petitioner. Reliance is sought to be placed on Section 51 of the Act, which runs as follows:
When the transferee of immovable property makes any improvements 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.
The amount to be paid or secured in respect of such improvement shall be the estimated value thereof at the time of the eviction.
When, under the circumstances aforesaid, the transferee has planted or sown on the property crops which are growing when he is evicted therefrom, he is entitled to such crops and to free ingress and egress to gather and carry them.
6. Mr. M. Srinivasan strenuously contends that all the ingredients of Section 51 of the Act are satisfied in the instant case and the revision petitioner is entitled to the benefit of the said provision of law and placed before me several authorities in support of his contention. In Moitheensa Rowthan v. Apsa Bivi I.L.R. (1913) Mad. 194 : (1913) 21 M.L.J. 969 a Bench of this Court held that a purchaser in a court auction, who was not a party to the decree, is entitled to the value of the improvements bona fide effected by him, on being evicted from the property owing to some defect or irregularity in the proceedings leading upto the sale. A court auction purchaser is not really entitled to the benefit of Section 51 of the Act but he has been allowed compensation for improvements on equitable principles following the judgment of Story, J. in Bright v. Boyd (1841) 1 S. 478 where a person who had been evicted from land which he had held by a conveyance from an administrator on the ground that the administrator had failed to comply with the requirements of law essential to the validity of sale, was held entitled for the recovery of valuable and permanent improvements made by him in good faith believing that the deed from the administrator conveyed a good title to the premises, Narayanamurthy v. Secretary of State : AIR1925Mad963 is another decision relied on by the learned Counsel for the revision petitioner where the grantee of land under an order of the Tahsildar paid the assessment in respect of the land and spent money in putting the land to good use without knowing that there was an appeal decreed against him. It was held:
that the grantee effected his improvements bona fide within Section 51 and was therefore entitled to the value thereof.
These decisions do not deal with a case of transfer pendente lite falling under Section 52 of the Act and they therefore do not advance the case of the revision petitioner.
7. Section 52 of the Act, which embodies the doctrine of pendente lite runs thus:
During the pendency in any court having authority within the limits of India excluding the State of Jammu and Kashmir or establishing 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.
Explanation:- For the purpose 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 or 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.
The principle underlying this rule of law has thus been stated by a Bench of the Bombay High Court in Achut v. Shivajirao A.I.R. 1937 Bombay 244:
It is clear from the terms of this section, that the doctrine of lis pendens is not based upon notice, but it rests upon the ground that neither party to a suit can alienate the property in the suit pending the suit so as to defeat the rights of the other party. As the decisions show, it is based upon expediency, and it is immaterial whether the alienee pendente lite had or had not notice of the suit ... The mere pendency of a suit will not prevent one of the parties from selling the property, the subject-matter of the suit, but the purchase will in no manner affect the right of the other party under any decree which may be made in the suit, unless the property was sold with the permission of the court. The section lays down the principle, which is in conformity with what Story in his 'Equity Gurisprudence' observes that the effect of the maxim 'ul life pendente nihil innovetur' is not to annul the conveyance, but only to render it subservient to the rights of the parties to the litigation... A purchase made of land actually in litigation pendente lite for a valuable consideration and without any express or implied notice affects the purchaser in the same manner as if he had notice, and he will accordingly be so far bound by the judgment or decree as not to be entitled to defeat the main object of the suit. Ordinarily the judgment of a court binds only the parties and their privies in representation or estate. But he who purchases during the pendency of an action is held bound by the judgment that may be made against the person from whom he derives title. The litigating parties are exempted taking any notice of the title so acquired and such purchaser need not be made a party to the action.
In Kulandaivelu v. Sowbagyammal : AIR1945Mad350 this court has observed that Section 52 makes no exception in favour of a bona fide transferee for value without notice and it hits against all transfers which would affect the rights of the other party. In Md. Shafiqullah v. Md. Samiullah : AIR1929All943 the question arose whether a transferee from an ostensible owner entitled to the benefit of Section 41 of the Act will be hit by Section 52 of the Act. A Bench of that court held that the estoppel arising under Section 41 of the Act cannot be such as to override the imperative provisions of Section 52 of the Act. Section 52 is a special section which applies to transfers during the pendency of a suit. In the presence of a special provision of law applicable to pending suits, the general provisions of estoppel contained in Section 41 will not apply. In Motichand v. British India Corporation : AIR1932All210 the question on hand whether Section 51 can override Section 52 of the Act came up directly for consideration. During the pendency of a mortgage suit, the property in suit was purchased by the predecessors of the plaintiff who claimed the benefit of Section 51 of the Act as against the purchasers in execution of the mortgage decree. Following the earlier Bench decision of that court in Md. Shafiqullah v. Md. Samiullah : AIR1929All943 referred to above, this Bench held that the plaintiff was not entitled to the benefit of Section 51 of the Act in view of Section 52 of the Act. In Chinna alias Lakshmi Kutty Amma v. Md. Ali (1958) K.L.T. 557 the first plaintiff filed is suit for recovery of possession from the defendant who claimed to be the cultivating tenant. The suit was decreed and the first plaintiff took delivery of possession of the property in execution of the decree and sold it subsequently to the second plaintiff, but, the appeal filed by the defendant-tenant was allowed and remanded for retrial then the second plaintiff - transferee is impleaded as a party. The second plaintiff - transferee pendeate lite claimed the value of improvements effected by him by way of reclamation and fresh constructions. The suit and the restitution matters were jointly tried and the suit was dismissed, white the re-delivery was ordered unconditionally as the second plaintiff was a transferee pandente lite and could not claim the benefit of Section 51 of the Act. In the second appeal the High Court held that the improvements could not be said to have been made bona fide as there was an appeal pending. Agreeing with the observation of the learned author of the 4th edition of Mullah's Transfer of Property Act, the learned Judge of the Kerala High Court held that Section 51 of the Act is controlled by Section 52 of the Act. In a very recent decision, a single judge of the High Court of Punjab and Haryana in Hari Bachan Singh v. Major Har Bhajan Singh held that an alienee pendente lite 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.
8. As against the aforesaid catena of decisions the learned Counsel for the revision petitioner would place before me a decision of the Bench of the Lahore High Court in Amir Chand v. Durga Das A.I.R. 1916 Lah. 379. During the pendency of a suit for possession, the property in dispute was sold by the 1st defendant to defendants 2 to 5, who in turn sold it to the sixth defendant and defendants 2 to 5, believing the soundness of their title, had effected certain improvements in the property, and it was held that the plaintiff could not recover the property without payment of compensation to the sixth defendant for the improvements effected. It may be pointed out that the Transfer of Property Act has no application to Punjab and this decision has therefore no relevance. There is also no discussion in the said decision about the principles enunciated in Section 52 of the Act. I am, therefore, unable to place any reliance on this decision.
9. In the result, I hold that the transfer in favour of the revision petitioner is hit by Section 52 of the Act and she is not entitled to claim the value of any improvements claimed by her.
10. The revision petitioner has come forward with a claim that she has put up costly structure worth several lakhs of rupees on the land purchased by her pending suit. The certificate produced by the Engineer shows the total value of construction and other charges only at Rs. 1,52,555. In the counter filed by the revision petitioner in April, 1979 in E.A. No. 1523/79 for impleading the revision petitioner as a party to the execution petition, the revision petitioner has stated that she has started the construction and paid a sum of Rs. 25,000/- to the contractor with whom she had entered into an agreement for construction. Evidently the construction has taken place only after the application was filed to bring her on record. She cannot, therefore, pretend to be ignorant of the pending litigation and to have made improvements bona fide believing in good faith that she was absolutely entitled to the property. On merits too, she has no sustainable case.
11. It is finally contended by Mr. M. Srinivasan, learned senior counsel for the revision petitioner that the decree sought to be executed is silent about delivery of possession and the plaintiff/respondent herein is not therefore entitled to seek delivery of possession in this execution petition. He has to file a separate suit for possession. This contention has not been raised in the counter to the execution petition and has been raised for the first time only in this revision. In Babu Lal v. Hazari Lal Kishori Lal : 3SCR94 the plaintiffs obtained a decree for specific performance of an agreement for sale, which was confirmed in second appeal by the High Court. When they filed an application for execution, several contentions were raised, one of which was that the decree was inexecutable as there was no decree for possession. It was also contended that as the Urban Land Ceiling Act had come into force, the decree-holder must obtain permission required under the Act. The executing court allowed the objection of the judgment-debtor in part and refused to grant the relief for possession observing that the remedy of the decree-holder was by means of a separate suit. The other objections of the judgment-debtor were overruled. The Additional District Judge confirmed this order of the executing court. On appeal by both the judgment-debtor and the decree-holders the High Court dismissed the appeal filed by the judgment-debtor and allowed the appeal of the decree-holders and modified the order of the courts below to the effect that the decree-holders shall be entitled to possession also. The matter came up before the Supreme Court and their Lordships, after an elaborate discussion of law on this subject, held that the order of the High Court directing delivery of possession was an 'eminently just' one. According to the learned Counsel for the revision petitioner, the plaintiff, in the instant case has prayed for possession also in the suit and since the court has not granted a decree for possession it must be deemed to have refused to grant that relief. No such inference can be drawn in the instant case, for, there was no reason for the court to deny the relief of delivery of possession, having decreed the suit for specific performance. The omission appears to be quite inadvertent. The suit is of the year 1971 and fourteen years have passed since then. As observed by the Supreme Court in the aforesaid decision, it will really be a travesty of justice to ask the decree-holder to file a separate suit for possession. To quote the language of the Supreme Court, the objection raised by the revision petitioner is hyper-technical. It is therefore just and proper to hold that the first-respondent-decree-holder is entitled to possession also.
12. In the result, both the revisions fail and are dismissed. No costs.