JUDGMENT - BAYDEKAR, J. :

The land in the present application under Article 227 originally belonged to one Dhana Sapadu. He created two mortgages upon it in the year 1928, the first a mortgage in favour of one Madhav Martand, and then a mortgage in favour of one Rajmal Lakhichand. We will not be concerned with the second mortgage in the present case. Madhav Martand sued upon his own mortgage in suit No. 511 of 1928 joining as parties to it Rajmal and the original mortgagor. Rajmal himself purchased the property pendente lite in the year 3932. Subsequently on 10-4-1935 Madhav obtained a decree for sale upon the first mortgage, and in execution of the decree brought the mortgaged property to sale. The application for execution was made in the year 1938, and while it was still pending-it is not quite clear whether in the year 1939 or 1940-41 - Rajmal let the property to opponent No. 1. Subsequently in that application for execution made by Madhav, the property was sold on 17-3-1953, and the petitioner purchased it. He then made the application to the Mamlatdar, from which the present application under Art. 227 arises. That application was for a declaration that opponent No. 1 was not his tenant. The Mamlatdar held that

opponent No. 1 was not the tenant of the petitioner, because the lease created by Rajmal in 1939 or 1940-41 was affected by the doctrine of lis pendens and could not affect the rights of the auction purchaser, the petitioner. The Prant Officer upheld his order, but when the matter went to the Revenue Tribunal, they held that even though the result of S. 52 was that the lease which was created by Rajmal would not affect the rights of the mortgagee, still the purchase by the lessee could not be said to be unlawful in its inception. Rajmal was entitled to cultivate the lands himself, or to let them out to any other person, till the property was sold. Consequently the lease was lawful in its inception. He was, therefore, lawfully cultivating the lands under the ordinary law. Then they went on to observe:

"The opponent auction purchaser may be entitled to evict the applicant under the provisions of the Act. The opponent will be obliged to take action under the provisions of the said Act if he wants possession. It cannot be accepted that the applicant was not a tenant."

(2) The petitioner has made this application under Art. 227, and it appears to us that this was a lease which was created after S. 65A of the Transfer of Property Act was enacted, and consequently if it had not been a lease which was created pendente lite, then, it would have to be investigated, before determining whether the lease was binding or not, as to whether the lease fell within the powers of a mortgagor under that section. It is not however necessary to go into that question in this case, because the question can be decided upon the doctrine of lis pendens, which is embodied in S. 52 of the Transfer of Property Act.

(3) Now, Madhav had filed his suit upon the first mortgage in the year 1928. That suit was a properly constituted suit having as parties the second mortgagee as well as the mortgagor. Subsequently Rajmal having purchased the interest of the mortgagor, the mortgagor of course went out of the suit for all practical purposes. But the result of the application of S. 52 of the Transfer of Property Act was that no lease could be created by Rajmal pending the suit filed by Madhav so as to affect Madhavs rights. Now, it is quite true that subsequently Madhav. having brought to sale the mortgaged property, it has been purchased by the petitioner. But the argument that allowing the lease to hold good as against Madhav would not affect the rights of Madhav cannot for a moment be accepted. It is quite true that the petitioner purchased the interest of the mortgagor as well as the second mortgagee at the auction sale, and if that was all that he had purchased, then, it could be said that holding the lease, good as against the petitioner would not affec

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