A lease granted by a mortgagor during the pendency of a suit for sale of the mortgaged property is not affected by the rule of lis pendens contained in Section 52 of the Transfer of Property Act, 1882, if the lease does not affect the rights of the mortgagee.

JUDGMENT - Kotval, C.J.

1. After hearing counsel for both the sides it appears to us that the question which has been referred for our decision in this Reference is somewhat too widely stated and that in order to bring out the exact scope of the points to be determined in the Reference the question must be split into two questions which we have reframed as follows with the consent of counsel :

(1) Where agricultural land is mortgaged by a simple mortgage and the mortgagor leases that land pending a suit by the mortgagee for sale of the mortgaged property, is the lease affected by the doctrine of lispendens contained in Section 52 of the Transfer of Property Act?

(2) Can the lessee be considered to be a deemed tenant under Section 4 of the Bombay Tenancy and Agricultural Lands Act in such a case?

2. The facts upon which these questions arise are simple. Survey No. 86 of Village Nimon, District Nasik, belonged to one Deoji who mortgaged it to one Multanmal by way of a simple mortgage. Multanmal died and his heirs instituted a suit upon that mortgage, Civil Suit No. 25 of 1930. The plaintiffs in that suit, Motilal the son of Multanmal and others obtained a decree against Deoji on 26th January, 1932 and since the decree ordered the sale of agricultural property the execution of that decree was transferred to the Collector. The darkhast proceedings were instituted on 1st September, 1937 (Regular Darkhast No. 1226 of 1937). The execution was transferred to the Collector for sale of the property on 11th October, 1937. Curiously enough the land was only sold by public auction almost 25 years later by the Collector on 17th March, 1962. In that auction the respondent No.1 in this petition Ragho Bhivraj Patil was held to be the auction purchaser. The sale was confirmed in his favour on 1st November, 1962 and on 14th December, 1962 possession was delivered to Ragho Bhivraj Patil.

3. As we have said the darkhast proceedings were kept pending before the Collector for almost 25 years between 11th October, 1937 and 17th March, 1962 and during that time other events occurred. The original mortgagor Deoji sold Survey No. 86 out of the mortgaged property to one Bhikchand Jitmal. The date of this transfer is not clear but it is accepted on all hands that it was a transfer pending the Civil Suit No. 25 of 1930, that is to say, prior to 28th January, 1932 when the decree for sale in that suit was passed. Bhikchand Jitmal who had thus purchased the equity of redemption of the original owner Deoji held the field for some years and at the commencement of the agricultural year 1943-44 granted a lease to the petitioner before us, Anaji Thamaji Patil. Anaji, therefore, claims to be the tenant of the field under Section 4 of the Bombay Tenancy and Agricultural Lands Act and all the rights that go along with it.

4. As we have said, because of this lease being granted to Anaji and Anaji being in possession of the field, the auction purchaser Ragho Bhivraj was unable to obtain possession in the execution of the mortgage-decree. He was therefore given merely symbolical possession on 14th December, 1962. He was obviously not satisfied with merely getting such symbolical possession and, therefore, he filed an application under Section 70 (b) of the Bombay Tenancy and Agricultural Lands Act on 19th January, 1963 before the Mamlatdar of Chandor.

5. The Mamlatdar held that the lease in favour of the petitioner cannot have any effect against the respondent No.1, because the latter had purchased the land in auction sale and was not affected by the lease which was created by the mortgagor Bhikchand because of the doctrine of lispendens. The lessee went up in appeal to the Special Deputy Collector, Nasik, who reversed the decision of the Mamlatdar and allowed the appeal. He held that Bhikchand was the full owner of the land and there is nothing to show that he had no right to lease out the land. It cannot be said that the creation of the tenancy in the agricultural year 1943

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