A sale of an undivided share during pending partition proceedings is hit by the rule of lis pendens and the purchaser takes only that property which is allotted on partition to the vendor.

G.R.Majithia, J.

1. The unsuccessful plaintiff has come up in second appeal against the judgment and decree of (he first appellate Court affirming on appeal those of the trial Judge, whereby the suit for declaration that he was the owner in possession of the suit land was dismissed.

2. The parties will be referred to in the body of this judgment as they were described in the plaint.

3. The facts :-

The plaintiff pleaded that defendants No. 1 and 2 inherited 1/2 share each in 1/4th share of Smt. Dhanwanti widow of Hari Ram in the land measuring 85 Kanals 12 Marias, 83 Kanals 2 Marias and 2 Kanals 8 Marias situate in village Haripur. Tehsil Bailabgarh in respect of which mutation No. 1041 was sanctioned in their favour on December 27, 1972; that Barfi and Premwati, daughters of Ramji Lal succeeded to l/4th share and Mamraj son of Likhi Ram inherited the remaining 1/4th share in the suit land; that the plaintiff purchased land measuring 8 Kanals comprised in Khewat/Khatauni No. 71/127, Rectangle No. 8 Killa No. 22 from Mamraj son of Likhi Ram for a sum of Rs. 6,000/- vide registered sale deed dated June 18, 1973; that the land sold was under mortgage for Rs. 405/- with Prem Raj son of Gobind Ram, which was subsequently mortgaged with the plaintiff vide mortgage deed dated June 5, 1968; that the plaintiff got the mortgaged land redeemed from the successors-in-interest of the first mortgagee and the mortgage money was paid vide receipt dated July 5, 1973; that Man Raj, vendor of the plaintiff, had sold his lands to Gaya Lal, etc. and Siri Ram etc , defendants No. 10 to 17 out of the land mentioned in paragraph 1 of the plaint after the sale of the suit land to the plaintiff; that defendants No. 1 to 4 are cosharers, who either sold or mortgaged their shares in the land to defendants No. 6 to 9 and 12; that Mam Raj, vendor of the plaintiff, did not sell more than his share in the land to him and the sale of the land made by him in favour of defendants No. 10 to 17 (excluding defendant No. 12) was subject to the adjustment at the time of partition; that the defendants filed an application for partition of land in the Court of Tehsildar, Ballabgarh, without impleading the plaintiff as a party and got the joint land, including the land in suit, purchased by him partitioned amongst themselves; that he came to know of the partition only on June 9, 1975 when warrant of possession was issued to the Girwar Halqa for compliance, which was to have the effect of his dispossession from the land and this led to the filing of the suit.

4. The suit was contested by the defendants, inter alia, on the ground that the same had been filed in collusion with defendants No. 3 to 5 ; that the sale of the suit land made by defendant No. 5 in favour of the plaintiff is sham transaction; that defendant No. 5 had no right to sell the suit land after the commencement of the partition proceedings; that the plaintiff was estopped by his conduct from filing the suit and the Civil Court had no jurisdiction to decide the suit; that the partition proceedings titled as Dhanwanti v. Barfi etc." were pending when the plaintiff in collusion with defendant No. 5 entered into bogus deal in respect of the suit land alluded to in the plaint.

5. The pleadings of the parties gave rise to the following issues :-

(1) Whether the plaintiff is owner in-possession of the land measuring 8 Kanals comprised in Khewat/Khatauni No. 71/127 Killa No. 8/22 as alleged ? OPP

(2) Whether the partition order dated 7-11-1973 has no effect on the rights of the plaintiff as alleged ? OPP

(3) Whether the suit is bad for misjoinder of causes of action ? OPD

(4) Whether the suit is bad for misjoinder of parties ? OPD

(5) Whether the suit is not maintainable as alleged ? OPD

(6) Whether this Court has got no jurisdiction to try this suit ? OPD

(7) Relief.

6. The trial Court under issue No. 1 found that the plaintiff was not the owner of the land alleged to have been purchased by him; under i