1. This is an appeal from the decree of Mr. Worgan, theDistrict Judge of Cuttack, who has reversed the decree of the Munsif.

2. The facts of the case are shortly these: The plaintiffbrought a suit to recover possession of certain pieces of land, and the titleunder which he claimed was based upon a conveyance from the defendant No. 2,dated the 5th of October 1883. This conveyance was registered. The defendantNo. 1, who was in possession of the land, also claimed to hold if under aconveyance from the defendant No. 2. This conveyance was dated the 9th ofSeptember 1883, and was unregistered. The defendant No. 1 alleged that hepurchased for a sum of Rs. 99-12; the plaintiff alleged that he purchased forRs. 198-8. Prima facie, therefore, the plaintiffs conveyance, being aregistered document, would prevail over the conveyance of the defendant No. 1,which was unregistered.

3. The defendant sought to defeat the plaintiffs strongertitle based upon the registered conveyance by taking advantage of the doctrineof lis pendens ; and the lis pendens upon which he relied arose as follows: Healleged that on the 29th of September 1883 be brought an action against thedefendant No. 2, his vendor, to recover possession of the property which healleged be purchased for Rs. 99-12 on the 9th September previously. The summonsin that suit as a matter of fact, was not served upon the defendant No. 2 untila date subsequent to the date of the present plaintiffs conveyance, that is tosay, subsequent to the 5th October 1883. The defendant No. 1 obtained judgmentin that suit against the defendant No. 2 on the 15th of January 1884. As amatter of fact the defendant No. 2 did not appear to defend the suit. She putin a written statement in which she alleged that she had parted with all herinterest in the property to the plaintiff in this suit by virtue of theconveyance to him of the 5th October 1883, and she asked that he might be madea party to that suit. He was not, as a matter of fact, made a party to thatsuit ; and, as I have said, judgment was given against the defendant No. 2, whodid not appear to defend the suit. This is the lis pendens which the defendantNo. 1 seeks to take advantage of.

4. The Munsif found that the doctrine of lis pendens did notapply. The District Judge has overruled that decision, and has held that thedoctrine of lis pendens does apply.

5. We are of opinion that the decision of the District Judgeis erroneous, and it is sufficient for us to state only one reason, which isshortly this: As a matter of fact at the date of the plaintiffs conveyance,that is, the 5th October 1883, there was no lis pendens. Section 52 of theTransfer of Property Act, which deals with the question of lis pendens, says:"During the, active prosecution in any Court having authority in BritishIndia, or established beyond the limits of British India by theGovernor-General in Council, of a contentious suit or proceeding in which anyright to irnmove able property is directly and specifically in question, theproperty cannot be transferred or otherwise dealt with by any party to the suitor proceeding so as to affect the rights of any other party thereto under anydecree or order which may be made therein." As a matter of fact there wasno contentious suit or proceeding in existence until the summons to the suitbrought by the defendant No. 1 against the defendant No. 2 was served. Uponthis short ground, without entering into the other points argued by Dr. RashBehari Ghose for the appellant, points upon which it is not necessary toexpress any opinion, we think this appeal should be allowed.

6. It has been urged by Baboo Dmbica Churn Bose on behalf ofthe respondent that there is a finding by the District Judge to the effect thatthe plaintiff had knowledge of the suit. We fail to see any finding that theplaintiff on or before the 5th of October 1883, had notice of the suit, orthat, on or before the 5th October 1883, he had notice of the previousconveyance of the 9th of September 1883.

7. Upon these grounds we allow the appeal, set aside thedecree of the lower Appellate Court, and restore that of the first Court withcosts to the plaintiff throughout.

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Radhasyam Mohapattra vs. Sibu Panda and Ors. (12.04.1888 -CALHC)