C/SCA/4142/2022 ORDER DATED: 09/02/2023
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 4142 of 2022
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VINODBHAI JIVANBHAI PARMAR
Versus
STATE OF GUJARAT & 4 other(s)
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Appearance:
MR PRATIK Y JASANI(5325) for the Petitioner(s) No. 1
MR NIKUNJ KANARA, AGP for the Respondent(s) No. 1,2,3,4,5
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CORAM:HONOURABLE MR. JUSTICE A.S. SUPEHIA
Date : 09/02/2023
ORAL ORDER
1. Rule. Learned AGP waives service of notice of Rule on behalf of respondents-State.
2. By this petition, the petitioner is assailing the communication dated 20.11.2021 issued by the respondent No.5 and communication dated 31.08.2021 issued by the same respondent.
3. Further, direction is sought on the respondent- authorities to allow the application dated 03.08.2021 made by the petitioner to the respondent No.5, requesting to register and mutate the lis pendens in Page 1 of 6 Downloaded on : Wed Feb 15 20:35:06 IST 2023 C/SCA/4142/2022 ORDER DATED: 09/02/2023 the revenue records.
4. At the outset, learned advocate Mr.Bharat T. Rao has submitted that the issue is squarely covered by catena of judgments of this Court, one of which is order dated 01.10.2019 passed in Special Civil Application No.12476 of 2019.
Brief facts;
5. The petitioner filed Regular Civil Suit No.34 of 2019 challenging the sale-deeds of the land in question, which was not entertained by the Trial Court and the plaint was rejected by invoking provisions of Order 7 Rule 11 of the Code of Civil Procedure, 1908.
6. Being aggrieved by the said order, the petitioner has preferred Regular Civil Appeal No.27 of 2020, which is pending before the District Court, Rajkot. Page 2 of 6 Downloaded on : Wed Feb 15 20:35:06 IST 2023
C/SCA/4142/2022 ORDER DATED: 09/02/2023
7. The petitioner has also preferred Land Appeal No.22 of 2020, challenging the entries, pursuant to the sale-deeds executed by the private parties, which is also pending.
8. The petitioner thereafter, had filed an application dated 03.08.2021 before the respondent No.5 for mutating lis pendens in the revenue records. However, respondent No.5 vide communication dated 31.08.2021 refused to mutate lis pendens entry in the revenue records.
9. Learned advocate Mr. Rao has placed reliance on Section 52 of the Transfer of Property Act, 1882, in this regard.
10. Learned AGP Mr. Kanara is unable to dispute the aforesaid facts of pendency of the Civil Appeal as well as other proceedings.
Page 3 of 6 Downloaded on : Wed Feb 15 20:35:06 IST 2023 C/SCA/4142/2022 ORDER DATED: 09/02/2023 10.1. At the outset, learned AGP has submitted that recently, the Revenue Department of State Government has issued a circular dated 30.05.2022, wherein it is held that under the provision of the Gujarat Land Revenue Code, 1879 in the revenue record, the concerned judicial Court can pass appropriate orders for recording lis pendency in an entry.
11. At this stage, it would be apposite to refer paras 7, 8 and 9 of the order dated 12.01.2023 passed by this Court in Special Civil Application No.16318 of 2021:
"7. As noted hereinabove, this Court in identical case, in the case of Dipakbhai Manilal Patel and Anr. (supra) has observed thus:
"5. If the provisions of Section 52 read with aforesaid amendment for Gujarat State are considered, the principles of lis pendens would apply to a transaction if entered after institution of Suit only, if such notice of lis pendens is registered under the Indian Registration Act, 1908 and as per the provisions of the amendment, the notice of pendency of the suit should contain the details as per subsection 2 of the Page 4 of 6 Downloaded on : Wed Feb 15 20:35:06 IST 2023 C/SCA/4142/2022 ORDER DATED: 09/02/2023 amendment in Section 52, which is applicable to the Gujarat State. The essential purpose of the aforesaid amendment is to see that any person who may be interested to purchase the property when undertakes the title search of the property with the sub-registrar, the person concerned would be put to notice that a particular suit is pending before the competent Court and therefore, he may not be misguided or if with conscious knowledge, the person concerned has purchased the property, the purchaser may not be in a position to contend that he was not aware about the pendency of the litigation and consequently, the Suit may not be frustrated or the principles of lis pendens can have its full effect as per the provisions of Transfer of Properties Act. 6. Therefore, it appears that the stand of the Mamlatdar that such documents is not as per the provisions of the Transfer of the Properties Act is not correct and once a registered document is there, pertaining to the property in question, it is required for the Mamlatdar to enter the same in the revenue record of the Government. Of course, after undertaking the procedure, as may be required under the Bombay Land Revenue Code or other relevant law of giving notice to the affected party and thereafter to mutate the entry.
7. In view of the aforesaid, the order dated 19.07.2006 passed by Mamlatdar(Annexure-C) is quashed and set aside with the direction that Mamlatdar shall treat the document as valid as per the provisions of the Transfer of Properties Act read with the provisions of India Registration Act and shall further proceed in accordance with law for entering the same in the relevant record after undergoing the procedure as Page 5 of 6 Downloaded on : Wed Feb 15 20:35:06 IST 2023 C/SCA/4142/2022 ORDER DATED: 09/02/2023 required under the Bombay Land Revenue Code read with the provisions of Gujarat Land Revenue Rules."
8. Even otherwise, the State Government has also issued the aforesaid circular in this regard.
9. Under the circumstances, the respondent No.2 is directed to mutate the entry in the Village Extract 7/12 showing right of the petitioner with regard to registered document as lis pendens of Special Civil Suit No.119 of 2021."
12. Under the circumstances, the respondent No.4 is directed to mutate the entry in the Village Form No.6 showing right of the petitioner with regard to registered document as lis pendens.
13. The present writ petition succeeds and the impugned communications dated 20.11.2021 and 31.08.2021 are hereby quashed and set aside. Rule is made absolute.
(A. S. SUPEHIA, J) KUMAR ALOK Page 6 of 6 Downloaded on : Wed Feb 15 20:35:06 IST 2023