Murtuza Mohommadsidique Memon vs State Of Gujarat
2021 Latest Caselaw 3904 Guj

       C/SCA/15947/2020                                     ORDER




        IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

         R/SPECIAL CIVIL APPLICATION NO. 15947 of 2020

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               MURTUZA MOHOMMADSIDIQUE MEMON
                            Versus
                      STATE OF GUJARAT
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Appearance:
MR SIKANDER SAIYED(3458) for the Petitioner(s) No. 1
MR ISHAN JOSHI, AGP(99) for the Respondent(s) No. 1 & 2.
NOTICE SERVED BY DS(5) for the Respondent(s) No. 3
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 CORAM: HONOURABLE MR. JUSTICE VIPUL M. PANCHOLI

                            Date : 08/03/2021

                             ORAL ORDER

1. Heard learned advocate Mr.Saiyed for the petitioner and learned AGP Mr.Ishan Joshi for respondent nos.1 and 2.

2. By way of this petition which is filed under Article 226 of the Constitution of India, the petitioner has prayed for the following reliefs:

"20 (a)xxxx

(b) Your Lordship may be pleased to kindly issue an appropriate Writ and/or direction(s) upon the respondent authorities to register the documents i.e.Sale Deed in connection with plot no.4 located to Revenue Survey no.361 paiki 2 admeasuring about 137.75 Sq/metre (164.75 sq yard) which the petitioner is entitled for in accordance with the Agreement (Kabulatnama) dated 14/03/[email protected] (Annexure `B' herein)

C/SCA/15947/2020 ORDER

(c) Pending admission, hearing and final disposal of the present petition, Your Lordship may be further pleased to kindly protect the interest of the present petitioner by modifying the Judgment dated 30/09/2016 passed by the Learned Principal Senior Civil Judge @ Bhuj Kutchh in Special Suit No.25 of 2011 (Specific Performance) (Annexure `C' herein) in condition no.2 of the said Judgment wherein restriction is imposed on Sale Deed.

(d) xxxx"

3. Learned advocate for the petitioner submitted that one Aasmal Sumar Nanjan purchased one plot no.4 of revenue survey no.361/paiki 2 admeasuring 137.75 sq.mtrs. by way of registered sale deed bearing registration no.792 dated 2.3.2016. It is further submitted that at the relevant point of time, Aasmalbhai was not having the financial capacity for purchasing the said plot and therefore the entire amount has been paid by the petitioner on condition that the said plot would be transferred in the name of the petitioner. Learned advocate has referred to the agreement (kabulatnama) dated 14.3.2016 executed between the petitioner and the said Asmalbhai.

4. At this stage, it is pointed out that one Abdulgani Umar Memon filed Special Civil Suit No.25 of 2011 before the Principal Senior Civil Judge, Bhuj, Kutch for declaration and injunction as per the agreement entered into between the

C/SCA/15947/2020 ORDER

parties with regard to the three plots. It is submitted that the concerned Civil Court passed the judgment and decree dated 30.9.2016, copy of the same is placed on record at page 31 of the compilation. Learned advocate has referred to the operative portion of the said judgment and decree. At this stage, it is pointed out that against the said judgment, aggrieved party has preferred First Appeal No.1517 of 2018 before the Division Bench of this Court which is admitted and pending.

5. It is submitted that when the petitioner came to know about the order passed by the Civil Court, the petitioner filed application dated 17.9.2020 requesting the Civil court to grant permission to register the sale deed. However, the concerned Civil Court has not taken the said application on record. The petitioner has thereafter approached before the respondent no.2- authority for registration of the sale deed, however, respondent no.2 has not registered the sale deed because of the order passed by the concerned Civil Court. The petitioner has, therefore, preferred this petition.

6. It is submitted that appropriate direction be issued to the respondent no.2 to register the document i.e. sale deed for the

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subject land as the judgment and decree of the concerned Civil Court is with regard to a particular portion of the plot.

7. This Court is of the view that respondent no.2 has not committed any error while not registering the sale deed of the petitioner with regard to the plot in question. The petitioner is aware about the said fact and the petitioner has rightly filed an application before the concerned Civil Court for clarification. Thus, this Court is not inclined to entertain the present petition in the facts of the present case. However, liberty is reserved to the petitioner to file appropriate application before the concerned Civil Court for clarification. If such application is filed, the Civil Court shall consider the same in accordance with law, preferably within a period of four weeks from the date of receipt of the application.

8. With the aforesaid observation and direction, this petition stands disposed off. Direct service is permitted.

(VIPUL M. PANCHOLI, J) SRILATHA