Gujarat High Court
Lallubhai Gopalbhai Patel- ... vs Parbatbhai Muljibhai Kakadia on 27 October, 2021
Bench: Sangeeta K. Vishen
C/SCA/15920/2016 ORDER DATED: 27/10/2021
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 15920 of 2016
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LALLUBHAI GOPALBHAI PATEL- DECEASED & 4 other(s)
Versus
PARBATBHAI MULJIBHAI KAKADIA & 3 other(s)
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Appearance:
DECEASED LITIGANT(100) for the Petitioner(s) No. 1,1.1
MR AB MUNSHI(1238) for the Petitioner(s) No.
1.1.1,1.1.2,1.1.3,1.2,1.3,1.4,1.5,2,3,4,5
ADVOCATE NAME DELETED(26) for the Respondent(s) No. 3
MR AMIT V THAKKAR(3073) for the Respondent(s) No. 1
NOTICE SERVED BY DS(5) for the Respondent(s) No. 2,4
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CORAM:HONOURABLE MS. JUSTICE SANGEETA K. VISHEN
Date : 27/10/2021
ORAL ORDER
1. By this petition, the petitioners have prayed for direction to
the respondent No.2 i.e. the Deputy Collector, City Prant, Surat, to
de-register the decree dated 24.06.2006 passed by the learned
Principal Senior Civil Judge (Senior Division), Surat in Special Civil
Suit No.162 of 2006 from its record.
2. Mr.A.B. Munshi, learned advocate for the petitioners submitted
that the respondent No.1 had filed Special Civil Suit No.162 of 2006
before the Court of the learned Principal Senior Civil Judge (Senior
Division), Surat against the petitioners through their Power-of-
Attorney one Shri Pareshbhai lavjibhai Patel. It is submitted that the
petitioners have never executed any Power-of-Attorney in favour of
Shri Pareshbhai lavjibhai Patel.
3. Mr.Munshi, learned advocate submitted that the order was
passed on 24.06.2006 and by effect of the proviso to Section 23 of
the Registration Act, 1908 (hereinafter referred to as the "Act of
1908"), the decree would have to be registered within four months
C/SCA/15920/2016 ORDER DATED: 27/10/2021
from 31.07.2006 i.e. 29.11.2006; however, the decree was tendered
for registration as late as on 13.04.2016. It has been further
submitted that the decree has been presented for registration on a
lapse of 10 years and in no circumstances, the authority should
have accepted the presentation of such decree for registration.
4. It is also submitted that the respondent No.1 has approached
the office of the Mamlatdar; however, the Deputy Mamlatdar
required the affidavits of the occupiers and the application was filed.
Aggrieved, the respondent No.1 has preferred an appeal before the
office of the Deputy Collector, which came to be disposed of with a
direction to the Mamlatdar as per the order dated 24.06.2006.
5. It is submitted that the petitioners have lodged the First
Information Report bearing C.R.No.I-123 of 2017 registered with
Khatodara police station, Surat for the offences punishable under
Sections 406, 420, 465, 467, 468, 471, 120B and 34 of the Indian
Penal Code and the respondent No.1 had preferred a quashing
petition being Criminal Misc. Application No.14137 of 2017 and this
Court was kind enough to quash the complaint in view of the
settlement arrived at between the parties.
6. It is submitted that the respondent No.1 has now, filed an
affidavit dated 13.10.2021, inter alia, declaring that he has settled
the dispute with the petitioners out of Court with respect to the land
in question and the land in question has now gone back to the
petitioners, they being the original owners. The respondent No.1 has
accorded his consent that the decree dated 24.06.2006 which was
registered with the Sub-Registrar vide Sr.No.402/2017 dated
13.04.2016, may be de-registered and the present petition be
allowed.
7. Mr.Amit Thakkar, learned advocate for Mr.Hiren Pandya,
learned advocate for the respondent No.1 has confirmed that the
C/SCA/15920/2016 ORDER DATED: 27/10/2021
respondent No.1 has filed an affidavit dated 13.10.2021 and has no
objection if the decree dated 24.06.2006 is de-registered with the
office of the Sub-Registrar.
8. Heard the learned advocates for the respective parties.
9. The petitioners, by this petition, have prayed for direction to
the respondent No.2 - authority to de-register the decree dated
24.06.2006 passed by the Court of the learned Principal Senior Civil
Judge (Senior Division), Surat in Special Civil Suit No.162 of 2006,
which was presented for registration before the office of the Sub-
Registrar in the year 2016 and which came to be registered on
13.04.2016.
10. The petitioners have lodged an FIR against the respondent
No.1 for the offences punishable under Sections 406, 420, 465, 467,
468, 471, 120B and 34 of the Indian Penal Code. The respondent
No.1 had filed Criminal Misc. Application No.14137 of 2017 before
this Court under Section 482 of the Code of Criminal Procedure for
quashing and setting aside the FIR and this Court has passed an
order dated 24.09.2021. Relevant paras 7 and 8 of the said order
are reproduced hereinbelow for ready reference:-
"7. In view of the discussions made hereinabove and
in view of the settlement arrived at between the parties
and also in view of the fact that the accused have
decided to give back the land in question to the original
land owners, therefore, in the opinion of this court,
there exists no scope for any further proceeding in the
matter. The continuance of proceedings would lead to
wastage of precious judicial time as there would remain
no possibility of any conviction in the case. Hence, the
Court is of the opinion that this is a fit case where the
inherent powers of the Court under section 482 of the
Cr.P.C. could be exercised for securing the ends of
justice.
8. In the result, the petition is allowed. The first
information report bearing C.R. No. I - 123 of 2017
registered with Khatodara Police Station, Surat, and the
proceedings initiated in pursuance thereof are quashed
C/SCA/15920/2016 ORDER DATED: 27/10/2021
and set aside. Rule is made absolute to the aforesaid
extent. Direct service is permitted."
11. The respondent No.1, as confirmed by the learned advocates
for the respective parties, has filed the affidavit, relevant extracts
whereof, are reproduced hereinbelow for ready reference:-
"1. That the present petition was filed by the
petitioners challenging the registration of the judgment
and concerned decree dated 24.6.2006 in purported
implementation of the order dated 4.4.2016 to be in
violation of section 23 and 25 of the Registration Act,
1908.
2. It is submitted that pursuant to the decree which
was annexed by the petitioners in the petition, an order
was passed by the Mamlatdar, rejecting the application
moved by the plaintiffs. The said application was
rejected by the Mamlatdar vide order dated 10.3.2016
inter alia, observing that the application was not
supported by the declaration of the person in
possession of the land i.e. the petitioners and other co-
parceners. The said order was annexed at Annexure-I
to the Special Civil Application.
3. It is submitted that the said order was taken in
appeal before the Deputy Collector, Surat and he vide
his ex-parte order dated 4.4.2016 pass an order that
mutation entry be recorded after the judgment and the
decree is registered. The said order was annexed at
Annexure-J to the petition.
4. The said decree dated 24.06.2006 was Register
office of the Sub-registrar on dated 13.4.2016. The
copy of the said register decree was annexed to the
petition at Annexure-K by the petitioners.
5. It is submitted that I have now settled my dispute
with the petitioners out of Court with respect to the
land in question and the land in question has now gone
back to the petitioners as they are the original owners
of the land in question.
6. It is submitted that therefore, the prayers that are
prayed by the petitioners in the Special Civil Application
may kindly be granted and I hereby give my consent to
the same and the decree dated 24.06.2006 which
registered with the sub register vide serial No.402/2017
dated 13.04.2016 may de-register and present petition
be allowed."
C/SCA/15920/2016 ORDER DATED: 27/10/2021
12. In view of the above, the learned advocates for the respective
parties have jointly urged that the decree dated 24.06.2006
registered with the office of the Sub-Registrar be de-registered.
13. Under the circumstances and in view of the settlement having
been arrived at between the petitioners on one hand and
respondent No.1 on the other, the respondent No.2 is directed to de-
register the decree dated 24.06.2006 passed in Special Civil Suit
No.162 of 2006 from its record.
14. Needless to say that this Court has not examined the merits of
the matter.
15. With the aforesaid direction, the petition is disposed of. No
order as to cost.
(SANGEETA K. VISHEN,J)
Hitesh
