Gujarat High Court
Vinodbhai Jivanbhai Parmar vs State Of Gujarat on 9 February, 2023
Bench: A.S. Supehia
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
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.
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.
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
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
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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
