Gujarat High Court

Vijaybhai Mansukhbhai Gajera vs State Of Gujarat on 10 January, 2024

Author: Nirzar S. Desai

Bench: Nirzar S. Desai

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      C/SCA/13930/2023                              JUDGMENT DATED: 10/01/2024

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              IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                R/SPECIAL CIVIL APPLICATION NO. 13930 of 2023


  FOR APPROVAL AND SIGNATURE:


  HONOURABLE MR. JUSTICE NIRZAR S. DESAI

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  1    Whether Reporters of Local Papers may be allowed
       to see the judgment ?

  2    To be referred to the Reporter or not ?

  3    Whether their Lordships wish to see the fair copy
       of the judgment ?

  4    Whether this case involves a substantial question
       of law as to the interpretation of the Constitution
       of India or any order made thereunder ?

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                  VIJAYBHAI MANSUKHBHAI GAJERA & 1 other(s)
                                   Versus
                             STATE OF GUJARAT
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  Appearance:
  MR BHARAT T RAO(697) for the Petitioner(s) No. 1,2
  MR. JAINIL PARIKH, AGP for the Respondent(s) No. 1
  NOTICE SERVED BY DS for the Respondent(s) No. 2
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      CORAM:HONOURABLE MR. JUSTICE NIRZAR S. DESAI

                                Date : 10/01/2024

                               ORAL JUDGMENT

1. By way of this petition, the petitioners have prayed for the following

reliefs:-

(A) To admit and allow this petition.

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(AA) To issue a writ of mandamus or a writ in the nature of mandamus or any other appropriate writ, order or direction, quashing and setting aside the government resolution dated 30.05.2022 which is against the provision of law for the reasons mentioned in the Memo of Petition and in the interest of justice.

(B) To issue a writ of mandamus or a writ in the nature of mandamus or a writ of certiorari or a writ in the nature of certiorari or any other appropriate writ, order or direction, quashing and setting aside order dated 21.1.2023 (Annexure-G) passed by respondent no.2 Mamlatdar, Rajkot City (East) bearing No. No. MAM/RAJ/E-Dhara/Vashi/rfms- 320230064747/2021 refusing to register lis pendens in respect of land bearing Survey No.53/2 Paiki 1/ Paiki 2, T. P. Scheme No. 17, F. P. No. 17/3 and 17/4 and further be pleased to direct the respondent no.2 to forthwith register lis pendens as per application dated 12.1.2023 of the petitioners.

(C) Pending admission, hearing and final disposal of the above Special Civil Application, to direct the respondent no.2 Mamlatdar Rajkot City (East) to forthwith register lis pendens pursuant to application dated 12.1.2023 made by petitioners in respect of land bearing Survey No.53/2 Paiki 1/ Paiki 2, T. P. Scheme No. 17, F. P. No. 17/3 and 17/4 of Mouje Rajkot.

(D) To grant ad-interim relief in terms of Para-22(C) hereinabove.

(E) The Hon'ble Court may kindly be pleased to grant any other appropriate relief as the nature circumstances of the case may require;

2. RULE. Learned AGP waives service of notice of rule for and on

behalf of the respondent - State.

3. Learned advocate Mr. Bharat T. Rao appearing for the petitioners at

the outset states that the issue is squarely covered by catena of

decisions of this Court as the grievance of the petitioners is about

non registration of lis pendens on account of Government Circular

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dated 30.05.2022 which provides for a judicial order for registration

of lis pendens.

4. According to learned advocate Mr. Rao in respect of land bearing

Survey No. 3/2 Paiki admeasuring 0 acre 39 gunthas, land bearing

Survey No. 3/5 Paiki admeasuring 0 acre 09 guntha and land

bearing Survey No. 53/2 admeasuring 2 acre and 10 gunthas totaling

to 3 acres and 18 gunthas of Mouje Rajkot. Some dispute has taken

place between the petitioners and the private defendant named in the

suit and the suit is registered as Special Civil Suit No. 97 of 2012.

When the petitioners made an application to the respondent no. 2 -

The Mamlatdar, Rajkot City (East) E- Dhara Branch for registration

of lis pendens on 12.01.2023, the Mamlatdar, Rajkot City (East)

vide order dated 21.01.2023 rejected the application of the

petitioners by citing circular dated 30.05.2022 passed by the

Revenue Department, Government of Gujarat providing that unless

there is judicial order, no lis pendens can be registered. According

to learned advocate Mr. Rao, the aforesaid issue had come up before

the Coordinate Bench of this Court in the case of Daxaben W/o.

Maheshbhai Thakor D/o. Dilipji Popatji Thakor. Learned advocate

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Mr. Rao states that in similar set of facts by relying upon the

Government Circular dated 30.05.2022 when the application for

registration of lis pendens was rejected by the Mamlatdar, this Court

intervened and directed the Mamlatdar to register the lis pendens

vide order dated 12.01.2023 in Special Civil Application No. 16318

of 2021. Learned advocate Mr. Rao, therefore, prays that in similar

set of facts, this Court may pass the order directing the Mamlatdar

to register lis pendens as per the decision of this Court in the case of

Daxaben (Supra).

5. Learned AGP Mr. Jainil Parikh appearing for the respondent - State

though opposed the petition by citing the provisions of the

Government Circular dated 30.05.2022 which provides for a judicial

order for registration of lis pendency, he could not point out

anything as to why the similar order as was passed by the

Coordinate Bench of this Court in the case of Daxaben (supra)

should not be passed. He also could not point out anything that the

aforesaid order was carried in appeal or has been stayed or quashed.

6. In view of the fact that in similar set of circumstances, the

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Coordinate Bench while allowing the petition observed in paragraph

no. 3 to 10 as under:-

"3. Learned advocate Mr.Barot appearing for the petitioner has submitted that the issue is squarely covered by the judgement passed by this Court in the case of Dipakbhai Manilal Patel and Anr. Vs. State of Gujarat and Anr., 2007 2 GLR 1297 and the order dated 28.07.2021 passed in Special Civil Application No.9058 of 2021.

4. In the present writ petition, the petitioner has prayed for the following relief:

"7A. Your Lordship may pleased to issue a writ of mandamus and/ or any other appropriate writ, order or direction to the Respondents No.2 to mutate the Entry in the village extract 7*12 showing the right of the petitioner with regard to registered document lis pendens of the Special Civil Suit No. 119 of 2021 pending before the 6 th Additional Senior Civil Judge, Ahmedabad (Rural) registered with the office of Sub0Registrar, SRO-13 at Sr. No. 1412 with regard to suit property- Agricultural Old Tenure land bearing Survey / Block No. 188, Survey/ Block No. 196, Survey/ Block No. 218(a), Survey/ Block No. 218(B), Survey/ Block No. 298, Survey/ Block No. 299 situated in the sim of village Shilaj, Taluka Ghatlodiya, District Ahmedabad."

5. It is not in dispute that for the land in question, Special Civil Suit No.119 of 2021 is pending before 6th Additional Senior Civil Judge, Ahmedabad (Rural), has been instituted by the petitioner seeking declaration, injunction and cancellation of a sale deed and it is pending.

6. Learned advocate Mr.Barot has submitted that accordingly, the petitioner made an application before the concerned Mamlatdar for mutation of lis pendens however, the respondent No.2 has rejected such request and committed an error of law by not mutating lis pendens.

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

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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 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 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

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with regard to registered document as lis pendens of Special Civil Suit No.119 of 2021.

10. The present writ petition stands allowed. Rule made absolute."

7. Considering the fact that the grievance of the petitioner also is

almost similar to the grievance of the petitioner of Special Civil

Application No. 16318 of 2021 in the case of Daxaben (Supra)

and therefore, considering the aforesaid decision of Coordinate

Bench, in the present case also the respondent no. 2 i.e. The