Gujarat High Court
Bhavin Bharatbhai Patel vs State Of Gujarat & 2 on 7 June, 2017
Author: J.B.Pardiwala
Bench: J.B.Pardiwala
C/SCA/2127/2017 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION NO. 2127 of 2017
TO
SPECIAL CIVIL APPLICATION NO. 2129 of 2017
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BHAVIN BHARATBHAI PATEL....Petitioner(s)
Versus
STATE OF GUJARAT & 2....Respondent(s)
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Appearance:
MS. SHAILI A KAPADIA, ADVOCATE for the Petitioner(s) No. 1
MR UTKARSH SHARMA, AGP for the Respondent(s) No. 1
NOTICE SERVED BY DS for the Respondent(s) No. 1 - 3
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CORAM: HONOURABLE MR.JUSTICE J.B.PARDIWALA
Date : 07/06/2017
ORAL ORDER
1. Since the issues raised in all the captioned petitions are same and the parties are also same, those having heard analogously, are being disposed of by this common order.
2. For the sake of convenience, the Special Civil Application No.2127 of 2017 is treated as the lead matter.
3. By this writ application under Article 226 of the Constitution of India, the writ applicant has prayed for the following reliefs:
"(A) Your Lordships may be pleased to admit and allow this petition;
(B) Your Lordships may be pleased to issue a Writ of Mandamus or a Writ in the nature of Mandamus or any other appropriate writ, order or direction, directing the respondent no.3 to mutate the entry of lis pendens with Page 1 of 5 HC-NIC Page 1 of 5 Created On Sun Aug 13 12:32:24 IST 2017 C/SCA/2127/2017 ORDER respect to Special Civil Suit no.372 of 2016 in the revenue record for the land in question;
(C) Pending admission, hearing and final disposal of this petition, Your Lordships may be pleased to direct the respondent no.3 to mutate the entry of lis pnedens with respect to Special Civil Suit No.372 of 2016 in the revenue record for the land in question;
(D) Your Lordships may be pleased to grant such other and further relief/s that may be deemed fit and proper in the interest of justice."
4. It appears from the materials on record that the writ applicant herein has filed a Special Civil Suit No.372 of 2016 in the Court of the learned Principal Civil Judge, Surat, for the purpose of partition and accounts. The Special Civil Suit is with respect to three revenue survey numbers. The writ applicant herein approached the authority concerned for the purpose of getting lis pendens registered by way of mutation of the entry in the revenue record. Such request was declined by the authority concerned. The authority failed to act in this regard.
5. In such circumstances, the writ applicant is here before this Court with the three writ applications. The question of law raised by the writ applicant is squarely covered by the judgment and order of a co-ordinate bench dated 08.02.2016 passed in the Special Civil Application No.1733 of 2016. The order reads as under:
"Heard learned advocate Mr. Nishit Gandhi for the petitioner and learned Assistant Government Pleader Mr. Page 2 of 5 HC-NIC Page 2 of 5 Created On Sun Aug 13 12:32:24 IST 2017 C/SCA/2127/2017 ORDER Bharat Vyas for respondent No.1-State, as well as respondent No.2-Mamlatdar, Tarapur, Anand.
1.1 In the facts and circumstances of the case, looking to the compass of the controversy, and in view of request and consent of both the learned advocates, the petition was taken up for final consideration.
1.2 Therefore, Rule returnable forthwith. Learned AGP waives rule.
2. The petitioner prays for issuance of appropriate direction to respondent No.2 Mamlatdar to mutate the entry in the nature of entry of lis pendens in respect of Special Civil Suit No. 196 of 2014 in the revenue record.
3. The petitioner has instituted the aforesaid special civil suit against the defendants-heirs of Fatehsang Jethabhai Vaghela in which relief for specific performance of agreement to sell and permanent injunction against the defendants restraining them from transferring or alienating the subject matter property are claimed.
3.1 The suit property is the agricultural land bearing revenue survey No. 553 paiki admeasuring 2-41- 80 Hectare and paiki 1-94-80 Hectare equivalent to 160 Guntha situated at Village Isharvada, Taluka Tarapur, District Anand.
3.2 The petitioner has under the provisions of Section 52 of the Transfer of Property Act, 1882 got the lis pendens registered with the competent authority, that is, Sub Registrar, Tarapur, copy of which is produced along with the petition (Annexure-A, page-14). The petitioner applied before respondent No.2 authority requesting to mutate the entry of lis pendens in view of aforesaid registration. The first application dated 10.10.2014 was not acted upon and therefore, the petitioner was required to make anotherapplication dated 28.09.2015. The same is also not responded to by the Mamlatdar. Therefore, the present petition.
4. Learned advocate for the petitioner could successfully rely on the decision of this court in Deepak Manilal Patel vs. State of Gujarat & Ors. [AIR 2007 Guj. 1] in which this court with reference to Sections 18 & 52 of the Transfer Page 3 of 5 HC-NIC Page 3 of 5 Created On Sun Aug 13 12:32:24 IST 2017 C/SCA/2127/2017 ORDER of Property Act and Section 18 of the Registration Act, 1908, considered the effect of registration of lis pendens and the principles in that regard.
5. In paragraph 5 of the aforesaid decision, it was stated, "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 sub-section 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 subregistrar, 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. In view of above, and in light of Section 52 of the Transfer of Property Act, the Mamlatdar is enjoined in law to register and mutate lis pendens in the revenue record. This petition is therefore allowed by directing respondent No.2-Mamlatdar, Tarapur, Anand to apply the law laid down in Deepak Manilal Patel(supra) and carry out necessary mutation.
7. It is clarified that by virtue of lis pendens, no additional right is treated to have been created in favour of the petitioner or either of the parties to Special Civil Suit No. 196 of 2014 and all rights and contentions of the parties in the suit shall remain open.
8. Rule is made absolute to the aforesaid extent."
6. In view of the above and in light of section 52 of the Transfer of Property Act, the Mamlatdar is enjoined in law to register and mutate the lis pendens in the revenue record. All these three writ applications are disposed of with a direction to Page 4 of 5 HC-NIC Page 4 of 5 Created On Sun Aug 13 12:32:24 IST 2017 C/SCA/2127/2017 ORDER register and mutate the lis pendens in the revenue record. The Mamlatdar shall bear in mind the decision of this Court in the case of Deepak Manilal Patel Vs. State of Gujarat & Others, reported in 2007 (2) GLR 1297 and carry out the necessary mutation.
7. It is clarified that by virtue of lis pendens, no additional right is created in favour of the writ applicant or either of the parties to the Special Civil Suit No.372 of 2016 and all the rights and contentions of the parties and the suit shall remain open.
With the above all the three writ applications are disposed of. Direct service is permitted.
(J.B.PARDIWALA, J.) Dolly Page 5 of 5 HC-NIC Page 5 of 5 Created On Sun Aug 13 12:32:24 IST 2017