Gujarat High Court
Manubhai Chaturbhai Patel vs State Of Gujarat & on 19 July, 2016
Author: R.M.Chhaya
Bench: R.M.Chhaya
C/SCA/7315/2016 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION NO. 7315 of 2016
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MANUBHAI CHATURBHAI PATEL....Petitioner(s)
Versus
STATE OF GUJARAT & 1....Respondent(s)
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Appearance:
MR SP MAJMUDAR, ADVOCATE for the Petitioner(s) No. 1
MR. NISHIT P GANDHI, ADVOCATE for the Petitioner(s) No. 1
MS MAITHILI MEHTA, AGP for the Respondent(s)
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CORAM: HONOURABLE MR.JUSTICE R.M.CHHAYA
Date : 19/07/2016
ORAL ORDER
1. Heard learned advocate Mr.S.P.Majmudar, for the petitioner and learned Assistant Government Pleader Ms. Maithili Mehta, for the respondents.
2. In the facts and circumstances of the case, looking to the compass of the controversy, and with consent of both the sides, the petition was taken up for final consideration.
3. The petitioner prays for issuance of appropriate direction to respondent No.2 - Mamlatdar, Anand, to mutate the entry in the nature of entry of lis pendens in respect of Court Case No.129 of 2009 in the revenue record.
4. The petitioner has preferred Court Case No.129 of 2009 before learned Principal Senior Civil Judge, Anand and the said suit is filed for specific performance of the agreement to sale in connection with the land situated at Revenue Survey Nos.1554 and 1555 which are included in Page 1 of 3 HC-NIC Page 1 of 3 Created On Wed Jul 20 03:38:45 IST 2016 C/SCA/7315/2016 ORDER T.P.Scheme No.4 and given Final Plot No.233 at mouje Anand village, Taluka and District Anand.
5. 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. The petitioner has approached respondent No.2 for mutating entry of lis pendence. However, respondent No.2 refused to mutate the entry in the revenue records and returned the papers back to the petitioner. Therefore, the petitioner has preferred another detailed application dated 22.04.2016 to respondent No.2. The same is also not responded to by the Mamlatdar. Therefore, the present petition.
6. 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 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.
7. This Court in the above cited decision in paragraph 5 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 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 sub-registrar, the person concerned would be put to notice that a particular suit is pending before the competent Court Page 2 of 3 HC-NIC Page 2 of 3 Created On Wed Jul 20 03:38:45 IST 2016 C/SCA/7315/2016 ORDER 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.
8. 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 lis pendens in the revenue record. This petition is therefore allowed by directing respondent No.2-Mamlatdar, Anand, to apply the law laid down in the case of Deepak Manilal Patel(supra) and carry out necessary mutation in the case of the petitioner.
9. 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 Court Case No.129 of 2009 and all rights and contentions of the parties in the suit shall remain open.
The petition stands disposed of accordingly.
(R.M.CHHAYA, J.) Suchit Page 3 of 3 HC-NIC Page 3 of 3 Created On Wed Jul 20 03:38:45 IST 2016