Gujarat High Court
Chandubhai Labhubhai Bhatti vs The State Of Gujarat on 10 January, 2024
Author: Nirzar S. Desai
Bench: Nirzar S. Desai
NEUTRAL CITATION
C/SCA/21938/2023 JUDGMENT DATED: 10/01/2024
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 21938 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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CHANDUBHAI LABHUBHAI BHATTI
Versus
THE STATE OF GUJARAT
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Appearance:
MR BHARAT T RAO(697) for the Petitioner(s) No. 1
for the Respondent(s) No. 2
MR. NIKUNJ KANARA, AGP ON ADVANCE COPY SERVED TO
GOVERNMENT PLEADER/PP for the Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE NIRZAR S. DESAI
Date : 10/01/2024
ORAL JUDGMENT
1. Heard learned advocate Mr. Bharat T. Rao appearing for the petitioner and learned AGP Mr. Nikunj Kanara appearing for the Page 1 of 8 Downloaded on : Thu Jan 11 20:47:50 IST 2024 NEUTRAL CITATION C/SCA/21938/2023 JUDGMENT DATED: 10/01/2024 undefined respondent - State.
2. Considering the fact that it was submitted by learned advocate Mr. Bharat T. Rao for the petitioner that issue on hand is squarely covered by the judgments of this Court and since the same is related to registration of lis pendens, with the consent of the parties, the matter was taken up for final hearing.
3. Hence, RULE. Learned AGP Mr. Nikunj Kanara waives service of notice of rule for and on behalf of the respondent - State.
4. The grievance of the petitioner is that some dispute is going on in respect of the land bearing survey no. 84/1 paiki 3 of Mouje Kasturbadham, Taluka and District: Rajkot admeasuring 3 hector 70 are and 29 sq. mtrs. for which a sale deed was executed in the year 2008 and the petitioner challenged the aforesaid sale deed by way of Special Civil Suit No. 3 of 2019 before the Court of learned Principal Senior Civil Judge, Rajkot. After the aforesaid civil suit was registered, when the petitioner preferred an application for registration of lis pendens, though the Sub Registrar vide registration no. 6516 dated 17.08.2023 registered the lis pendens. The same was not reflected in E-Dhara Branch and the petitioner's application for registration of the same was rejected vide order dated 12.10.2023 citing a Government Circular dated 30.05.2022 that unless there is a judicial order, such lis pendens would not be registered.
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5. Being aggrieved by the aforesaid order dated 12.10.2023 passed by the respondent no. 2, the petitioner has challenged the aforesaid order by praying for the following reliefs:-
(A) To admit and allow this petition.
(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 12.10.2023 (Annexure-H) passed by respondent no.2 Mamlatdar, Rajkot Taluka, E-dhara Branch, Rajkot bearing No. .E-Dhara/Parch/File No.02/ 792275 /23 refusing to register lis pendens in respect of land bearing Survey No.84/1 Paiki 3 admeasuring 3 hector, 70 are and 29 sq.mtrs. of Mouje Kasturbadham, Taluka Rajkot, District Rajkot and further be pleased to direct the respondent no.2 to forthwith register lis pendens as per application dated 28.8.2023 of the petitioner.
(C) Pending admission, hearing and final disposal of the above Special Civil Application, to direct the respondent no.2 Mamlatdar Rajkot Taluka, E-dhara Branch to forthwith register lis pendens pursuant to application dated 28.8.2023 made by petitioner in respect of land bearing Survey No.84/1 Paiki 3 admeasuring 3 hector, 70 are and 29 sq.mtrs. of Mouje Kasturbadham, Taluka Rajkot, District Rajkot.
(D) To grant ad-interim relief in terms of Para-19(C) hereinabove.
(E) The Hon'ble Court may kindly be pleased to grant any other appropriate relief as the mature circumstances of the case may require;
6. At the outset, learned advocate Mr. Bharat Rao appearing for the petitioner drew attention of this Court to the catena of the judgments of this Court as well as the Hon'ble Supreme Court and submitted that the lis pendency could not have been refused to be Page 3 of 8 Downloaded on : Thu Jan 11 20:47:50 IST 2024 NEUTRAL CITATION C/SCA/21938/2023 JUDGMENT DATED: 10/01/2024 undefined registered by the revenue authority.
7. He relied upon following judgments of the Hon'ble Supreme Court and this Court:-
(1) in the case of Dipakbhai Manilal Patel V/s. State of Gujarat Through Secretary reported in 2007 (2) GLR 1297 (2) order dated 12.01.2023 passed in Special Civil Application No. 16318 of 2021 in the case of Daxaben W/o. Maheshbhai Thakor D/o. Dilipji Popatji Thakor (3) in the case of Guruswamy Nadar V/s. P. Lakshmi Ammal (D) through Lrs. & Ors. Passed in Civil Appeal No. 6764 of 2001
8. By relying upon the aforesaid judgments, learned advocate Mr. Rao prayed that the authority may be directed to register the lis pendens and the same to be reflected in the revenue records.
9. Learned AGP Mr. Nikunj Kanara appearing for the respondent - State vehemently opposed this petition by stating that there is Government Circular dated 30.05.2022 which prohibits the registration of lis pendency unless a judicial order is in favour of the petitioner directing the authority to register lis pendens.
10. In view of the aforesaid submission, it was pointed out by learned advocate Mr. Rao that in similar set of facts, the Coordinate Bench of this Court vide order dated 12.01.2023 Page 4 of 8 Downloaded on : Thu Jan 11 20:47:50 IST 2024 NEUTRAL CITATION C/SCA/21938/2023 JUDGMENT DATED: 10/01/2024 undefined passed in Special Civil Application No. 16318 of 2021 in the case of Daxaben W/o. Maheshbhai Thakor D/o. Dilipji Popatji Thakor has considered the aforesaid submissions about Government Circular dated 30.05.2022 and despite that has directed the authority to mutate the entry in the village abstracts 7/12 by registering the documents as lis pendens in respect of pending civil suit.
11. I heard learned advocates for the parties and perused the record. There is no dispute about the fact that the Government Circular dated 30.05.2022 requires a judicial order for registration of lis pendens and therefore, registration of lis pendens was refused in case of the petitioner by rejecting his application for registration of lis pendency.
12. However, in similar set of facts, the Coordinate Bench of this Court has considered the aforesaid aspect and has observed 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 Page 5 of 8 Downloaded on : Thu Jan 11 20:47:50 IST 2024 NEUTRAL CITATION C/SCA/21938/2023 JUDGMENT DATED: 10/01/2024 undefined 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 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.Page 6 of 8 Downloaded on : Thu Jan 11 20:47:50 IST 2024
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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 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."
13. 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 Mamlatdar, Rajkot Taluka, E- Dhara Branch is hereby directed to mutate the entry in the Village Extract 7/12 by registering the lis pendens in respect of Special Civil Suit No. 3 of 2019 pending Page 7 of 8 Downloaded on : Thu Jan 11 20:47:50 IST 2024 NEUTRAL CITATION C/SCA/21938/2023 JUDGMENT DATED: 10/01/2024 undefined before the Principal Senior Civil Judge, Rajkot.
14. In view of above, the present petition is allowed. Rule is made absolute.
(NIRZAR S. DESAI,J) VARSHA DESAI Page 8 of 8 Downloaded on : Thu Jan 11 20:47:50 IST 2024