Yagneshbhai Ravjibhai Patel vs State Of Gujarat & on 8 February, 2016

[Cites 6, Cited by 4]

Gujarat High Court

Yagneshbhai Ravjibhai Patel vs State Of Gujarat & on 8 February, 2016

Bench: N.V.Anjaria

                   C/SCA/1733/2016                                              ORDER



                   IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                      SPECIAL CIVIL APPLICATION NO. 1733 of 2016
         ===========================================================
                    YAGNESHBHAI RAVJIBHAI PATEL....Petitioner(s)
                                     Versus
                      STATE OF GUJARAT & 1....Respondent(s)
         ================================================================
         Appearance:
         MR SP MAJMUDAR, ADVOCATE for the Petitioner(s) No. 1
         MR. NISHIT P GANDHI, ADVOCATE for the Petitioner(s) No. 1
         ADVANCE COPY SERVED TO GP/PP for the Respondent(s) No. 1
         ================================================================
                  CORAM: HONOURABLE MR.JUSTICE N.V.ANJARIA
                               Date : 08/02/2016
                                       ORAL ORDER

Heard learned advocate Mr. Nishit Gandhi for the petitioner and learned Assistant Government Pleader Mr. 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.

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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 another application 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 Page 2 of 4 HC-NIC Page 2 of 4 Created On Wed Feb 10 01:34:42 IST 2016 C/SCA/1733/2016 ORDER 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.

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 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. 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 Page 3 of 4 HC-NIC Page 3 of 4 Created On Wed Feb 10 01:34:42 IST 2016 C/SCA/1733/2016 ORDER 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.

(N.V.ANJARIA, J.) chandrashekhar Page 4 of 4 HC-NIC Page 4 of 4 Created On Wed Feb 10 01:34:42 IST 2016

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