Gujarat High Court
Madhubhai Virjibhai Dhanani (Patel) vs State Of Gujarat on 12 January, 2022
Author: Bhargav D. Karia
Bench: Bhargav D. Karia
C/SCA/15248/2015 JUDGMENT DATED: 12/01/2022
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 15248 of 2015
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE BHARGAV D. KARIA
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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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MADHUBHAI VIRJIBHAI DHANANI (PATEL) & 1 other(s)
Versus
STATE OF GUJARAT & 3 other(s)
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Appearance:
MS SANGEETA PAHWA, FOR THAKKAR AND PAHWA ADVOCATES(1357)
for the Petitioner(s) No. 1,2
MR TUPESH KATHIRIYA AGP for the Respondent(s) No. 1,2
MR. R.D.KINARIWALA(6146) for the Respondent(s) No. 3,4
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CORAM:HONOURABLE MR. JUSTICE BHARGAV D. KARIA
Date : 12/01/2022
ORAL JUDGMENT
1. Heard learned advocate Ms. Sangeeta Pahwa for the petitioners,learned advocate Mr. R.D. Kinariwala for respondent nos.3 and 4 and learned Assistant Government Pleader Mr.Trupesh Page 1 of 16 Downloaded on : Mon Jan 17 20:21:43 IST 2022 C/SCA/15248/2015 JUDGMENT DATED: 12/01/2022 Kathiriya for respondent nos. 1 and 2 through video conference.
2. Rule returnable forthwith. Learned Assistant Government Pleader Mr.Trupesh Kathiriya waives service of notice of rule on behalf of respondent nos. 1 and 2 and learned advocate Mr. R.D. Kinariwala waives service of notice of rule on behalf of respondent nos. 3 and 4.
3. The controversy arising in this petition is in a very narrow compass and therefore, with the consent of the learned advocates for the respective parties, same is taken up for hearing today.
4. By this petition under Articles 226 and 227 of the Constitution of India, the petitioners have challenged the order dated 27th April, 2015 passed by the Mamlatdar, Surat city, Katargam, Surat cancelling Entry No. 10877 without any notice and opportunity of hearing to the petitioners only on the ground that this Court has not given any direction to make an entry of lis pendence in the revenue record while passing the order in Civil Application No.5564 of 2013 in First Appeal No.1274/2013.
5. Brief facts leading to the present petition are as under :
5.1) The petitioners entered into an Page 2 of 16 Downloaded on : Mon Jan 17 20:21:43 IST 2022 C/SCA/15248/2015 JUDGMENT DATED: 12/01/2022 agreement to sale dated 27th April, 1988 with one Dalpatbhai Durlabhai Patel for purchasing an old tenure land admeasuring 5058 sq. mtrs. of land bearing Survey no.494, F.P. No. 34., T.P Scheme No. 18 (Katargarm), Surat. However, pursuant thereto, final sale deed could not be executed due to pendency of ULC proceedings.
5.2) It is the case of the petitioners that after the original seller died, his legal heirs failed to execute the sale deed in favour of the petitioners and the said land was sold and transferred to third party. The petitioners therefore, filed Special Civil Suit No.244/2012 before the Principal Civil Judge, Surat for specific performance of the agreement to sale and also sought cancellation of sale deed executed by the seller in favour of the purchasers who were parties in the suit.
5.3) Respondent no.3 and 4 herein filed application under Order 7 Rule 11(d) of the Code of Civil Procedure, 1908 in the said suit for the rejection of the plaint on the ground that the suit was time barred. The 4th Additional Senior Civil Judge, Surat by order dated 29 th April, 2013 allowed the said application and ordered rejection of the plaint. However, the operation of the judgment and decree was stayed upto 10th June, 2013 to enable the petitioners to file appeal.Page 3 of 16 Downloaded on : Mon Jan 17 20:21:43 IST 2022
C/SCA/15248/2015 JUDGMENT DATED: 12/01/2022 5.4) The petitioners thereafter filed First Appeal No. 1274/2013 challenging the said judgment and decree before this Court, wherein Division Bench of this Court vide order dated 3rd July, 2013 admitted the appeal and in Civil Application No. 5654/2013 granted ad-interim stay to maintain status-quo qua possession and title of the property to be maintained by both the sides. Thereafter, this Court vide order dated 29th August, 2013 continued the operation of ad-interim order until 16th September, 2013 with observation that the petitioners would be at liberty to get the lis pendence registered with the concerned Registrar showing the pendency of the proceedings of First Appeal.
5.5) Pursuant to the said order, the petitioners have registered the lis pendence about the suit land before the Sub-Registrar, Surat-8 (Rander) on 13/09/2013and the same is registered as SRT/8/RDR No. 956/2013. Such registration of lis pendence was duly entered in the revenue record vide Entry No. 10877 by the revenue authority with regard to the suit land.
5.6) It is the case of the petitioners that respondent nos. 3 and 4 submitted the written objections before the Mamlatdar, Surat City, Katargam, Surat and without giving any notice and affording opportunity of hearing to the petitioners, the Mamlatdar vide order dated 27th April, 2015 cancelled the Entry No. 10877 Page 4 of 16 Downloaded on : Mon Jan 17 20:21:43 IST 2022 C/SCA/15248/2015 JUDGMENT DATED: 12/01/2022 observing that this Court has not given any direction to make entry of lis pendence in the revenue record and there is no provision to make such entry in Bombay land Revenue Code,1879 (for short 'the Code').
5.7) The petitioners therefore, filed Misc. Civil Application No. 2213/2015 before this Court seeking modification/clarification of the order dated 29th August, 2013 passed in Civil Application No.5654/2013 in First Appeal No. 1274/2013 to the effect that necessary entry in the revenue record be entered with regard to the lis pendence registered by the petitioners. However, such application came to be withdrawn by the petitioners vide order dated 28th August, 2015 wherein the Division Bench observed that if the revenue entry is not entered based on lis pendence, it would be open for the petitioners to resort to appropriate proceedings under the Code or substantial petition under Article 226 of the Constitution of India and such aspect cannot be examined in the proceedings of the First Appeal.
5.8) The petitioners have therefore, preferred the present petition.
6. Learned advocate Ms. Pahwa submitted that the Mamlatdar without giving any opportunity of hearing to the petitioners has passed the impugned order dated 27th April, 2015 and Page 5 of 16 Downloaded on : Mon Jan 17 20:21:43 IST 2022 C/SCA/15248/2015 JUDGMENT DATED: 12/01/2022 therefore, the petition is filed before this Court under Article 226 of the Constitution of India.
6.1) It was submitted that pursuant to the order passed by this Court in Civil Application No. 5654/2013 in First Appeal No. 1274/2013 on 29th August, 2013, the petitioners have executed the document of lis pendence on 13th September, 2013 with the office of Sub-Registrar at Surat-8 (Rander).
6.2) It was pointed out that on the basis of the registered document of lis pendence Entry No. 10877 was mutated in Village Form no. 6 on 18th October, 2014. However, the Mamlatdar by the impugned order dated 27th April, 2015 rejected the Entry No. 10877 holding that the High Court has passed the order only for registration of lis pendence and no entry can be made in the revenue record for recording the second right on the basis of such lis pendence. It was submitted that the Mamlatdar ought to have corrected the entry restricting to the registration of lis pendence only instead of rejecting the entry.
6.3) In support of her submissions, learned advocate Ms. Pahwa relied upon the decision of this Court in case of Dipakbhai Manilal Patel v. State of Gujarat through Secretary reported in 2007 (2) GLR 1297 to submit that the principles of lis pendence would apply to a Page 6 of 16 Downloaded on : Mon Jan 17 20:21:43 IST 2022 C/SCA/15248/2015 JUDGMENT DATED: 12/01/2022 transaction if entered after institution of the suit as per the provisions of section 52 of the Transfer of Property Act, 1882 and therefore, the Mamlatdar could not have rejected the Entry No. 10877 in view of the registered document of lis pendence.
7. On the other hand, learned advocate Mr. R.D. Kinariwala submitted that the Entry No. 10877 is passed recording the second right in favour of the petitioners and therefore, the same is rightly rejected by the Mamlatdar. In support of his submission, reliance was placed on the decision of this Court in case of Jinnatben Abdullabhai w/o Iqbal Abdulla Jadhav v. Secretary, Revenue Department and others in Special Civil Application No. 403/2016 rendered on 19th January, 2016 which was later on confirmed by the Division Bench in Letters Patent Appeal No. 77/2016 by judgment and order dated 14th March, 2016. It was submitted that considering the provisions of sections 135B, 135C and 135D of the Code, the Mamlatdar is to make an entry in revenue record after following the due procedure of Code and as per the provisions of section 135C of the Code, merely registration of lis pendence cannot confer any right upon the party and therefore, an entry of recording the "second right" in favour of the petitioners by Entry No. 10877 could not have made and hence the same is rightly rejected by Page 7 of 16 Downloaded on : Mon Jan 17 20:21:43 IST 2022 C/SCA/15248/2015 JUDGMENT DATED: 12/01/2022 the impugned order. Reference was also made to the order passed by the learned Single Judge in Special Civil Application No. 403/2016 wherein decision of Dipakbhai Manilal Patel(supra) is also considered. The Division Bench has also affirmed the order passed by learned Single Judge holding that merely because a suit is registered and notice of pendency of that suit is published, the Mamlatdar could not have made an entry of recording the "second right" in favour of the appellant in the revenue records as there is no provision in the Bombay Land Revenue Code, 1879 or by way of any Government Resolution to record such "second right". It was submitted that the entries in record of rights are only proof but do not confer any right or title by itself and therefore, merely on the ground that the suit is registered or the proceedings are pending before this Court, the petitioners are not entitled to get entry of "second right" mutated in the revenue record.
8. Having heard the learned advocates for the respective parties and having gone through the documents produced on record as well as relevant provisions of the Bombay Land Revenue Code, 1879, the Transfer of Property Act, 1882 and Registration Act, 1908, it appears that initially Mamlatdar while mutating the Entry No. 10877 has committed an error by recording the "second right" in favor of the petitioners. The Page 8 of 16 Downloaded on : Mon Jan 17 20:21:43 IST 2022 C/SCA/15248/2015 JUDGMENT DATED: 12/01/2022 Mamlatdar ought to have passed entry only with regard to the registration of document of lis pendence so as to make it known to the public at large that the litigation is pending with regard to the land in question before this Court by way of First Appeal No. 1274/2013.
9. The Division Bench of this Court passed the following order in Civil Application (For Stay) No. 5654/2013 in First Appeal No.1274/2013 filed by the petitioners being aggrieved by the order passed below application Order 7 Rule 11 of the Code of Civil Procedure, 1908 whereby the suit filed by the petitioners was rejected by the trial Court :
"1. We have heard Mr.Navin Pahwa for the applicants, Mr.Y.N.Oja with Ms.Thula for the opponent Nos.1, 2 and 3, Mr.G.M.Joshi for the opponent No.4, Mr.B.B.Naik with Mr.Mehta for the opponent Nos.5 and 6 and Mr.S.P.Majmudar for the opponent No.7.
2. It is an admitted position that pending the suit before the trial Court, no interim injunction was in operation. Subsequently, by the impugned order the suit has been dismissed under Order 7 Rule 11 of the Civil Procedure Code. Therefore, we find that the ad-interim injunction granted earlier does not deserve to be continued. We leave it at that, because Mr.Pahwa has not invited further reasons on the said aspect.
3. However, considering the facts and circumstances, since the appeal has been admitted, the principles of lis pendense should apply. Therefore, it is observed that Page 9 of 16 Downloaded on : Mon Jan 17 20:21:43 IST 2022 C/SCA/15248/2015 JUDGMENT DATED: 12/01/2022 the, appellant --original plaintiff can be at the liberty to get the lis pendense registered with the concerned Sub-Registrar showing the pendency of the present proceedings. Once the lis pendense is registered the order passed by this Court in the present proceedings shall be binding to the person concerned. So as to enable the applicant/appellant to get the lis pendense registered, the ad-interim relief granted earlier can be continued for some time.
4. Hence, so as to enable the applicant to get the lis pendense registered, the ad- interim relief granted earlier shall remain in operation till 16.9.2013. It is also clarified that by non-continuance of the interim relief, neither party would get any additional right to disturb the possession of any party to the proceedings or any third party, who may be holding the possession of the property or part thereof under the transaction already entered into.
5. Subject to the aforesaid observation and direction present application is disposed of."
10. After the aforesaid order was passed, the petitioners registered document of lis pendence on 13th September, 2013 and based upon the registration document Entry No.10877 was mutated on 10th August, 2014.
11. This Court in case of Jinnatben Abdullabhai (supra) after considering the provisions of sections 135B, 135C and 135D of the Bombay Land Revenue Code has held as under :
"6. As could be seen from the above provision what is permitted or what is Page 10 of 16 Downloaded on : Mon Jan 17 20:21:43 IST 2022 C/SCA/15248/2015 JUDGMENT DATED: 12/01/2022 required for the purpose of mutating the entry in the revenue record is acquisition of any right by a person in respect of the land or interest therein or liability in respect of such land. The nature of rights acquired through different modes are mentioned in above provision and it is also mentioned as to on which documents, such rights are to be entered in the revenue record. Pendency of suit claiming right in any land is not covered by the above provisions. Therefore, in fact, there is no obligation on the part of the Mamlatdar to make entry in revenue record as regards the pendency of the suit. Simply because the petitioner has filed the suit claiming right in the land and seeking cancellation of the sale deed of 1965 and simply because she has got the suit registered and given the public notice of lis pendens that by herself is no ground to say that the petitioner has acquired right in the land and therefore the entry of notice of lis pendens is not required to be made in the revenue record.
7. In the case of Dipakbhai Manilal Patel (supra), the Court has held and observed in paragraph No. 4 to 6 reads as under:-
(4). Whenever, the Suit pertaining to immovable property is filed, the provisions of Section 52 of the Transfer of Properties Act are applicable on the principles of lis pendens in normal circumstances. However, so far as Gujarat State is concerned, there is amendment by Bombay Act No. 14 of 1939 read with Act No. 57 of 1959, whereby, the notice of pendency of Suit or the proceedings are required to be registered. Section 52 of the Act read with amendment Act No. IV of 1882 for Gujarat State and Maharashtra reads as under :
"52. Transfer of property suit relating thereto- During the pendency in any Court having authority within the limits of India excluding the State of Jammu and Kashmir or Page 11 of 16 Downloaded on : Mon Jan 17 20:21:43 IST 2022 C/SCA/15248/2015 JUDGMENT DATED: 12/01/2022 established beyond such limits by the Central Government of any suit or proceedings which is not collusive and in which any right to immovable property is directly and specifically in question, the property cannot be transferred or otherwise dealt with by any party to the suit of proceeding so as to affect the rights of any other party thereto under the decree or order which may be made therein, except under the authority of the Court and on such terms as it may impose."
"STATE AMENDMENTS Whole of Gujarat and Maharashtra.
Amendment of Section 52 of Act IV of 1882.- Section 52 of the Transfer of Property Act, 1882 shall be renumbered as subsection (1) of Section 52 of the said Act, and
(i)In sub-section (1) so renumbered after the word "question" the words and figures "if a notice of the pendency of such suit or proceedings is registered under Section 18 of the Indian Registration Act, 1908", and after the word "property" where it occurs for the second time, the words "after the notice is so registered", shall be inserted;
and
(ii)after the said sub-section(1) so renumbered the following shall be inserted, namely:
"(2) Every notice of pendency of a suit or proceeding referred to in sub-section(1) shall contain the following particulars, namely:
a) the name and address of the owner of immovable property or other person whose right to the immovable property is in question;
(b) the description of the immovable Page 12 of 16 Downloaded on : Mon Jan 17 20:21:43 IST 2022 C/SCA/15248/2015 JUDGMENT DATED: 12/01/2022 property, the right to which is in question.
(c) the court in which the suit or proceeding is pending;
(d) the nature and title of the suit or proceedings; and
(e) the date on which the suit or proceeding was instituted."(Bombay Act 14 of 1939, S.3)"
(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 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) 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 Page 13 of 16 Downloaded on : Mon Jan 17 20:21:43 IST 2022 C/SCA/15248/2015 JUDGMENT DATED: 12/01/2022 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.
8. In paragraph No. 6 the Court has observed that after following due procedure of Revenue Code, the Mamltdar is to make entry in revenue record. The Mamltdar is therefore required to consider the provisions of the Code.
9. As stated above, there is no provision in the code for recording of entry of lis pendens in the revenue record. The Mamlatdar by impugned order has refused to accept the application on the ground that there is no instruction or order from the competent authority for making entry of lis pendency in the revenue record. The Mamltdar, therefore, could not have made entry in the revenue record of the lis pendens of the suit, as there is no provision in Code for such purpose."
12. The Division Bench in Letters Patent Appeal No. 77/2016 while affirming the aforesaid findings arrived at by the learned Single Judge has held as under :
"5. From the material placed on record, it is clear that the petitioner has filed a suit seeking cancellation of sale deed executed in the year 1965. There are no interim orders in the said suit. After the suit is registered, he himself got published notice of pendency of that suit. Based on such public notice, he made a request to the Mamlatdar to make an entry to that effect in the revenue records. There is no provision Page 14 of 16 Downloaded on : Mon Jan 17 20:21:43 IST 2022 C/SCA/15248/2015 JUDGMENT DATED: 12/01/2022 brought to our notice during the course of hearing under the provisions of the Gujarat Land Revenue Code or by way of any Government Resolutions to that effect. In any event, it is well settled that the entries in the record of rights are only proof but do not confer any title by itself. In any event, merely on the ground that suit is registered, the petitioner is not entitled to get entry in the revenue records. A perusal of the provision of Sections 135B, 135C and 135D of the Gujarat Land Revenue Code clearly indicate that one can apply for change of entries only on acquisition of any right with regard to agricultural lands but not on a suit filed for cancellation of the sale deed. Even the judgment relied by learned counsel rendered by the learned Single Judge do not render any assistance in the circumstances of this case. The very relief prayed for by the petitioner is misconceived and rightly rejected by the Mamlatdar, which is confirmed by the learned Single Judge. We do not find any merits in this appeal for interference. Dismissed. No order as to costs."
13. In view of the above settled legal position, the Mamlatdar was not right in cancelling Entry no. 10877 by the impugned order dated 27th April, 2015 but Entry no. 10877 was required to be modified by mutating only the registration of deed of lis pendence in view of provisions of sections 135B, 135C and 135D of the Bombay Land Revenue Code, 1879 read with sections 52 and 18 of the Registration Act,1908.
14. Accordingly the impugned order dated 27th April, 2015 passed by the Mamlatdar is quashed and set aside by directing respondent no.2- Page 15 of 16 Downloaded on : Mon Jan 17 20:21:43 IST 2022 C/SCA/15248/2015 JUDGMENT DATED: 12/01/2022 Mamlatdar to pass the rectification entry deleting the recording of "second right" in favour of the petitioners with regard to the land in question and only restricting the entry with regard to registration of the document of lis pendence during the pendency of First Appeal No.1274/2013.
15. With the aforesaid directions, the petition is partly allowed. Rule is made absolute to the aforesaid extent. No order as to costs.
(BHARGAV D. KARIA, J) RAGHUNATH R NAIR Page 16 of 16 Downloaded on : Mon Jan 17 20:21:43 IST 2022