Gujarat High Court
Harsukhbhai Kanjibhai Hadiya vs State Of Gujarat on 14 February, 2023
Author: A. S. Supehia
Bench: A.S. Supehia
C/SCA/1877/2023 ORDER DATED: 14/02/2023
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 1877 of 2023
==========================================================
HARSUKHBHAI KANJIBHAI HADIYA
Versus
STATE OF GUJARAT
==========================================================
Appearance:
MR DHRUV D DESAI(9909) for the Petitioner(s) No. 1
MR JAYNEEL PARIKH, AGP for the Respondent(s) No. 1
NOTICE NOT RECD BACK for the Respondent(s) No. 2,3,4
==========================================================
CORAM:HONOURABLE MR. JUSTICE A.S. SUPEHIA
Date : 14/02/2023
ORAL ORDER
With the consent of the learned advocates appearing for the respective parties, the matter is taken up for hearing.
1. Rule. Learned AGP waives service of notice of rule for and on behalf of the respondent-State.
2. At the outset, learned AGP has submitted that recently, the Revenue Department of State Government has issued a circular dated 30.05.2022, wherein it is held that under the provision of the Gujarat Land Revenue Code, 1879 in the revenue record, the concerned judicial Court can pass appropriate orders for recording lis pendency in an entry.
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 Page 1 of 3 Downloaded on : Wed Feb 15 20:56:56 IST 2023 C/SCA/1877/2023 ORDER DATED: 14/02/2023 passed in Special Civil Application No.9058 of 2021.
4. In the present writ petition, the petitioner has prayed for the following relief:
"7[B]. Your Lordship may pleased to issue a writ of mandamus or writ in the nature of mandamus or any other appropriate writ, order or direction by quashing and setting aside communication/order dated 22.06.2022 passed by the respondent No.4 and further be pleased to direct the respondent authority to mutate an entry of lis pendence registered at serial No.268 of 2013 before Sub- registrar, Dhari in the revenue record of village: Khicha, Taluka:
Dhari, District: Amreli"
5. It is not in dispute that for the land in question, the Special Civil Suit No.13 of 2017 is pending before the Civil Court, Dhari, which 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 Page 2 of 3 Downloaded on : Wed Feb 15 20:56:56 IST 2023 C/SCA/1877/2023 ORDER DATED: 14/02/2023 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 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 impugned communication/order dated 22.06.2022 passed by the respondent No.4 is hereby quashed and set aside. The respondent authority is directed to mutate the entry of lis pendence registered at serial No.268 of 2013 before Sub-registrar, Dhari in the revenue record of Special Civil Suit No.13 of 2017.
10. The present writ petition stands allowed. Rule made absolute.
(A. S. SUPEHIA, J) ABHISHEK/6 Page 3 of 3 Downloaded on : Wed Feb 15 20:56:56 IST 2023