Gujarat High Court
Lr Nathabhai Kuberbhai Valand vs Special Secretary Revenue ... on 7 September, 2017
Author: J.B.Pardiwala
Bench: J.B.Pardiwala
C/SCA/16135/2017 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION NO. 16135 of 2017
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LR NATHABHAI KUBERBHAI VALAND....Petitioner(s)
Versus
SPECIAL SECRETARY REVENUE DEPARTMENT(DISPUTES) &
4....Respondent(s)
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Appearance:
MR VIMAL A PUROHIT, ADVOCATE for the Petitioner(s) No. 1
MR UTKARSH SHARMA, AGP for the RESPONDENT(s) No. 1
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CORAM: HONOURABLE MR.JUSTICE J.B.PARDIWALA
Date : 07/09/2017
ORAL ORDER
Since the issue involved in this petition is in a very narrow compass, the same is taken up for final disposal today itself.
By this application under Article 227 of the Constitution of India, the applicant has prayed for the following reliefs :
"(A) Your Lordships may be pleased to admit and allow the present petition;
(B) Your Lordships may be pleased to issue a writ of mandamus or any other appropriate writ in the nature of mandamus, order or direction quashing and setting aside the order dated 30.5.2017 passed by the respondent no.1 in Revision Application No.MVV/HKP/AMD/11/2011 as well as order dated 16.11.2010 passed by the District Collector as well as order dated 24.08.2008 passed by Page 1 of 10 HC-NIC Page 1 of 10 Created On Sun Sep 10 07:07:24 IST 2017 C/SCA/16135/2017 ORDER the Deputy Collector as well as order dated 6.8.2008 passed by the learned Mamlatdar and further be pleased to direct the respondent Mamlatdar to mutate the entry of lis pendens with respect document registered before the Sub-Registrar, Paldi, Ahmedabad-4 bearing no.3435 dated 15.3.2008 pertaining to the pendency of the aforesaid Regular Civil Suit No.212 of 2007 and certify the same;
(C) During the pendency and final disposal of the present petition, Your Lordships may be pleased to direct the respondent Mamlatdar to mutate the entry of lis pendens with respect document registered before the Sub-
Registrar, Paldi, Ahmedabad-4 bearing no.3435 dated 15.3.2008 pertaining to the pendency of the aforesaid Regular Civil Suit No.212 of 2007 and certify the same;
(D) Any other and further relief that may deem fit by this Hon'ble Court in the interest of justice;"
It is not in dispute that the applicant herein has got a lis pendens registered with the Sub-Registrar, Ahmedabad, as regards the filing of a Regular Civil Suit No.212 of 2007 in the Court of the learned Principal Civil Judge, Ahmedabad (Rural). The applicant requested the Mamlatdar to mutate an entry with regard to the registration of the lis pendens in the record of rights. The Mamlatdar declined substantially on the ground that no injunction has been granted by the civil court in the pending civil suit. The matter went right upto the SSRD. Being dissatisfied, the applicant is here before this Court by this petition under Article 227 of the Constitution of India.
The issue is no longer res integra in view of umpteen decisions rendered by this Court. The first of its kind is the case of Dipakbhai Manilal Patel v. State of Gujarat, (2007)2 GLR 1297. In the said decision, this Court held as under :Page 2 of 10
HC-NIC Page 2 of 10 Created On Sun Sep 10 07:07:24 IST 2017 C/SCA/16135/2017 ORDER "3. The short facts of the case are that as per the petitioners, they have filed Special Civil Suit No. 209/05 in the Court of learned Civil Judge (SD), Ahmedabad, for the specific performance of the contract and as per the petitioners, the said suit is pending and therefore, the notice of lis pendens was got registered by the petitioners as per the document(Annexure-B), which has been registered vide registration No. 5302 dated 20th June, 2006, of the Joint Sub-Registrar, SRO, Ahmedabad-
2, Vadaj. After the document was registered, the petitioners submitted application to the Mamlatdar, Dascroi for entering of the said document. However, Mamlatdar, as per the communication dated 19.07.2006, informed to the petitioners that as per the provisions of Section 18 of the Transfer of Properties Act, there is no provision for registration of lis pendens and therefore, the application of the petitioners cannot be accepted. It is under these circumstances, the petitioners have approached to this Court.
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 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 Page 3 of 10 HC-NIC Page 3 of 10 Created On Sun Sep 10 07:07:24 IST 2017 C/SCA/16135/2017 ORDER 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 sub-section (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 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 Page 4 of 10 HC-NIC Page 4 of 10 Created On Sun Sep 10 07:07:24 IST 2017 C/SCA/16135/2017 ORDER 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. 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. It is made clear that by the aforesaid direction, no additional right shall be read be read as created in favour of either parties to the proceedings of Civil Suit No. 209/05 and all rights and contentions of both the sides in the suit shall remain open and at the time when the entry Page 5 of 10 HC-NIC Page 5 of 10 Created On Sun Sep 10 07:07:24 IST 2017 C/SCA/16135/2017 ORDER is to be mutated based on the documents of lis pendens, both the sides shall be at the liberty to raise all contentions as may available in law."
In the case of Shailesh Laldas Patel v. State of Gujarat and another (Special Civil Application No.15598 of 2016, decided on 12th September 2016), a learned Single Judge relied upon Dipakbhai Manilal Patel (supra) and held as under :
"4. The petitioner has preferred Special Civil Suit No.7 of 2016 before learned Principal Senior Civil Judge, Gandhinagar, and the said suit is filed for specific performance of the agreement to sale in connection with the land being Revenue Survey No.383/4 at mouje Uvarsad village, Taluka and District Gandhinagar.
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 24.06.2016 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 Page 6 of 10 HC-NIC Page 6 of 10 Created On Sun Sep 10 07:07:24 IST 2017 C/SCA/16135/2017 ORDER 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.
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, Gandhinagar, 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."
In the case of Yagneshbhai Ravjibhai Patel v. State of Gujarat and another (Special Civil Application No.1733 of 2016, decided on 8th February 2016), a learned Single Judge held as under :
"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 Page 7 of 10 HC-NIC Page 7 of 10 Created On Sun Sep 10 07:07:24 IST 2017 C/SCA/16135/2017 ORDER 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 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 Page 8 of 10 HC-NIC Page 8 of 10 Created On Sun Sep 10 07:07:24 IST 2017 C/SCA/16135/2017 ORDER 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 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."
In view of the above, the impugned orders passed by the authorities are hereby quashed. The petition is allowed. The Mamlatdar, Dascroi, is directed to apply the law laid down in the case of Dipakbhai Manilal Patel (supra) and other judgments referred to above and carry out the necessary mutation.
It is clarified that by virtue of the lis pendens no additional right is treated to have been created in favour of the petitioner or either of the parties to the Regular Civil Suit No.212 of 2007 pending in the Court of the learned Principal Civil Judge, Ahmedabad (Rural), and all the rights and contentions of the parties in the suit shall remain open.
At this stage, Mr.Purohit pointed out that in fact entry no.758 was mutated in the record of rights but the authority concerned declined to certify the same.
In view of the above discussion, necessary orders shall now be passed certifying the entry.
Page 9 of 10HC-NIC Page 9 of 10 Created On Sun Sep 10 07:07:24 IST 2017 C/SCA/16135/2017 ORDER Direct service is permitted.
(J.B.PARDIWALA, J.) MOIN Page 10 of 10 HC-NIC Page 10 of 10 Created On Sun Sep 10 07:07:24 IST 2017