Gujarat High Court
Heerabhai Govabhai Parmar vs State Of Gujarat on 29 October, 2021
Author: Gita Gopi
Bench: Gita Gopi
R/SCR.A/3801/2013 ORDER DATED: 29/10/2021
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CRIMINAL APPLICATION NO. 3801 of 2013
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HEERABHAI GOVABHAI PARMAR
Versus
STATE OF GUJARAT & 1 other(s)
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Appearance:
MR DEVANG R BHATT(3561) for the Applicant(s) No. 1
ADVOCATE NOTICE SERVED(81) for the Respondent(s) No. 2
MR. PRANAV TRIVEDI, APP (2) for the Respondent(s) No. 1
RULE SERVED BY DS(65) for the Respondent(s) No. 1
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CORAM:HONOURABLE MS. JUSTICE GITA GOPI
Date : 29/10/2021
ORAL ORDER
1. The petitioner has come up with a prayer to quash and set- aside the FIR being C.R. No. I-303 of 2013 registered with Sola High Court Police Station on the ground that he was working as Sub-registrar and was performing his duty under the Registration Act. The petitioner states that the Registration Act enjoins upon him to register any document which is presented before him and has no authority to refuse the registration of the document.
2. The petitioner has also stated that the dispute is pre- dominated with a civil flavour and the complainant ought to have approached the Civil Court against violation of any injunction orders and through the criminal machinery, the petitioner has been wrongly arrayed as a accused. The petitioner further states that dispute between the parties have been amicably resolved and says that criminal proceedings against co-accused in criminal case No. 19032 of 2013 qua them and co-accused in Criminal Misc. Application No. 19032 of 2013 has been quashed.
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3. The impugned FIR is alleged under allegation that in the year 1998 the complainant and others had purchased the land bearing Survey No. 250 of village Sola, Taluka: Daskroi, Ahmedabad from its original owner-accused No.1 for consideration of Rs.4,58,000/-by registered sale deed and the possession was handed over to him. At the time of registration of the sale deed, the land was new tenure and therefore the same was converted into old tenure by an order passed by the Mamlatdar however the said order of the Mamlatdar was set- aside by Deputy Collector on 19.3.1998. The said matter was carried to this Hon'ble Court and pursuant to order of this Court the said transaction came to be regularised by Collector, Ahmedabad by imposing a premium of Rs.57,20,854/- .
3.1 It is alleged by the complainant that the original accused No. 23 and others wanted to sell the aforesaid land and accordingly issued public notice to which the complainant replied through his advocate. It was stated by the complainant in the FIR that the Civil Suit was pending wherein interim injunction was granted against the original accused No.1 wherein the Court had ordered not to transfer, alienate or sell the said land in question to any one and accordingly lis pendens entry was mutated in the revenue record as well as before the Sub-Registrar Office. It is alleged by the complainant that despite the pendency of the civil proceedings and operation of injunction against accused No.1 and others, they have executed the sale deed in favour of accused No.7 and other accused and thus it is alleged by the complainant that though the office of the Sub-Registrar was aware of this fact, inspite of that for personal monetary gain, Page 2 of 9 Downloaded on : Mon Jan 17 05:18:34 IST 2022 R/SCR.A/3801/2013 ORDER DATED: 29/10/2021 accused Nos.1 to 16 and accused Nos. 23 and 234, with intention to usurp, conspiracy has been hatched and the bogus document at Sr. No. 1393 dated 19.6.2013, was registered and it is alleged that accused No.18 was E-dhara Officer, inspite of having notice of lis pendens, had recorded the change entry No. 10887 and by illegal gratification, misusing the position, had abetted conspiracy and to illegally permit the other co-accused to have economic gain though it was an entry of the sale-deed dated 25.3.1988 at Sr. No. 354 on the basis of the bogus sale deed, the revenue entry was recorded on the same day and thereby have committed offence.
4. Mr. Devang Bhatt, learned advocate for the petitioner submitted that the complainant has settled the disputes with most of the co-accused and accordingly the FIR qua them came to be quashed in Criminal Misc. Application No. 19032 of 2013, and by way of order in Cr.MA No. 19796 of 2013 on 11.12.2013, Mr. Bhatt submitted the since very document which is alleged to be bogus , has been accepted by the complainant himself as he has settled with the purchaser by way of cancellation of the documents and, therefore, submits that no offence would be made since the present petitioner being a Sub- Registrar is only required to process as per the Registration Act.
4.1 Mr. Bhatt referred to the order passed in Cr.MA No.300 of 2014 to submit that the case against E-dhara Deputy Mamlatdar and E-dhara Computer operator has been quashed and, therefore, on that ground too he has prayed to consider the development between the complainant and co-accused. Mr. Page 3 of 9 Downloaded on : Mon Jan 17 05:18:34 IST 2022 R/SCR.A/3801/2013 ORDER DATED: 29/10/2021 Bhatt learned advocate submitted that the Sub-Registrar had the knowledge of the execution of lis pendens intimation in accordance to Section 52 of the Transfer of Property Act, 1882 and where he had the knowledge, he in connivance to it, under conspiracy with the co-accused had registered bogus sale deed, which has been subsequently cancelled.
5. Mr. Jaimin Dave submitted that the offence once committed cannot be wiped off by the subsequent conduct of the complainant or the co-accused.
6. Section 52 of the Registration Act, 1908 is with regard to the provision of the duties of the registering officer when document is present before him for registration.
7. Section 35 of the Registration Act lays down the procedure on admission and denial of execution an accordingly if any person executing a document appears personally before the registering officer and are personally known to the registering officer or he if be otherwise satisfied that they are the person representing themselves, and if they all admit the execution of the document then the registering officer shall register the document as directed in Sections 58 to 61 inclusive.
7.1 By way of clause (b) of sub-section (1) of the Act lays down that in case of any person appearing by a representative, assign or agent, such representative, assign or agent admits the execution, or if the person executing the document is dead, and his representative or assign appears before the registering Page 4 of 9 Downloaded on : Mon Jan 17 05:18:34 IST 2022 R/SCR.A/3801/2013 ORDER DATED: 29/10/2021 officer and admits the execution, the registering officer shall register the document as directed in accordance to the provisions laid down in sections 58 to 61 inclusive.
7.2 Section 35 by way of sub-section (2) makes provisions for the satisfaction of the registering officer which says that a person appearing before him are the persons they represent themselves to be, or for any other purpose contemplated by this Act, registering officer may examine any one present in his office.
7.3 By way of provision under sub-section (3) as provided under clauses (a), (b) and (c) that if any person by whom the document purports to be executed denies its execution, or the person appearing before the registering officer is a minor, an idiot or a lunatic, or if any person by whom the document purports to be executed is dead, and his representative or assign denies its execution, the registering officer shall refuse to register the document as to the person so denying, appearing or dead. The proviso to sub-section (3) oblige the officer if being a Registrar to follow the procedures as laid down under Section 35 for his own satisfaction. It is only under such circumstances, the registering officer is obliged to deny the registration of the document.
7.4 The duties of the Registering officer when document is presented before him, is provided in Section 52 of the Act, which reads as under:
52. Duties of registering officers when document presented.--(l)
(a) The day, hour and place of presentation, [the photographs and Page 5 of 9 Downloaded on : Mon Jan 17 05:18:34 IST 2022 R/SCR.A/3801/2013 ORDER DATED: 29/10/2021 finger prints affixed under section 32A,] and the signature of every person presenting a document for registration, shall be endorsed on every such document at the time of presenting it;
(b) a receipt for such document shall be given by the registering officer to the person presenting the same; and
(c) subject to the provisions contained in section 62, every document admitted to registration shall without unnecessary delay be copied in the book appropriated therefor according to the order of its admission.
(2) All such books shall be authenticated at such intervals and in such manner as is from time to time prescribed by the Inspector-General 7.5 Part XII of the Act is provided for act of refusal to Registrar. Section 71 makes it incumbent upon the Sub-Registrar to give his reason for refusal to register the document which are to be recorded. Section 72 provides for appeal against the refusal of registration before the Registrar. In any case when Sub-Registrar refuses to register on the ground of denial of execution then the aggrieved is permitted to make an application to the Registrar against such refusal within 30 days after making of the order of refusal, showing his right to have the document registered. Section 74 lays down the procedure for Registrar on receipt of application and such orders of the Sub-Registrar are subject to final decision of the Registrar.
8. Mr. Jaimin Dave, learned advocate for the respondent No.2 submitted that once document is registered of the lis pendens of the suits, the Sub-Registrar was bound to refuse the registration.
Page 6 of 9 Downloaded on : Mon Jan 17 05:18:34 IST 2022R/SCR.A/3801/2013 ORDER DATED: 29/10/2021 8.1 Section 52 of the Transfer of Property Act, 1882 comes into
force from the point of institution of the suit and continuous to survive till satisfaction of the decree.
9. Here, in the instant case, it has been submitted by learned advocate Mr. Bhatt that the Regular Civil Suit No. 254 of 2009 which was registered before the Principal Sr. Civil Court, Ahmedabad was unconditionally compromised and accordingly a decree was drawn on 15.12.2013 and accordingly entry to this effect was drawn in village Form No.6 on 30.12.2013 by Entry No. 13726.
10. The Doctrine of lis pendens is a doctrine based on the ground that it is necessary for the administration of justice that the decision of a Court in a suit should be pending not only on the litigating parties but on those who derive title pendelite. The provision of Section 52 does not indeed to annul the conveyance or the transfer otherwise, but, to render it subservient to the rights of the parties to a litigation. . This observation has been made in the case of Thomas Press (India) Ltd. v. Nanak Builders and Investors Pvt. Ltd and Ors, reported in AIR 2013 SC 2389.
Thus, accordingly, to the document registered before the Sub-Registrar office denoting lis pendens is for the litigant parties to inquire about their rights and title to the property. When a purchaser proposes to purchase the property in order to show his bonafides of purchasing the property, is required to inquire about the status of the property he proposes to purchase. The document which is executed to show the lis Page 7 of 9 Downloaded on : Mon Jan 17 05:18:34 IST 2022 R/SCR.A/3801/2013 ORDER DATED: 29/10/2021 pendens of the suit is for the purchaser to have a notice of the suit of the property in question disputed by way of registration of suit before the Civil Court. Such document of making it a notice of lis pendens to a suit, does not make it obligatory for Sub-Registrar to deny any registration of sale deed of those disputed property before the Civil Court. The effect of doctrine of lis pendens as embodied in Section 52 of Transfer of Property Act is not to annul all voluntary transfers effected by the parties to a suit but only to render it subservient to the rights of the parties thereto under the decree or order which may be made in that suit. Its effect is only to make the decree passed in the suit binding on the transferee if he happens to be third party person even if he is not a party to it. The transfer will remain valid subject to the result of the suit. .
11. Herein in this case, the document registered for notice of lis pendens of Regular Civil Suit No. 258 of 2009 came to be decreed on 15.12.2013, the relevant entry to that effect was made in the revenue record on 30.12.2013. The Sub-Registrar was bound to go by the procedure of the Registration Act, 1908. He had no reason to deny registration of the sale deed. The subsequent transfers, even after the document of registration declaring the lis pendens, would be valid subject to outcome of the Suit. Pendelite purchaser would be entitled to suffers the same legal rights as his vendor as may be eventually determined by the Court.
Thus, in view of the provisions of Transfer of Property Act, 1882 and the Registration Act, 1908, no criminal liability could be Page 8 of 9 Downloaded on : Mon Jan 17 05:18:34 IST 2022 R/SCR.A/3801/2013 ORDER DATED: 29/10/2021 attributed to the act of the Sub-Registrar of registering the sale- deed.
12. In the result, the petition is allowed. The impugned FIR being C.R. No. I-303 of 2013 registered with Sola High Court Police Station and the proceedings initiated in pursuance thereof are quashed and set aside qua the present petitioner. Rule is made absolute.
(GITA GOPI,J) SAJ GEORGE Page 9 of 9 Downloaded on : Mon Jan 17 05:18:34 IST 2022