vs Secretary Revenue Department & 2 on 19 January, 2016

C/SCA/403/2016 ORDER

IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

SPECIAL CIVIL APPLICATION NO. 403 of 2016

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JINNATBEN ABDULLABHAI W/O IQBAL ABDULLA JADHAV....Petitioner(s)

Versus

SECRETARY REVENUE DEPARTMENT & 2....Respondent(s)

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Appearance:

MR DIPAL R RAVAIYA, ADVOCATE for the Petitioner(s) No. 1

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CORAM: HONOURABLE MR.JUSTICE C.L. SONI

Date : 19/01/2016

ORAL ORDER

1. Following is the prayer made in paragraph No.11 (a) of the present petition filed under Article 226 of the Constitution of India.

11.(a) Directing the Mamlatdar, Visavadar, Dist.- Junagadh to mutate the entry in the village form No. 7x12 showing the second right of the petitioner with regard to lis pendense of the suit being Regular Civil Suit No. 58 of 2015 pending in the Court of learned Principal Civil Judge, Visavadar; and registered with the Office of Sub- Registrar vide Regn. No. 796 dated 21-7-2015;

2. It appears from the averments made in the petition that the petitioner has filed Regular Civil Suit No. 58 of 2015, in respect of the land bearing Revenue Survey No. 30 admeasuring acres 10-21 gunthas. Prayer made in such suit HC-NIC Page 1 of 11 Created On Fri Jan 22 01:47:22 IST 2016 C/SCA/403/2016 ORDER as stated by the petitioner, is for cancellation of sale deed No. 271 dated 20/03/1965. The petitioner got the lis pendens of the suit registered with the office of Sub-Registrar under the Registration Act and gave public notice of lis pendens for the land in question. The petitioner then made an application dated 21/07/2015 to the Mamlatdar and requested to Mamlatdar to enter the notice of lis pendens in 7x12 form.

The Mamlatdar, by impugned communication dated 14/09/2015, refused to accept such application on the ground that there was no instruction or order from the competent authority to make entry of notice of lis pendense in the revenue record.

3. Learned advocate Mr. Ravaiya for the petitioner submitted that once there was registration of pending suit by the Sub-Registrar under the Registration Act, notice of lis pendens under Section 52 read with Section 18 of the Transfer of the Properties Act was required to be entered in the revenue record and therefore, the Mamlatdar was not justified in refusing to make entry of such lis pendens by impugned order on the ground that there was no instruction or order from the competent authority. Mr. Ravaiya has relied on a decision of this Court in the case of Dipakbhai Manilal HC-NIC Page 2 of 11 Created On Fri Jan 22 01:47:22 IST 2016 C/SCA/403/2016 ORDER Patel & Anr. Vs. State of Gujarat reported in 2007(2)GLR, 1297.

4. The Court having heard learned advocate Mr. Ravaiya for the petitioner finds that though public notice of the lis pendens of the suit filed by the petitioner is given by the petitioner, there appears to be no provision in the Gujarat Land Revenue Code, 1879 ('Code'), to have entry recorded in the revenue record of lis pendens as per the notice of lis pendens given by the petitioner for the suit filed by her.

5. Section 135(B),135(C) and 135(D) reads as under:-

"135B. Record of rights.- A record of rights shall be maintained in the format, either manually or electronically or both formats, as may be prescribed for the village or City survey Area and shall include the following particulars:-

(a) the names of all persons other than tenants who are holders, occupants, owners or mortgagees of the land or assignees or rent thereof;

(b) the nature and extent of the respective interests of such persons and the conditions or liabilities if any, attaching thereto;

(c) the rent or revenue, if any, payable by such person;

(d) such other particulars as may be prescribed in this behalf.

(2) The said particulars shall be entered in the record of rights with respect to perpetual tenancies, and also with HC-NIC Page 3 of 11 Created On Fri Jan 22 01:47:22 IST 2016 C/SCA/403/2016 ORDER respect to tenancies of any other classes to which the State Government may, by notification in the Official gazette, direct that the provisions of this section shall apply in any local area or generally."

135C. Acquisition of rights to be reported.- Any person acquiring the right on any land by succession, survivorship, inheritance, partition, purchase, mortgage, gift, lease or otherwise any right as holder, occupant, owner,mortgagee, assignee of the rent thereof, shall make a report of such acquisition of such right, either manually or electronically, to the designated within the period of three months from the ate of such acquisition, and the said designated officer shall at once, give a written acknowledgment of the receipt of such report to the person making it:

Provided that where the person acquiring the right is a minor, or otherwise disqualified, his guardian or other person, having charge of his property, shall make the report to the designated officer:

Provided further that any person acquiring the right by virtue of a registered document shall be exempted from the obligation to report to the designated officer.

Explanation I- The rights mentioned above include a mortgate without possession, but do not include an easement or a charge not amounting to a mortgage of the kind specified in section 100 of the Transfer of Property Act, 1882 (IV of 1882).

Explanation II- A person in whose favour a mortgage is discharged or extinguished, or lease determines, acquires a right within the meaning of this Section."

HC-NIC Page 4 of 11 Created On Fri Jan 22 01:47:22 IST 2016

C/SCA/403/2016 ORDER

"135D. Register of mutations and register of disputed cases- (1)(a) The designated officer shall enter, manually or electronically by the automated process, in a register of mutations, every report made to him under section 135C or any intimation of acquisition or transfer of any right on land made to him, either manually or electronically under section 135C from the Mamlatdar, or a court of law.

(b) (i) When a claim or document of rights is produced before the designated officer, he shall, through bio-metric ID or any other mode as may be prescribed, verify the identity and the lawful rights of the transferor and the transferee.

(ii) Upon completion of verification, the necessary entries shall be made in the register of mutations in the manner as may be prescribed and the notice of the transaction under section 13D shall be served to the persons interested therein.

(2) Whenever a designated officer makes an entry, either manually or electronically in the register of mutations, he shall at the same time intimate to all persons appearing from the record of rights or register of mutations to be interested in the mutation and to any other person whom he hsa reason to believe to be interested therein in the manner as may be prescribed.

(3) It shall be the duty of the designated officer to enter the particulars of the objection if any received from any person either manually or electronically, in a register of disputed cases and to give written acknowledgment of the receipt of such objection to the person making it in the same manner.

(4) Orders disposing of objections entered in the register of disputed cases shall be recorded, either manually or electronically, in the register of mutations, after disposing it HC-NIC Page 5 of 11 Created On Fri Jan 22 01:47:22 IST 2016 C/SCA/403/2016 ORDER within the period as may be prescribed for this purpose and the same may be intimated to the concerned person having interest in the said mutation.

(5) Where no objection is raised by any person having interest in the transaction, either manually or electronically, within a period of thirty days, the mutation entry shall be certified electronically through an automated process or manually, as the case may be.

(6) the transfer of entries from the register of mutations to the record of rights shall be effected subject to such rules as may be made by the State government in this behalf:

Provided that an entry in the register of mutations shall not be transferred to the record of rights untill such entry has been duly certified.

(7) In the event, where the automated process of certification of entries has not been initiated, the entries in the register of mutations shall be verified and if found correct or after correction shall be certified in the Mutation Register, within a period as may be prescribed, by a Revenue Officer not below the rank of a Deputy Mamlatdar, and the same may be intimated to the concerned person having interest therein.

(8) Where the certifying officer has a reason to believe that such mutation entry violates or contravenes any of the provisions of the Act or any other Act, he shall not certify such entry and shall intimate the same with reasons in writing to the person concerned.

HC-NIC Page 6 of 11 Created On Fri Jan 22 01:47:22 IST 2016

C/SCA/403/2016 ORDER

(9) the provisions of this section shall apply in respect of perpetual tenancies and also in respect of any tenancies mentioned in a notification under sub-section (2) of section 135B but the provisions of this section shall not apply in respect of other tenancies, which shall be entered in a register of tenancies, in such manner and under such procedure as may be prescribed."

6. As could be seen from the above provision what is permitted or what is 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 HC-NIC Page 7 of 11 Created On Fri Jan 22 01:47:22 IST 2016 C/SCA/403/2016 ORDER 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 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 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 HC-NIC Page 8 of 11 Created On Fri Jan 22 01:47:22 IST 2016 C/SCA/403/2016 ORDER

(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 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 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 HC-NIC Page 9 of 11 Created On Fri Jan 22 01:47:22 IST 2016 C/SCA/403/2016 ORDER 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.

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 HC-NIC Page 10 of 11 Created On Fri Jan 22 01:47:22 IST 2016 C/SCA/403/2016 ORDER the suit, as there is no provision in Code for such purpose.

10. In such view of the matter, the Court finds that no interference is required in the impugned order passed by the Mamlatdar. Hence, the petition is rejected.

(C.L.SONI, J.) MANOJ KUMAR HC-NIC Page 11 of 11 Created On Fri Jan 22 01:47:22 IST 2016

Hi,

Unfortunately there is no procedure.

However you can ask the court for injunction and issue instructions to the district registrar not to effect any transactions on the said properties. If you ask specifically, courts grant orders restraining the registrar from registering transactions on properties.

1. IT IS SETTLED LAW THAT COURT CANNOT PASS DIRECTION TO MAKE ENTRY IN REVENUE RECORD THAT PROPERTY IN CONCERNED IS LIS PENDENS

2. The judgment given below support above mentioned position of law.

Ghanshyam vs State on 20 March, 2009

Author: K.A.Puj,&Nbsp;

Gujarat High Court Case Information System

Print

SCA/1628/2009 12/ 12 JUDGMENT

IN

THE HIGH COURT OF GUJARAT AT AHMEDABAD

SPECIAL

CIVIL APPLICATION No. 1628 of 2009

For

Approval and Signature:

HONOURABLE

MR.JUSTICE K.A.PUJ

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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, 1950 or any order

made thereunder ?

5

Whether

it is to be circulated to the civil judge ?

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GHANSHYAM

JASHWANTLAL RAVAL - Petitioner(s)

Versus

STATE

OF GUJARAT & 1 - Respondent(s)

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Appearance

:

MR MAHESH

BHAVSAR for Petitioner(s) : 1,

Ms Trusha Patel

Asstt. GOVERNMENT PLEADER for Respondent(s) : 1,

None for

Respondent(s) : 2,

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CORAM

:

HONOURABLE

MR.JUSTICE K.A.PUJ

Date

: 20/03/2009

ORAL

JUDGMENT

1. The petitioner has filed this petition under Article 226 of the Constitution of India praying for quashing and setting aside the impugned order dated 31st August 2008 passed by the Mamlatdar on or after 30th September 2008. The petitioner has also prayed for a direction to the Mamlatdar to certify the Entry No. 21389 registered in the revenue record. The case of the petitioner is that the petitioner with ten other persons filed a Civil Suit No. 3 of 2008 before the Court of learned Principal Civil Judge, Sanand for declaration and injunction against one Arvindbhai Harilal Raval and five other persons. In the said suit the plaintiffs and the defendants are the legal heirs of Jivanbhai Lallubhai Raval. Since there was some family dispute regarding the land of Khata no. 731,1439 and 1440 situated in the sim of Sanand village, Taluka, Sanand, the above suit was filed.

2. The complete details of the dispute between the parties in the Civil Suit are given in the " Lis pendens" No. 2206 dated 24th March 2008 which was produced before the Talati, to post appropriate entry in the revenue record and to bring it on revenue record. That Regular Civil Suit No. 3 of 2008 is pending before the Civil Court, Sanand for the land in dispute. Therefore, Kacha entry No. 21389 was posted in the revenue record. A copy of the said entry was issued on 30th September 2008 from the office of the Deputy Mamlatdar Sanand. It is, therefore, presumed that the Revenue record shows the said Kacha entry till 30th September 2008. However, to the shock and surprise of the petitioner, the Mamlatdar,Sanand passed an order and cancelled the said entry after 30th September 2008, but posted the date of the order of cancellation of the entry as 31st August 2008.

3. It is therefore, the case of the petitioner that the Mamlatdar created bogus record only with a view to protect some third party's interest i.e interest of one Prabhudas Ishwardas Patel and one Ajitbhai Thakorbhai Desai, who have purchased some of the disputed land of Khata no. 731 by registered Sale Deed No. 5896 executed on 11th September 2008 from one Arvind Harilal Rava and one Mrs Padmaben Harilal Raval. This was done only with a view to show that the said purchasers are the bonafide purchasers of the land in question and on the day on which they have purchased the said property there was no entry regarding Lis pendens.

4. It is this order of the Mamlatdar which is under challenge in the present petition.

5. Mr Mahesh Bhavsar learned advocate appearing for the petitioner has submitted that the action of the Mamlatdar is contrary to the provisions of law. It is further submitted that Lis Pendens is registered under Section 18 of the Registration Act. Thereafter, the said 'Lis pendens' was given to the revenue authority to enter the said registered document in the revenue record. Once the registered document is there pertaining to the property in question, it is obligatory on the part of the Mamlatdar to enter the same in the revenue record. It is further submitted that the record itself shows that the Mamlatdar passed the backdated order with a view to give illegal benefit to some third party. He has further submitted that the order of cancellation of entry regarding 'Lis pendens' passed by the Mamlatdar is contrary to decision of this Court in the case of Dipakbhai Manilal Patel & Anr. Vs. State of Gujarat & Anr reported in 2007(2) GLR 1297, wherein it is held that if the provisions of section 52 read with 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 Registeration 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. It is further held that the stand of the Mamlatdar that such documents are not as per the provisions of the Transfer of the Property Act is not correct and once a registered document is there, pertaining to the property in question, it is required of 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. Mr Bhavsar has therefore, submitted that in view of the binding decision of this Court, it is not open for the Mamlatdar to cancel the entry in question. He has therefore, submitted that the petition is required to be admitted and the order of the Mamlatdar is required to be stayed.

6. Ms.

Trusha Patel learned Assistant Government Pleader appearing for the state government, on advance copy being served to the Government Pleader's office has submitted that what is challenged under the present petition is the order passed by the Mamlatdar. The petitioner has straightaway challenged the said order before this Court. Under the administrative heirarchy. The order in question should be challenged first before the Deputy Collector and thereafter before the Secretary, Revenue Department. It is only against the order of the Secretary, Revenue Department a writ petition under Article 226 or 227 can be filed before this Court. If any alternative remedy is available to the petitioner, this Court should not exercise its extraordinary writ jurisdiction under Article 226 and 227 of the Constitution of India.

7. She has further submitted that the allegations regarding the back dated entry cannot be gone into by this Court in exercise of its writ jurisdiction which requires factual investigation which can be done only in the appeal and /or revision that may lie to the concerned authorities. She has further submitted that the decision of this Court relied upon by the petitioner does not lay down any law and it is simply a direction issued to the Mamlatdar, looking to the facts of the particular case especially when the Mamlatdar has expressed the opinion that the documents are not as per the provisions of the transfer of property Act. She has further submitted that the relevant provisions contained in Section 135 (B) (C) and (D) of Bombay Land Revenue Code, 1879 were not brought to the notice of this Court nor any argument on that issue was canvassed and hence, it cannot be said that this Court has laid down any law with regard to the recording of an entry of Lis pendens. She has, therefore, submitted that Mamlatdar's order of cancellation of the entry on the ground that there is no legal provision to record such entry, does not call any interference by this Court.

8. Ms Trusha Patel further submitted that Section 52 of the Transfer of Property Act read with amendment applicable to State of Gujarat merely lays does procedure for registration of notice of Lis Pendence. It does not confer any rights on the persons seeking such registration. Sections 135B and 135C of the Code and keeps record of rights, interests etc of only those persons who are either tenants, holders, occupants, owners or mortgages of the land of assignees of the rent or revenue thereof. She has, therefore, submitted that the procedure for enforcing a right is no portion of that right nor does it alter or affect it. In support of this submission she relied on the decision of Full Bench of Allahabad High Court in the case of Ganga Sahai Vs. Kishen Sahai (1884) GLR VI, Alla 262, and decision of Calcutta High Court in the case of Bhobo Sudari Debi Vs Rakhal Chunder Bose (1886) GLR XII cal. 583.

9. Having heard the learned advocates appearing for the parties and having considered the rival submissions in light of the earlier decision of this Court in the case of Dipak Manilal Patel (supra), the Court is of the view that Ms. Patel the learned Assistant Government Pleader is right to an extent that the challenge to the entry generally cannot be entertained by this Court, as there is adequate alternative, and efficacious remedy is available to the petitioner. However, in the present case, the petitioner has taken a stand that the order of the Mamlatdar is contrary to the binding decision of this Court and hence, the petitioner has directly approached this Court. The Court, therefore, instead of dismissing the petition on the ground of alternative remedy being available to the petitioner considers the submission made on behalf of the petitioner as to whether the order passed by the Mamlatdar is in contravention of the decision of this Court. It is true that before this Court, the order cancelling the entry of the registered document for Lis pendens was under challenge and after considering the provisions of section 52 of the Transfer of Property Act read with amendment for Gujarat State the Court observed that once the registration is there pertaining to the property in question it is required of the mamlatdar to enter the same in the revenue record of the government. The Court, was however, not called upon to decide as to whether such registered document is required to be entered into in the revenue record keeping in mind the provisions of section 135B, 135C and 135D of the Bombay Land Revenue Code.

10. Section 135(B) deals with the record of rights. It reads as under :

A record of rights shall be maintained in every village and such record shall include the following particulars :- (a) the names of all persons other than tenants who are holders, occupants, owners or mortgagees of the land of assignees of the rent or revenue thereof;

(b) the nature and extent of the respective interests of such persons and the conditions or liabilities (if any) attaching thereto; (c) the rent of revenue (if any) payable by or to any of such persons; (d) such other particulars as the State Government may prescribe by rules made in this behalf. (2) Provided that the said particulars shall be entered in the record of rights with respect to perpetual tenancies, and also with respect to tenancises of any other classes to which the State Government may, by notification in the (official Gazette), direct that the provisions of this section shall apply in any local area or generally.

11. A plain reading of section 135(B) makes it clear that a record of rights shall be maintained in every village and such record shall include certain particulars. The particulars are given in sub clauses (a) to (d) of Section 135 (B). sub clause (a) talks of names of persons other than tenants who are holders, occupants, owners or mortgages of the land of assignees of the rent or revenue thereof. The petitioner or the other plaintiffs in the suit cannot be said to be either holders, occupants, owners or mortgagees of the land. When they are not the persons falling under sub clause (a) there is no question of making an entry with regard to the nature and extent of the respective interests of such persons and the conditions or liabilities (if any) attaching thereto as required in sub clause (b). Similarly sub clause (c) is not applicable as the rent of revenue (if any) payable by or to any of such persons is required to be recorded. The petitioner's case does not fall in sub clause (d) as the State Government has not prescribed by rules to record the particulars regarding Lis pendens in the record of right. Provisions of sub section 2 of 135B are also not applicable to the facts of the present case.

12. Section 135 (C) talks about the acquisition of rights to be reported. It reads as under :

"Any person acquiring by succession, survivorship, inheritance, partition, purchase, mortgage, gift, lease, or otherwise, any right as holder, occupant, owner, mortagagee, landlaord or tenant of the land or assignee of the rent or revenue thereof (shall report in writing) his acquisition of such right to the village accountant within three months from the date of such acquisition, and the said village accountant shall at once give a written acknowledgment of the receipt of such report to the person making it:"

Provided that where the person acquiring the right is a minor or otherwise disqualified,his guardian or other person acquiring the right is a minor or otherwise disqualified, his guardian or other person having charge of his property shall make the report to the village accountant:

Provided further that any person acquiring a right by virtue of a registered document shall be exempted from the obligation to report to the village accountant.

Explanation

(i) The rights mentioned above include a mortgage without possession, but do not include an easement or a charge not amounting to a mortgage of the kind specified in section 100 of the Transfer of Property Act, 1882.

Explanation

(ii) A person in whose favour a mortgage is discharged or extinguished, or lease determines, acquires a right within the meaning of this section.

13. If one looks at the provisions contained in Section 135(C) of the Code, it cannot be said that the petitioner has acquired any right by succession, survivorship, inheritance, partition, purchase, mortgage, gift, lease or otherwise as holder, occupants, owner, mortgagee, land lord or tenant of the land or assignee of the rent thereof. He is therefore, not supposed to report to the village accountant the registration of the Lis pendens, nor the village accountant is under any obligation to make any entry in this regard. As a matter fact simply by filing the suit in the Civil Court and by getting the said Lis pendens registered, the petitioner is not acquiring any right which is required to be recorded in the revenue record of the village maintained by the village accountant.

14. The petitioner's case also does not fall within the purview of Section 135 (D) (1) of the Bombay Land Revenue Code. Section 135D (1) reads as under :

The village accountant shall enter in a register of mutations every report made to him under section 135(C) or any intimation of acquisition or transfer of any right of the kind mentioned in section 135C received from the Mamlatdar or a Court of Law.

This section requires the village accountant to enter in a registration of mutations only the reports made to him under section 135 (C) or any intimation of acquisition or transfer of any right of the kind mentioned in Section 135 (C) received from the Mamlatdar or a Court of law. The Civil Court has not given any intimation to record the Lis Pendens. Mere registration of the notice of Lis Pendens would not make the petitioner entitled to get such entry registered. The decision of this Court holds field only to the extent that under section 52 of the Transfer of Property Act read with amendment for Gujarat State enables the persons to get such Lis pendens registered. It is therefore, rightly said that the essential purpose of this provision 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 particular suit is pending before the competent court. This observation made by this Court in the above judgment, however, would not automatically entitle the petitioner to get entered the notice of lis pendence in the revenue record. For that purpose, the petitioner has to satisfy the conditions laid down in section 135(B), 135(C) and 135(D), (1) of the Bombay Land Revenue Code.

15. The Court finds substance in the submissions of Ms. Patel and merely because some procedure is prescribed in any particular statute, that would not par take the character of right. In Ganga Sahai's case (supra) the Court held that their rights and liabilities under their contract and the relief they are entitled to in respect of such rights and liabilities are different things from the procedure necessary to enforce such rights, liabilities and relief. Although the procedure for redemption and for closure of mortgage by conditional sale has been altered, it can scarcely be said that the mortgagor has been injuriously affected by the change. Similarly in Bhobi Sunder Debi's case (supra),the Court held that there is a clear distinction between relief and the mode or procedure for obtaining such relief. The relief remains unaffected by the mortgagor and mortgagee and the relief in respect of such rights and liabilities are the same under the Transfer of Property Act as they were before. A different procedure for enforcing such rights and obtaining such relief has, however, been adopted.

16. Considering this legal position, the Court holds that the Mamlatdar was justified in canceling the entry after observing that there is no provision in Bombay Land Revenue Code to enter such entry of lis pendence in the revenue record. The Court, therefore, does not find any infirmity in the order passed by the Mamlatdar. Hence, the petition is dismissed at the threshold.

(K.A.

Puj,J.) mary

Gujarat High Court

Dipakbhai Manilal Patel And Anr. vs State Of Gujarat Thro. Secretary ... on 4 August, 2006

Equivalent citations: AIR 2007 Guj 1, (2007) 2 GLR 1297

Author: J Patel

Bench: J Patel

JUDGMENT Jayant Patel, J.

1. Rule. Mr. Mengdey, learned AGP waives service of rule for respondent Nos. 1 and 2 and with the consent of the learned advocate appearing for both the sides, the matter is further heard today.

2. The only question, which arise for consideration of this Court is whether the action of the Mamlatdar denying entry of a registered document for lis pendens is legal and valid or not

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 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 Squestion the words and figures Sif 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 Sproperty where it occurs for the second time, the words Safter 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, Section 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 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 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.

9. Petition is allowed to the aforesaid extent. Rule made absolute accordingly. Considering the facts and circumstances, there shall be no order as to costs.

It is not legally compulsory to make a entry in the revenue record of a property even if there is a pending litigation.Hence there would be no decision in regard there to.

There is no provision in the code for recording of entry of lis pendens in the

revenue record. regarding this please provide me judgments

Your question has an answer that there is no provision to record lis pendens in the revenue records.

For creating an entry in the revenue record about pending court case even a stay order by the court shall not help you to create a record.

The revenue records cannot be endorsed with the pending case details. If you have any dispute over the revenue records, you may move an application to the concerned revenue officer who will order for an inquiry and try to sort out the dispute or refer to the revenue court.

You do not need judgments on this, and I doubt if there is any. The pendency of lis is never recorded in revenue documents.