IN THE HIGH COURT OF GUJARAT AT AHMEDABAD R/SPECIAL CIVIL APPLICATION NO. 5218 of 2022 ==========================================================

JIVRAJBHAI MOHANBHAI PATEL Versus STATE OF GUJARAT ==========================================================

Appearance:

S M KIKANI(7596) for the Petitioner(s) No. 1 MR MEET THAKKAR, AGP for the Respondent(s) No. 1 NOTICE SERVED BY DS for the Respondent(s) No. 2 ========================================================== CORAM:HONOURABLE MS. JUSTICE SANGEETA K. VISHEN Date : 11/04/2022

ORAL ORDER

1. With the consent of the learned Advocates appearing for the respective parties, the matter is taken up for final disposal.

2. Issue Rule returnable forthwith. Mr. Meet Thakkar, learned Assistant Government Pleader waives service of notice of rule on behalf of the respondents.

3. By this petition, the petitioner has prayed for direction to the respondent No. 2 i.e. the Mamlatdar & Executive Magistrate, Choryasi (hereinafter referred to as "the Mamlatdar") to register and mutate the notice of lis pendens in the revenue record in relation to the land bearing Survey No. 49, Block No. 46 (New Block no. 46/A and 46/B) (hereinafter referred to as "the subject land").

4. Facts in nutshell are that the petitioner has filed the Special Civil Suit No. 158 of 2021 before the learned 20^th Additional Senior Civil Judge, Surat for specific performance of agreement to sell dated 03.04.2002 as well as to set aside the subsequent sale deed. The learned Judge, in the Special Civil Suit No. 158 of 2021, has issued notice, which was made returnable on 11.10.2021. On

11.10.2021, the petitioner i.e. the original plaintiff, had applied for registration of notice of lis pendens before the Sub-Registrar. Apropos which, the Sub-registrar has registered the notice of lis pendens at Sr. No. 6115 of 2021. As a result whereof, on 27.10.2021, the petitioner preferred an application before the Mamlatdar for mutation of the entry of lis pendens in the revenue record alongwith the registered document so also the various judgments of this Court. The grievance of the petitioner, is that the Sub-Registrar disregarding the fact that lis pendens is duly registered before the office of the Sub-Registrar under the provision of Section18 of Registration Act, 1908 read with Section 52 of Transfer of Property Act, 1882 vide its written communication dated 01.01/02.2022, disposed of the application of the petitioner citing the judgment of this Court in the case of Ghanshyam Jashwantlal Raval vs. State of Gujarat reported in (2009) 2 GLR 1743 so also the fact that there is no provision in the revenue manual for recording the lis pendens. Reliance is also placed on the order dated 29.09.2017 passed by the Special Secretary, Revenue Department. Being aggrieved, the petitioner has filed the captioned writ petition with the aforementioned prayers.

5. Mr.S.M.Kikani, learned Advocate, at the outset, submitted that the communication dated 01.01/02.2022 issued by the Mamlatdar is in violation of principles of natural justice inasmuch as while disposing of the application of the petitioner, no opportunity was offered to him to put forth his case. It is submitted that the petitioner had filed the detailed application incorporating the provisions so also the judgments however, disregarding the provisions and the judgments, which were holding the field, the Mamlatdar has disposed of the application placing erroneous reliance on the judgment of this Court in the case of Ghanshyam Jashwantlal Raval (supra).

6. It is submitted that in the case of Ghanshyam Jashwantlal Raval (supra), this Court while interpreting the provisions of Section 135C of the Gujarat Land Revenue Code, 1879 (hereinafter referred to as "the Code of 1879") has held and observed that mere registration of the notice of lis pendens would not make the party entitled to get such entry registered. It is submitted that the said judgment, was challenged by way of Letters Patent Appeal No. 1414 o