Full Judgment Text
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO.7040 OF 2013
Pramod Moreshwar Tattu .. Petitioner
Versus
SubDivisional Officer, Baramati
and others .. Respondents
WITH
WRIT PETITION NO.8042 OF 2014
Narayan Atmaram Bhoir & ors .. Petitioner
Versus
The Tahsildar, Thane Division,
Thane and others .. Respondents
…
Mr.A.V.Anturkar, Sr. Counsel i/b Sugandh B. Deshmukh for the
petitioner in WP 7040/13.
Mr.R.M.Haridas with K.S. Patil for petitioner in WP 8042/14.
Mr.B.V. Samant, AGP for respondent nos.1 to 3.
Ms.Neha Doshi i/b Vidhi Partners for respondent no.5.
CORAM: S.C. DHARMADHIKARI &
SMT. BHARATI H.DANGRE, JJ.
st
RESERVED ON : 21 JUNE 2018
th
PRONOUNCED ON : 17 JULY 2018
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JUDGMENT (Per SMT.BHARATI H. DANGRE, J)
1 The two writ petitions revolve around a common
issue as to whether it is mandatory for the State Government to
record an entry of lis pendence in the land record, including the
7/12 extracts maintained under the Maharashtra Land Revenue
Code, 1966. (for short “Land Revenue Code”). In Writ Petition
No.7040 of 2013, a challenge is also raised to a Government
Resolution issued by the Revenue and Forest Department of the
st
Government of Maharashtra on 21 September 2017 by which
the State Government had issued directions not to record lis
pendence in the 7/12 extract, and the petitioner prays for
quashing and setting aside of the same.
2 Since the parties have agreed to argue the matter
finally, Rule. Rule returnable forthwith.
Heard finally by consent of the parties.
3 In order to enable us to adjudicate the issue in the
writ petitions, it would be necessary to have some factual
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statements which would give an insight into the backdrop, in
which the issue has been raised in the present petition.
Writ Petition No.7040 of 2013 seeks a direction to
the State of Maharashtra to take entries of the lis pendence in
the land records. The petitioner before the Court has
mortgaged the property Gat No.41/4 admeasuring 1 Hectare 12
Ares situated at Village Patas, Taluka Daund, District Pune in
favour of one Shri Deshpande which was subsequently
subjected to change of hands from time to time until it was
purchased by one Anand R Goyal, the respondent no.4 to the
petition. The said property was assessed to 0.13 paisa. The
name of the last respondent was mutated vide Mutation Entry
No. 11620 which is placed on record along with the petition.
The petitioner had filed a Civil Suit against Shri Madhukar V.
Deshpande and 55 others for redemption of the mortgage in
the year 1991 which came to be numbered as Civil Suit No.152
of 1991 and the suit is pending for adjudication in the Court of
Civil Judge, Jr. Division, Daund. During the pendency of the
said suit, the petitioner, with an objective of protecting the
property which is a subject matter of the Regular Civil Suit
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no.152 of 1991 registered a lis pendence notice and gave
intimation to the Tahsildar who made an entry to that effect
vide Mutation Entry no.11645. Against the said mutation
entry, the respondent no.4 preferred an appeal to the Sub
Divisional Officer, Baramati (RTS) Appeal No.133 of 2012 on
th
15 May 2012 and the SubDivisional Officer by an order dated
th th
8 May 2013 cancelled the said mutation entry effected on 10
January 2012. The SubDivisional Officer, Baramati recorded a
finding that it is not permissible to effect a mutation entry on
the basis of lis pendence and observed that just because a civil
suit was filed, it did not create a right in the property, and as
per Section 149 of the Maharashtra Land Revenue Code, 1966,
the mutation entries are to be effected only after acquiring the
rights in the same. Another ground on which the Sub
Divisional Officer allowed the appeal was in respect of non
compliance of the procedure prescribed in Section 150 of the
Maharashtra Land Revenue Code and it was observed that the
mutation entry without giving notice to other side, was illegal
and resultantly, liable to be set aside.
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Being aggrieved by the said order of the sub
divisional officer, the petitioner has approached this Court by
placing reliance on a communication addressed by the
Additional Collector, Pune to all the Tahsildars, thereby
directing that the lis pendence notice should be registered and
mutation entries should be recorded in the 'other right column'
in the 7/12 extracts and according to the petitioner, the said
directives issued would bind the subdivisional officer. The
petitioner also places reliance on the rules framed in exercise of
powers conferred under the Maharashtra Land Revenue Code
i.e. Maharashtra Land Revenue Records of Rights and Register
(Preparation and Maintenance) Rules 1971.
4 During the pendency of the writ petition, the State
st
Government issued a resolution on 21 September 2017, which
according to the petitioner, is in exact contrast to what the
claim of the petitioner is and therefore, the petitioner assails
the said Government Resolution and prays that it be quashed
and set aside, as according to him, by not taking note of the lis
pendence into the land records, the rural population is likely to
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be placed in an disadvantageous position as 7/12 extract is the
only first hand information to assess the ownership and other
details in respect of a particular property and this is the only
document according to him which is accessible to a common
man.
5 Writ Petition No.8042 of 2014 is filed by the
petitioner in respect of agricultural land bearing survey
no.95/7B and 95/7C situated at village Balkam Taluka, District
Thane and the petitioner claims to be the owners and occupants
of the said property. In the said case, the properties in question
were originally owned by one Shri Dewoo S. Bhoir, the paternal
uncle of the petitioner's father and subsequent to his death,
Atmaram – the father of the petitioner acquired the right in the
property by way of succession and inheritance and his name
came to be recorded in the books of record by way of mutation
entry. The petitioners are the legal heirs of Shri Atmaram and
the names of all the legal heirs were recorded in the books of
record. It is the case of the petitioner that one Raibai Maruti
Bhoir who had no concern with the property nor possessed any
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right, title or interest over the said property, had executed a
sale deed in favour of Respondent no.5 Company in the year
1961 and the respondent no.5 made an attempt to record their
names in the books of record by making an application before
the Tahsildar which was objected by Shri Atmaram Bhoir –
father of the petitioner. The said application filed by
th
respondent no.5 came to be rejected on 9 December 1963 by
the Tahsildar and the said order was accepted by respondent
no.5. However, another attempt was made by respondent no.5
in the year 1977 for recording its name, but once again the
application came to be rejected. The petitioners, therefore,
were constrained to file Regular Civil Suit against respondent
no.5, but during the pendency of the suit, the respondent no.5
removed the encroachment caused on the petitioner's land and
therefore, the said suit was not prosecuted. In the year 2012,
the respondent no.5 moved another application for recording
the name in the books of record, which in spite of the objection
st
of the petitioners came to be allowed by the Tahsildar on 21
July 2014. The petitioner preferred an Appeal before the Sub
Divisional Officer under Section 247 of the Maharashtra Land
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Revenue Code and the said Appeal is pending. In this case, the
petitioner had registered the notice of lis pendence before the
Office of Registrar on the basis of the pendency of Regular Civil
Suit No.776 of 2014 and moved an application before the
Tahsildar for effecting the entry of lis pendence in the 'other
right column' of property in question. The Circle Officer
cancelled the said entry by relying upon the circulars issued by
the Collector, Konkan Division. The petitioner, then aggrieved
by the action of the Tahsildar in entertaining the application of
respondent no.5 and approached this Court by way of writ
petition.
6 The learned senior counsel Shri Anturkar who
represents the petitioner in Writ Petition No.7040/13, while
advancing his submissions in support of the petition, conceded
that there is no express provision in the Land Revenue Code,
1966 which makes it imperative for the Revenue authorities to
make an entry in the 7/12 extracts relating to the pendency of
civil suit. He would, however, submit that this is the only
mechanism which would enable a layman and specifically a
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person from rural area to get knowledge about pendency of the
litigation in respect of any property with which he intends to
deal. He would submit that the citizens face acute hardship,
since there is no mechanism formulated by the revenue
authorities or any other department of Government of
Maharashtra, by which a citizen is informed about the
pendency of litigation, in case he proposes to purchase any
property. According to him, this has resulted into a situation
which is chaotic and the transactions are being entered into
without any knowledge about any pending civil litigation
revolving around the said property. The learned senior counsel
would make a reference to the judgment of the Hon'ble Apex
1
Court in case of T.G. Ashok Kumar Vs. Govindammal and anr
and would specifically rely upon paragraph no.19 of the said
judgment of the Hon'ble Apex Court. He would further submit
that in the backdrop of the hardship, anxiety and unnecessary
litigation caused on account of absence of a mechanism for
prospective purchaser to verify whether a property is subjected
to any pending suit or a decree of attachment, a solution which
1 2010(14) SCC 370
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has been found for this problem in the State of Maharashtra by
an appropriate amendment to Section 52 of the Transfer of
Property Act, by Bombay Act IV of 1939, the Hon'ble Apex
Court had expressed a hope that the Law Commission and the
Parliament considers such amendment or other suitable
amendment to cover the existing void in title verification or due
diligent procedure and provisions which could be introduced
for compulsory registration of such notices in respect of decree
and in regard to attachment of immovable properties. The
learned senior counsel would also place reliance on the Division
Bench judgment of this Court in Writ Petition No.2640 of
2010 wherein the Hon'ble Division Bench had recommended to
the Government to issue a circular like the one issued by the
Nasik Collectorate, so as to ensure that the pendency of the suit
in respect of the properties sought to be transferred by any
means is brought on record, while effecting an entry in 7/12
and other right column. Thus, in short, the learned senior
counsel emphasized that in the absence of any express
provision in the Land Revenue Code, 1966, it is necessary to
find out some solution and he would submit that section 52 of
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the Transfer of Property Act itself has been brought on the
statute book with an object of taking cognizance of the
pendency of a suit or proceedings and by virtue of the said
provision, a notice of pendency of such suit or proceeding is
registered under Section 18 of the Indian Registration Act. On
the notice so registered, the property cannot be transferred or
otherwise dealt with by any party to the suit so as to affect the
rights of any other party thereto under any decree or order,
intends to protect such transactions. He would thus submit that
if such is the situation, then taking a note of the same in the
record of rights would be in the larger public interest.
7 The learned counsel for the petitioner Advocate Shri
Kishor S Patil would advance his submissions in support of his
Writ Petition no.8042 of 2014 and would pray for quashing and
st
setting aside of the said Circular dated 21 September 2017.
He would adopt the arguments of the learned senior counsel
and he would submit that the whole purpose of registering
notice of lis pendence is rather defeated by issuance of such a
circular which is impugned in the petition. He would submit
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that as in the case of his petition, suit filed by the petitioner is
pending and even the notice of lis pendence is duly registered in
accordance with law. He would submit that recording of lis
pendence in revenue record itself does not create any right over
the property, however, by such recording the transferee is made
aware of a pending litigation. He would further submit that in
normal course, while purchasing a property, a purchaser would
necessarily verify from the revenue record and if such an entry
of lis pendence is made, it would obviously help the transferee
and it would curtail further litigation. He would submit that
making entry of lis pendence in Revenue record does not, in any
way, prejudice rights of any person, but the lis pendence as per
section 52 of the Transfer of Property Act merely makes it
subservient to the rights of the parties to the litigation, though
it does not create or affect rights of any person. He, would
thus, pray for quashing and setting aside of the said Circular
since it is also contrary to the judgment delivered by this Court
th
on 20 October 2010 in Writ Petition No.2640/2010 on which
the learned senior counsel Shri Anturkar has also placed heavy
reliance.
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As against the submissions made on behalf of the
petitioner, the learned AGP Mr.Samant would oppose the
petition and would pray for upholding of the impugned
Government Resolution. He would submit that the petition
was initially filed, seeking directions to the State Government
to issue circular to all District Collectors in Maharashtra State,
thereby requiring entry of lis pendence to be recorded in the
'other rights column' in village form no. 7/12 maintained by the
revenue authorities, but the State has now come up with a
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policy by issuing resolution on 21 September 2017, thereby
directing the Revenue authorities not to take entries in respect
of lis pendence in the revenue records. Mr.Samant would submit
that the State Government is of the firm view that such entries
regarding lis pendence are not required to be made in the village
form no.7/12 by the revenue authorities and he would justify
the said stand of the State Government on the ground that
perusal of the provisions contained in the Land Revenue Code,
1966, specifically Section 148 of the Maharashtra Land
Revenue Code does not permit such an entry being recorded.
Mr.Samant would submit that section 148 of the Maharashtra
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Land Revenue Code, 1966 enumerates the particulars to be
included in the record of rights which is to be maintained in
every village. He would submit that the particulars to be
included in the revenue record pertains to the nature and
extent of the interest of holders, occupants, owners,
mortgagees, lessees and tenants, and conditions or liability
attached to such interest. He would submit that the pendency
of any proceedings or suit before any court or other quasi
judicial authority does not amount to any kind of right in
praesenti and the right of litigant comes into existence on the
passing of decree or judgment or order by the concerned Court
after adjudication of the lis.
8 Mr.Samant would further submit that though
section 52 of the Transfer of Property Act recognizes the
principle that the result of pending litigation is binding on the
parties to the case and persons claiming through them, and it
puts a restriction on the rights of parties to suit or proceedings
to transfer the property, which is subject matter of the said
litigation, however, at the same time, the said section does not
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render any transfer done in violation of the said provision to be
void ab initio hereto.
He would place reliance on the affidavit filed by the
Joint Secretary, Revenue and Forest Department to oppose the
said writ petition. He would submit that in the affidavit in
reply, it is categorically stated that mere filing of the legal
proceedings before a Court or quasi judicial authority, does not
perse create any right in respect of immovable property, nor
such filing ipso facto results in creation or modification or
deletion of any right in or touching the immovable property. It
is further stated in the affidavit that the revenue records are
mere reflection of the rights claimed by a person in respect of
any immovable property and reported to revenue authority and
the entries are always subject to adjudication of title rights by
competent court and are bound to be created after final orders
or decrees of competent court.
The affidavit on which Mr.Samant would rely,
refers to the State Amendment of the then State of Bombay
being Bombay Amendment Act XIV of 1939 and it states that
the Amendment Act shall apply to properties situated wholly or
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partly in the city of Bombay (Mumbai) from the date of
notification in the official gazette and provides for similar
notification extending applicability of the Amending Act to the
other areas to be issued. Then, a reference is made to Section
18 of the Registration Act which provides for optional
registration of certain documents and to section 18(ee) which
relates to notices of pending suits or proceedings referred to in
section 52 of the Transfer of Property Act, 1882. It is further
stated in the affidavit that the Transfer of Property Act, 1882
stands further amended by the Bombay Act No.57 of 1959
th
passed on 14 October 1959, which extended the provisions of
the Amending Act XIV of 1939 to the rest of the areas of
Bombay State. According to the State Government, the
recording of lis pendence notice in the 'other rights column' in
village form no.7/12 would not serve any gainful purpose. On
the other hand, the State Government expresses an
apprehension that it would give an erroneous impression, as if
certain rights in respect of the concerned immovable property
are held by some third parties which would affect the
otherwise clear title of the holder of the land. The affidavit
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further states that in view of the aforesaid decision, the
respondent State Government thought it fit not to permit
registration of entries in revenue records in respect of notices of
lis pendence and the decision taken by the State Government is
just and proper and it is prayed that the writ petition be
dismissed.
9 In the backdrop of these facts and on consideration
of the arguments of rival parties, the issue which we are called
upon to deal is whether a writ in the nature of mandamus can
be issued, directing the State Government to record an entry of
lis pendence in the revenue records and specifically in light of
the Bombay Amendment Act XIV of 1959 extending the said
provisions to the area of the Bombay State. For arriving at a
definite conclusion, we would have to refer to the provisions of
the Maharashtra Land Revenue Code and also the provisions as
contained in the Transfer of Property Act dealing with lis
pendence.
The Maharashtra Land Revenue Code, 1966 is an
Act to unify and amend the law relating to land and land
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revenue in the State of Maharashtra. The State of Maharashtra
which came into existence in 1960 by amalgamation of
territories of Western Maharashtra of Bombay Presidency,
Marathwada Region of Hyderabad State, Deccan Region of
British Reign and Nagpur of Central Province and for Berar
districts of Madhya Pradesh. In these regions, different revenue
systems were already in existence like the Bombay Land
Revenue Code, Berar Land Revenue Code, Madhya Pradesh
Land Revenue Code etc. However, on formation of the State of
Maharashtra, the need was felt to have a uniform Land
Revenue Code and thus, the Maharashtra Land Revenue Code
1966 was formulated by unification of various existing Codes.
The Maharashtra Land Revenue Code was brought into force
with effect from 15th August 1967, after receiving the assent of
the President on 22nd December 1966. It contains a detailed
mechanism in relation to collection of Land Revenue, powers of
Revenue officers, rights and liabilities of holders of land from
State Government, agricultural tenure and other matters
relating to land and liabilities incidental thereto. The
underlined principle which runs through the entire Code is the
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principle of "superior holder" and in terms of section 20 of the
Maharashtra Land Revenue Code, the entire piece and parcel of
the land in the State in whatsoever form, including the public
roads, bed of sea, streams, lakes etc, mentioned in Section 20
which are not the property of others, the title vests in the State
Government and it is lawful for the authority mentioned in the
Code to dispose of such land in such manner as may be
prescribed by the State Government. The Land Revenue Code
categorizes the different classes of land and land holders.
Chapter IV makes all lands liable for payment of Revenue to the
State Government unless and until they are exempted. Chapter
X of the Code provides for the maintenance of land records.
The record of rights is the most important statement of the land
revenue records since it reflects the details in relation to the
holder of such land, extent of interest of the holder, the
liabilities attached to the said land, the revenue payable on
account of holding of such land. It is imperative to maintain
the record of rights in every village and section 148 sets out as
to what particulars would be included in the said record of
rights. It would be useful to reproduce section 148 of the Code.
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48. RECORD OF RIGHTS.
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 mortgages of the
land or assignees of the rent or revenue thereof ;
b) the names of all persons who are holding as
Government lessees or tenants including tenants
within the meaning of the relevant tenancy law ;
c) the nature and extent of the respective interests of
such persons and the conditions or liabilities, if
any, attaching thereto ;
d) the rent or revenue, if any, payable by or to any of
such persons;
e) such order particulars as the State Government
may prescribe by rules made in this behalf, either
generally or for purposes of any area specified
therein.
10 It is a definite and established position of law that
the entries made in the revenue record do not create or
extinguish any title in whose favour it is recorded. The entries
in record of rights are entered only for the purpose of
recovering of revenue and therefore, such entries cannot be
taken as transfer of title by holder of property in favour of
person in whose names the entries are effected. The entries by
themselves thus do not determine title of a person though they
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are presumed to be true statement of their contents unless
proved contrary. The mutation entry in a revenue record
means a significant, basic alteration, substitution of the name of
a person by name of another in relation to property in record
showing right or title to the property. The 7/12 extract,
traditionally known as 'saat bara utara' is the extract from the
land register of any district maintained by the Revenue
Department of the Government in the State of Maharashtra. It
is the revenue document showcasing the ownership, occupancy,
rights, liabilities and other agricultural aspects pertaining to the
land, mainly the agricultural land prepared for each respective
village where the property is located. However, even the non
agricultural land has also its own extract. The 7/12 form is a
denotation of the village form no.VII which refers to record of
rights denoting the name of occupant, owner or mortgagees of
the land or assignees of the rent or revenue, government lease,
tenants and the liabilities of holders to pay revenue, whereas
the lower part of the extract form no. XII refers to register of
crops denoting the type of crops taken, figures of area under
the crop and the fallow land. The manner in which such
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records are to be maintained are specified in the Maharashtra
Land Revenue Record of Rights and Register (Preparation and
Maintenance) Rules 1971. All records maintained under
various village forms including form 7/12, are land records
forming substantial part of the land record department required
for maintaining and keeping the revenue account relating to a
person from whom the land revenue is to be realized. These
extracts, therefore, highlight the information of the land by its
survey number, name of the taluka or tahsil and village in
which the land is located, name of all other persons who are
holders, occupants, owners, mortgagees of the land or assignees
of the rent or revenue and the nature and extent of their
respective interest of such person and the conditions of
liabilities attached to such land, the area of the land, type of
tenor etc.
11 The Land Revenue Code prescribes the manner in
which such record is to be maintained by use of a suitable
storage device. Section 149 makes it imperative on any person
acquiring any land, whether by succession, survivorship,
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inheritance, partition, purchase, mortgage, gift, lease or
otherwise any right as a holder, occupant, owner, mortgagee,
landlord, government lessee or tenant of the land situated in
any part of the State or assignee of the rent or revenue thereof
to report orally or in writing about acquisition of such a right to
the Talathi within three months from the date of acquisition
and the Talathi is duty bound to issue a written
acknowledgment of the receipt of such information to the
person making it. Exceptions are carved out in favour of minor
or otherwise disqualified person where an information can be
supplied through the guardian or any other person having
charge of his property or in favour of person acquiring a right
with permission of the Collector etc. By virtue of the said
section, revenue records which are maintained in the village
thus, stand altered in terms of the holder of the land by
substituting the name of the person in relation to the property if
it is assigned to any other person, and it ensures that the
records are updated from time to time. Section 150 of the Code
contains a provision for maintenance of a register of mutation
recording every report made to the Talathi under section 149 or
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on intimation of acquisition or transfer effected under Section
154 of the Code or any information received from the Collector.
It is mandatory for the Talathi who makes an entry in the
Register of Mutation to display the complete copy of entry in a
conspicuous place in the C havdi and to give written intimation
to all persons appearing from the record of rights or register of
mutations to be interested in the mutation and to any person
whom he has reason to believe to be interested therein.
Whenever the objection is raised in relation to an entry, it
would be the duty of the Talathi to enter the particulars of such
objection in a register of disputed cases and the dispute entered
in the register of disputed cases are to be disposed within one
year by revenue of Survey Officer and the orders disposing of
the objections are to be recorded in the Register of Mutations.
Section 154 of the Code provides for intimation of transfers by
the Registering Officers and it provides that when any
document purporting to create, assign or extinguish any title to
or any charge on land used for agricultural purposes or in
respect of which a record of right has been prepared is
registered under the Indian Registration Act, 1908, the Officer
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registering the document shall sent the information to the
Talathi of the village in which the land is situated and to the
Tahsildar of the Taluka in such form as may be prescribed by
Rules made under this Code. By virtue of Section 157 of the
Code, an entry in the record of rights and a certified entry in
the register of mutation shall be presumed to be true until the
contrary is proved and the new entry is lawfully substituted
therefore.
12 On perusal of the entire scheme as contained in
Chapter X, in relation to the record of rights, it is clear that the
record of rights which is maintained in every village would
include such particulars which are prescribed in Section 148 of
the Code and the records would be altered from time to time by
substituting the names of the persons who have acquired any
interest in the said property in the manner which is prescribed
in Section 149, and such a person is duty bound to report
acquisition of such rights to the Talathi within a period of three
months from the date on which he acquired such rights.
Record of Rights would thus give a clear picture of the name of
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the persons who are holding the land in a particular village and
the capacity in which such land is held along with the
conditions or liabilities attached to the said piece of land,
including the rent or revenue payable by or to any such person.
Thus, the record of rights which is maintained by
the talathi of the said village reflects the rights and liabilities in
respect of every piece of land in a village. This record would
give the particulars of all private rights and possession over
each parcel of land and also some public rights. In short, the
record of rights means the rights of a person in or over a land
and the forms in which the records of various rights are to be
maintained are specified by the Rules of 1971. The said Rules
prescribe different forms in which the information is to be filled
in and it is maintained in form of a register and it is through
various forms the details of the lands in a particular village are
maintained and these forms are required to be suitably
amended in terms of the information received by the Talathi
from time to time. The entries in the record of rights do not
create any right, title or interest.
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13 What the petitioner seeks through present writ
petition is that this record of right maintained under Chapter X
of the Maharashtra Land Revenue Code should record an entry
of lis pendence . At this stage, we would refer to the doctrine of
lis pendence, is recognized by Section 52 of the Transfer of
Property Act. Lis pendence means “a pending legal action”
wherein lis means “suit” and “ pendence ” means “continuing” or
“pending”. The said doctrine has been derived from a latin
meaning “Ut pendent nihil innovetur” meaning that during
litigation nothing should change. The principle embodied in
the said doctrine is that the subject matter of a suit should not
be transferred to a third party during pendency of a suit. In
case of transfer of such immovable property, the transferee
becomes bound by result of the suit.
In Corpus Juris Secumdum (Vol.54) page 570, the
term has been defined in the following manner :
“ Lis pendence literally means a pending suit; and the
doctrine of has been defined as the
lis pendence
jurisdiction, power or control which a Court acquires
every property involved in a suit pending the
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continuance of the action and actual final judgment
therein. Exceptions of the doctrine would indicate
that it was instituted from the very nature of the
jurisdiction of the Court and their control over the
subject matter of litigation so that parties litigating
before a Court may not remove any part of the subject
matter outside the power of the Court to deal with it
and thus render a pending proceeding, infructuous”.
14 Section 52 reads thus :
52. Transfer of property pending 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
immoveable property is directly and specifically
in question, the property cannot be transferred or
otherwise dealt with by any party to the suit or
proceeding so as to affect the rights of any other
party thereto under any decree or order which
may be made therein, except under the authority
of the Court and on such terms as it may impose.
[Explanation.—For the purposes of this section,
the pendency of a suit or proceeding shall be
deemed to commence from the date of the
presentation of the plaint or the institution of the
proceeding in a Court of competent jurisdiction,
and to continue until the suit or proceeding has
been disposed of by a final decree or order and
complete satisfaction or discharge of such decree
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or order has been obtained, or has become
unobtainable by reason of the expiration of any
period of limitation prescribed for the execution
thereof by any law for the time being in force.]
It is to be noted that Section 52 was amended in
Bombay in Bombay Act 4 of 1939 so as to insert the following
words:
“If a notice of the pendency of such suit or proceeding is
registered under section 18 of the Indian Registration
Act, 1908, the property after the notice is so registered
cannot be transferred or otherwise dealt with by any
party to the suit or proceeding so as to affect the rights
of any party thereto under any decree or order which
may be made therein, except under the authority of the
Court and on such terms as it may impose. (2) Every
notice of pendency of a suit or proceeding referred to in
subsection (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
proceeding; and (e) the date on which the suit or
proceeding was instituted.
Explanation. – For the purposes of this section, the
pendency of a suit or proceeding shall be deemed to
commence from the date of the presentation of the plaint
or the institution of the proceedings in a Court of
competent jurisdiction, and to continue until the suit or
proceeding has been disposed of by a final decree or
order and compete satisfaction or discharge of such
decree or order has been obtained, or has become
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unobtainable by reason of the expiration of any period of
limitation prescribed for the execution thereof by any
law for the time being in force.
It is evident that the doctrine applies not merely to
actual transfers or rights which are subject matter of litigation,
but to other dealings with it by any party to the suit or
proceedings so as to avoid the right of any other party thereto.
The purport of Section 52 is not to defeat any just and equitable
claim but only subject the same to the authority of the Court
which is dealing with the property before which the claims are
put forward. It is based on principle of equity, good conscious
and justice.
The doctrine essentially aims at (a) avoiding endless
litigation, (b) protecting either party against the Act of others
and (c) avoiding abuse of legal process. The said doctrine as
captured under Section 52 of the Transfer of Property Act
essentially prohibits alienation of immovable property when a
dispute relating to the same is pending in a Competent Court of
law. It is based on a principle that a person purchasing an
immovable property from a judgment debtor during pendency
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of a suit has no independent right to the property, to resist or to
object the executor of a decree.
15 The purpose of doctrine being to strike the attempts
by parties to a litigation to circumvent the jurisdiction of the
Court in which the disputes of rights or interest in immovable
property is pending by private dealings that may remove the
subject matter of litigation from the ambit of the power of the
Court to decide a pending dispute or which may frustrate its
decree. The rule is based on the doctrine of expediency that is
necessary for final adjudication and it is immaterial whether the
alienee pendente lite had or had no notice of the pending
proceedings. However, as far as the State of Gujarat and
Maharashtra is concerned, in view of the State Amendments,
the doctrine only affects transactions, pendent lite if the lis has
been duly registered, since it contemplates issuance of a notice
of pendency of such suit or proceeding to be registered under
Section 18 of the Indian Registration Act and then an embargo
is created on the property being transferred or otherwise it will
be dealt with after the notice is so registered, so as to affect the
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rights of any other party thereto, under any decree or order
which may be made. It contemplates the pendency of suit or
proceedings to contain the name and address of the owner of
immovable property, description of immovable property, the
Court in which the suit or proceedings is pending, the nature
and title of the suit or proceedings and the date on which the
date or proceedings were instituted.
16 In the backdrop of the two statutory provisions, the
case of the petitioner is that in view of the amendment to
Section 52 by the Maharashtra Act, it is imperative to take
cognizance of a lis pendence since if the pendency of any
proceedings in any Court in relation to a right to immovable
property is specifically in question and if a notice of the
pendency of such suit or proceeding is registered under Section
18 of the Indian Registration Act, the property after the notice
is so registered, cannot be transferred or otherwise dealt with
any party to the suit or proceeding so as to affect the rights of
the other party, consequent to a decree being passed. Section
52 by the State Amendment in Bombay and Gujarat sufficiently
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safeguard the interest of a party who deals with any property,
which is subject matter of any suit or proceeding and whenever
such a pendency of the suit or proceeding is registered under
Section 18 of the Indian Registration Act, an embargo is created
to transfer the said property, or in any way dealing with the
said property affecting the right of the parties to the suit. This
provision included by Maharashtra Amendment in the Transfer
of Property Act finds its way in Section 154 of the Maharashtra
Land Revenue Code and it creates a mandate on the part of the
registering authority under the Indian Registration Act, when
any documents purporting to create, assign or extinguish any
title to, or any charge on the land used for agricultural purposes
or in respect of which a record of rights has been prepared is
registered under the Indian Registration Act, 1908, then it is
imperative for such Officer registering such document to sent
intimation to the Talathi of the village in which the land is
situated and to the Tahsildar in the taluka in such form and at
such time as prescribed by the Rules. The Maharashtra Land
Revenue Code thus only prescribes for an intimation to be
forwarded to the Talathi on registration of a notice under the
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Indian Registration Act. What the petitioners are praying is
taking note of such lis pendence in the record of entry. As we
have already seen, the provision in relation to maintenance of
record of rights as contained in section 148 of the Maharashtra
Land Revenue Code, would include the constituent as
mentioned in section 148 i.e. the names of all the persons who
are holders, owners, occupants or mortgagees of the land or
assignees of the rent or revenue thereof and the name of all the
persons who are holding as government lessee or tenants. The
record of rights also include the nature and extent of the
respective interest of such person and the conditions or
liabilities, if any, flowing therefrom the rent or revenue, if any,
payable by or to any such person. Apart from the said
particulars, the State Government is empowered to prescribe
either generally or for the purposes of any areas specified
therein, any other particulars by making rules in that behalf.
17 The record of right, as contemplated under
Maharashtra Land Revenue Code, is maintained for the purpose
of recovering revenue and it is not a record which creates any
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title or interest but merely recognizes a title or interest of a
person in a piece of land located in a village. Thus, it is a
record in respect of the lands maintained in the manner
prescribed under the Land Revenue Code which do contain any
provision which would mandate recording of a lis or its
pendency.
The petitioner has claimed that Collectors of
several districts have issued directives from time to time,
thereby directing the lis pendence entries to be recorded in the
record of rights. The petitioner has also placed heavy reliance
th
on the judgment delivered by this Hon'ble Court on 20
October 2010 in Writ Petition No.2640 of 2010 which deals
th
with an advisory Circular dated 12 November 2005. Before
the Division Bench of this Court, the legality of the said Circular
issued by the Collector Nashik, invoking powers under Section
148(c) of the Maharashtra Land Revenue Code, was assailed in
the backdrop that a Special Civil Suit No.115 of 2004 was filed
in the Court of Civil Judge, Senior Division Nashik along with
an application for temporary injunction. The petitioner before
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this Court was defendant no.1 in the said suit and the
application for temporary injunction came to be rejected, which
was upheld in an Appeal against Order. The impugned circular
was assailed on the ground that what the plaintiff could not
achieve despite the application for temporary injunction being
rejected, has been achieved through the circular issued by the
Collectorate, Nashik, since the Circular puts unreasonable
restriction and causes prejudice to the rights of the petitioner to
dispose of the suit property and specifically when there is no
legal impediment in creating such rights during the pendency of
the suit and when the application for temporary injunction was
rejected. The petitioner had questioned the authority of the
Collector to invoke the powers under Section 148(6) of the
Code.
In this backdrop of the facts, this Court noted that
the circular was merely issued to ensure that the pendency of
the suit in respect of the properties sought to be transferred is
brought on record while affecting an entry in 7/12 and other
rights extract. This Court observed that the Circular did not put
any restriction on transfer of property or for creating any third
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party interest and it was with a view to alert the revenue officer
and particularly those who are responsible for mutating the
revenue entries regarding the right of the parties. The Division
Bench of this Court concluded that the impugned circular is
clarificatory in nature and it cannot be said that it is issued
without any authority of law. The learned senior counsel had
specifically relied upon the observations made by the Court by
which it suggested all the District Collectors in Maharashtra to
issue such circulars.
18 In the earlier round of litigation, when the
petitioner approached this Court with a similar grievance by
filing writ petition no.10052 of 2015 along with connected writ
th
petitions, this Court on 7 June 2017 accepted submissions
advanced on behalf of the Secretary, Revenue Department,
Government of Maharashtra that the State authorities would
take into consideration the issue raised in the petition and take
appropriate decision within a period of eight weeks. In
furtherance of the statement made before this Court, the State
Government took a decision in relation to the entries of lis
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pendence being recorded in the record of rights and issued a
st
Circular on 21 September 2017. The said Circular was
specifically issued in the backdrop of the fact of the
inconsistency being in operation in the State of Maharashtra in
relation to the entry of lis pendence being recorded in the record
of rights and on obtaining the opinion of the learned Advocate
General of the State of Maharashtra, the circular came to be
issued. By the said circular, the State Government has resolved
that in light of the provision contained in Section 148 of the
Maharashtra Land Revenue Code, the particulars to be included
in the 7/12 extracts are already set out and this do not include
the note of lis pendence being taken in the land records. The
State Government, therefore, directed that the entry of lis
pendence should not be recorded in the 7/12 extract. Thus, the
State Government has taken a final decision on the conflicting
directive issued by the respective Collectors. The State
Government had made it amply clear by the said circular that
the entries regarding lis pendence cannot form part and parcel
of the contents of the land records which are to be maintained
in terms of section 148 of the Maharashtra Land Revenue Code
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and the Rules framed thereunder and therefore, in village form
7/12, the lis pendence entries could not be taken.
19 We do not find that there is any error in the said
decision and rather the said decision taken by the State
Government, as contained in the impugned circular, is in
confirmity with the provision of the Maharashtra Land Revenue
Code, since section 148 of the Code sets out the particulars
which should be included in the record of rights and it do not
stipulate any other particulars to be included, except in
accordance with the decision by the State Government, which it
can prescribe by the rules. It is the State Government which
has made it clear that the pendency of any proceedings or suit
before any court or any other quasi judicial authority, does not
amount to any kind of right in praesenti and a right of litigant
comes into existence only on final adjudication by the
concerned Court where the lis is pending. Since the
Maharashtra Land Revenue Code itself do not provide for
inclusion of a lis pendence in the record of right and the State
Government had rather reflected its decision not to include the
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same in the record of right in the backdrop of the fact that the
revenue records are mere reflections of the rights claimed by a
person in respect of any immovable property and being
reported to the revenue authority and such entries are subject
to adjudication of title rights by Court of competent jurisdiction,
the said decision of the State Government cannot be said to be
arbitrary or capricious specifically when section 52 of the
Transfer of Property Act protects the properties which are
involved in any lis and the principle recognized in the said
section put restrictions on the rights of the parties to a suit or
proceeding to transfer the property, which is the subject matter
of the said litigation. In any case, the object of Section 52 is not
to make such transfers made in violation of the said provision
to be void ab initio, but are only voidable at the instance of the
party who has been prejudiced. The State amendment to
section 52 further protects the interest of the land holders in
the State and whenever the notices of pending suits or
proceedings referred to in section 52 of the Transfer of Property
Act, 1882 is given under section 18 of the Registration Act, the
Land Revenue Code makes it imperative for the Officer
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recording such a registration to forward an intimation to the
talathi of the village. The avowed purpose of such an intimation
is to keep the Talathi of a village or tahsildar of a taluka
updated about the dealings in respect of a piece of land, in
respect of which he is duty bound to maintain the revenue
record. In such circumstances, the decision of the State
Government not to effect entries of lis pendence in the record of
rights is perfectly in tune and spirit with the Maharashtra Land
Revenue Code and we do not find that the said decision calls
for an interference by exercising our writ jurisdiction. The
petitioners are merely apprehensive that if such entries are not
recorded in the 7/12 extract, the people in the rural area would
be deprived of being in knowhow of the pending litigation
about the property in which they are dealing. However, it
needs to be noted that Section 52 of the Transfer of Property
Act has been enacted to deal with such a contingency and the
rights of the transferee are thus made subservient to the
proceedings which are pending before a competent court and
the doctrine of lis pendence is based on principle of law and
equity and good conscience. The said section creates only a
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right to be enforced to avoid a transfer made pendente lite,
because such transfers are not void but are voidable at the
option of the affected parties to the proceeding, pending which
the transfer is effected. The right contemplated under Section
52 is a double edged weapon and it can be used as a shield
depending on such facts as to what rights or interest are to be
transferred and who is the affected party. In any contingency,
the application of doctrine of lis pendence is not to nullify the
conveyance but only to render it subservient to the rights of the
parties to the litigation, that is why the defence of bonafide
transferee for value without notice is not available on invoking
the doctrine of lis pendence. In view of the said position of law,
the claim of the petitioners that the population in rural area
would be put to disadvantage, cannot be accepted.
20 It is a settled principle of law that once a
methodology for doing a particular act is provided under the
statute, rules or regulations then such Act must be done in the
manner and the way prescribed alone and in no other way.
The origin of this principle is traceable to the decision in Taylor
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vs. Taylor (45 LJCH 373) which was followed by Lord Roche
in Nazir Ahmed King Emperor (AIR 1936 PC 253) who stated
as under :
“[W]here a power is given to do a thing in a certain
way, the thing must be done in that way or not at
all”.
This Rule since have been approved by the Hon'ble Apex court
2
in Rao Shiv Bahadur Singh Vs. State of Uttar Pradesh and
3
again in Deep Chand Vs.State of Rajasthan , this rule has
been applied to the exercise of jurisdiction by Courts and has
also been recognized as salutary principle of administrative law.
By applying the said rule, if a statute gives a power to do a
certain thing in a certain way, then it has to be necessarily
discharged in the same way and all other methods are
necessarily forbidden.
By applying the aforesaid principle, since the Land
Revenue Code sets out as to what should be the ingredients to
be recorded in the land records, the insistence of the petitioner
to take entry of lis pendence in the said records cannot be
2 AIR 1954 SCC 322
3 AIR 1961 SCC 1527
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justified and the said request needs to be turned down on the
said count also.
21 We do not find any illegality in the impugned
government circular and therefore, we are not persuaded by the
submissions made by the learned counsel for the petitioner that
for larger public benefit, the said circular needs to be quashed
and set aside.
22 In light of the aforesaid discussion, the impugned
circular is upheld.
Writ Petitions are dismissed.
Rule is discharged. No order as to costs.
(SMT. BHARATI H. DANGRE, J.) (S.C. DHARMADHIKARI, J.)
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO.7040 OF 2013
Pramod Moreshwar Tattu .. Petitioner
Versus
SubDivisional Officer, Baramati
and others .. Respondents
WITH
WRIT PETITION NO.8042 OF 2014
Narayan Atmaram Bhoir & ors .. Petitioner
Versus
The Tahsildar, Thane Division,
Thane and others .. Respondents
…
Mr.A.V.Anturkar, Sr. Counsel i/b Sugandh B. Deshmukh for the
petitioner in WP 7040/13.
Mr.R.M.Haridas with K.S. Patil for petitioner in WP 8042/14.
Mr.B.V. Samant, AGP for respondent nos.1 to 3.
Ms.Neha Doshi i/b Vidhi Partners for respondent no.5.
CORAM: S.C. DHARMADHIKARI &
SMT. BHARATI H.DANGRE, JJ.
st
RESERVED ON : 21 JUNE 2018
th
PRONOUNCED ON : 17 JULY 2018
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JUDGMENT (Per SMT.BHARATI H. DANGRE, J)
1 The two writ petitions revolve around a common
issue as to whether it is mandatory for the State Government to
record an entry of lis pendence in the land record, including the
7/12 extracts maintained under the Maharashtra Land Revenue
Code, 1966. (for short “Land Revenue Code”). In Writ Petition
No.7040 of 2013, a challenge is also raised to a Government
Resolution issued by the Revenue and Forest Department of the
st
Government of Maharashtra on 21 September 2017 by which
the State Government had issued directions not to record lis
pendence in the 7/12 extract, and the petitioner prays for
quashing and setting aside of the same.
2 Since the parties have agreed to argue the matter
finally, Rule. Rule returnable forthwith.
Heard finally by consent of the parties.
3 In order to enable us to adjudicate the issue in the
writ petitions, it would be necessary to have some factual
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statements which would give an insight into the backdrop, in
which the issue has been raised in the present petition.
Writ Petition No.7040 of 2013 seeks a direction to
the State of Maharashtra to take entries of the lis pendence in
the land records. The petitioner before the Court has
mortgaged the property Gat No.41/4 admeasuring 1 Hectare 12
Ares situated at Village Patas, Taluka Daund, District Pune in
favour of one Shri Deshpande which was subsequently
subjected to change of hands from time to time until it was
purchased by one Anand R Goyal, the respondent no.4 to the
petition. The said property was assessed to 0.13 paisa. The
name of the last respondent was mutated vide Mutation Entry
No. 11620 which is placed on record along with the petition.
The petitioner had filed a Civil Suit against Shri Madhukar V.
Deshpande and 55 others for redemption of the mortgage in
the year 1991 which came to be numbered as Civil Suit No.152
of 1991 and the suit is pending for adjudication in the Court of
Civil Judge, Jr. Division, Daund. During the pendency of the
said suit, the petitioner, with an objective of protecting the
property which is a subject matter of the Regular Civil Suit
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no.152 of 1991 registered a lis pendence notice and gave
intimation to the Tahsildar who made an entry to that effect
vide Mutation Entry no.11645. Against the said mutation
entry, the respondent no.4 preferred an appeal to the Sub
Divisional Officer, Baramati (RTS) Appeal No.133 of 2012 on
th
15 May 2012 and the SubDivisional Officer by an order dated
th th
8 May 2013 cancelled the said mutation entry effected on 10
January 2012. The SubDivisional Officer, Baramati recorded a
finding that it is not permissible to effect a mutation entry on
the basis of lis pendence and observed that just because a civil
suit was filed, it did not create a right in the property, and as
per Section 149 of the Maharashtra Land Revenue Code, 1966,
the mutation entries are to be effected only after acquiring the
rights in the same. Another ground on which the Sub
Divisional Officer allowed the appeal was in respect of non
compliance of the procedure prescribed in Section 150 of the
Maharashtra Land Revenue Code and it was observed that the
mutation entry without giving notice to other side, was illegal
and resultantly, liable to be set aside.
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Being aggrieved by the said order of the sub
divisional officer, the petitioner has approached this Court by
placing reliance on a communication addressed by the
Additional Collector, Pune to all the Tahsildars, thereby
directing that the lis pendence notice should be registered and
mutation entries should be recorded in the 'other right column'
in the 7/12 extracts and according to the petitioner, the said
directives issued would bind the subdivisional officer. The
petitioner also places reliance on the rules framed in exercise of
powers conferred under the Maharashtra Land Revenue Code
i.e. Maharashtra Land Revenue Records of Rights and Register
(Preparation and Maintenance) Rules 1971.
4 During the pendency of the writ petition, the State
st
Government issued a resolution on 21 September 2017, which
according to the petitioner, is in exact contrast to what the
claim of the petitioner is and therefore, the petitioner assails
the said Government Resolution and prays that it be quashed
and set aside, as according to him, by not taking note of the lis
pendence into the land records, the rural population is likely to
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be placed in an disadvantageous position as 7/12 extract is the
only first hand information to assess the ownership and other
details in respect of a particular property and this is the only
document according to him which is accessible to a common
man.
5 Writ Petition No.8042 of 2014 is filed by the
petitioner in respect of agricultural land bearing survey
no.95/7B and 95/7C situated at village Balkam Taluka, District
Thane and the petitioner claims to be the owners and occupants
of the said property. In the said case, the properties in question
were originally owned by one Shri Dewoo S. Bhoir, the paternal
uncle of the petitioner's father and subsequent to his death,
Atmaram – the father of the petitioner acquired the right in the
property by way of succession and inheritance and his name
came to be recorded in the books of record by way of mutation
entry. The petitioners are the legal heirs of Shri Atmaram and
the names of all the legal heirs were recorded in the books of
record. It is the case of the petitioner that one Raibai Maruti
Bhoir who had no concern with the property nor possessed any
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right, title or interest over the said property, had executed a
sale deed in favour of Respondent no.5 Company in the year
1961 and the respondent no.5 made an attempt to record their
names in the books of record by making an application before
the Tahsildar which was objected by Shri Atmaram Bhoir –
father of the petitioner. The said application filed by
th
respondent no.5 came to be rejected on 9 December 1963 by
the Tahsildar and the said order was accepted by respondent
no.5. However, another attempt was made by respondent no.5
in the year 1977 for recording its name, but once again the
application came to be rejected. The petitioners, therefore,
were constrained to file Regular Civil Suit against respondent
no.5, but during the pendency of the suit, the respondent no.5
removed the encroachment caused on the petitioner's land and
therefore, the said suit was not prosecuted. In the year 2012,
the respondent no.5 moved another application for recording
the name in the books of record, which in spite of the objection
st
of the petitioners came to be allowed by the Tahsildar on 21
July 2014. The petitioner preferred an Appeal before the Sub
Divisional Officer under Section 247 of the Maharashtra Land
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Revenue Code and the said Appeal is pending. In this case, the
petitioner had registered the notice of lis pendence before the
Office of Registrar on the basis of the pendency of Regular Civil
Suit No.776 of 2014 and moved an application before the
Tahsildar for effecting the entry of lis pendence in the 'other
right column' of property in question. The Circle Officer
cancelled the said entry by relying upon the circulars issued by
the Collector, Konkan Division. The petitioner, then aggrieved
by the action of the Tahsildar in entertaining the application of
respondent no.5 and approached this Court by way of writ
petition.
6 The learned senior counsel Shri Anturkar who
represents the petitioner in Writ Petition No.7040/13, while
advancing his submissions in support of the petition, conceded
that there is no express provision in the Land Revenue Code,
1966 which makes it imperative for the Revenue authorities to
make an entry in the 7/12 extracts relating to the pendency of
civil suit. He would, however, submit that this is the only
mechanism which would enable a layman and specifically a
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person from rural area to get knowledge about pendency of the
litigation in respect of any property with which he intends to
deal. He would submit that the citizens face acute hardship,
since there is no mechanism formulated by the revenue
authorities or any other department of Government of
Maharashtra, by which a citizen is informed about the
pendency of litigation, in case he proposes to purchase any
property. According to him, this has resulted into a situation
which is chaotic and the transactions are being entered into
without any knowledge about any pending civil litigation
revolving around the said property. The learned senior counsel
would make a reference to the judgment of the Hon'ble Apex
1
Court in case of T.G. Ashok Kumar Vs. Govindammal and anr
and would specifically rely upon paragraph no.19 of the said
judgment of the Hon'ble Apex Court. He would further submit
that in the backdrop of the hardship, anxiety and unnecessary
litigation caused on account of absence of a mechanism for
prospective purchaser to verify whether a property is subjected
to any pending suit or a decree of attachment, a solution which
1 2010(14) SCC 370
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has been found for this problem in the State of Maharashtra by
an appropriate amendment to Section 52 of the Transfer of
Property Act, by Bombay Act IV of 1939, the Hon'ble Apex
Court had expressed a hope that the Law Commission and the
Parliament considers such amendment or other suitable
amendment to cover the existing void in title verification or due
diligent procedure and provisions which could be introduced
for compulsory registration of such notices in respect of decree
and in regard to attachment of immovable properties. The
learned senior counsel would also place reliance on the Division
Bench judgment of this Court in Writ Petition No.2640 of
2010 wherein the Hon'ble Division Bench had recommended to
the Government to issue a circular like the one issued by the
Nasik Collectorate, so as to ensure that the pendency of the suit
in respect of the properties sought to be transferred by any
means is brought on record, while effecting an entry in 7/12
and other right column. Thus, in short, the learned senior
counsel emphasized that in the absence of any express
provision in the Land Revenue Code, 1966, it is necessary to
find out some solution and he would submit that section 52 of
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the Transfer of Property Act itself has been brought on the
statute book with an object of taking cognizance of the
pendency of a suit or proceedings and by virtue of the said
provision, a notice of pendency of such suit or proceeding is
registered under Section 18 of the Indian Registration Act. On
the notice so registered, the property cannot be transferred or
otherwise dealt with by any party to the suit so as to affect the
rights of any other party thereto under any decree or order,
intends to protect such transactions. He would thus submit that
if such is the situation, then taking a note of the same in the
record of rights would be in the larger public interest.
7 The learned counsel for the petitioner Advocate Shri
Kishor S Patil would advance his submissions in support of his
Writ Petition no.8042 of 2014 and would pray for quashing and
st
setting aside of the said Circular dated 21 September 2017.
He would adopt the arguments of the learned senior counsel
and he would submit that the whole purpose of registering
notice of lis pendence is rather defeated by issuance of such a
circular which is impugned in the petition. He would submit
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that as in the case of his petition, suit filed by the petitioner is
pending and even the notice of lis pendence is duly registered in
accordance with law. He would submit that recording of lis
pendence in revenue record itself does not create any right over
the property, however, by such recording the transferee is made
aware of a pending litigation. He would further submit that in
normal course, while purchasing a property, a purchaser would
necessarily verify from the revenue record and if such an entry
of lis pendence is made, it would obviously help the transferee
and it would curtail further litigation. He would submit that
making entry of lis pendence in Revenue record does not, in any
way, prejudice rights of any person, but the lis pendence as per
section 52 of the Transfer of Property Act merely makes it
subservient to the rights of the parties to the litigation, though
it does not create or affect rights of any person. He, would
thus, pray for quashing and setting aside of the said Circular
since it is also contrary to the judgment delivered by this Court
th
on 20 October 2010 in Writ Petition No.2640/2010 on which
the learned senior counsel Shri Anturkar has also placed heavy
reliance.
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As against the submissions made on behalf of the
petitioner, the learned AGP Mr.Samant would oppose the
petition and would pray for upholding of the impugned
Government Resolution. He would submit that the petition
was initially filed, seeking directions to the State Government
to issue circular to all District Collectors in Maharashtra State,
thereby requiring entry of lis pendence to be recorded in the
'other rights column' in village form no. 7/12 maintained by the
revenue authorities, but the State has now come up with a
st
policy by issuing resolution on 21 September 2017, thereby
directing the Revenue authorities not to take entries in respect
of lis pendence in the revenue records. Mr.Samant would submit
that the State Government is of the firm view that such entries
regarding lis pendence are not required to be made in the village
form no.7/12 by the revenue authorities and he would justify
the said stand of the State Government on the ground that
perusal of the provisions contained in the Land Revenue Code,
1966, specifically Section 148 of the Maharashtra Land
Revenue Code does not permit such an entry being recorded.
Mr.Samant would submit that section 148 of the Maharashtra
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Land Revenue Code, 1966 enumerates the particulars to be
included in the record of rights which is to be maintained in
every village. He would submit that the particulars to be
included in the revenue record pertains to the nature and
extent of the interest of holders, occupants, owners,
mortgagees, lessees and tenants, and conditions or liability
attached to such interest. He would submit that the pendency
of any proceedings or suit before any court or other quasi
judicial authority does not amount to any kind of right in
praesenti and the right of litigant comes into existence on the
passing of decree or judgment or order by the concerned Court
after adjudication of the lis.
8 Mr.Samant would further submit that though
section 52 of the Transfer of Property Act recognizes the
principle that the result of pending litigation is binding on the
parties to the case and persons claiming through them, and it
puts a restriction on the rights of parties to suit or proceedings
to transfer the property, which is subject matter of the said
litigation, however, at the same time, the said section does not
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render any transfer done in violation of the said provision to be
void ab initio hereto.
He would place reliance on the affidavit filed by the
Joint Secretary, Revenue and Forest Department to oppose the
said writ petition. He would submit that in the affidavit in
reply, it is categorically stated that mere filing of the legal
proceedings before a Court or quasi judicial authority, does not
perse create any right in respect of immovable property, nor
such filing ipso facto results in creation or modification or
deletion of any right in or touching the immovable property. It
is further stated in the affidavit that the revenue records are
mere reflection of the rights claimed by a person in respect of
any immovable property and reported to revenue authority and
the entries are always subject to adjudication of title rights by
competent court and are bound to be created after final orders
or decrees of competent court.
The affidavit on which Mr.Samant would rely,
refers to the State Amendment of the then State of Bombay
being Bombay Amendment Act XIV of 1939 and it states that
the Amendment Act shall apply to properties situated wholly or
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partly in the city of Bombay (Mumbai) from the date of
notification in the official gazette and provides for similar
notification extending applicability of the Amending Act to the
other areas to be issued. Then, a reference is made to Section
18 of the Registration Act which provides for optional
registration of certain documents and to section 18(ee) which
relates to notices of pending suits or proceedings referred to in
section 52 of the Transfer of Property Act, 1882. It is further
stated in the affidavit that the Transfer of Property Act, 1882
stands further amended by the Bombay Act No.57 of 1959
th
passed on 14 October 1959, which extended the provisions of
the Amending Act XIV of 1939 to the rest of the areas of
Bombay State. According to the State Government, the
recording of lis pendence notice in the 'other rights column' in
village form no.7/12 would not serve any gainful purpose. On
the other hand, the State Government expresses an
apprehension that it would give an erroneous impression, as if
certain rights in respect of the concerned immovable property
are held by some third parties which would affect the
otherwise clear title of the holder of the land. The affidavit
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further states that in view of the aforesaid decision, the
respondent State Government thought it fit not to permit
registration of entries in revenue records in respect of notices of
lis pendence and the decision taken by the State Government is
just and proper and it is prayed that the writ petition be
dismissed.
9 In the backdrop of these facts and on consideration
of the arguments of rival parties, the issue which we are called
upon to deal is whether a writ in the nature of mandamus can
be issued, directing the State Government to record an entry of
lis pendence in the revenue records and specifically in light of
the Bombay Amendment Act XIV of 1959 extending the said
provisions to the area of the Bombay State. For arriving at a
definite conclusion, we would have to refer to the provisions of
the Maharashtra Land Revenue Code and also the provisions as
contained in the Transfer of Property Act dealing with lis
pendence.
The Maharashtra Land Revenue Code, 1966 is an
Act to unify and amend the law relating to land and land
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revenue in the State of Maharashtra. The State of Maharashtra
which came into existence in 1960 by amalgamation of
territories of Western Maharashtra of Bombay Presidency,
Marathwada Region of Hyderabad State, Deccan Region of
British Reign and Nagpur of Central Province and for Berar
districts of Madhya Pradesh. In these regions, different revenue
systems were already in existence like the Bombay Land
Revenue Code, Berar Land Revenue Code, Madhya Pradesh
Land Revenue Code etc. However, on formation of the State of
Maharashtra, the need was felt to have a uniform Land
Revenue Code and thus, the Maharashtra Land Revenue Code
1966 was formulated by unification of various existing Codes.
The Maharashtra Land Revenue Code was brought into force
with effect from 15th August 1967, after receiving the assent of
the President on 22nd December 1966. It contains a detailed
mechanism in relation to collection of Land Revenue, powers of
Revenue officers, rights and liabilities of holders of land from
State Government, agricultural tenure and other matters
relating to land and liabilities incidental thereto. The
underlined principle which runs through the entire Code is the
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principle of "superior holder" and in terms of section 20 of the
Maharashtra Land Revenue Code, the entire piece and parcel of
the land in the State in whatsoever form, including the public
roads, bed of sea, streams, lakes etc, mentioned in Section 20
which are not the property of others, the title vests in the State
Government and it is lawful for the authority mentioned in the
Code to dispose of such land in such manner as may be
prescribed by the State Government. The Land Revenue Code
categorizes the different classes of land and land holders.
Chapter IV makes all lands liable for payment of Revenue to the
State Government unless and until they are exempted. Chapter
X of the Code provides for the maintenance of land records.
The record of rights is the most important statement of the land
revenue records since it reflects the details in relation to the
holder of such land, extent of interest of the holder, the
liabilities attached to the said land, the revenue payable on
account of holding of such land. It is imperative to maintain
the record of rights in every village and section 148 sets out as
to what particulars would be included in the said record of
rights. It would be useful to reproduce section 148 of the Code.
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48. RECORD OF RIGHTS.
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 mortgages of the
land or assignees of the rent or revenue thereof ;
b) the names of all persons who are holding as
Government lessees or tenants including tenants
within the meaning of the relevant tenancy law ;
c) the nature and extent of the respective interests of
such persons and the conditions or liabilities, if
any, attaching thereto ;
d) the rent or revenue, if any, payable by or to any of
such persons;
e) such order particulars as the State Government
may prescribe by rules made in this behalf, either
generally or for purposes of any area specified
therein.
10 It is a definite and established position of law that
the entries made in the revenue record do not create or
extinguish any title in whose favour it is recorded. The entries
in record of rights are entered only for the purpose of
recovering of revenue and therefore, such entries cannot be
taken as transfer of title by holder of property in favour of
person in whose names the entries are effected. The entries by
themselves thus do not determine title of a person though they
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are presumed to be true statement of their contents unless
proved contrary. The mutation entry in a revenue record
means a significant, basic alteration, substitution of the name of
a person by name of another in relation to property in record
showing right or title to the property. The 7/12 extract,
traditionally known as 'saat bara utara' is the extract from the
land register of any district maintained by the Revenue
Department of the Government in the State of Maharashtra. It
is the revenue document showcasing the ownership, occupancy,
rights, liabilities and other agricultural aspects pertaining to the
land, mainly the agricultural land prepared for each respective
village where the property is located. However, even the non
agricultural land has also its own extract. The 7/12 form is a
denotation of the village form no.VII which refers to record of
rights denoting the name of occupant, owner or mortgagees of
the land or assignees of the rent or revenue, government lease,
tenants and the liabilities of holders to pay revenue, whereas
the lower part of the extract form no. XII refers to register of
crops denoting the type of crops taken, figures of area under
the crop and the fallow land. The manner in which such
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records are to be maintained are specified in the Maharashtra
Land Revenue Record of Rights and Register (Preparation and
Maintenance) Rules 1971. All records maintained under
various village forms including form 7/12, are land records
forming substantial part of the land record department required
for maintaining and keeping the revenue account relating to a
person from whom the land revenue is to be realized. These
extracts, therefore, highlight the information of the land by its
survey number, name of the taluka or tahsil and village in
which the land is located, name of all other persons who are
holders, occupants, owners, mortgagees of the land or assignees
of the rent or revenue and the nature and extent of their
respective interest of such person and the conditions of
liabilities attached to such land, the area of the land, type of
tenor etc.
11 The Land Revenue Code prescribes the manner in
which such record is to be maintained by use of a suitable
storage device. Section 149 makes it imperative on any person
acquiring any land, whether by succession, survivorship,
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inheritance, partition, purchase, mortgage, gift, lease or
otherwise any right as a holder, occupant, owner, mortgagee,
landlord, government lessee or tenant of the land situated in
any part of the State or assignee of the rent or revenue thereof
to report orally or in writing about acquisition of such a right to
the Talathi within three months from the date of acquisition
and the Talathi is duty bound to issue a written
acknowledgment of the receipt of such information to the
person making it. Exceptions are carved out in favour of minor
or otherwise disqualified person where an information can be
supplied through the guardian or any other person having
charge of his property or in favour of person acquiring a right
with permission of the Collector etc. By virtue of the said
section, revenue records which are maintained in the village
thus, stand altered in terms of the holder of the land by
substituting the name of the person in relation to the property if
it is assigned to any other person, and it ensures that the
records are updated from time to time. Section 150 of the Code
contains a provision for maintenance of a register of mutation
recording every report made to the Talathi under section 149 or
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on intimation of acquisition or transfer effected under Section
154 of the Code or any information received from the Collector.
It is mandatory for the Talathi who makes an entry in the
Register of Mutation to display the complete copy of entry in a
conspicuous place in the C havdi and to give written intimation
to all persons appearing from the record of rights or register of
mutations to be interested in the mutation and to any person
whom he has reason to believe to be interested therein.
Whenever the objection is raised in relation to an entry, it
would be the duty of the Talathi to enter the particulars of such
objection in a register of disputed cases and the dispute entered
in the register of disputed cases are to be disposed within one
year by revenue of Survey Officer and the orders disposing of
the objections are to be recorded in the Register of Mutations.
Section 154 of the Code provides for intimation of transfers by
the Registering Officers and it provides that when any
document purporting to create, assign or extinguish any title to
or any charge on land used for agricultural purposes or in
respect of which a record of right has been prepared is
registered under the Indian Registration Act, 1908, the Officer
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registering the document shall sent the information to the
Talathi of the village in which the land is situated and to the
Tahsildar of the Taluka in such form as may be prescribed by
Rules made under this Code. By virtue of Section 157 of the
Code, an entry in the record of rights and a certified entry in
the register of mutation shall be presumed to be true until the
contrary is proved and the new entry is lawfully substituted
therefore.
12 On perusal of the entire scheme as contained in
Chapter X, in relation to the record of rights, it is clear that the
record of rights which is maintained in every village would
include such particulars which are prescribed in Section 148 of
the Code and the records would be altered from time to time by
substituting the names of the persons who have acquired any
interest in the said property in the manner which is prescribed
in Section 149, and such a person is duty bound to report
acquisition of such rights to the Talathi within a period of three
months from the date on which he acquired such rights.
Record of Rights would thus give a clear picture of the name of
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the persons who are holding the land in a particular village and
the capacity in which such land is held along with the
conditions or liabilities attached to the said piece of land,
including the rent or revenue payable by or to any such person.
Thus, the record of rights which is maintained by
the talathi of the said village reflects the rights and liabilities in
respect of every piece of land in a village. This record would
give the particulars of all private rights and possession over
each parcel of land and also some public rights. In short, the
record of rights means the rights of a person in or over a land
and the forms in which the records of various rights are to be
maintained are specified by the Rules of 1971. The said Rules
prescribe different forms in which the information is to be filled
in and it is maintained in form of a register and it is through
various forms the details of the lands in a particular village are
maintained and these forms are required to be suitably
amended in terms of the information received by the Talathi
from time to time. The entries in the record of rights do not
create any right, title or interest.
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13 What the petitioner seeks through present writ
petition is that this record of right maintained under Chapter X
of the Maharashtra Land Revenue Code should record an entry
of lis pendence . At this stage, we would refer to the doctrine of
lis pendence, is recognized by Section 52 of the Transfer of
Property Act. Lis pendence means “a pending legal action”
wherein lis means “suit” and “ pendence ” means “continuing” or
“pending”. The said doctrine has been derived from a latin
meaning “Ut pendent nihil innovetur” meaning that during
litigation nothing should change. The principle embodied in
the said doctrine is that the subject matter of a suit should not
be transferred to a third party during pendency of a suit. In
case of transfer of such immovable property, the transferee
becomes bound by result of the suit.
In Corpus Juris Secumdum (Vol.54) page 570, the
term has been defined in the following manner :
“ Lis pendence literally means a pending suit; and the
doctrine of has been defined as the
lis pendence
jurisdiction, power or control which a Court acquires
every property involved in a suit pending the
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continuance of the action and actual final judgment
therein. Exceptions of the doctrine would indicate
that it was instituted from the very nature of the
jurisdiction of the Court and their control over the
subject matter of litigation so that parties litigating
before a Court may not remove any part of the subject
matter outside the power of the Court to deal with it
and thus render a pending proceeding, infructuous”.
14 Section 52 reads thus :
52. Transfer of property pending 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
immoveable property is directly and specifically
in question, the property cannot be transferred or
otherwise dealt with by any party to the suit or
proceeding so as to affect the rights of any other
party thereto under any decree or order which
may be made therein, except under the authority
of the Court and on such terms as it may impose.
[Explanation.—For the purposes of this section,
the pendency of a suit or proceeding shall be
deemed to commence from the date of the
presentation of the plaint or the institution of the
proceeding in a Court of competent jurisdiction,
and to continue until the suit or proceeding has
been disposed of by a final decree or order and
complete satisfaction or discharge of such decree
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or order has been obtained, or has become
unobtainable by reason of the expiration of any
period of limitation prescribed for the execution
thereof by any law for the time being in force.]
It is to be noted that Section 52 was amended in
Bombay in Bombay Act 4 of 1939 so as to insert the following
words:
“If a notice of the pendency of such suit or proceeding is
registered under section 18 of the Indian Registration
Act, 1908, the property after the notice is so registered
cannot be transferred or otherwise dealt with by any
party to the suit or proceeding so as to affect the rights
of any party thereto under any decree or order which
may be made therein, except under the authority of the
Court and on such terms as it may impose. (2) Every
notice of pendency of a suit or proceeding referred to in
subsection (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
proceeding; and (e) the date on which the suit or
proceeding was instituted.
Explanation. – For the purposes of this section, the
pendency of a suit or proceeding shall be deemed to
commence from the date of the presentation of the plaint
or the institution of the proceedings in a Court of
competent jurisdiction, and to continue until the suit or
proceeding has been disposed of by a final decree or
order and compete satisfaction or discharge of such
decree or order has been obtained, or has become
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unobtainable by reason of the expiration of any period of
limitation prescribed for the execution thereof by any
law for the time being in force.
It is evident that the doctrine applies not merely to
actual transfers or rights which are subject matter of litigation,
but to other dealings with it by any party to the suit or
proceedings so as to avoid the right of any other party thereto.
The purport of Section 52 is not to defeat any just and equitable
claim but only subject the same to the authority of the Court
which is dealing with the property before which the claims are
put forward. It is based on principle of equity, good conscious
and justice.
The doctrine essentially aims at (a) avoiding endless
litigation, (b) protecting either party against the Act of others
and (c) avoiding abuse of legal process. The said doctrine as
captured under Section 52 of the Transfer of Property Act
essentially prohibits alienation of immovable property when a
dispute relating to the same is pending in a Competent Court of
law. It is based on a principle that a person purchasing an
immovable property from a judgment debtor during pendency
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of a suit has no independent right to the property, to resist or to
object the executor of a decree.
15 The purpose of doctrine being to strike the attempts
by parties to a litigation to circumvent the jurisdiction of the
Court in which the disputes of rights or interest in immovable
property is pending by private dealings that may remove the
subject matter of litigation from the ambit of the power of the
Court to decide a pending dispute or which may frustrate its
decree. The rule is based on the doctrine of expediency that is
necessary for final adjudication and it is immaterial whether the
alienee pendente lite had or had no notice of the pending
proceedings. However, as far as the State of Gujarat and
Maharashtra is concerned, in view of the State Amendments,
the doctrine only affects transactions, pendent lite if the lis has
been duly registered, since it contemplates issuance of a notice
of pendency of such suit or proceeding to be registered under
Section 18 of the Indian Registration Act and then an embargo
is created on the property being transferred or otherwise it will
be dealt with after the notice is so registered, so as to affect the
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rights of any other party thereto, under any decree or order
which may be made. It contemplates the pendency of suit or
proceedings to contain the name and address of the owner of
immovable property, description of immovable property, the
Court in which the suit or proceedings is pending, the nature
and title of the suit or proceedings and the date on which the
date or proceedings were instituted.
16 In the backdrop of the two statutory provisions, the
case of the petitioner is that in view of the amendment to
Section 52 by the Maharashtra Act, it is imperative to take
cognizance of a lis pendence since if the pendency of any
proceedings in any Court in relation to a right to immovable
property is specifically in question and if a notice of the
pendency of such suit or proceeding is registered under Section
18 of the Indian Registration Act, the property after the notice
is so registered, cannot be transferred or otherwise dealt with
any party to the suit or proceeding so as to affect the rights of
the other party, consequent to a decree being passed. Section
52 by the State Amendment in Bombay and Gujarat sufficiently
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safeguard the interest of a party who deals with any property,
which is subject matter of any suit or proceeding and whenever
such a pendency of the suit or proceeding is registered under
Section 18 of the Indian Registration Act, an embargo is created
to transfer the said property, or in any way dealing with the
said property affecting the right of the parties to the suit. This
provision included by Maharashtra Amendment in the Transfer
of Property Act finds its way in Section 154 of the Maharashtra
Land Revenue Code and it creates a mandate on the part of the
registering authority under the Indian Registration Act, when
any documents purporting to create, assign or extinguish any
title to, or any charge on the land used for agricultural purposes
or in respect of which a record of rights has been prepared is
registered under the Indian Registration Act, 1908, then it is
imperative for such Officer registering such document to sent
intimation to the Talathi of the village in which the land is
situated and to the Tahsildar in the taluka in such form and at
such time as prescribed by the Rules. The Maharashtra Land
Revenue Code thus only prescribes for an intimation to be
forwarded to the Talathi on registration of a notice under the
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Indian Registration Act. What the petitioners are praying is
taking note of such lis pendence in the record of entry. As we
have already seen, the provision in relation to maintenance of
record of rights as contained in section 148 of the Maharashtra
Land Revenue Code, would include the constituent as
mentioned in section 148 i.e. the names of all the persons who
are holders, owners, occupants or mortgagees of the land or
assignees of the rent or revenue thereof and the name of all the
persons who are holding as government lessee or tenants. The
record of rights also include the nature and extent of the
respective interest of such person and the conditions or
liabilities, if any, flowing therefrom the rent or revenue, if any,
payable by or to any such person. Apart from the said
particulars, the State Government is empowered to prescribe
either generally or for the purposes of any areas specified
therein, any other particulars by making rules in that behalf.
17 The record of right, as contemplated under
Maharashtra Land Revenue Code, is maintained for the purpose
of recovering revenue and it is not a record which creates any
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title or interest but merely recognizes a title or interest of a
person in a piece of land located in a village. Thus, it is a
record in respect of the lands maintained in the manner
prescribed under the Land Revenue Code which do contain any
provision which would mandate recording of a lis or its
pendency.
The petitioner has claimed that Collectors of
several districts have issued directives from time to time,
thereby directing the lis pendence entries to be recorded in the
record of rights. The petitioner has also placed heavy reliance
th
on the judgment delivered by this Hon'ble Court on 20
October 2010 in Writ Petition No.2640 of 2010 which deals
th
with an advisory Circular dated 12 November 2005. Before
the Division Bench of this Court, the legality of the said Circular
issued by the Collector Nashik, invoking powers under Section
148(c) of the Maharashtra Land Revenue Code, was assailed in
the backdrop that a Special Civil Suit No.115 of 2004 was filed
in the Court of Civil Judge, Senior Division Nashik along with
an application for temporary injunction. The petitioner before
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this Court was defendant no.1 in the said suit and the
application for temporary injunction came to be rejected, which
was upheld in an Appeal against Order. The impugned circular
was assailed on the ground that what the plaintiff could not
achieve despite the application for temporary injunction being
rejected, has been achieved through the circular issued by the
Collectorate, Nashik, since the Circular puts unreasonable
restriction and causes prejudice to the rights of the petitioner to
dispose of the suit property and specifically when there is no
legal impediment in creating such rights during the pendency of
the suit and when the application for temporary injunction was
rejected. The petitioner had questioned the authority of the
Collector to invoke the powers under Section 148(6) of the
Code.
In this backdrop of the facts, this Court noted that
the circular was merely issued to ensure that the pendency of
the suit in respect of the properties sought to be transferred is
brought on record while affecting an entry in 7/12 and other
rights extract. This Court observed that the Circular did not put
any restriction on transfer of property or for creating any third
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party interest and it was with a view to alert the revenue officer
and particularly those who are responsible for mutating the
revenue entries regarding the right of the parties. The Division
Bench of this Court concluded that the impugned circular is
clarificatory in nature and it cannot be said that it is issued
without any authority of law. The learned senior counsel had
specifically relied upon the observations made by the Court by
which it suggested all the District Collectors in Maharashtra to
issue such circulars.
18 In the earlier round of litigation, when the
petitioner approached this Court with a similar grievance by
filing writ petition no.10052 of 2015 along with connected writ
th
petitions, this Court on 7 June 2017 accepted submissions
advanced on behalf of the Secretary, Revenue Department,
Government of Maharashtra that the State authorities would
take into consideration the issue raised in the petition and take
appropriate decision within a period of eight weeks. In
furtherance of the statement made before this Court, the State
Government took a decision in relation to the entries of lis
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pendence being recorded in the record of rights and issued a
st
Circular on 21 September 2017. The said Circular was
specifically issued in the backdrop of the fact of the
inconsistency being in operation in the State of Maharashtra in
relation to the entry of lis pendence being recorded in the record
of rights and on obtaining the opinion of the learned Advocate
General of the State of Maharashtra, the circular came to be
issued. By the said circular, the State Government has resolved
that in light of the provision contained in Section 148 of the
Maharashtra Land Revenue Code, the particulars to be included
in the 7/12 extracts are already set out and this do not include
the note of lis pendence being taken in the land records. The
State Government, therefore, directed that the entry of lis
pendence should not be recorded in the 7/12 extract. Thus, the
State Government has taken a final decision on the conflicting
directive issued by the respective Collectors. The State
Government had made it amply clear by the said circular that
the entries regarding lis pendence cannot form part and parcel
of the contents of the land records which are to be maintained
in terms of section 148 of the Maharashtra Land Revenue Code
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and the Rules framed thereunder and therefore, in village form
7/12, the lis pendence entries could not be taken.
19 We do not find that there is any error in the said
decision and rather the said decision taken by the State
Government, as contained in the impugned circular, is in
confirmity with the provision of the Maharashtra Land Revenue
Code, since section 148 of the Code sets out the particulars
which should be included in the record of rights and it do not
stipulate any other particulars to be included, except in
accordance with the decision by the State Government, which it
can prescribe by the rules. It is the State Government which
has made it clear that the pendency of any proceedings or suit
before any court or any other quasi judicial authority, does not
amount to any kind of right in praesenti and a right of litigant
comes into existence only on final adjudication by the
concerned Court where the lis is pending. Since the
Maharashtra Land Revenue Code itself do not provide for
inclusion of a lis pendence in the record of right and the State
Government had rather reflected its decision not to include the
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same in the record of right in the backdrop of the fact that the
revenue records are mere reflections of the rights claimed by a
person in respect of any immovable property and being
reported to the revenue authority and such entries are subject
to adjudication of title rights by Court of competent jurisdiction,
the said decision of the State Government cannot be said to be
arbitrary or capricious specifically when section 52 of the
Transfer of Property Act protects the properties which are
involved in any lis and the principle recognized in the said
section put restrictions on the rights of the parties to a suit or
proceeding to transfer the property, which is the subject matter
of the said litigation. In any case, the object of Section 52 is not
to make such transfers made in violation of the said provision
to be void ab initio, but are only voidable at the instance of the
party who has been prejudiced. The State amendment to
section 52 further protects the interest of the land holders in
the State and whenever the notices of pending suits or
proceedings referred to in section 52 of the Transfer of Property
Act, 1882 is given under section 18 of the Registration Act, the
Land Revenue Code makes it imperative for the Officer
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recording such a registration to forward an intimation to the
talathi of the village. The avowed purpose of such an intimation
is to keep the Talathi of a village or tahsildar of a taluka
updated about the dealings in respect of a piece of land, in
respect of which he is duty bound to maintain the revenue
record. In such circumstances, the decision of the State
Government not to effect entries of lis pendence in the record of
rights is perfectly in tune and spirit with the Maharashtra Land
Revenue Code and we do not find that the said decision calls
for an interference by exercising our writ jurisdiction. The
petitioners are merely apprehensive that if such entries are not
recorded in the 7/12 extract, the people in the rural area would
be deprived of being in knowhow of the pending litigation
about the property in which they are dealing. However, it
needs to be noted that Section 52 of the Transfer of Property
Act has been enacted to deal with such a contingency and the
rights of the transferee are thus made subservient to the
proceedings which are pending before a competent court and
the doctrine of lis pendence is based on principle of law and
equity and good conscience. The said section creates only a
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right to be enforced to avoid a transfer made pendente lite,
because such transfers are not void but are voidable at the
option of the affected parties to the proceeding, pending which
the transfer is effected. The right contemplated under Section
52 is a double edged weapon and it can be used as a shield
depending on such facts as to what rights or interest are to be
transferred and who is the affected party. In any contingency,
the application of doctrine of lis pendence is not to nullify the
conveyance but only to render it subservient to the rights of the
parties to the litigation, that is why the defence of bonafide
transferee for value without notice is not available on invoking
the doctrine of lis pendence. In view of the said position of law,
the claim of the petitioners that the population in rural area
would be put to disadvantage, cannot be accepted.
20 It is a settled principle of law that once a
methodology for doing a particular act is provided under the
statute, rules or regulations then such Act must be done in the
manner and the way prescribed alone and in no other way.
The origin of this principle is traceable to the decision in Taylor
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vs. Taylor (45 LJCH 373) which was followed by Lord Roche
in Nazir Ahmed King Emperor (AIR 1936 PC 253) who stated
as under :
“[W]here a power is given to do a thing in a certain
way, the thing must be done in that way or not at
all”.
This Rule since have been approved by the Hon'ble Apex court
2
in Rao Shiv Bahadur Singh Vs. State of Uttar Pradesh and
3
again in Deep Chand Vs.State of Rajasthan , this rule has
been applied to the exercise of jurisdiction by Courts and has
also been recognized as salutary principle of administrative law.
By applying the said rule, if a statute gives a power to do a
certain thing in a certain way, then it has to be necessarily
discharged in the same way and all other methods are
necessarily forbidden.
By applying the aforesaid principle, since the Land
Revenue Code sets out as to what should be the ingredients to
be recorded in the land records, the insistence of the petitioner
to take entry of lis pendence in the said records cannot be
2 AIR 1954 SCC 322
3 AIR 1961 SCC 1527
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justified and the said request needs to be turned down on the
said count also.
21 We do not find any illegality in the impugned
government circular and therefore, we are not persuaded by the
submissions made by the learned counsel for the petitioner that
for larger public benefit, the said circular needs to be quashed
and set aside.
22 In light of the aforesaid discussion, the impugned
circular is upheld.
Writ Petitions are dismissed.
Rule is discharged. No order as to costs.
(SMT. BHARATI H. DANGRE, J.) (S.C. DHARMADHIKARI, J.)
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