Gujarat High Court
Bharatsinh Sudhansinh Sodha vs Suvrat Prataprao Jadhav on 18 November, 2021
Author: S.H.Vora
Bench: S.H.Vora
C/FA/841/2018 CAV JUDGMENT DATED: 18/11/2021
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 841 of 2018
With
CIVIL APPLICATION (FOR VACATING INTERIM RELIEF) NO. 1 of 2021
In R/FIRST APPEAL NO. 841 of 2018
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE S.H.VORA
==========================================================
1 Whether Reporters of Local Papers may be allowed No
to see the judgment ?
2 To be referred to the Reporter or not ? No
3 Whether their Lordships wish to see the fair copy No
of the judgment ?
4 Whether this case involves a substantial question No
of law as to the interpretation of the Constitution
of India or any order made thereunder ?
==========================================================
BHARATSINH SUDHANSINH SODHA & 7 other(s)
Versus
SUVRAT PRATAPRAO JADHAV & 12 other(s)
==========================================================
Appearance:
MR MAULIK NANAVATI FOR M/S. NANAVATI AND CO.(7105) for the
Appellant(s) No. 1,2,3,4,5,6,7,8
for the Defendant(s) No. 11,12,13,5,6
MR M R BHATT, SENIOR COUNSEL FOR M R BHATT & CO.(5953) for the
Defendant(s) No. 8,9
MUNJAAL M BHATT(8283) for the Defendant(s) No. 8,9
RULE SERVED(64) for the Defendant(s) No. 1,10,2,3,4,7
==========================================================
CORAM:HONOURABLE MR. JUSTICE S.H.VORA
Date : 18/11/2021
CAV JUDGMENT
1. Challenge in present First Appeal under section 96 read with Order 41 of Code of Civil Procedure, 1908 is the judgment and decree dated 26.02.2018 passed in Special Civil Suit Page 1 of 33 Downloaded on : Wed Jan 12 02:03:25 IST 2022 C/FA/841/2018 CAV JUDGMENT DATED: 18/11/2021 No.430 of 2009 passed by the learned 5 th Additional Senior Civil Judge, Vadodara.
2. For the sake of convenience, the parties to the present appeal will be referred as per their original status as shown in the plaint. The appellants herein were original plaintiffs whereas, respondents herein were defendants before the learned Trial Court.
3. The subject matter is plot No.85 situated in revenue survey no. 532 paiki bearing city survey no.2060 admeasuring about 4516 sq.meters, forming part of Vishwas Colony situated at R.C.Dutt Road, Alkapuri, Vadodara on the premise that said plot is common plot, garden space jointly belonging to and owned by all the plot holders / owners of the Vishwas Colony. Now on wards, the said plot will be referred to as 'suit plot'.
4. The plaintiffs filed present suit as representative suit after obtaining leave as required under Order 1 Rule 8 of Code of Civil Procedure and thus filed same on behalf of all the plot holders of Vishwas Colony and they have also formed Association too.
4.1. It is the case of the plaintiffs that suit plot is one of the plot originally planned by original owner Shri Yaswantrao Gadge to have plotting in the land on revenue survey no. 532 paiki and other survey number and for such purpose, original owner approached Collector, Vadodara for change of user (NA) under the provisions of Land Revenue Code. Pursuant to request of original owner, NA order dated 03.01.1959 was passed by the Collector. It is further case of the plaintiffs that Page 2 of 33 Downloaded on : Wed Jan 12 02:03:25 IST 2022 C/FA/841/2018 CAV JUDGMENT DATED: 18/11/2021 in pursuance to NA order dated 03.01.1959, Shri Yaswantrao Gadge applied to Collector for sanction of revised plan in the year 1963.
4.2. Vide order dated 29.04.1963, the Collector sanctioned revised plan wherein suit plot was reserved for garden and therefore, plaintiffs claim in the plaint that as per revised plan, suit plot vested / stood transferred with title and possession to the absolute ownership right in favour of plot holders of Vishwas Colony.
4.3. To strengthen vesting of suit plot to the absolute ownership right of all the plot holders, it is further case of the plaintiffs that Office of Talati as way back on 18.05.1962 referred the suit plot as garden plot in the records of rights. According to the case of the plaintiffs, original owner executed various sale deed in favour of different plot holders of Vishwas Colony having recital of NA order passed by the Collector and therefore, the plaintiffs claim ownership rights on the basis of such recital in various sale deeds.
4.4. It is further case of the plaintiffs that despite joint ownership of suit plot held by all the plot holders of Vishwas Colony, defendant no.1 to 7 executed agreement to sale on 03.08.2007 in favour of defendant no.8 and 9. Thereafter, defendants filed collusive suit being Special Civil Suit No.341 of 2008 and obtained collusive compromise order on 08.08.2008. Pursuant to collusive decree, defendant no.8 filed Execution Petition No.65 of 2008, wherein, defendants in connivance with each other obtained order of appointment of Court Commissioner for execution of sale deed in favour of Page 3 of 33 Downloaded on : Wed Jan 12 02:03:25 IST 2022 C/FA/841/2018 CAV JUDGMENT DATED: 18/11/2021 defendant no.8. Ultimately, sale deed dated 13.03.2009 was executed on behalf of Court Commissioner in favour of defendant no.8. Thus, the plaintiffs have filed suit and prayed for cancellation of registered agreement to sale dated 03.08.2007, to set aside compromise decree passed in Special Civil Suit No.341 of 2008 and also sought cancellation of sale deed dated 13.03.2009. In addition to it, the plaintiffs have further prayed for other reliefs as per plaint para 22 which pertains to negative / positive declaration of their ownership, right, title, interest and possession over suit plot and consequential relief of permanent injunction restraining defendants from transferring the suit plot of the plaintiffs and other injunctive reliefs.
4.5. Defendant no.1 to 7 filed written statement below Exh.51, whereas, defendant no.8 filed written statement below Exh.52 inter-alia contending that suit plot was never sold to the plaintiffs and it always owned and possessed by original owner Shri Yaswantrao Gadge and therefore, the plaintiffs have no legal right to file suit in present form. It is case of the defendants that different plot holders of Vishwas Colony were given respective plots individually by executing registered sale deed to different individual plot holders viz. Plot No.1 to 80 and suit plot was never sold and any right or title transferred or acquired to any of the plaintiffs as ownership and possession of the suit plot remained with Gadge family and subsequently, by way of transfer with the defendant no.1 to 7. It is specific case of the defendants that revised plan dated 29.04.1963 was never got sanctioned either by defendant no.1 to 7 or their predecessor in title or even sanctioned by any competent authority. According to the defendants case, documents Page 4 of 33 Downloaded on : Wed Jan 12 02:03:25 IST 2022 C/FA/841/2018 CAV JUDGMENT DATED: 18/11/2021 produced before the Court are concocted and fake documents created with a view to mislead the Court and to suppress the true facts before the Court. It is case of the defendants that compromise decree in the suit filed by defendant no.8 is legal and valid and after obtaining consideration of Rs.360 lakhs sale deed in favour of defendant no.8 came to be executed and registered through appointed Court Commissioner in execution proceedings. It is further case of the defendants that present suit is filed by the plaintiffs challenging legality and validity of impugned compromise decree arrived at between defendant no.1 to 7 and defendant no.8 in Special Civil Suit No.341 of 2008 in respect of suit plot and prayed for setting aside compromise decree. Thus, virtually, suit is filed to set aside compromise decree on the premise that such compromise decree passed was unlawful and therefore, suit in its present form is not maintainable, in view of mandatory provision of Order 23 Rule 3A of Code of Civil Procedure.
5. In order to establish their respective case before the learned Trial Court, both the sides have adduced oral and documentary evidence. The learned Trial Judge based on evidence framed as many as 12 issues. Upon considering submissions made at bar and after detailed scrutiny of oral and documentary evidence and case law cited at bar, the learned Trial Judge dismissed the suit of the plaintiffs and thus, present appeal is filed.
6. I have heard learned advocate Mr. Maulik Nanavati for the appellants and learned Senior Counsel Mr. M.R.Bhatt appearing for defendant nos.8 on 29.09.2021 and 14.10.2021 and were permitted to file written submissions. Accordingly, Page 5 of 33 Downloaded on : Wed Jan 12 02:03:25 IST 2022 C/FA/841/2018 CAV JUDGMENT DATED: 18/11/2021 both the learned advocates placed on record their respective written submissions.
7. Learned advocate Mr. Maulik Nanavati for the plaintiffs vehemently argued and submitted that defendants through evil design / plan sought to take away suit plot earmarked as common plot belonging to Vishwas Colony by committing fraud inasmuch as the defendants utilized the Court process for such design / plan. According to him, all the defendants acted upon so as to ensure that the plaintiffs are deprived of suit plot which was in their possession for long period of time i.e. right from inspection of society and for such submission, he took the Court through various recital made in various sale deeds on record to establish that suit plot is conjoint ownership of different plot holders of Vishwas Colony. It is further submitted that original owner and the defendants no.1 to 7 are not entitled to act contrary to the completed transfer of suit plot and for such submission he has placed reliance on revised NA order dated 29.04.1963 produced at Exh.355, copy of NA order dated 03.01.1959 produced at Exh.194 and revenue entry no.3348 dated 18.05.1962 at Exh.249. While elaborating further submissions to establish the case, learned advocate Mr. Maulik Nanavati submitted that original owner executed several sale deed in favour of various individual persons, pursuant to which they acquired ownership of plots in Vishwas Colony, more particularly, documents produced at Exh.199, 200, 201, 197, 198, 239, 245 and 352 would show that plot no.1 to 85 including suit plot belonging to late Shri Yaswantrao Gadge. Thus, execution of documents, revised NA order passed by the office of Collector in the year 1963 proves the case of the plaintiffs. As it is referred in various sale deeds including Page 6 of 33 Downloaded on : Wed Jan 12 02:03:25 IST 2022 C/FA/841/2018 CAV JUDGMENT DATED: 18/11/2021 layout map Exh.195 bearing signature of original owner, plaintiffs' case ought to have been accepted and believed by the learned Trial Court. Learned advocate Mr. Maulik Nanavati has also made reference of Government Notification Exh.360 issued by Government of Gujarat through Revenue Department to prove that provision of common plot is made to use the land in the nature of residential colony and as such common plot is possessed by the society and therefore, suit plot ought to have been treated jointly owned by the residents of Vishwas Colony. It is further submitted that execution and registration of various sale deeds are not challenged by the defendants and thus, the plaintiffs prove ownership rights along with actual possession being held by the plaintiffs. Thus, act of defendant no.1 to 7 inviting collusive decree and in pursuance thereto getting appointed Court Commissioner for execution of decree is not only unlawful, but defendant nos.1 to 7 have no locus or any right once suit plot vests / transferred in favour of different individual plot holders of Vishwas Colony.
8. Learned advocate Mr. Maulik Nanavati for the plaintiffs further submitted that the learned Trial Judge has committed serious error in arriving at finding as to non maintainability of the suit because the Court has not framed issue on this aspect and therefore, the plaintiffs are deprived of their right to contest the same. Thus, the learned Trial Judge committed apparent error. If at all the suit was not maintainable being barred by Order 23 Rule 3A of the Code of Civil Procedure, then the Court ought not to have dwell into factual aspects on merits and thereby proceeded to have decided the matter on its merits. In the alternative, it is submitted by learned Page 7 of 33 Downloaded on : Wed Jan 12 02:03:25 IST 2022 C/FA/841/2018 CAV JUDGMENT DATED: 18/11/2021 advocate Mr. Maulik Nanavati that if this Court comes to the conclusion or agrees with the findings of the learned Trial Court on the aspect of non maintainability of suit, then the matter may be remanded back to the learned Trial Judge. At the end of the argument, learned advocate Mr. Maulik Nanavati further submits that if this Court comes to the conclusion that plaintiffs have no locus to file suit in view of provision of Order 23 Rule 3A of Code of Civil Procedure, then, liberty may be granted to the plaintiffs to challenge the compromise decree arrived between the defendants. On this broad legal and factual submissions, he made a request to allow the present appeal or to remand the matter back to the learned Trial Court or to grant liberty to the plaintiffs to take legal recourse to challenge compromise decree before the Court, which passed it.
9. Per contra, learned Senior Counsel Mr. M.R.Bhatt appearing for respondent no.8 submits that representative suit is filed praying for cancellation and setting aside the compromise decree entered into between defendant no.1 to 7 and 8, but in view of provisions contained in Order 23 Rule 3A of Code of Civil Procedure, such suit challenging compromise decree is specifically barred and not maintainable. However, while refusing to examine lawfulness finding or otherwise of the compromise decree, learned Trial Judge adjudicated the issue on merits also and there is no error either on facts or law in appreciating the evidence adduced before the learned Trial Court. Thus, the plaintiffs have no right or title to claim suit plot. It is submitted that plaintiffs rely on NA order 03.01.1959 Exh.194 and revised NA order dated 29.04.1963 Exh.355 to contend that under both the orders the suit plot is earmarked Page 8 of 33 Downloaded on : Wed Jan 12 02:03:25 IST 2022 C/FA/841/2018 CAV JUDGMENT DATED: 18/11/2021 as garden plot. But the submission is far from truth, since none of the orders mention this fact. Specific contention is raised by learned Senior Counsel Mr. Bhatt that revised NA order dated 29.04.1963 Exh.355 is dubious since concerned Officer in his deposition specifically stated that office of Collector destroyed the record after certain date and further Collector office was not in receipt of original revised NA order dated 29.04.1963. He has specifically drawn attention of this Court towards deposition of plaintiff No.5 - Shri Vinubhai Desai who in his cross examination admitted that he is owner of plot no.80 and his sale deed is based on NA order of the year 1959 and Collector had never passed any NA order in the year 1963. Such deposition is at Exh.282. So far as Notification at Exh.360 referred by learned advocate for the plaintiffs is concerned, it came into force in the year 1976 and it was started to be implemented in the year 1978 which brought into existence concept of common plot and therefore, reliance on such documents to prove that suit plot was common plot is erroneous as much as there was no concept of common plot when NA order of 1959 was passed. Learned Senior Counsel Mr. Bhatt further submits that reliance placed on map Exh.195 purportedly signed by the original owner and architect is doubtful because no any Government Officer had certified it. Learned Senior Counsel Mr. Bhatt argued that if map Exh.195 is correct then plot no.84 is marked as 'Club house' whereas in reality and as per evidence on record, plaintiff no.1 is owner of plot no.84. It is submitted at bar that plaintiffs have relied on revenue entry no.3348 dated 18.05.1962 to contend that revised NA order was passed on 29.04.1963, which on the face proves that revised NA order is concocted document and even hand written entry is unreliable with regard to garden land.
Page 9 of 33 Downloaded on : Wed Jan 12 02:03:25 IST 2022C/FA/841/2018 CAV JUDGMENT DATED: 18/11/2021 After drawing attention of the Court to communication dated 01.05.2008 at Exh.269, the Collector specifically stated that there is no proof that suit plot being marked as garden and such communication is addressed to the plot holders of Vishwas colony and there is no challenge to such order by the plaintiffs till date.
10. Lastly, it is submitted by learned Senior Counsel Mr. Bhatt that it is well settled that title over the immovable property can be acquired by three modes, one by registered instrument, if immovable property having more than Rs.100 i.e. registered sale deed, gift deed or relinquish deed by acquisition, second by heirship or having will or testamentary instrument and third by operation of law. Except this three modes, no other mode over title of property is recognized and therefore, claim of acquisition of title over suit plot upon order passed by the Collector, more particularly revised NA order dated 29.04.1963 cannot establish right, title or possession of the plaintiffs and thus, it is submitted that there is no error either on fact or law is committed by the learned Trial Court dismissing the suit and therefore, no interference in the present appeal requires and thus, it is prayed to dismiss the appeal with cost.
11. After hearing submissions as aforesaid, following points arise for determination in the present appeal :-
(i) Whether the learned Trial Judge has committed legal error in holding that present suit is not maintainable as the plaintiffs cannot challenge compromise decree invited in Special Civil Suit No.341 of 2008 by the Page 10 of 33 Downloaded on : Wed Jan 12 02:03:25 IST 2022 C/FA/841/2018 CAV JUDGMENT DATED: 18/11/2021 defendants and consequently sale deed dated 13.03.2009 Exh.193, in view of provisions contain in Order 23 Rule 3A of CPC ?
(ii) Whether the plaintiffs prove that revised NA order dated 29.04.1963 read with layout plans Exh.195 / 291 creates any common right, title or interest in favour of respective plot holders in the suit plot and consequently revenue entry no.3348 dated 18.05.1962 Exh.249 is legally and validly posted in the revenue record ?
(iii) Whether the plaintiffs prove that suit plot was demarcated as common plot by the original owner Mr. Yashwantrao Gadge and thus, transferred right, title and interest over the suit plot to the plot holders for common possession and occupation of plaintiffs and consequently vested as such in view of recital made in various registered sale deeds executed in favour of various plot holders?
(iv) Whether the consent decree invited by the defendants in S.C.S.No.341 of 2008 and consequently, execution and registration of sale deed dated 13.03.2009 with regard to suit plot is fraudulent acts on the part of defendants and therefore, inoperative and void ?
(v) What final order ?
12. The case as sought to be established by the plaintiffs is like this :-
12.1. The original owner approached Collector, Vadodara for change of user of land bearing survey no.532 paiki and other Page 11 of 33 Downloaded on : Wed Jan 12 02:03:25 IST 2022 C/FA/841/2018 CAV JUDGMENT DATED: 18/11/2021 survey numbers under the provisions of Land Revenue Code.
Vide order dated 03.01.1959 at Exh.194, the Collector permitted plotting of the land as measured and de-marked by the original owner assigning plot no.1 to 80 and further permitted to keep 5400 sq.yards of land for the purpose of garden and open land. Thereafter, original owner Shri Yaswantrao Gadge applied to the Collector for sanction of revised plan which the Collector sanctioned the same vide order dated 29.04.1963. As per case of the plaintiffs, the suit plot was reserved for garden / open plot as shown in the layout plan at Exh.355. Therefore, the plaintiffs raised a case that by virtue of sanction layout plan, suit plot vests in absolute ownership right in favour of the plaintiffs and possession stood transferred to all the plot holders of Vishwas Colony jointly with exclusive possessory right.
12.2. In order to strengthen the case, the plaintiffs have placed reliance upon Hakkapatra dated 18.05.1962 bearing 3348 at Exh.249 and placed reliance on the recital made in registered sale deed executed in favour of plot holders regarding common plot and reference of revised NA order dated 29.04.1963. In nutshell, the plaintiffs have based their right, title and possession over the suit plot on the strength of revised NA order dated 29.04.1963, revenue entry no.3348 and recital made in various registered sale deed executed by original owner viz. Shri Yaswantrao Gadge in favour of plot holders of Vishwas colony.
12.3. While claiming title and possession over suit plot on the basis of aforesaid documents / order and further claiming various declaratory reliefs both negative and positive, the Page 12 of 33 Downloaded on : Wed Jan 12 02:03:25 IST 2022 C/FA/841/2018 CAV JUDGMENT DATED: 18/11/2021 plaintiffs have prayed for cancellation of registered agreement to sale dated 03.08.2007 executed by defendant no.1 to 7 in favour of defendant no.8, compromise decree passed in Special Civil Suit No.341 of 2008 and consequently registered sale deed dated 13.03.2009 executed by Court Commissioner in favour of defendant no.8 in the process of executing compromise decree in execution proceedings.
13. Before the claim so raised and projected by the plaintiffs in the plaint is examined on its merits, it requires to be kept in mind that there are certain facts of the case for which parties are not at variance and they are not in dispute. They are as under :-
(I) The suit plot and other various plots were of ownership of one Shri Yashwantrao Gadge and he executed various registered sale deed in favour of various plot holders, so there is no challenge to authority of the original owner to sell and transfer plots situated at land bearing revenue survey no.532 paiki and other survey numbers. It is a matter of fact that there is no specific reference of any plot number beyond plot nos.1 to 80 are noticed / mentioned either in NA order or revised NA order Exh.194 and 355.
(ii) NA order dated 03.01.1959 at Exh.194 permitting plotting of 80 plots are not in issue or dispute. The communication dated 01.05.2008 addressed by the Collector to the committee members of Vishwas Colony Exh.269 with regard to suit plot clearly indicated that there is no any iota of evidence with regard to suit plot being earmarked for garden and further as per order dated 26.06.1968 City Surveyor had held title of Shri Page 13 of 33 Downloaded on : Wed Jan 12 02:03:25 IST 2022 C/FA/841/2018 CAV JUDGMENT DATED: 18/11/2021 Yaswantrao Gadge over the said plot and thus the Collector communicated accordingly to the plaintiffs. Said communication at Exh.269 was never challenged by the plaintiffs before the competent court / forum till today.
Similarly, entry posted in village form 7/12 with regard to suit plot posted in the revenue record in favour of original owner viz. Shri Yaswantrao Gadge at Exh.260 is final and never cancelled since 1971 - 72 to till date, which stands in the name of original owner and subsequently, in the name of defendant no.1 to 7.
(iii) It is a matter of fact that the plaintiffs are not claiming title over the suit plot either (a) by way of registered instrument (b) by succession i.e. by heir-ship or heredity or by having execution of Will or testamentary instrument or (c) by operation of law, like under the provisions of Land Acquisition Act, Town Planning scheme introduced under the provisions of Town Planning Act.
(iv) Lastly, it is matter of fact that the plaintiffs were not party in the proceedings being RCS No.341 of 2008 and so also in execution proceedings being E.P.No.65 of 2009. Thus, the plaintiffs are third party so far as consent decree initiated by the defendants are concerned. Moreover, the plaintiffs are neither heirs or legal representative of original owner of the land being Survey No.532 paike and other survey numbers and also claim right title through any of the defendants.
13.1. Point wise findings are as under :-
Page 14 of 33 Downloaded on : Wed Jan 12 02:03:25 IST 2022C/FA/841/2018 CAV JUDGMENT DATED: 18/11/2021 Point No.1
14. Learned advocate Mr. Maulik Nanavati for the plaintiffs vehemently argued that the learned Trial Judge has not framed any issue insofar as maintainability of the suit is concerned. According to him, when the Court has not framed specific issue to this effect and when the parties are not put to notice, they are deprived of their right to contest by making appropriate submissions and thus, apparent error is committed by the learned Trial Court resulting in breach of principles of natural justice. It is further submitted that the moment the Court comes to the conclusion that suit itself was not maintainable, then, the Court ought not to have decided the matter on merits and therefore, this Court may remand the matter to the learned Trial Court for de-novo hearing within stipulated time period of six months. In the alternate, learned advocate Mr. Maulik Nanavati has submitted that if the learned Trial Court has no jurisdiction to entertain the suit in view of provisions contained in Order 23 Rule 3A of CPC, then, it could have at the first instance return the plaint to the plaintiffs to enable them to approach appropriate forum ie. the Court which passed the consent decree in RCS No.341 of 2008. He has further submitted that if this Court comes to the conclusion that their exists no locus on the part of the plaintiffs to file separate suit, then, this Court may kindly grant liberty to challenge compromise decree arrived by the parties in separate suit filed by them. In nutshell, it is urged that the plaintiffs cannot be left without any remedy, which flows from the law. From the averments made in the suit itself, it is clear that the plaintiffs pleaded that compromise recorded by the Court concerned was not lawful compromise having been Page 15 of 33 Downloaded on : Wed Jan 12 02:03:25 IST 2022 C/FA/841/2018 CAV JUDGMENT DATED: 18/11/2021 obtained by fraud and by fraudulent means. Therefore, it is argued that maintainability of suit be considered primarily in absence of privity of plaintiffs in collusive compromise and length and depth of entire trial and evidence being carried out in the suit do not allow to suffer to frustrate and rights in law are required to be protected and preserved, for which if this Court finds it procedural requirement, then proceedings be remanded to the learned Trial Court with direction as proceedings under Order 23 with other appropriate directions as aforesaid.
15. As against this, learned Senior Counsel Mr. M.R.Bhatt for the defendants submitted that suit as framed and brought by the plaintiffs in representative capacity is not maintainable, in view of bar contained in Order 23 Rule 3A of CPC and therefore, the plaintiffs could have ventilated their grievance qua consent decree before the Court which accepted the compromise between the defendants and not by way of present separate suit.
16. To appreciate the submissions made at bar, it is a matter of fact that the plaintiffs are neither heirs or legal representative of original owner of land viz. Shri Yaswantrao Gadge and they have not stepped into shoes of original owner in any capacity whatsoever. Thus, the plaintiffs are third party and therefore, they cannot be said to be party to the consent decree even remotely. Having regard to nature of pleadings and evidence adduced before the learned Trial Court and so also submissions before this Court, the Court is required to decide whether bar under Order 23 Rule 3A would be attracted in the facts of the present case, more particularly, learned Page 16 of 33 Downloaded on : Wed Jan 12 02:03:25 IST 2022 C/FA/841/2018 CAV JUDGMENT DATED: 18/11/2021 Trial Judge without framing any issue on this aspect answered all issues against the plaintiffs.
17. It is settled principle of law that agreement or compromise which is void or voidable shall not be deemed to be lawful and the bar under Order 23 Rule 3A would be attracted, if compromise on the basis of which decree was passed was void or voidable under the Indian Contract Act. At this stage, it is relevant and fruitful to make reference of decision of Hon'ble Supreme Court in the case of R. Janakiammal v/s. S.K.Kumarasamy rendered in Civil Appeal No.1537 of 2016 on 30.06.2021, more particularly, para 55 and 56, which is reproduced as under :-
"55. The above judgments contain a clear ratio that a party to a consent decree based on a compromise to challenge the compromise decree on the ground that the decree was not lawful, i.e., it was void or voidable has to approach the same court, which recorded the compromise and a separate suit challenging the consent decree has been held to be not maintainable. In Suit No.1101 of 1987, the plaintiff prayed for a declaration declaring that the decree passed in O.S. No. 37 of 1984 is sham and nominal, ultravires, collusive, unsustainable invalid, unenforceable and not binding on the plaintiffs. We have noted the grounds as contained in the plaint to challenge the consent decree in foregoing paragraphs from which it is clear that the compromise, which was recorded on 06.08.1984 was sought to be termed as not lawful, i.e., void or voidable. On the basis of grounds which have been taken by the plaintiff in Suit No.1101 of 1987, the only remedy available to the plaintiff was to approach the court in the same case and satisfy the court that compromise was not lawful. Rule 3A was specifically added by the amendment to bar separate suit to challenge the compromise decree which according to legislative intent to arrest the multiplicity of proceedings. We, thus, do not find any error in the judgment of trial court and High Court holding that Suit No.1101 of 1987 Page 17 of 33 Downloaded on : Wed Jan 12 02:03:25 IST 2022 C/FA/841/2018 CAV JUDGMENT DATED: 18/11/2021 was barred under Order XXIII Rule 3A.
56. We having found that Suit No.1101 of 1987 being barred under Order XXIII Rule 3A, it is not necessary for us to enter into correctness or otherwise of the grounds taken in the plaint for questioning the compromise decree dated 06.08.1984. The compromise decree dated 06.08.1984, thus, could not have been questioned in Suit No. 1101 of 1987."
18. The Hon'ble Supreme Court clearly laid down ratio that if the parties to the consent decree based on the compromise intends to challenge the decree on the ground that decree was not lawful i.e. void or voidable, it has to approach the same court which recorded the compromise and separate suit challenging consent decree is not maintainable.
19. In the instant case, the plaintiffs are not party to the consent decree and they are absolutely third party and they are not concerned or connected with any of the party to the previous suit where consent decree was invited. In other words, the plaintiffs are neither legal representative nor in any manner concerned or connected with any of the defendants. In view of such status of parties to the previous suit and present suit, the plaintiffs are well within their right to challenge compromise decree by separate suit as they are third party and therefore, the learned Trial Judge has misinterpreted the provisions of law ignoring the fact that the plaintiffs are third party. Therefore, in Court's considered opinion, the learned Trial Judge has committed apparent error in observing that suit is not maintainable, in view of provisions contained in Order 23 Rule 3A of CPC.
Page 18 of 33 Downloaded on : Wed Jan 12 02:03:25 IST 2022C/FA/841/2018 CAV JUDGMENT DATED: 18/11/2021
20. The moment this Court comes to the conclusion that suit is maintainable, then the recourse available to this Court is to remand the matter for de-novo trial and direct the learned Trial Court to decide the suit on its merits. But the learned Trial Judge has also decided the suit on its own merits, appreciated all the factual contentions and issues with regard to right, title and interest of the parties to the suit including legality and validity of consent decree invited by the defendants and there is no grievance on the part of learned advocate Mr. Maulik Nanavati as to omission on the part of the learned Trial Judge to deal with any issue of facts arising out of pleadings. In view of such position, there is no reason to remand the matter or to adopt any recourse suggested by him as referred in para 14, as aforesaid and therefore, now the Court would like to proceed to re-appreciate and re-assess the evidence adduced before the learned Trial Court and correctness of finding of facts recorded by the learned Trial Court with regard to right, title of the parties with regard to suit plot.
Point No.2 and 3.
21. On facts, the Court is required to decide, upon re- appreciation and re-assessment evidence adduced before the learned Trial Court, whether the suit plot is part of revised NA Order and layout plan and whether revenue entry No.3348 reflects correct position / status of suit plot reserved as garden for common usage, more particularly, in view of reference / recital made in various registered sale deed executed by Shri Yaswantrao Gadge in favour of plot holders of Vishwas Colony.
Page 19 of 33 Downloaded on : Wed Jan 12 02:03:25 IST 2022C/FA/841/2018 CAV JUDGMENT DATED: 18/11/2021
22. In order to establish the case, the plaintiffs produced in all 66 documents and other two documents. The plaintiff no.1 Shri Bharatsinh Sodha is examined at Exh.175, one Smt. Ushaben Patak is examined at Exh.272, Shri Vinubhai Desai - plaintiff no.5 is examined at Exh.282. In addition to three witness, the plaintiffs have also examined one Shri Bharatbhai authorized Officer of Collector, Vadodara at Exh.305 through whom one communication dated 11.08.2014 was placed on record and lastly, Shri J.N.Shah, an employee of Collector office is examined at Exh.327.
23. The defendants have also adduced oral and documentary evidence before the learned Trial Court. The defendant side examined two witnesses viz. Shri Survat Jadav at Exh.351 and Shri Sureshbhai at Exh.365. Additionally, the defendants have also produced documentary evidence in the form of certified copy of resolution made in inquiry register by city Survey Officer at Exh.293, certified copy of property card of city survey no.2060 at Exh.294, certified copy of village form no.6/12 of revenue survey no.532/86 for the years from 1971- 72 to 2005-2006 at Exh.260, certified copy of letter dated 01.05.2008 written by the Collector, Vadodara to plaintiffs at Exh.269.
24. To establish the case, mischievous attempt was made by the plaintiffs through witness - Shri Vinubhai Desai, plaintiff no.5 who produced layout plan at Exh.260/1 (temporarily exhibited as Exh.291). It is mischievous attempt because the very witness has specifically admitted in his cross examination at Exh.282 that the Collector has never passed order in the year 1963 and only plan of 1959 was in existence. Therefore, Page 20 of 33 Downloaded on : Wed Jan 12 02:03:25 IST 2022 C/FA/841/2018 CAV JUDGMENT DATED: 18/11/2021 layout plan Exh.291 depicting / showing existence of plots other than 80 plots are rightly disbelieved by the learned Trial Judge for which this Court do not find any impropriety or illegality in observing so.
25. One of the plaintiffs' witness Shri Vinubhai Desai examined at Exh.282, who is plaintiff no.5, categorically and specifically admitted that layout plan which was provided to them while executing sale deed of plot no.18 was plan based on NA order of 1959. He has specifically admitted that the Collector had never passed any NA order in the year 1963. So from the evidence of said witness, it transpires that plan referred to by the plaintiffs in the plaint is not part of NA order of 1963 so as to infer that original owner Shri Yaswantrao Gadge on the basis of revised NA of 1963 earmarked in all 85 plots in the land bearing survey no.532 paiki. No-doubt it is true that there is reference of NA order of 1963, but the plaintiffs have not produced any reliable and cogent evidence through any of the witnesses including Government witness to indicate that either Exh.195 / 291 layout plan or any of the plans on record were part of various registered sale deed executed in favour of plot holders of Vishwas Colony. There is no doubt in the mind of this Court or there is any dispute that original owner got sanctioned 80 plots in revenue survey no.532 paiki, but there is revised order of 1963 invited by the original owner but no any authentic piece of evidence is brought on record to believe that plan Exh.195 / 291 was part of any registered sale deeds and it is genuine document.
26. I have minutely and carefully examined various sale deeds executed by original owner viz. Shri Yawantrao Gadge Page 21 of 33 Downloaded on : Wed Jan 12 02:03:25 IST 2022 C/FA/841/2018 CAV JUDGMENT DATED: 18/11/2021 right from the year 1963 on wards. Not a single sale deed mentions suit plot as common plot. Learned advocate Mr. Nanavati for the appellants places reliance on map at Exh.195 / 291 purportedly signed by original owner and architect to contend that under said map, plot no.85 is shown as garden. As such, this map, is not claimed by any of the plaintiffs being part of the registered sale deed or being presented to any of the government office or duly certified and issued by the competent authority. Therefore, its genuineness cannot be accepted as piece of evidence to infer that suit plot is common plot to be shared by the plaintiffs. In the said map, suit plot is marked as garden and not common plot. In the very same map, plot no.84 is marked as club house, whereas, as per evidence of plaintiffs themselves, more particularly, plaintiff no.1 who deposed that he is possessing bungalow at plot no.84 which is alleged to have been shown as club house in the layout plan at Exh.195 / 291. In view of such position, the learned Trial Judge has rightly discarded layout plan at Exh.195 / 291 and upon scrutiny of entire evidence as it is, this Court do not find that layout plan Exh.195 / 291 was ever accepted and certified by any of the competent authority in any proceedings or even shown by any of the plaintiffs that said layout plan at Exh.195 / 291 was part of their title deeds.
27. It is relevant fact to note here that other witnesses on the plaintiff side categorically admitted in their respective cross examination that none of the sale deeds produced on record, suit plot has been sold to any of the plot holders to be used as common plot or any rights assigned or transferred. At this stage it is relevant to take note of revenue entry no.3348 dated 18.05.1962 allegedly entered into record on the basis of Page 22 of 33 Downloaded on : Wed Jan 12 02:03:25 IST 2022 C/FA/841/2018 CAV JUDGMENT DATED: 18/11/2021 NA order dated 29.04.1963. By reading said entry, plot no.85 has been shown as garden plot and its area is 48,600 sq. feet and same is added in the said entry on the basis of written application submitted by original owner Shri Yashwantrao Gadge. Learned advocate Mr. Maulik Nanavati for the plaintiffs could not convince the Court as to how revised NA order of Collector dated 29.04.1963 could have been entered into revenue record on 18.05.1962 more particularly when order of revised NA order of 29.04.1963 could have been born or came into existence on 18.05.1962. On close scrutiny of entry no.3348 dated 18.05.1962, it appears that it is entry on the basis of NA order of Collector dated 03.01.1959 in which only 80 plots were sanctioned and entered into revenue record and there was no effect given for revised NA order of 1963 as same never came into existence on 18.05.1962. So it can be inferred that later part of the entry is manipulated showing other five plots including suit plot as garden plot. Entry no.3348 is fake and got up and therefore, the learned Trial Judge has rightly discarded and disbelieved.
28. As recorded herein above, NA order of 1959 pertains to 80 plots and it further indicates that 5400 sq.yards was shown as garden plot / open plot but not specifying any particular plot number as common plot, more particularly, suit plot. The plaintiffs fail to convince this Court, if at all any further demarcation of plots beyond plot no.1 to 80 are reserved for common purpose, then why plot no.81 to 84 stood transferred in favour of other plot holders, more particularly, plot no.84 shown as club house but sold to one of the plaintiffs. No any justification is provided by learned advocate Mr. Maulik Nanavati either in oral or written submission, more particularly, Page 23 of 33 Downloaded on : Wed Jan 12 02:03:25 IST 2022 C/FA/841/2018 CAV JUDGMENT DATED: 18/11/2021 genuineness of entry no.3348 at Exh.249 and layout plan at Exh.195 / 291.
29. The core issue involved in the suit is whether suit plot is common plot demarcated in revised NA permission in the year 1963. On the other hand, it is the case of the defendants that only 80 plots were permitted to be converted into NA in the year 1959 as per NA order dated 03.01.1959 Exh.194. It is further case of the plaintiffs that NA order was revised in the year 1963 and as per revised plan, 5 plots were added and suit plot was shown as common plot in the sanction layout plan, for which the plaintiffs have relied on revised NA order at Exh.355. There is serious dispute over the said document being fraudulent, fake and got up. It is a matter of fact that revised plan of the year 1963 is referred in various sale deeds, executed and registered in favour of plot holders. But the moot question remains to be answered / examined whether the layout plan produced by the plaintiffs at Exh.195 / 291 are genuine revised NA layout plan which shows suit plot as common plot. On perusing various sale deeds on record, none of the sale deed specifies that suit plot is common plot. Looking to the layout plans Exh.195 / 291, suit plot is demarcated as common plot, but said layout plan is not proved and it does not stand proved to be genuine document. Had it been true and correct layout plan, then in the layout plan, plot no.84 would have been shown as Club house but it is not so, as is evident in the layout plans at Exh.195 / 291. Said two piece of evidence were not believed by the learned Trial Court on the premise that office of Collector produced an order dated 06.12.2005 inter-alia stating that all the documents related to entire land has been destroyed as per order No.Record Page 24 of 33 Downloaded on : Wed Jan 12 02:03:25 IST 2022 C/FA/841/2018 CAV JUDGMENT DATED: 18/11/2021 Vasi/7139/05 vide Exh.304. Further, learned Trial Court observed and found entry Exh.249 in relation to plotting of Vishwas Colony pursuant to order dated 03.01.1959, there was overwriting and hotch potch entries and 5 plots were added which were not part of original order of NA dated 03.01.1959. Upon careful examination of documents relied upon by the plaintiffs, it is quite clear that plot no.85 and 84 are shown as garden and club house respectively. If we peruse document Exh.249, then there is nothing written against plot no.84, whereas in other documents produced by plaintiffs, plot no.84 is shown as club house. If revised order of the year 1963 is true and correct, then why there is nothing written against plot no.84. Not only that no map with any sale deeds is produced along with revised order. Thus, learned Trial Judge found and noticed that the plaintiffs have concealed true facts and produced contradictory evidence on record.
30. One more glaring defect noticed by this Court is such that plaintiff no.4 produced revised NA order vide Exh.267, which bears signature of Talati and certified in the year 1988. When plaintiff no.1 was put to question in cross examination about the sale deed which was executed on 24.09.1975 at Exh.199, he stated that it was not annexed with the sale deed but it was given to plaintiff no.4 with the sale deed. It is surprising to note that if sale deed is executed in the year 1975, then how true copy of revised order certified in the year 1988 could have been given in the year 1975 and there is no answer from any of the plaintiffs. As such and in fact, if any order is passed by the Collector, then such record would be always in the custody of the Collector and therefore, learned Trial Judge rightly doubted genuineness of the documents namely layout plan Page 25 of 33 Downloaded on : Wed Jan 12 02:03:25 IST 2022 C/FA/841/2018 CAV JUDGMENT DATED: 18/11/2021 certified by Talati who is not custodian of original order of NA / revised NA and so also layout plan.
31. It is also relevant to note that one witness ie. Shri Vinubhai Desai, plaintiff no.5, who is examined at Exh.281, owner of plot no.18 admitted that Collector has never passed any order of 1963 and his sale deed is based on NA order of 1959. The plaintiffs miserably failed to prove about existence of revised NA plan. Even, if it is believed that layout plan produced by plaintiffs at Exh.195 and 355 which shows suit plot as common plot and plot no.84 as club house, but as per evidence adduced by the plaintiffs themselves, deceased Shri Vishwas Gadge has sold part of plot no.84 to plaintiff no.1 and he has admitted that he has bungalow on the said plot no.84 (sale deed Exh.200) and therefore, learned Trial Judge has rightly doubted authenticity of revised NA plan. On perusal of evidence, it becomes evident that plaintiffs tried to fill up lacuna at the time of adducing evidence, inasmuch as the plaintiffs argued before the learned Trial Court that deceased Shri Vishwas Gadge took permission from the authorities and thereafter, he sold plot no.84. But on close scrutiny of documents at Exh.356 to 359, it seems that no any permission was taken by Shri Gadge to sale plot no.84 but it was shown as open land available under section 12 of T.P.Act. In nutshell, plaintiffs fail to justify as to addition of 5 plots in the layout plans produced by them and whatever evidence both oral and documentary led before the learned Trial Court do not inspire confidence in the mind of this Court to believe its existence because both layout plan Exh.195 / 291 and entry no.3348 at Exh.249 are found to be fake and fabricated and this Court also do not find any fault in reaching such finding and Page 26 of 33 Downloaded on : Wed Jan 12 02:03:25 IST 2022 C/FA/841/2018 CAV JUDGMENT DATED: 18/11/2021 conclusion by the learned Trial Court.
32. It is a matter of fact that the plaintiffs are claiming right, title and possession over the suit plot on the basis of revised NA order and revenue entry no.3348 dated 18.05.1962 and various recital / reference made with regard to common area in various sale deeds executed in favour of various plot holders. Meaning thereby, the plaintiffs are not claiming their right, title, interest over the immovable property on the basis of any recognized mode of acquiring title under the provisions of Transfer of Property Act. It is well settled that title over the immovable property can be acquired by three recognized mode viz. by registered instrument, if immovable property having more than Rs.100 i.e. registered sale deed, gift deed, relinquish deed by acquisition, second by heir-ship or having Will or testamentary instrument and thirdly by operation of law. Admittedly, the plaintiffs are not claiming title over the suit plot on the basis of any recognized mode. Therefore, the claim of acquisition of title over the suit plot upon revised NA order dated 29.04.1963 cannot establish right, title or possession of the plaintiffs. Now so far as recital / reference made in registered sale deeds are concerned, in none of the sale deeds, there is any reference of suit plot earmarked as common plot, but there is only general reference of common area. Since the plaintiffs have not produced layout plan attached with the sale deed at the relevant point of time, in such situation, no weightage can be attached to the documentary evidence placed on record which is discarded by the learned Trial Judge by giving reasons, more particularly with regard to its genuineness and admissibility.
Page 27 of 33 Downloaded on : Wed Jan 12 02:03:25 IST 2022C/FA/841/2018 CAV JUDGMENT DATED: 18/11/2021
33. Learned advocate Mr. Maulik Nanavati for the plaintiffs submitted that suit plot is part of Town Planning Scheme and it was demarcated for garden and for such submission, he relied on Circular at Exh.360, wherein instructions with regard to change of use of land has been stipulated by the authority of Government of Gujarat. According to him, condition no.1 of Exh.360 clearly reflects joint and common ownership rights in common plots. It is case of the plaintiffs that change of usage was availed by the original owner Shri Yaswantrao Gadge and thus, ownership right over suit plot was acquired by the plaintiffs on the basis of registered sale deed. Upon careful perusal of Circular Exh.360, it is quite clear that said GDCR came into existence in the year 1976 and it started to be implemented in the year 1978, which brought into concept of common plot. Therefore, reliance placed on circular / notification prior to 1976 to prove suit plot was common plot is erroneous because NA order or revised NA order with regard to land in question came to be passed in the year 1959 / 1963. So said circular, no-doubt, indicates to earmark common area to be kept as open common plot, but there was no such concept when original owner applied for NA permission in the year 1959.
34. It is also important and relevant to note here that though various sale deeds registered in favour plot holders makes a reference as to existence of map and if map is attached with the sale deed which would have been part of sale deed, but the Court fail to understand as to why not a single map originally attached with sale deed is on record. In view of above position, this Court do not find any fault, impropriety or illegality in answering issue no.1 to 5 against the plaintiffs. On Page 28 of 33 Downloaded on : Wed Jan 12 02:03:25 IST 2022 C/FA/841/2018 CAV JUDGMENT DATED: 18/11/2021 bare perusal of NA order dated 03.01.1959 at Exh.194 and revised NA order at Exh.355, there is no reference or indication that plot no.85 i.e. suit plot is earmarked as garden / open plot. At this stage, it is also relevant to recall that witness from the Collector office has specifically stated on oath that Collector office destroyed the record after certain date. It is also communicated by the office of Collector to the plaintiffs on 01.05.2008 that there is no proof that suit plot being marked as garden and such communication at Exh.269 is never challenged by the plaintiffs till date. In the said communication, it is also informed to the plaintiffs that suit plot was held to be ownership of original owner Shri Yaswantrao Gadge as per order dated 26.06.1968 at Exh.196. The said order is also not challenged by the plaintiffs till date.
35. It was one of the submission by learned advocate Mr. Maulik Nanavati for the plaintiffs that land bearing revenue survey no.532 and other survey numbers originally planned and proposed by late Shri Yaswantrao Gadge and all action of transfer of property as caused by him before 30 years are required to be respected in respect of common plot i.e. suit plot. In order to establish factum of existence of suit plot as common plot, he referred to various sale deed at Exh.200 to 201, 197 and 198. In order to appreciate the submissions so made at bar, I have minutely examined various sale deeds, more particularly, as noted herein above. It is a matter of fact that sale deeds are not disputed by the defendants. If we refer sale deed with regard to plot no.17 and 18 executed and registered way back in the year 1975 respectively, they do not mention or refer factum of either revised NA order of 1963 or it stipulates that suit plot i.e. plot no.85 is common area / Page 29 of 33 Downloaded on : Wed Jan 12 02:03:25 IST 2022 C/FA/841/2018 CAV JUDGMENT DATED: 18/11/2021 common plot as asserted in the plaint. Both the sale deeds are executed by original owner Shri Yaswantrao Gadge. No-doubt, two sale deeds with regard to plot no.11 at Exh.197 and 198 refers suit plot as common plot and plot no.84 earmarked as club house, but it seems that two sale deeds at Exh.197 and 198 are not executed by original owner Shri Yaswantrao Gadge and therefore, it can't be said that original owner has transferred any part of the property, which is owned and possessed by him, in view of recital made by seller of the said plot i.e. plot no.11. In the same way, if we examine sale deed at Exh.200 and 201 executed in the year 1971 / 1972 respectively, there is neither reference of suit plot earmarked as common plot as reflecting in sale deed at Exh.197 and 198 nor there is any reference of revised NA order of 1963. In other words, learned advocate Mr. Maulik Nanavati for the plaintiffs could not lay his finger on any of the sale deeds executed by original owner Shri Yaswantrao Gadge, wherein, he specifically transferred any right, title or interest with regard to the suit plot i.e. plot no.85. Therefore, claim of the plaintiffs in view of various recital made in various sale deed executed in favour of various plot holders do not establish factum of transfer of right, title or possession of the suit plot to be enjoyed the plaintiffs in common.
Point No.4.
36. The plaintiffs have challenged registration of sale deed executed on 03.08.2007, consent decree invited in Special Civil Suit No.341 of 2008 by the defendants and consequently, sale deed executed and registered on 13.03.2009 for consideration of Rs.360 lakhs being fraudulent, collusive, illegal and without Page 30 of 33 Downloaded on : Wed Jan 12 02:03:25 IST 2022 C/FA/841/2018 CAV JUDGMENT DATED: 18/11/2021 consideration. As such, the prayer made with regard to set aside aforesaid documents and consent decree is consequential relief claimed by the plaintiffs in order to see that there remains no cloud over the title and possession over the suit plot. As such, learned advocate Mr. Maulik Nanavati either in his oral or written submissions made any submission to prove said issue no.6 to 8 and therefore, the Court is not required to detain itself any more on the aspect of the case. On perusal of oral and documentary evidence produced on record, it becomes abundantly clear that the plaintiffs have created fake and fabricated documents to establish claim over the suit plot and in the deposition of none of the plaintiffs, there is nothing suggested so as to examine controversy raised with regard to issue no.6 to 8. However, the Court has noticed and found that there is no any fraud practice either upon the Court or inter-se between the defendants right from entering into sale agreement to sale deed and both the documents including consent decree are invited within four corners of law. Therefore, the Court do not find any fault or illegal acts on the part of the defendants and so consent decree. Thus, the learned Trial Judge has rightly concluded issue no.6 to 8 in negative i.e. against the plaintiffs and issue no.9 to 11 in affirmative i.e. in favour of defendants.
Conclusion
37. The off shot of aforesaid discussion is such that the learned Trial Judge did commit error of law in holding that suit in its present form by the plaintiffs is not maintainable in view of provisions contain in Order 23 Rule 3A of CPC. But there is no error in deciding various controversial issue raised by the Page 31 of 33 Downloaded on : Wed Jan 12 02:03:25 IST 2022 C/FA/841/2018 CAV JUDGMENT DATED: 18/11/2021 plaintiffs in the suit against them and this Court do not find any impropriety or illegality in disbelieving plaintiffs case qua suit plot and thus committed no error either on law or facts in deciding issues framed by the learned Trial Court. Therefore, while deciding point no.1 in favour of the plaintiffs before this Court, I answer point no.2 to 4 against the plaintiffs because the plaintiffs miserably failed to prove the case on the strength of genuine documents. Not only that the plaintiffs have left no stone unturn to create fake and fabricated documentary evidence and tried to claim right, title and possession over the suit plot on the basis of documentary evidence which are not recognized as valid mode of transfer of immovable property and once title is not transferred by the original owner through recognized mode as envisaged under the Transfer of Property Act read with Registration Act, the plaintiffs cannot claim any right, title over the suit plot either through so call layout plan or fake and fabricated revenue entry no.3348 Exh.249 and /or through recital / reference made in various registered sale deeds. On the contrary, if oral evidence of plaintiffs witnesses are examined, they made categorical admission in their cross examination, more particularly, plaintiff no.5 - Shri Vinubhai Desai that sale deed executed of plot no.18 was based on NA order of 1959 and the Collector has never passed any NA order in the year 1963 and one of the witness viz. Smt. Ushaben Exh.272 categorical admitted that she does not claim suit plot to be common plot.
38. In view of evidence as discussed herein above, the plaintiffs fail to establish their case on the basis of cogent and reliable evidence and therefore, only fate, which present appeal deserves is of rejection. Accordingly, present First Page 32 of 33 Downloaded on : Wed Jan 12 02:03:25 IST 2022 C/FA/841/2018 CAV JUDGMENT DATED: 18/11/2021 Appeal is hereby dismissed with cost. Consequently, connected Civil Application do not survive in view of disposal of First Appeal and it is accordingly disposed of.
(S.H.VORA, J) SATISH Page 33 of 33 Downloaded on : Wed Jan 12 02:03:25 IST 2022