Indian Kanoon - Search engine for Indian Law

"It is the case of the plaintiffs that land admeasuring 2-10-44 Hec- Are-Sq. meters of Block No. 1073 was originally agricultural land and was ownership of Ravjibhai Vaghjibhai Patel (Respondent No. 4) which was converted into non-agricultural purpose and after dividing into plots, permission was sought from Respondent No. 5 - District Development Officer, Kheda. The District Development Officer, Kheda vide order dated 06.02.1990 has granted NA permission as per lay out plan annexed with the permission on certain condition. It is further the case of the plaintiffs that as per the NA permission most particularly, Condition No. 5, the common plot cannot be sold and transfer and no construction can be done on it without prior permission. It is the case of of the plaintiffs that as per the lay out plan, there were 9 plots and a common plot admeasuring 2100 Sq. Mtrs. and said common plot was kept in consonance with the NA permission. It is further the case of the plaintiffs that the internal roads and the common plot, were for exclusive use of the plot holders and Respondent No. 4 (Ravjibhai Patel) did not have any right to sell, transfer or alienate any right, title or interest of such common plot. It is further the case of the plaintiffs that respondent No. 4 herein in connivance of the respondent No. 3 herein, gifted the common plot to respondent No. 3 vide Gift Deed dated 28.03.1995 and in that gift deed the common plot was portrayed as Plot No. 10. It is further the case of the plaintiffs that said purported Plot No. 10 which was actually a common plot as per the Map annexed with the NA permission was sold by original defendant No. 3 to original Defendant Nos. 1 & 2 , present appellants herein by registered sale deed dated 09.01.2006. Thereafter, the appellants have started construction of a school on said common Plot. Therefore, the plaintiffs have filed the suit claiming declaration that Gift Deed dated 28.03.1995 and sale deed dated 09.01.2006 be declared as null and void with further prayer to demolish the school building.

[i] Whether the plot in question can be treated to be common plot in respect of which the plaintiff can claim any interest/rights, particularly in view of the covenant of the title deeds in favor of the plaintiff ?"

4. Upon hearing Mr.Mehul S. Shah, learned Senior Advocate with Mr.Rutvij Oza, learned advocate representing the appellants, this Court has issued notice on 26.8.2020, keeping in view the recent proposition of law laid down by the Apex Court in a decision reported in AIR 2020 SC 178, since the said decision was also relates to a substantial question of law which has been raised in clause (B) pertaining to mandatory provision of Order 41 Rule 17 of the Code of Civil Procedure.