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2. The facts of the case briefly summarized are as follows.

3. The land bearing Survey No.267, admeasuring 19 Acres 3 Gunthas i.e. 92323 sq. yards of village Vadva was owned and possessed by the petitioners. The predecessor-in-title of the petitioners applied to the Deputy Collector, Bhavnagar to get NA permission which was granted by order dated 27.12.1960. As per the relevant provisions of law regarding common plot the predecessor-in-title (ancestor of the petitioners) as erstwhile ruler was required to provide the common plot of 5% of the total area for the purpose of the development. The plots were made including the common plot and it was conveyed by separate conveyance deeds / registered sale deeds executed C/SCA/14843/2005 JUDGMENT on different dates in favour of the individuals. Those individuals then formed the society - Respondent No.3 herein. It is the case of the petitioners that according to the relevant provisions of the Town Planning Act, the are of common plot remained 5% of the total area of the land. Therefore, late Shri Krishnakumarsinhji (the predecessor-in-title and the ancestor of the petitioners) was required to provide the open plot admeasuring 4619 sq. yards and out of this common plot admeasuring 4616 sq. yards was considered as a common plot provided for the plotting made for the Respondent Society. Thereafter at the request made by the predecessor-in-title the construction was permitted in the area / plot admeasuring 8619 sq. yards and the plotting was made in the surplus area admeasuring 3220 sq. yards and the construction was made on 3220 sq. yards of the land as per the order at Annexure-D. However, the remaining land / plot was kept open for which the revenue dues were paid by the petitioners and it was shown throughout in the name of the petitioners and the City Mamlatdar, Bhavnagar issued the certificate dated 5.7.2000. However, when the Collector, Bhavnagar permitted the construction vide order at Annexure-D dated 8.12.1971 as per revised lay out plan the Respondent No.3 raised an objection vide application at Annexure-H dated 24.3.1972. The order passed by Respondent No.3 negatived the conditions and it was not carried further. However, again application came to be C/SCA/14843/2005 JUDGMENT made by Respondent No.3 on 2.11.1992 to the Collector, Bhavnagar for not granting the permission of sale or transact and / or for sanctioning of the plan. The said application was rejected by the Collector, Bhavnagar vide order dated 15.4.1972. Thereafter when the petitioners applied to the Bhavnagar Municipal Corporation ("BMC") for sanction of the building plan, the BMC refused to sanction the plan of the petitioners vide letter dated 12.1.2000 stating that the Collector has directed BMC not to sanction the plan and / or not permit the petitioners to sale or transfer. It is contended that as the Respondent No.3 has failed in its attempt to establish its title to the land in question (open plot) and the petitioners were permitted to put up construction by the Collector, Bhavnagar vide order dated 8.12.1971 at Annexure-D, Regular Civil Suit No.154 of 2000 is made by Respondent No.3 in the court of Civil Judge (SD) Bhavnagar for cancellation of the order of the Collector, Bhavnagar dated 8.12.2007 and the application exh.5 for the interim relief is also filed and no order has been passed. Therefore it is contended that after 20 years from the date of the order dated 8.12.1971 and granting permission the Collector Bhavnagar had served the notice to show cause as to why it should not be cancelled on the ground stated in the show cause notice and challenged in the transfer petition on the grounds stated in the memo of petition and the reply was filed and ultimately the Collector, Bhavnagar by order 12.6.2001 C/SCA/14843/2005 JUDGMENT cancelled the order dated 8.12.1971 holding that the area of the common plot No.59 shall be 8619 sq. yard as per the original order of NA permission dated 27.12.1960. The said order has been challenged by way of appeal before the Secretary (Appeals), Revenue Department who dismissed the same and confirmed the order passed by the Collector, Bhavnagar which is produced at Annexure-O on the ground stated in the memo of petition.

12. Therefore, the real crux of the matter is whether any claim could be made by the Respondent No.3-Society or its members in respect of the land other than which has been conveyed to the members by a registered sale deed individually. Therefore the remaining land which has been left out admittedly belonged to the petitioners as there is no dispute with regard to the title over the land inasmuch as the members of the Respondent No.3-Society also derive their title through the sale deed executed by the petitioners in favour of the members individually by a registered sale deed. Thus at the most the Respondent No.3-Society could make a claim for 5% of the land as a common plot and not the whole of the remaining parcel of the land which admittedly belonged to the petitioners. Normally at the time of conveyance or the sale deed the reference is made to the common plot or how it could be provided for the common plot. Therefore the remaining land which belonged to the predecessor of the petitioners - Krushnakumarsinhji (erstwhile ruler of the State) there is no dispute that he has the right, title and interest over the land in question. Therefore when the entire land belonged to the petitioner or his predecessor as a erstwhile ruler of the State and only part of the land has been conveyed by a registered sale deed in favour of the members of the Respondent No.3- Society which is formed later on it cannot be a subject matter C/SCA/14843/2005 JUDGMENT of dispute or claim by the members of the Respondent No.3- Society and no claim could be made over the remaining land. Merely because the remaining land is adjacent to the common plot or the open land the entire land cannot be labeled or converted into a common plot over a period of time irrespective of the conveyance of the sale deed or the transaction of the sale in favour of the individual members of the Respondent No.3-Society qua each individual plot. Therefore as per the provisions of the Transfer of Property Act the land could be conveyed by execution of a conveyance or the sale deed. Admittedly the sale deeds are executed in favour of each individual member of the Respondent No.3-Society to the extent of the area of the plot only and at the most 5% could be claimed as a common plot and no claim could be made for the remaining area of the land which is lying belonging to the original owner i.e. the petitioners or the predecessor-in-title of the petitioners. The members of the Respondent No.3-Society are the transferees who have been conveyed by execution of conveyance like sale deed in their favour to the extent of the area of the plot who then formed the Respondent No.3-Society and therefore the submissions made that the entire land is a common plot is misconceived.

20. However, it is clarified that 5% of the total area would be maintained as the common plot while considering the calculation of the entire open plot of land admeasuring 8169 sq. yards.

Rule is made absolute to the aforesaid extent. No order as to costs.

(RAJESH H.SHUKLA, J.) JNW