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26. I have minutely and carefully examined various sale deeds executed by original owner viz. Shri Yawantrao Gadge 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.

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 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.

C/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.

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 / 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.