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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT NAGPUR, NAGPUR.
SECOND APPEAL NO. 172 / 2004
1) Vasant s/o Baburao Katey
Aged 66 years, occu: Business
2) Kalpana w/o Vasantrao katey
Aged 65 years, occu: Retired
from service
Both R/o Yeshwant Colony
Nagpur Road, Wardha Tq. & Dist.
Wardha. ... ...APPELLANTS
v e r s u s
1) Yeshwant Sahakari Sahabhagidari
Gruha Nirman Sanstha Ltd.
Reg. No.122, Ward No.5
Wardha Through Its Secretary
R/o Wardha Dist./ Wardha/
2) Dr.Mukund s/o Keshaorao Pawar
Aged 80 years, occu: Medical
Practitioner R/o Wardha
Tah./ && Dist. Wardha.
3) Purushottam s/o Martandrao Tupkar
(Died ) Though his LRs:
3A. Atul s/o Purushottam Tupkar
Aged about 35 years,
R/o Naik Road, Mahal, Nagpur.
3B: Abhay s/o Purushottam Tupkar
Aged about 35 years,
R/o Naik Road, Mahal, Nagpur. ...RESPONDENTS
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Mr S V Sohoni, Advocate for appellants
Mr. P D Meghe, Advocate for Respondent No.1
Mr R S Parsodkar, Advocate for Respondent no2
Respondents 3A & 3B served.
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CORAM: A.P.BHANGALE, J.
DATED : 16th December, 2009
JUDGMENT :
By means of this Second Appeal, the appellants /(ori.
defendant nos.1 to 4 ) challenge the judgment and decree passed on 9.1.2004 passed by the learned 2nd Additional District Judge, Wardha in Regular Civil Appeal No.21/2001 whereby the appeal was allowed and defendant no.1 and 4 (appellants) were directed to deliver vacant possession of the suit house constructed on Plot No.2 to the plaintiff-
society; while the plaintiff-society was directed to deliver possession of suit house to defendant no.2 and to execute the sale deed in favour of defendant no.2 after recovery of necessary amount outstanding in respect of suit transaction from the defendant no.2.
2. Facts which gave rise to this Appeal, in nutshell, are as under :
Suit house- Plot No.2 ad-measuring 70' x 100' situated in ::: Downloaded on - 09/06/2013 15:25:39 ::: 3 Yeshwant Colony, Nagpur Road, Wardha. Yashwant Sahakari Sahabhagidari Griha Nirman Sanstha Ltd. (Plaintiff) is a society formed as back as in 1969. Defendant No.2 alleged that he is allottee of the suit plot from the plaintiff -society. Radhabai Tupkar ( ori. Defendant no.3) was admitted on 28.1.1975 as Member of the society along with two other person by a Resolution No. 2 as Dr. Mukund Keshav Pawar (ori. defendant No.2 ) failed to pay cost of the plot and construction.
On 15.11.1975, allotment of the plot in favour of Radhabai was confirmed. The society had agreed with contractor one Mr. Pande to construct houses of three types A, B & C. Since Mr Pande could not construct the houses, his contract was terminated by allotting it to Mr Vasant Katey ( ori. Defendant no.1 ) who constructed houses as required by the society. Mr.Vasant Katey by notice dated 12.5.1978 demanded amount for construction done by him for the society. The society gave reply on 22.05.1978 informing Mr. Vasant Katey to pay amount of Radhabai and adjust his dues payable from the society in order to get the suit plot and house transferred. Mr Vasant Katey got it transfered in the name of his wife Kalpana Katey (original defendant no.
4) and in October, 1978 started residing in suit property. On or about 12.11.1978, the plaintiff-society resolved to take action against Mr Vasant Katey to evict him from suit property and by notice dated ::: Downloaded on - 09/06/2013 15:25:39 ::: 4 14.11.1982 he was called upon to vacate the suit property and deliver its possession to plaintiff-society. Mr Vasant Katey replied the notice and denied claim in the notice.
3. The plaintiff-society instituted Special Civil Suit No. 19/1984 against Shri Vasant Katey and others for ejectment and possession and damages.
4. Radhabai ( ori. Defendant no.3) expired during pendency of suit and her legal representatives and heirs were brought on record.
5. Shri Vasant and Sau.Kalpana Katey claimed exclusive ownership of suit plot/house by a counter-claim in the suit, claiming that Radhabai Tupkar had relinquished her rights in the suit property by a deed in favour of Sau. Kalpana Katey. It is also claimed that Sau.
Kalpana is paying municipal taxes and her name was mutated in revenue and municipal records. The Assistant Registrar, Cooperative Societies, Wardha, by order dated 10.4.1992 directed the plaintiff-
society to admit Sau. Kalpana as the member of the society.
6. Dr. Mukund Keshav Pawar (Ori. defendant no.2) has filed written statement on 8.6.1992 and resisted the suit and raised counter-
claim demanding possession of suit plot from the plaintiff society.
7. The suit as well as counter-claim raised in suit was dismissed by the trial Court, while counter-claim by Sau. Kalpana Katey ::: Downloaded on - 09/06/2013 15:25:39 ::: 5 was allowed and she was declared owner of the suit plot and house.
The society was directed to admit Sau.Kalpana Katey as member of the society. The plaintiff challenged the judgment and order passed by the trial Court by filing Regular Civil Appeal No.21/2001 which was decided as mentioned in para no.1 supra. The first Appellate Court directed the plaintiff-society who had filed appeal to deliver possession of the suit plot with house to defendant no.2 - Dr.Mukund Keshav Pawar ; while Shri Vasant and Sau.Kalpana Katey ( original defendant no.1 and 4 respectively) were directed to deliver possession of suit property to the plaintiff-society. Hence Shri Vasant and Sau. Kalpana Katey (ori.
defendant nos. 1 and 4 ) filed this appeal.
8. In support of the Appeal, learned counsel for the appellants submitted that learned first Appellate Court has no jurisdiction to grant relief against appellant no.2 -Sau.Kalpana Vasant Katey when admittedly Dr.Mukund Keshav Pawar ( respondent No.2 ) did not seek any relief against her. Learned Advocate for appellants relied upon Section 91 of the Maharashtra Cooperative Societies Act to submit that in a dispute touching business of the society governed under the Act no other court has jurisdiction to entertain the dispute except Cooperative Court.
9. Reliance is placed upon the ruling in M/s A V R & Company ::: Downloaded on - 09/06/2013 15:25:39 ::: 6 and others vs. Fair Deal Co-op Housing Society Ltd: AIR 1989 SC 81 to submit that in a suit to evict member and his licencee from the Society's flat, Co-operative Court has jurisdiction to decide the dispute between the society any member or any person claiming through Member of the society, if such licencee has not acquired status of a statutory tenant. Learned Advocate for the appellants submitted that in O.N. Bhatnagar vs Smt.Rukibai Narsingdas:AIR 1982 SC 1097 it was held that in a case of tenant co-partnership society formed with object of providing residential accommodation to its co-partner members, it is part of business of the society as part of its normal course of activities to initiate proceedings to remove trespass by a stranger and it is normally a business of such society to ensure that flats are in occupation of its members in accordance with bye-laws framed by it, rather than of a person in an unauthorised occupation. Thus, claim by a society together with its members for ejectment of a person who was permitted to occupy having become a nominal member thereof upon revocation of a licence is a dispute falling within the purview of Section 91 (1) of the Act. Thus, any person who acquire right to occupy a flat as nominal member but his rights are inchoate, the society can evict him in proceedings instituted in Cooperative Court, but dispute would be governed under the Rent Act if parties to an ::: Downloaded on - 09/06/2013 15:25:39 ::: 7 agreement are in jural relationship as landlord/ (owner of the flat) and tenant.
10. Learned Advocate for appellants urged that the decree passed without jurisdiction is nullity and non-est as the defect of jurisdiction strikes at the very root of the authority of the Court to pass any decree. Such defect can not be cured even by consent of the parties. Learned Advocate for appellants submitted that in view of ruling in Pandurang Patil vs. Ramdas Dadu Patil {through LRs} (2009) 5 Mah. L.J. 62 that a point raised in appeal memo but not treated as substantial questions of law could be considered by the Court at the hearing of Second Appeal. According to learned Advocate for appellants substantial question of law arose as to whether first Appellate Court has jurisdiction to grant relief against appellant No.2 ( original defendant No.4) when admittedly Dr.Mukund Keshav Pawar ( ori. defendant no.2) has not sought any relief against appellant no.2 ( Ori. Defendant No.4)?
11. Learned Advocate for Respondent no.2 placed reliance upon Marine Times Publications Pvt. Ltd. vs. Shriram Transport and Finance Co.Ltd. & another: 1991 CTJ 473, to urge that it was held that claim to have an agreement specifically performed was outside the scope of Section 91 (1)(b) of the Maharashtra Cooperative ::: Downloaded on - 09/06/2013 15:25:39 ::: 8 Societies Act, 1960. It is further submitted that in view of ruling in Kapurchand Jivraj Jain vs. Shri Datta Co-operative Housing Soceity Ltd.: 1995 (1) Mh.L.J. 340 that in a dispute arising prior to registration of the society, it was held that Co-operative Court has no jurisdiction. Reference is then made to the ruling in Dnyaneshwar Pundalik vs. Samata Co-op.Housing Society : 2004 (2) All MR 368 (Bom) and Belganga Sahakari Sakhar Karkhana vs. Keshav Rajaram Patil : 1994 Mh.L.J. 1756, to argue that in a dispute arising independently of the provisions of the Act or which does not arise out of the provisions of the Maharashtra Cooperatives Societies Act, the Cooperative Court has no jurisdiction to entertain the dispute. Reliance is also placed upon Jankalyan Sahakari Bank Ltd. vs. Bakul @ Bankim Padamshi Dharamshi & Others 2004 (3) Bom C R 408 to canvass the proposition that Co-operative Court has no jurisdiction to hear dispute between society and a non-member.
12. Learned Advocate for respondent No.2 also submitted that as observed in M/s Nagji Vallabhji vs. Meghji Vijpar & Co.: AIR 1987 Bom 142, it is the duty of the Court to take notice of events subsequent to filing of the suit and to mould decree according to subsequent events. In Ganesh Chandra Bag vs.Rashbehari: AIR 1978 Cal. 486, it was held that it was not necessary for the plaintiff ::: Downloaded on - 09/06/2013 15:25:39 ::: 9 therein to make additional prayer for a declaration for cancellation of the deed. The suit was held maintainable and decreed. In Dhaniraiji Vrajlalji ji vs. V M Chandraprabha : AIR 1971 Guj. 188 it was observed that events happening after the suit can be taken notice by the court in proper cases in order to shorten litigation, avoid unnecessary expenditure and to do complete justice between the parties. Thus, it is urged that as held in the ruling in L Shiv dayal Kapoor and others vs. Union of India: AIR 1963 Punjab 538 the plaintiff is entitled to relief though not asked for as he is entitled to get on the facts established upon the evidence in the case even if the plaint does not contain a specific prayer for that relief.
13. Learned Advocate for Respondent No.2 made a reference to ruling in Rameshwar & others vs. Jot Ram and others : AIR 1976 SC 49 ; para no.9 of which reads thus:-
"The impact of subsequent happenings may now
be spelt out. First its bearing on the right of
action. Second, on the nature of the relief and
the third, on its impotence to create or destroy
substantive rights where the nature of the relief
as originally sought has become obsolete or un-
serviceable or a new form of relief will be more
efficacious on account of developments
subsequent to the suit or even during appellate
stage. It is but fair that the relief is moulded,
varied or reshaped in the light of updated facts."
::: Downloaded on - 09/06/2013 15:25:39 ::: 1014. With reference to the above observations, Mr Parsodkar submitted that the society (original plaintiff) had challenged judgment and order passed by the trial Court by Regular Civil Appeal No.25/2001 which was withdrawn by the society. Thus, as against the society the trial Court's judgment and order became final.
15. I have considered submissions and perused rulings cited.
The facts established indicate that the plaintiff society owned as many as 15 plots, of which plot no.2 was allotted to Dr. Mukund Pawar (original defendant No.2.) who had incurred loan for construction of plot from Maharashtra State Co-op. Housing Finance Corporation and repaid it. The Society or its management could not feign ignorance about this fact and therefore without consent of Dr. Mukund Pawar could not have allotted Plot No.2 to to Smt.Radhabai Tupkar who, in turn, could not have lawfully inducted appellant no.2 into actual physical possession of Plot No.2 as tenant. Be that as it may; permissive possession of appellant no.2 herein can never be perfected into adverse possession without necessary animus possidendi or without hostile animus, continuity and extent in view of Art.65 of the Limitation Act. The Society was never entitled to allot Plot no.2 to anybody else without concurrence of Dr. Mukund Pawar. Under these ::: Downloaded on - 09/06/2013 15:25:39 ::: 11 circumstances, actual physical possession of appellant cannot have any valid lawful recognition claiming through late Radhabai Tupkar who herself was not entitled to occupy the suit plot when it was subject of mortgage deed between Dr. Mukund Pawar (mortgager) and Finance Corporation (referred above ) as mortgagee. The First Appellate Court have considered all these aspects in details and arrived at conclusion with a view to do complete justice between the parties to dispute. The first Appellate Court was well within its jurisdiction to grant relief against appellant no.2 who had no legal right , title or interest in the suit plot to continue in it's occupation. The decision in favour of real allottee of the suit plot No.2 Dr Mukund Pawar was party to the lis and the first Appellate Court adopted correct approach to do complete justice between the parties to adjudicate the controversy finally instead of subjecting the parties to multiplicity of legal proceedings. The Civil Court was well within it's jurisdiction to decide civil rights agitated.
16. Thus, there is no ground to interfere with impugned judgment and order passed by first Appellate Court. No substantial question of law is involved. Appeal is dismissed.
JUDGE ::: Downloaded on - 09/06/2013 15:25:39 ::: 12
17. After pronouncement of the judgment, learned Advocate for the appellants prays that during pendency of the proceedings, interim stay was operating and actual physical possession of appellant No.2 was protected pending hearing and disposal of this Appeal. Learned Advocate, therefore, seeks extension of the stay for a further period of four weeks so as to enable appellants to approach the Hon'ble Apex Court by preferring appropriate proceedings.
Learned Advocate for respondents has vehemently objected for the said request.
Since it appears that by an order April 27, 2004 interim stay was operating in favour of Respondent No.2, the same shall continue for a further period of four weeks from today.
JUDGE sahare ::: Downloaded on - 09/06/2013 15:25:39 :::