Bombay High Court
Vasant vs Fair Deal Co-Op Housing Society ... on 16 December, 2009
Bench: A.P. Bhangale
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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
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
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
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
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
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
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
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."
14. 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
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
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
