Bombay High Court
Namdeo Bhikaji Ambhore vs Ramdas Sakharam Joshi & 3 Others on 3 May, 2016
Bench: Ravi K. Deshpande
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR
SECOND APPEAL NO.69 OF 1999
Namdeo son of Bhakaji Ambhore,
Aged about 48 years,
Occupation - Service,
Resident of Plot No.93,
Nagar Parishad Colony,
Gorakshan Road, Akola,
Tq. & District Akola. ... Appellant/
Ori. Deft. No.1
Versus
Ramdas s/o Tukaram Joshi, ... Ori. Plaintiff
since deceased,
through his legal representatives :
1(a) Laxmi Ramdas Joshi,
Aged about 55 years.
1(b) Jaiashish s/o Ramdas Joshi,
Aged about 18 years.
1(c) Manmohan s/o Ramdas Joshi,
Aged about 16 years.
(Respondent Nos.1(a) to (c) all
are residents of House No.196,
Kela Nagar, Jatharpeth, Akola).
*2. Shri K.G. Mali,
Aged Adult,
Occupation - Service,
Secretary, Akola Nagar Palika,
Karmachari Varga 3,
Sahakari Gruha Nirman Sanstha
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Maryadit, Regd. No.159,
C/o Municipal Council,
Akola, Tq. & District Akola.
3. Chief Officer, Municipal Council, Akola.
4. District Registrar, Co-operative Societies
Akola. ... Nos.2 to 4
Ori. Deft. Nos.2 to 4
... Respondents
(* Appeal is abated against the respondent No.2 vide Registrar (J)
order dated 16-4-2015)
Shri R.A. Haque, Advocate for Appellant.
Shri C.A. Joshi, Advocate for Respondent Nos.1(a), 1(b) and 1(c).
Shri M.A. Kadu, AGP for Respondent No.4.
Coram : R.K. Deshpande, J.
Dated : 28th April & 3rd May, 2016
Oral Judgment :
1. The learned Civil Judge, Senior Division, Akola dismissed
Regular Civil Suit No.809 of 1987 filed by the respondent No.1/
original plaintiff, against the appellant/defendant No.1 for possession
of Plot No.93, situated in the area known as "Adarsha Colony" at
Akola, admeasuring 54' x 54', i.e. in all 2,916 sq.ft. The lower
Appellate Court, by its judgment and order dated 29-12-1998 passed
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in Regular Civil Appeal No.105 of 1992, has reversed the decision of
the Trial Court and the decree for possession has been passed against
the appellant/defendant No.1. Hence, this second appeal has been
preferred by the original defendant No.1.
2. On 22-4-2003, this Court passed an order as under :
" Heard Advocate for the appellant. None present for the
respondents.
Admit on the following substantial questions of law :-
(1) Whether the Civil Suit having been filed after six
months of the alleged cause of action was maintainable in
view of the bar created by Section 304(1)(a) of the
Maharashtra Municipalities Act, 1965 (now the
Maharashtra Municipal Council, Nagar Panchayats &
Industrial Townships Act, 1965)?
(2) Whether the Civil Suit was maintainable in view of
the bar created by Section 91(3) of the Maharashtra Co-
operative Societies Act, 1960?
C.A. 893 :- Ad-interim relief granted by order
date 25/2/99 to continue till the disposal of the appeal.
Civil application stands disposed of."
Thus, the aforestated two substantial questions of law are
involved in the present second appeal.
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3. The averments in the plaint are that the plaintiff is the
member of the defendant No.2-Akola Nagar Palika Karmachari
Varga 3, Sahakari Gruha Nirman Sanstha Maryadit, Regd. No.159,
which was formed for the welfare of the employees of the Municipal
Council, Akola. The plaintiff being the employee of the Municipal
Council and the member of the Society was allotted Plot No.93,
situated in the area of "Adarsha Colony", Akola by the defendant
No.2-Society, and the defendant No.3-Chief Officer, Municipal
Council, Akola. The plaintiff alleges that the plot was allotted to him
by the Society and he has paid the requisite charges and is also paying
the lease money. It is alleged that the plaintiff occupied the plot and
was in possession of the same within own rights. It is also alleged that
in the year 1984, the defendant No.1 committed trespass on the suit
plot and made some illegal construction over it. It is alleged by the
plaintiff that the defendant No.2 may likely to transfer the suit plot
illegally in the name of the defendant No.1. It is also alleged that the
plaintiff is claiming the injunction against the defendant Nos.2 and 3
from transferring the suit plot in favour of the defendant No.1, and for
that the notice, as required by the Maharashtra Municipalities Act was
also issued on 29-6-1987.
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4. The plaintiff claimed the reliefs as under :
"i) Decree for possession of the suit plot be passed in favour
of the plff and against the deft.no.1 and plaintiff be put in
physical possession of the suit plot by removing the structure
erected by the defendant no.1.
ii) Decree for Rs.3600/- towards damages be passed in
favour of the plff and against the deft no.1.
iii) The deft no.1 be permanently restrained from making
further construction over the suit plot and transferring the
possession of the suit plot in any mode or manner to any other
person except the plaintiff.
iv) The deft no.2 and 3 be restrained by permanent
injunction from transferring suit plot in the name of deft no.1.
v) An enquiry into mesne profits be held under order 20
Rule 12 of the C.P.C.
vi) Cost and any other relief be awarded."
5. The Trial Court framed the issues as under :
"Issues :
1. Whether Plaintiff Proves he is lessee to the Suit plot?
2. Whether Plaintiff proves that Defendant no.1 Disposed by
him in 1984?
3. Whether Plaintiff is entitled to the possession of the Suit
plot?
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4. Whether Plaintiff is entitled to the damages and Mesne
profits?
5. What order and decree?
6. Whether suit is tenable?
7. Whether suit is in limitation?"
The Trial Court held that the plaintiff was lessee in respect of
the suit plot and was claiming to be the member of the Society, who
was given the plot on lease. It also held that such a suit is barred
under the provision of sub-section (3) of Section 91 of the
Maharashtra Co-operative Societies Act, 1960 and it was dismissed.
6. The lower Appellate Court framed and answered the points
for determination as under :
Sr.No. Points Findings
1. Whether the plaintiff has proved that he is Yes
a member of the said society and he has
been allotted said plot by the said society?
2. Whether the defendant no.1 is trespasser Yes
over the suit property?
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3. Is plaintiff entitled for possession of the Yes
said property from the defendant of the
said property from the defendant no.1?
4. What order? As per final
order below.
The lower Appellate Court has thus concurred with the finding of the
Trial Court that the plaintiff has proved his membership of the Society
and was allotted the plot by the Society. The finding is recorded by the
lower Appellate Court on the merits of the matter that the burden lies
upon the defendant No.1 to prove that the plaintiff has given up his
right in his favour in respect of the suit plot and that he was accepted
by the Society as a member and the plaintiff had transferred the share
in his favour.
7. At this stage, Shri C.A. Joshi, the learned counsel, appears for
the legal representatives of the original plaintiff, who are brought on
record and seeks time in this matter. Hence, in order to provide an
opportunity of being heard, put up this matter on 2-5-2016 as
part-heard.
8. After hearing Shri Haq and Shri Joshi at length, the
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dictation commenced on 3-5-2016.
As to Question No.(1) :
9. Coming to the first substantial question of law the reliance
is placed by Shri Haq, the learned counsel appearing for the appellant
on the provision of Section 304 (1)(a) of the Maharashtra Municipal
Councils, Nagar Panchayats and Industrial Townships Act, 1965 ("the
said Act" for short) which is reproduced below:
"304. Limitation of suits against Council, its committees,
officers and servants for acts done in pursuance or
executing of this Act
(1) No suit shall lie against a Council or against any
committee constituted under this Act, or against any
officer or servant of a Council an respect of any act done
in pursuance or executing or intended execution of this
Act, or in respect of any alleged neglect or default in the
execution of this Act -
(a) Unless it is commenced within six months next
after the accrual of the cause of action."
In terms of the aforesaid provision no suit shall lie against a Council
in respect of any act done in pursuance or executing or intended
execution of the Act, or in respect of any alleged neglect or default in
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the execution of the Act unless it is commenced within six months
next after the accrual of the cause of action. Perusal of the prayer
clause in the plaint shows that the only relief against the respondent
No.3-Municipal Council is to restrain it permanently from transferring
the suit plot in the name of the defendant No.1, who is the appellant
in the present case.
10. Shri Joshi, the learned counsel appearing for the
plaintiff-respondent has invited my attention to the decree passed by
the lower Appellate Court which is only in respect of delivery of
possession by the appellant-defendant No.1 to the plaintiff. There is
no relief granted by the Court against the Municipal Council, nor
there is any occasion for the plaintiff to claim any such relief against
the Municipal Council, unless the Society transfers plot in the name of
the appellant-defendant No.1. Hence, the provision of Section 304 of
the said Act is not at all attracted. The substantial question of law at
serial No.(1), therefore, does not survive.
As to Question No.(2) :
11. Shri Haq, the learned counsel appearing for the appellant
has taken me to the averments made in the plaint and the reliefs
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claimed. He submits that it is a dispute between the plaintiff claiming
himself to be member of the Society and the respondent No.2-Akola
Nagar Palika Karmachari Varga 3, Sahakari Gruha Nirman Sanstha
Maryadit, Akola the society registered under the Maharashtra
Co-operative Societies Act and it is therefore, covered by
Section 91(a) and (b) of the Maharashtra Co-operative Societies Act,
1960. He submits that the dispute pertains to allotment of plot which
touches the business of the Society and in terms of sub-section (3) of
Section 91, except the Co-operative Court, no other Court shall have
jurisdiction to entertain any suit or other proceedings in respect of
any dispute referred to in sub-section (1). He, therefore, submits that
the lower Appellate Court ought to have considered this aspect of the
matter and should have held that the suit in question is barred under
sub-section (3) of Section 91 of the said Act.
12. The undisputed factual position has to be considered
initially to decide the question of law. The membership of the plaintiff
with the respondent No.3-Co-operative Society, the allotment of plot
in question to the plaintiff by the Society, the possession of the
plaintiff over it till 1981 and the payment of lease money by the
plaintiff to the Society are not the facts which are in dispute. It is also
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not the stand of the Society in the written statement that the
membership of the plaintiff in the Society was cancelled or that the
allotment made to the plaintiff of the plot in question was cancelled
or the possession of it was taken back from the plaintiff.
The appellant-defendant No.1 has admitted in his
examination-in-chief that previously the plot was allotted to the
plaintiff by the Society.
13.
The appellant-defendant No.1 claims that he had entered
into an agreement with the plaintiff to get the said plot transferred in
his name and accordingly he had paid consideration of Rs.5,336/- to
the plaintiff and the plaintiff thereupon submitted his resignation to
the Chairman of the Society in respect of the said plot. According to
him, such resignation was submitted by the plaintiff on 30.05.1981
and it was accepted by the Society in its meeting held on 18.09.1981.
The appellant-defendant No.1 admits in his cross-examination that
the Society had not enrolled him as a member and there is no
document available with him regarding transfer of the plot in
question to him by the Society. The Society specifically denies to have
conferred any membership upon the appellant-defendant No.1 and it
also denies the allotment of plot in question to the appellant.
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14. The Trial court had passed an order directing the Society
to produce the resolution passed by it accepting the resignation of the
plaintiff along with the original letter of resignation. The learned
counsel appearing for the parties were asked to find out from the
record and proceedings of the trial court as to whether the Society had
produced such documents on record. It appears that it is the
appellant-defendant No.1, who had produced a copy of the resolution
dated 18.09.1981 said to have been passed by the Society along with
list of documents Exhibit 43 filed under his own signature. The alleged
resignation of the plaintiff is produced by the appellant-defendant
No.1 and is marked as Exhibit 116. The resolution dated 18.09.1981
has not been proved and it is not marked as exhibit. The plaintiff has
denied to have signed the resignation at Exhibit 116. The original
resignation is not coming from proper custody. It should have been
with the Society and not with the appellant-defendant No.1, who is not
even a member of the Society. The lower Appellate Court has
therefore, rightly recorded the finding that the appellant - defendant
No.1 has failed to establish that the membership and allotment of the
plaintiff was cancelled by the Society and that the plaintiff ceased to be
the member of the Society with effect from 30.05.1981.
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15. In the decision of this Court in case of Ramchandra
Harischandra Vatkar vs. Jawaharnagar Co-operative Housing Society
Ltd. and another reported in 2003(1) Mh.L.J. 54, relied upon by
Shri Joshi for the plaintiff, this Court has taken a view that on plain
language of the provisions of Section 91 of the Maharashtra
Co-operative Societies Act, the dispute could be maintained only when
both parties to the dispute were persons as notified in any of the
clauses (a) to (e) of sub-section (1) of Section 91.
16. Even if the dispute in the present suit pertained to the
business of the Society regarding allotment of plot it was not between
the plaintiff and the Society, which has supported the case of the
plaintiff. The real dispute was between the plaintiff a member of the
Society and the appellant-defendant No.1, who is not the member of
the Society. Such a dispute was therefore, not covered by
sub-section (1) of Section 91 of the said Act, and hence, the bar to the
jurisdiction of the Civil Court to entertain, try and decide the suit
contained in sub-section (3) of Section 91 was not at all attracted.
The present suit claims a decree for possession of the property against
the defendant No.1 based on lease hold rights from the respondent
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No.3-Society and eviction of the appellant - defendant No.1 as the
encroacher from the suit plot. It cannot, therefore, be said that the
jurisdiction of the Civil Court to entertain, try and decide such a suit
was barred under the provisions of Section 91(3) of the said Act. The
question of law at serial No.(2) is, therefore, answered accordingly.
17. In view of the undisputed factual position pointed out
earlier the appellant - defendant No.1 claimed his title and possession
over the suit property from the plaintiff on the basis of the alleged
resignation of the plaintiff from the membership of the Society said to
be tendered on 30.05.1981, which has not been established. The
appellant - defendant No.1 has rightly being held encroacher in the
facts and circumstances of the case by the lower Appellate Court and
no substantial question of law arises out of such finding recorded.
18. In the result, the second appeal is dismissed. No order as
to costs.
JUDGE
Lanjewar/Nikhare
