Shalini Raghunath Patil ... vs Hon\'Ble Member, Maha. State ...
2017 Latest Caselaw 5492 Bom

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                 IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
                  

                           NAGPUR BENCH, NAGPUR.


 LETTERS PATENT APPEAL NO.273 OF 2007
            IN
 WRIT PETITION NO. 1567 OF 2004



 Ku. Shalini d/o Raghunath Patil,
 since deceased through Legal 
 Representative, Rupesh s/o Vasantrao
 Patil, Aged 27 years, Occ.- Service,
 through holder of Power of Attorney
 Shri Vasant s/o Raghunath Patil,
 Aged 65 years, Occupation - Retired, 
 R/o C-5, Neelkamal Housing Society,
 Plot No.239, Bajaj Nagar, Nagpur.                    ....       APPELLANT


                     VERSUS


 1) Hon'ble Member,
     Maharashtra State Co-operative
     Appellate Court, Mumbai, Nagpur 
     Bench, Nagpur. 

 2) Hon'ble Judge,
     Co-operative Court, Nagpur. 

 3) Secretary,
     Dr. Babasaheb Ambedkar Co-operative
     Housing Society Ltd., Ambazari 
     (Krushinagar), Verma Layout, Nagpur.

 4) Smt. Indirabai B. Walke,
     Aged - Major, Occupation - Household,
     R/o C/o. Prakash Walke, Flat No.301,
     Atlas Tower, 4th Lane, Lokhandwala 



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     Complex, Near Sindhi Colony, Andheri
     West, Mumbai.

 5) Dr. Babasaheb Ambedkar Co-operative
     Housing Society, Nagpur through its 
     President, Ambazari (Krushinagar),
     Verma Layout, Nagpur - 440010.                       ....       RESPONDENTS

 ______________________________________________________________

             Shri A.G. Gharote, Advocate for the appellant, 
            Shri N.H. Joshi, AGP for respondent Nos.1 and 2.
  ______________________________________________________________


                               CORAM :   B.P. DHARMADHIKARI AND
                                         ROHIT B. DEO, JJ.

DATED : 03-08-2017

ORAL JUDGMENT : (PER : B.P. DHARMADHIKARI, J.)

1. The matter is part-heard. Earlier arguments were heard

on 20-06-2017. When it became clear that Advocate representing

respondent No.3 Society and respondent No.5 also Society was no

more, hence notice was issued to said respondents. On 20-07-2017

Shri Anil Chokhandre, Secretary of Society appeared and sought

adjournment to engage Advocate. The matter was then adjourned to

27-07-2017. On that day, society did not appear and no Advocate was

retained by it. We, therefore, heard learned Advocate Shri

A.G. Gharote for the appellant/original petitioner and learned Assistant

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Government Pleader Shri N.H. Joshi for respondent Nos.1 and 2.

Matter then came to be adjourned today.

Today again there in no appearance for other respondents.

2. Facts show that the appellant as also one Indirabai Walke

(respondent No.4) are members of respondent No.5 co-operative

society. Plot No.12 in layout of that society was allotted to the

appellant and plot No.13 was allotted to respondent No.4 Indirabai.

Respondent No.3 is Secretry of that society.

3. The appellant wanted to raise construction on her plot in

May 1992. As construction of respondent No.4 Indirabai had already

come up, on adjacent plot she started her work. Co-operative housing

society objected to it. Co-operative housing society pointed out that

the appellant was raising construction on Plot No.11.

4. This gave rise to a dispute under Section 91 of the

Maharashtra Co-operative Societies Act, 1960 registered as Dispute

No.143/94. The appellant in that dispute pointed out that plot No.13

was allotted to respondent No.4 Indirabai and therefore, plot situated

before it was plot No.12. She accordingly sought various reliefs

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including residuary prayer to grant her any other appropriate relief.

5. The dispute was opposed by the co-operative society as

also respondent No.4.

6. The co-operative Court has dismissed dispute on the

ground that pleadings and prayers were defective and plot No.12 was

no longer available for allotment. This adjudication was questioned by

the appellant by filing Appeal No.43/2000 under Section 97 of the

Maharashtra Co-operative Societies Act, 1960. The appellate Court has

delivered judgment on 13-11-2001 and maintained the findings

recorded by the co-operative Court.

7. The appellant thereafter approached this Court in Writ

Petition No.1567/2004. Learned Single Judge on 25-6-2007 has

dismissed the petition. However, it has been made clear that the

appellant/petitioner could approach housing society for resolving the

dispute.

8. Shri A.G. Gharote, learned Advocate, in this background,

submits that even if issue of identity of plot as such is ignored, if plot

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No.12 is constructed upon by respondent No.4 Indirabai, plot No.13

allotted to her is vacant. Allotment in favour of the appellant is not in

dispute and she has paid necessary amount, as such instead of plot

No.12, plot No.13 could have been and ought to have been given and

delivered in possession of the appellant. He submits that looking to the

object with which the co-operative housing society is created, in case of

dispute of such a nature, too technical interpretation of pleadings or

prayer clause is unwarranted. He has taken us through relevant

material to substantiate his contentions.

9. Learned Assistant Government Pleader states that he is

appearing for Courts which have decided the controversy and as such

has no interest either way in the controversy.

10. The findings recorded by the co-operative Court after

appreciation of evidence are not in dispute. The findings in paragraph

7 show that appellant was earlier in possession of plot No.12 and

therefore, only she prayed for its possession and direction to Indirabai

to handover the same to her. It has then observed that prayer clauses

and pleadings in dispute were not proper. The co-operative Court has

found that on one hand disputant was praying for delivery of

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possession and on the other hand she also sought injunction restraining

society from disturbing her possession on plot No.12. We need not

dwell more on this aspect. Suffice it is mentioned that the co-operative

Court finds Indirabai in possession of plot No.12. With the result, it

becomes clear that the disputant was raising construction on plot

No.11. Plot No.11 was never allotted to her and hence, prayers made

by her in relation to that plot could not have been granted.

11. At this juncture, we find it appropriate to reproduce

prayers as amended before the co-operative Court.

"(i) It is therefore, humbly prayed that this Hon'ble Court may kindly be pleased to direct the opponent No.2 to handover the possession of plot No.12 in the layout of the opponent No.1 society to the disputant.

(ii) Direct the opponents No.1 and 2 to make the appropriate payments of compensation been mesne profits to disputant.

(iii) Any other relief deemed fit be granted to the disputant.

        (iv)      Cost be saddled on opponents.

        1A.     It is, therefore, necessary in the interest of justice to

deliver the possession of plot No.12 to the disputant or direct the respondent No.1 to declare the present plot over which the disputant was given possession as plot No.12.

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        ia.    Or alternatively declare that the present plot which is

under possession of the disputant is plot No.12.

a. And restrain the opponent No.1, its servant, or agents from obstructing and prohibiting the disputant from carrying out the work over the plot No.12 : further restraining them permanently not to disturb the peaceful and legal possession of the disputant over the plot No.12."

It is seen that the disputant herself could not have been blamed or

made to suffer for such a draft of prayers.

12. In the backdrop of these prayers and pleadings in

paragraph 8, the co-operative Court has then mentioned that it cannot

travel beyond pleadings and evidence. As there was defect in the

same, the disputant was not entitled to relief. The case that Indirabai

had encroached upon her plot No.12 was not pleaded and there was no

evidence about it.

13. When this adjudication reached the appellate Court, the

co-operative appellate Court has at end of paragraph 5 referred to

Exhibit D7. Exhibit D7 is letter issued by society to the appellant on

08-09-1992. In that letter, it has been mentioned that plot No.12 was

allotted to the appellant but she was making construction on plot

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No.11 and Indirabai had taken possession of plot No.12. The appellate

Court has also found from photocopy of sale-deed that plot No.13 was

alloted to Indirabai. These findings reached by the appellate Court in

fact bring on record admitted position between parties. The appellate

Court then proceeds to note that Indirabai started construction on plot

No.12 while actually it should have been on plot No.13. The appellant

also started construction on plot No.11 presuming it to be plot No.12.

It also finds that oral evidence, therefore, was not of much assistance.

It then concluded that plot No.12 was not "open" and as such the

appellant was not entitled to any relief.

14. Before the learned Single Judge on 25-06-2007, Indirabai

pointed out that she had constructed a well, two rooms, latrine and

bathroom and spent money in making construction with great

difficulties. The learned Single Judge, therefore, found that taking

overall view of the matter, society could not have been permitted to

disturb her possession. It also observed that the appellant (petitioner

before the learned Single Judge) was, therefore, rendered plotless and

therefore, was entitled to canvass her grievance about need of

residential accommodation before society.

Hence, with that liberty writ petition was disposed of.

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15. Thus the appellant did not seek any express relief of

dispossession i.e. eviction of Indirabai from plot No.12 and relief of

removal of encroachment. Facts before the co-operative Court and

other Courts clearly reveal that Indirabai was wrong in raising

construction on plot No.12 and she should have been in possession of

plot No.13. It is equally true that present appellant also could not have

raised any structure on plot No.11.

16. In this situation, when Indirabai has already constructed

her house on plot No.12 presuming it to be plot No.13, actual plot

No.13 is lying vacant and unoccupied. In the time taken by this Court

in hearing the matter, learned Counsel for the appellant has verified

position and, upon instructions, he states that even today plot No.13 is

lying open to sky and unoccupied. He, therefore, requested the Court

to permit the present appellant to take possession of plot No.13 and to

raise her construction there.

17. It is obvious that in above circumstances, when Indirabai

has erroneously constructed her house on plot allotted to present

appellant, the situation could have been handled by co-operative

housing society. An exchange-deed could have been registered

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between the parties and possession of plot No.13 could have been

made over to the present appellant. Cooperative Court functioning in

welfare jurisdiction, could have also done, this in view of residuary

prayer in dispute.

18. Today Indirabai has raised her construction on plot No.12

though that plot legally does not belong to her. Therefore, it is

necessary that she should also have a proper title deed in relation to

plot No.12.

19. We, therefore, find that interest of justice can be met with

by directing respondent Nos.3 and 5 Society with the appellant and

respondent No.4 Indirabai to execute appropriate exchange-deed in

relation to plot Nos.12 and 13. We direct respondent No.4 as also co-

operative housing society to execute such exchange-deed in favour of

the present appellant within a period of six weeks from today.

20. If the exchange-deed as mentioned supra is not executed

by respondent No.4 Indirabai within a period of six weeks, it shall be

open to the appellant to execute this judgment as a decree and to

obtain execution from the civil Court through its Nazir as per law.

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After exchange-deed is registered and executed, the appellant shall be

placed in possession of plot No.13 and shall be free to develop it as per

law.

21. Expenses of the exercise shall be shared equally by

appellant and respondent No.4 Indirabai.

The letters patent appeal is, accordingly, partly allowed

and disposed of. No costs.

                                 JUDGE                                    JUDGE

adgokar