Dattanagar Gruha Nirman ... vs Vinayak Rambhau Mire & Others
2017 Latest Caselaw 5701 Bom

202-J-FA-224-04                                                                          1/14


              IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                        NAGPUR BENCH, NAGPUR.

                         SECOND  APPEAL  NO.224 OF 2004



Dattanagar Gruha Nirman Co-operative 
Hsg. Society Limited. 
Mire Layout, Umred Road, 
Nagpur, Thr. Its President.                                   ... Appellant. 

-vs-

Vinayak s/o Rambhau Mire 
(since dead, through L.Rs.)  
(a)  Heerabai wd/o Vinayak Mire, 
      Aged about 55 yrs. Occ. Household, 

(b)  Kishor s/o vinayak Mire, 
       Aged about 35 yrs. Occ. Business, 

(c)  Sudhakar s/o Vinayak Mire,
       Aged about 31 yrs, Occ. Business, 

All r/o Juni Shukrawari, 
Near Gandhi Putala, Nagpur.                                   ...  Respondents. 


Shri N. N. Thengare, Advocate for appellant. 
Shri R. C. Charpe, Advocate for respondents. 


                                 CORAM  :  A. S. CHANDURKAR, J. 

DATE : AUGUST 07, 2017

Oral Judgment :

This appeal under Section 100 of the Code of Civil Procedure,

1908 is preferred by the original defendant. The respondent is the original

plaintiff who had filed suit for perpetual injunction seeking to restrain the

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defendant-Society from interfering with the construction sought to be

undertaken on plot No.86. It is the case of the plaintiff that his father

Rambhau was owner of Khasra Nos.3/3 and 3/4. After the land was

converted into a layout, about 88 plots were demarcated. One plot was

retained while the other 87 were sold off. The plaintiff as the legal heir of

Rambhau was in possession of plot No.86. The office bearers of the Society

tried to take possession of the suit plot and also tried to obstruct the plaintiff

from enjoying possession of the suit plot. Hence after giving notice under

Section 164 of the Maharashtra Co-operative Societies Act, 1961 (for short,

the said Act) the aforesaid suit came to be filed. Along with the suit a plaint

map was also filed. In the written statement of the Society it was denied that

the plaintiff was owner of plot No.86. It was denied that plot No.86 was

existing. It was then pleaded that the members of the Society had no other

approach way and the plaintiff was not justified in seeking a prayer for

permanent injunction.

2. After the parties led evidence the trial Court held that the plaintiff

had failed to prove that he was the owner of plot No.86. The suit was held

to be not maintainable on account of absence of notice under Section 164 of

the said Act. The suit accordingly was dismissed.

The Appellate Court after re-appreciating the evidence held that

plaintiff was owner and possessor of the suit plot. After holding that the

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members of the Society were obstructing the plaintiff and that a valid notice

under Section 164 of the said Act had been issued, the appeal was allowed.

The suit accordingly was decreed.

3. The Second Appeal filed by the original defendant was allowed by

this Court vide judgment dated 06/03/2013. It was held that both the

Courts had recorded a finding that plot No.86 had been sold by the plaintiff

on 15/03/1971 and therefore there was no basis for seeking relief in the suit.

Accordingly after allowing the appeal the suit came to be dismissed.

4. The original plaintiff then filed Civil Appeal No.6840 of 2015

before the Honourable Supreme Court. By judgment dated 03/09/2015, the

Honourable Supreme Court held that the inference drawn by this Court that

plot No.86 was sold by the plaintiff on 15/03/1971 did not appear to be

correct. The matter was accordingly remanded to this Court for

reconsideration on merits.

5. In the light of aforesaid order of remand, the learned counsel for

the parties have been heard at length.

On 18/06/2004, the following substantial questions of law were

framed :

(i) Whether the suit filed by the plaintiff was bad on account of want of

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notice under Section 164 of Maharashtra Cooperative Societies Act ?

(ii) Whether the suit for injunction could be entertained in absence of the suit property being specifically described in the plaint ? "

Thereafter on 27/07/2017 an additional substantial question of

law was framed which reads thus :

(iii) Whether the plaintiff has proved that he has legal right to seek the relief of perpetual injunction with regard to the suit property ? "

6. Shri N. N. Thengre, learned counsel for the original defendant-

appellant submitted that the suit as filed was not maintainable as there was

no notice issued under Section 164 of the said Act before filing the suit.

According to him, considering the nature of relief sought by the plaintiff, it

was clear that the dispute pertained to an act touching the business of the

Society and therefore it was necessary for the plaintiff to have first issued

such notice. It was submitted that though it was pleaded that such a notice

was issued, its service on the defendant was not duly proved. For said

purpose, the learned counsel relied upon the judgment of the Division Bench

in Arlinda Dias and ors. vs. Margao Co-operative Housing Society Ltd.,

Goa and ors. 2009 (6) Mh.L.J. 343 and judgment of learned Single Judge

in Suprabhat Co-operative Housing Society Ltd. and anr. vs. Span

Builders and anr. 2002(3) Mh.L.J. 837. It was then submitted that the

suit property had not been specifically described in the plaint. Except for

stating that plot No.86 was the suit property which was attempted to be

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shown on the basis of a sketch map that was annexed to the plaint, the suit

property was not clearly described. There was no compliance with the

provisions of Order VII Rule 3 of the Code of Civil Procedure, 1908. In

absence of any dimensions being given, it was difficult to ascertain the suit

property. The trial Court had rightly dismissed the suit on that count but the

Appellate Court reversed the said finding. For said purpose, the learned

counsel placed reliance on the decision in Bandhu Das and anr. vs. Uttam

Charan Pattanaik AIR 2007 Orissa 24 and Saljing A. Sangma and anr. vs.

Smt. Bilmoni A. Sangma AIR 2014 Meghalaya 15.

It was then submitted that the plaintiff had no legal right to seek

the relief of perpetual injunction. As per sale deed Exhibit-54 plot Nos.79

and 86 had been sold by executing a sale deed dated 15/03/1971. Hence,

plot No.86 was not in existence as alleged by the plaintiff. He also referred

to the 7/12 extracts at Exhibit-67 to indicate that the plaintiff's name was not

shown therein. He referred to the deposition of various witnesses to indicate

that the land in question was being used by the members of the Society as a

road and therefore there was no basis for seeking the relief in the suit. In

that regard he placed reliance on the judgment in Smt. Sona Devi vs.

Nagina Singh and ors. AIR 1997 Patna 1967.

It was thus submitted that the Appellate Court was not justified in

reversing the decree passed by the trial Court.

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7. Shri R. S. Charpe, learned counsel for the original plaintiff-

respondent on the other hand supported the judgment of the Appellate

Court. He submitted that notice under Section 164 of the said Act had been

duly issued to the defendant. This fact was pleaded in paragraph 3 of the

plaint. In the written statement, the Society admitted that notice dated

17/08/1987 was duly received by it and it was also replied on 01/09/1987.

As the issuance and receipt of notice was admitted there was no need of

leading any further evidence in that regard. Without prejudice, it was

submitted that in fact there was no necessity of issuing any notice under

Section 164 of the said Act before filing the suit. The relief sought was with

regard to protecting the plaintiff's property and the said prayer did not

involve any act touching the business of the Society. Even the bye-laws of

the Society were not placed on record to indicate the nature of its activities.

Relying upon judgment in Gajanan Eknath Sonankar vs. Shegaon Shri

Agrasen Co-op. Credit Society Ltd. & anr. 2015(1) Mh.L.J. 579 it was

submitted that there was no question of estoppel from contending otherwise

even if such notice was issued.

The suit as filed was for permanent injunction and there was no

dispute as to the identity of the suit property. It was specifically pleaded that

after selling 87 plots, one plot was retained by the plaintiff. In fact the entire

survey number belonged to the plaintiff's father and the plaintiff had

inherited the title from him. He referred to the plaint map to indicate that

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plot No.86 was identified by showing it in red colour. The sale deed at

Exhibit-54 was with regard to some other plots and this could be gathered

from the boundaries of the property sold by the said sale deed. There was

no pleading in the written statement that the suit property was not

identifiable. The learned counsel then sought to raise a distinction with

regard to the proper description of the suit property on the basis of

provisions of Order VII Rule 3 of the Code. According to him if the suit was

for possession then a detailed description was necessary. This was not

necessary in a suit for perpetual injunction. In that regard, the learned

counsel placed reliance on the decision in Nari Shrinagar Big Bazar & anr.

vs. Pantaloon Retailing (India) Ltd. 2008 (3) Mh.L.J 698 and Zarif

Ahmad (D) Thr. LRs and anr. vs Mohd. Farooq AIR 2015 SC 1236. It was

also submitted that when the plaintiff sought to amend the plaint by moving

an application below Exhibit-32, the amendment was opposed and hence the

trial Court did not permit the amendment relating to description of the suit

property. The Appellate Court had rightly found that the decree could be

passed on the basis of description of the suit property especially when both

the parties were aware about the matter for which the suit was filed.

The plaintiff was entitled for the relief of perpetual injunction as

he had title to the suit property. There was no dispute about his ownership

and plot No.86 remained in his possession. The Society was in fact formed

by the plot holders of 87 plots excluding the plaintiff. On the basis of his

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title, the plaintiff was entitled for the relief of perpetual injunction. For said

purpose, learned counsel placed reliance on the decision in Anathula

Sudhakar v. P. Buchi Reddy (Dead) by LRs and ors. AIR 2008 SC 2033

and Pame Gowda (dead) by L.Rs. vs. M. Varadappa Naidu (dead) by L.Rs.

and anr. 2004 (3) Bom.C.R.788. It was therefore submitted that the

judgment of the Appellate Court did not call for any interference.

8. I have heard the learned counsel for the parties at length and with

their assistance I have perused the records of the case.

As to substantial question of law No.(i) :

The plaintiff in paragraph 3 of the plaint pleaded that before filing

the suit, a notice was issued by him and the same was received by the Society

on 17/08/1987. In the written statement it was admitted that such notice

dated 17/08/1987 was issued and it was replied on 01/09/1987. It was

further urged on behalf of the defendant that it was necessary for the

plaintiff to have issued a notice under Section 164 of the said Act considering

the relief that was sought in the suit. As per the provisions of Section 164 of

the said Act, no suit can be instituted against a Society or any of its officers in

respect of any act touching the business of the Society unless a notice in

writing has been delivered to the Registrar or left at his office stating the

cause of action and other necessary details after which such suit can be filed

after period of two months. Therefore, what is necessary is that the suit

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should relate to an act touching the business of the Society. As held in

Suprabhat Co. Op. Hsg. Society (supra), the question whether a particular

dispute touches the business of the Society would depend upon the nature of

the Society as well as the rules and bye-laws governing the same. In the

present case, the defendant-Society did not place its bye-laws on record to

indicate the nature of its activities so as to enable a finding to be recorded as

to whether the relief sought by the plaintiff touched its business so as to

warrant issuance of such notice. Merely because the defendant is shown as

a Co-operative Housing Society, that by itself would not be sufficient to come

to a conclusion that the suit as filed related to an act touching the business of

the Society.

As the defendant was relying upon the provisions of Section-164

of the said Act, the burden was on it to prove that it was necessary for the

plaintiff to have issued such notice. It is therefore clear that no such

evidence in that regard was led by the defendant to enable a finding being

recorded that issuance of notice under Section 164 of the said Act was

necessary before filing the suit.

The decision relied upon in the case of Arlinda Dias (supra)

related to an act in respect of construction, repairs and maintenance of the

retaining wall that was constructed by the Society and which resulted in

weakening the building of the Society. In those facts it was found that there

was negligence on the part of the Society therein in discharging its

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obligations and hence it was necessary that notice under Section 164 of the

said Act ought to have been issued. In these facts therefore the ratio of said

decision does not assist the case of the defendant. The relief sought in the

present suit was a decree for perpetual injunction to restrain the Society from

interfering with the local road of the plaintiff and from making any

construction thereon. The plaintiff was seeking injunction so as to protect

his property. I therefore do not find that the relief sought in the present suit

was with regard to an act that touched the business of the Society. On said

count therefore issuance of notice under Section 164 of the said Act was not

necessary.

9. Even otherwise, it can be seen that issuance of such notice was

duly pleaded by the plaintiff and was admitted by the defendant-Society.

Merely because copy of said notice was not shown to have been delivered at

the office of the Registrar, the same would not preclude the plaintiff from

urging that there was infact no necessity of issuing such notice. Reliance

placed by learned counsel for the plaintiff on the decision in Gajanan

Eknath Sonankar (supra) to contend that there was no question of estoppel

is therefore justified. Substantial question of law No.(i) stands answered

accordingly.

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10. As to substantial question of law No.(ii) :

In the plaint relief was sought with regard to grant of perpetual

injunction by referring to the suit plot as plot No.86. For said purpose, the

plaintiff filed a sketch map indicating the manner in which the plots were

demarcated in the entire lay out. In the written statement it was pleaded

that plot No.86 was not in existence and that plot No.86 was in fact sold by

the plaintiff's father on 15/03/1971 to Shri Yadavrao Chapekar. Reference

was made to that sale deed and during the course of evidence it was marked

as Exhibit-54.

While considering this substantial question of law, it is to be first

noted that the suit as filed was for perpetual injunction seeking to restrain

the Society from obstructing the possession of the plaintiff. The manner in

which the suit property has to be described when a suit is filed for possession

and when the suit is filed for perpetual injunction has been considered by

Honourable Supreme Court in the decision in Zarif Ahmad (D) Thr. LRs

and anr. (supra). While considering a similar contention that the suit

property was not identifiable, it was observed that the object of provisions of

Order VII Rule 3 of the Code was that the suit property should be described

in such a manner that would be sufficient to identify it. Location of the

disputed immovable property can also be shown through a plaint map. It

was sufficient if the suit property could be identified. In Nari Shringar Big

Bazar (supra) this distinction with regard to description of the suit property

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in suit for possession and in suit for injunction simplicitor has been

highlighted. It was found that in that case the suit being for perpetual

injunction the description of the suit property as made in the plaint was

sufficient.

If the document at Exhibit-54 is perused, same indicates that two

plot numbers being 79 and 86 were sold by the plaintiff's father on

15/03/1971. The boundaries of plot Nos.79 and 86 indicate that on the

eastern side there was 30 ft. wide road. On western side there was open

space and a road, on northern side there was plot Nos.80 and 87 while on

southern side there was agricultural filed of Laxmanrao Mire. When these

boundaries are considered along with plaint map it is clear that on the

eastern side of plot No.79 there is 30 ft. wide road while on the northern

side there are plot Nos.80 and 87. Similarly on western side also there is

open space and a road. Thus from Exhibit-54 it can be gathered that plot

Nos.79 and 86 were adjoining to each other and said property sold is distinct

from plot No.86 which lies to the extreme north at the said layout. Thus

from the documents relied by the defendant-Society it is clear that the suit

property is not the subject matter of the sale deed at Exhibit-54.

11. Considering the fact that the suit as filed is for injunction

simplicitor and the property being identifiable on the basis of plaint map, the

suit was liable to be entertained on the basis of the description mentioned in

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the plaint and the plaint map. The decision in Saljing A. Sangma (supra)

does not support the case of the defendant. The substantial question of law

No.(ii) stands answered accordingly.

12. As to substantial question of law No.(iii) :

According to the plaintiff, out of total 88 plots in the layout, 87

plots were sold out and one plot remained. The entire lay out belonged to

the plaintiff's father and therefore he had title in the said plot which was plot

No.86.

In Anathula Sudhakar (supra) the general principles as to the

manner in which a suit for prohibitory injunction has to be filed, have been

laid down.

When the possession of the plaintiff is interfered with or

threatened, suit for injunction simplicitor would be maintained. If only there

was a cloud on the title of the plaintiff was it necessary to seek a declaration

as to title. The pleadings of the parties indicate that the defendant denied

the existence of plot No.86. The plaintiff claimed to be in possession on the

basis of his title. His possession being interfered with, suit for injunction

simplicitor was maintainable. In the light of aforesaid, the plaintiff was

entitled to seek a right for grant of decree of perpetual injunction. I do not

find that there was any legal impediment in that regard. Substantial

question of law No.(iii) is answered in favour of the plaintiff.

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13. The trial Court though dismissed the suit, the first Appellate Court

on proper appreciation of the evidence on record decreed the same by

holding that the plaintiff had title to the suit property. I find that this

conclusion has been arrived at on a proper appreciation of the entire

evidence on record. The findings recorded cannot be said to be perverse

warranting interference. The decision in Smt. Sona Devi (supra) does not

assist the case of the defendant. Hence considering the answers given to

the substantial questions of law, the appeal cannot succeed. Accordingly

Second Appeal No.224 of 2004 stands dismissed. Judgment of the first

Appellate Court stands confirmed. No costs.

JUDGE

Asmita