Bombay High Court
Abhay Tejraj Rathod And Others vs Suyog Co-Op.Housing Society Ltd. ... on 11 October, 2021
Bench: V. V. Kankanwadi
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
CIVIL APPLICATION NO.2541 OF 2021
IN SA/215/1996
PRITHVIRAJ CHANDRAKANT SHINDE AND OTHERS
VERSUS
SUYOG CO-OPERATIVE HOUSING SOCIETY LTD., DEOPUR, DHULE AND
OTHERS
...
Mr. M.K. Deshpande, Advocate for applicants
Mr. S.P. Shah, Advocate for the respondent No.1
Mr. R.B. Raghuwanshi, Advocate for respondent Nos.2A to 2D
Mr. M.S. Kulkarni, Advocate for the respondent Nos.3A to 3D
Mr. N.L. Choudhari, Advocate for applicants (in CA/1346/2005)
Mr. M.K. Bhosale, Advocate for applicants (in CA/6050/2021)
Mr. Girish Nagori, Advocate for applicants (in CA/6737/2013)
Mr. A.B. Girase, Advocate h/f Mr. Y.B. Bolkar, Advocate for the applicant (in
CA/10179/2019)
...
WITH
CIVIL APPLICATION NO.1346 OF 2005 IN SA/215/1996
WITH
CIVIL APPLICATION NO.6050 OF 2021 IN SA/215/1996
WITH
CIVIL APPLICATION NO.6737 OF 2013 IN SA/215/1996
WITH
CIVIL APPLICATION NO.10179 OF 2019 IN SA/215/1996
::: Uploaded on - 11/10/2021 ::: Downloaded on - 12/10/2021 07:47:10 :::
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...
CORAM : SMT. VIBHA KANKANWADI, J.
RESERVED ON : 22nd JULY, 2021
PRONOUNCED ON : 11th OCTOBER, 2021
ORDER :
1 All these applications are filed to join the applicants as party i.e.
respondent to the Second Appeal. The non applicant Suyog Co-operative
Housing Society Limited, Deopur, Dhule is the original appellant in Second
Appeal No.215 of 1996. The said appeal came to be admitted by this Court
by order dated 10.02.1994 by framing substantial questions of law.
Thereafter, for one or the other reason the appeal is pending for final hearing,
though it appears from the record that twice or thrice the matter was listed
for final hearing.
2 Applicants in Civil Application No.1346 of 2005 are contending
that they are the members of the appellant society and purchased two plots
on 21.03.1985 registered on 02.09.1985 by two separate sale deeds.
3 The applicants in Civil Application No.2541 of 2021 submit that
the non applicant Nos.2 and 3 therein had executed registered sale deeds on
10.01.1994 in respect of various plots, of which layout was sanctioned by the
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competent authority. Some of the purchasers had expired and, therefore,
their legal representatives along with the other purchasers are the applicants.
The applicants are contending that they are the rightful owners since the date
of purchase and they wanted to develop the plots by making construction
over the same. Since this Court had granted status quo while admitting the
Second Appeal, the applicants are unable to develop their plots and,
therefore, their rights are prejudiced. No prejudice will be caused to the non
applicant No.1-original appellant or the non applicant Nos.2 and 3, if the
present applicants are added as party respondent.
4 The applicant in Civil Application No.10179 of 2019 submits that
he had purchased the property from original respondents way back in the
year 1994. He is in possession of the property sold by the original
respondents. He contends that he was not aware about the litigation pending
between non applicant No.1 i.e. Suyog Co-operative Housing Society with the
other respondents in the Second Appeal. He contends that the property
described in para No.2 of his application was originally owned and possessed
by one Chhagan Popat Gawali and Ramesh Popat Gawali. They were in need
of money and, therefore, they sold the plots in favour of applicant and his
brother Sudhir by sale deed dated 07.01.1994. There was a litigation
pending before this Court in respect of said property, which was filed by the
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original owners and, therefore, he checked the status and existence of Suyog
Co-operative Housing Society, who had filed Second Appeal before this Court.
After due inquiry, it came to his knowledge that the society has gone into
liquidation and the public notice in that regard was published in daily
newspaper Dainik Murder of 01.01.2017. The applicant contends that after
following due process of law the Deputy Registrar, Co-operative Societies,
Dhule has passed order on 08.05.2018 under Section 21 of the Maharashtra
Co-operative Societies Act and thereby cancelled the registration of Shri.
Suyog Co-operative Housing Society, which is the appellant in the Second
Appeal. It is contended that as the registration of the society is cancelled, the
society cannot prosecute the Second Appeal further. The applicant is an
interested person as the properties were the subject-matter and they were
purchased by the applicant way back in the year 1994. He, therefore, prayed
for his impleadment as party respondent.
5 The applicants in Civil Application No.6050 of 2021 have
contended that the suit property was allotted to respondent No.1 i.e. Suyog
Co-operative Housing Society on 05.02.1985 by learned Collector for erecting
residential houses. Accordingly, the layout was got sanctioned. There were
about 158 members of the society, of which a list is annexed. According to
these applicants, the said society is still in existence and by any order of
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competent authority or Court it has not gone into liquidation or dissolution.
They are the beneficiaries of the society and they are ready to purchase the
property. It appears that these applicants are in fact, challenging Civil
Application No.10179 of 2019 contending that the applicant therein has no
locus standi to make allegations against the society-respondent No.1. It was
then contended that the applicant in Civil Application No.10179 of 2019 has
purchased part of suit property, illegally and in violation of the orders passed
by this Court in Second Appeal as well as in civil applications, for which
contempt application has been filed. It is then contended that the applicant
Nos.1 and 2 to this application had purchased the plots in the suit property
from respondent No.1 by due process since 1985, that is, the formation of the
society. By this application, these applicants pray for their impleadment as
party respondent.
6 The applicants in Civil Application No.6737 of 2013 have
contended that the respondent Nos.2 and 3 were the original owners of the
disputed land. They had executed sale deed in favour of the applicants on
05.01.1994 of respective plots to the applicants. They were put in possession
of the said plots after the registration of the sale deeds. They came to know
about the litigation before this Court in second week of December, 2012.
Since their rights would be affected in the litigation, they are necessary
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parties. Therefore, they prayed for addition of their names as party
respondent.
7 Say has been given on behalf of the respondent No.1-original
appellant to the three applications. They are given separately and are along
with various documents. In the nutshell, it can be said that the society is
contending that still it is in existence and willing to continue the litigation.
As against Civil Application No.6737 of 2013, it is contended that the subject
land was acquired by State Government under the provisions of MHADA Act.
As a part of the acquisition proceedings, the possession of the land was taken
over by the Government from the original owner. It was then allotted to the
appellant - Suyog Co-operative Housing Society. The society has 158
members from lower middle class. It has been contended that when original
owner subsequently started obstructing the society, it had filed Regular Civil
Suit No.449/1985 for injunction. The learned Trial Court decreed the suit on
23.11.1992. The original owners preferred Regular Civil Appeal
No.133/1992, which was allowed and the decree passed by the learned
Lower Court was set aside. Hence, the society has filed Second Appeal,
which has been admitted. It is stated that in the meantime original owner
also instituted Regular Civil Suit No.441/1987 for seeking declaration of title.
During the pendency of the said suit, for substantially the same relief, the
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original owner also filed Writ Petition No.2027/1996. In this writ petition,
this Court directed the parties to maintain status quo in respect of possession
by order dated 29.04.1991. However, even before the limitation to file
Second Appeal was expired. The original owners executed sale deed in
respect of more than 100 plots. In fact, all the purchasers were well aware
about the entire litigation. All that has been done just to frustrate the
litigation filed by the society. Thereafter, there was also Regular Civil Suit
No.441/1987, which came to be decreed by learned Trial Court on
30.10.1993. It was against the Government as well as the society. They were
defendants therein. They had challenged the Judgment and Decree by filing
Regular Civil Appeal Nos.99/1997 and 100/1997 respectively. The First
Appellate Court allowed the appeal filed by the Government as well as the
society on 04.07.2007 and set aside the decree passed in favour of the
original owners. However, while allowing the said appeal, the First Appellate
Court had remanded the matter to Trial Court for the consideration afresh.
After the remand, the learned Trial Judge has dismissed the suit. The Writ
Petition No.2025/1996 was dismissed by this Court on 16.02.2010. It has
been contended that the parties to the civil applications are not necessary
parties to decide the dispute in question and, therefore, they need not be
added as party respondent.
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8 As regards the Civil Application No.10179 of 2019 it has been
contended that the application has not been filed with bona fide intention. It
is denied that the society is not in existence. The said statement has been
made with an intent to get chance of getting the Second Appeal disposed of
without the contest on merits. It is stated that the document, which has been
attached to the said application, does not consists of name of the present
respondent No.1-appellant. The name of the appellant is, "Suyog Co-
operative Housing Society, Deopur, Dhule" in the order passed by the Sub-
Registrar, Co-operatives. The society, which went into liquidation is said as,
"Shri. Suyog Sahakari Gruhnirman Sanstha, Mahindale, Tq. & Dist. Dhule".
Therefore, even the applicant to Civil Application No.10179 of 2021 is not
necessary party to the litigation.
9 In respect of Civil Application No.2541 of 2021, the respondent
No.1's affidavit-in-reply states that those applicants are not necessary parties
nor they are proper parties. It is then stated that if these applicants are
allowed to contest the matter then the appeal will become shapeless and it
would be prejudicial to the appellant.
10 Heard all the respective learned Advocates for the respective
parties in respective Civil Applications.
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11 It will have to be mentioned that each one of the Advocate
representing the applicant has taken this Court through every document
which is on record and annexed to the applications. So also, the learned
Advocate appearing for the respondent No.1-Society has also taken this Court
through all the documents and the affidavits-in-reply as well as the portions
of the Judgments of the Lower Courts.
12 From the submissions those have been made on behalf of both
parties, it can be seen that the parties are claiming interest in the suit
property. All of them are stated to be the purchasers. The suit was filed on
18.07.1985 before Civil Judge Junior Division, Dhule. All the applicants,
who are claiming interest in the suit property, contend that their sale deed is
after the date of the suit. Some of them claim to be the members of appellant
and others are claiming that the original defendants had sold out the
property to them. In short, all the applicants' interest appears to be created
during the pendency of the litigation and, therefore, it would attract Section
52 of the Transfer of Property Act i.e. Doctrine of lis pendens. We need not
go much into detail at this stage, as to whether the person who sold the
property to each applicant was competent to execute such sale deed or not.
Yet, the fact remains that the plaintiff-appellant society itself had 158
members. Now, as per the applicant in Civil Application No.10179 of 2019,
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the appellant society has gone into liquidation. Certain documents have been
produced on record, especially the order passed by learned Sub-Registrar, Co-
operative Societies, Dhule on 08.05.2018. As per this order the society,
which went into liquidation, is by name "Shri. Suyog Sahakari Gruhnirman
Sanstha Maryadit, Mahindale, Tq. & Dist. Dhule". The suit that was filed by
the plaintiff - present appellant in the Second Appeal is by name "Suyog Co-
operative Society Limited, Deopur, Dhule". So, there appears to be
difference. It would then be endeavour for the applicant in Civil Application
No.10179 of 2019 to prove that the society which named in the order of
dissolution is the same that of plaintiff. However, prima facie it does not
appear to be so. But then the applicant in that application is also claiming his
interest by way of sale deed.
13 Reliance can be placed on A. Nawab John and others vs. V.N.
Subramaniyam, 2013 (1) Mh.L.J. (S.C.), wherein it has been observed -
"The effect of Section 52 of Transfer of Property Act, 1882, which
incorporates the doctrine of lis pendens is not to render transfers
effected during the pendency of a suit by a party to the suit void; but
only to render such transfers subservient to the rights of the parties to
such suit, as may be, eventually, determined in the suit. In other words,
the transfer remains valid subject, of course, to the result of the suit.
The pendente lite purchaser would be entitled to suffer the same legal
rights and obligations of his vendor as may be eventually determined by
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the Court and, therefore, the Supreme Court was of the view that the
application for impleadment pendente lite purchaser as party must be
liberally considered."
Definitely, the decision of the Second Appeal would affect the
applicants, who appears to have purchased the plots by registered sale deed
and that too for consideration and, therefore, all of them can be termed as
necessary parties. Merely because the scope of the Second Appeal would
increase the applications cannot be rejected. Rather rights of all the parties
would be decided in one litigation only. Hence, following order.
ORDER
1 Applications except Civil Application No.10179 of 2019 stand
allowed in entirety and disposed of.
2 Civil Application No.10179 of 2019 stands partly allowed.
The prayer of disposing of the Second Appeal without the contest
on merits stands rejected. However, the prayer for impleading the applicant
as party respondent stands allowed.
3 All the applicants in all the applications be added as
respondents.
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4 Amendment to that effect be carried out by the original appellant
to the Second Appeal, within a period of 15 days from today.
( Smt. Vibha Kankanwadi, J. )
agd
