Sri Jai Prakash Sinha vs Sri Uma Shankar Sinha & Ors
2023 Latest Caselaw 830 Cal

                     IN THE HIGH COURT AT CALCUTTA
                      CIVIL REVISIONAL JURISDICTION
                              APPELLATE SIDE
Present :
THE HON'BLE JUSTICE PARTHA SARATHI SEN

                               C.O. No.978 of 2022

                                Sri Jai Prakash Sinha
                                          Vs
                           Sri Uma Shankar Sinha & Ors.


      For the Petitioner              : Mr. Rajdeep Bhattacharya, Adv.

      For the O.Ps. 1& 2              : Mr. Rajdeep Mantha, Adv.

                                      : Mr. Anirudhya Dutta, Adv.

                                      : Mr. Sikhar Singh, Adv.

      Last Heard on:                  : 20.01.2023

      Judgment on:                    : 31.01.2023

Partha Sarathi Sen, J. : -

1.

In this revisional application under Article 227 of the Constitution of

India the order dated 14.03.2022 as passed in Title Suit no.286 of 2019 by the

learned Civil Judge, Senior Div., 4th Court Alipore, has been assailed.

2. By the impugned order learned trial court has been pleased to reject the

petition dated 7.7.2021 as filed by defendant no.1 under the provisions of order

VII Rule 11 of the Code of Civil Procedure for rejection of the plaint. The

defendant no.1 felt aggrieved and thus preferred the instant revisional

application.

3. In support of the instant revisional application learned advocate for the

defendant no.1/revisionist at the very outset draws attention of this Court to the copy plaint as filed in Title Suit no.286 of 2019, copy of the written

statement as filed by the defendant no.1, the copy of the petition under Order

VII Rule 11 of the Code of Civil Procedure, the photo copy of the deed of

conveyance dated 26th March, 2014 as executed by M/S Dakshinee

Cooperative Housing Estate Ltd., in favour of Jai Prakash Sinha and the

impugned order. Attention of this court is also drawn to the provision of

Section 102 of the West Bengal Cooperative Societies Act, 2006.

4. It is submitted on behalf of the revisionist/defendant no.1 that on

perusal of the aforesaid deed of conveyance dated 26th March, 2014 vis-a-vis

the plaint as filed by the opposite parties before the learned trial court it would

reveal that the parties to the said suit are the members of the aforementioned

Cooperative Society and not the exclusive owners of the suit property. It is

submitted that such being the position the dispute between the parties to the

said suit with regard to the suit property comes under the purview of

definition 'dispute' under Section 4(25) of the said Act and thus, the same is

got to be settled not by a civil court but by the Registrar in view of the provision

of Sections 102(2) and (4) of the said Act. It is thus contended that learned trial

court while passing the impugned order failed to visualize the relevant

provisions of the aforesaid Act and thus passed the impugned order which is

not justified in the eye of law.

5. Per contra learned advocate for the plaintiffs/opposite parties however

contended that since the subject matter of dispute before the learned trial

court is within the siblings in respect of the suit property, it is preposterous to

suggest that learned trial court has no jurisdiction to try the said suit for

declaration, partition, permanent injunction and for other ancillary reliefs as

prayed for before the learned trial court. It is thus submitted that it is a fit case

for dismissal of the instant revisional application.

6. In considered view of this Court for effective adjudication of the instant

revisional application, a look to the provision of Section 4 (25) and Section 102

is necessary.

Section 4(25) of the said Act is as under:-

""dispute" means any matter capable of being the subject of civil litigation, and includes a claim in respect of any sum payable to or by a Co-operative society:"

Section 102 of the said Act is as under:-

"Disputes to be filed before Registrar:- (1) Any dispute concerning the management or business or affairs of Co-operative society as and when such election is conducted by the Co-operative Election Commission and disciplinary action taken by Co-operative society against its paid employees regarding the terms and conditions of the service shall be filed before the Registrar for settlement if it arises:-

(a) Among the members, past members and persons claiming through members and deceased members or then sureties; or

(b) Between member, past member or a person claiming through a member, past member or deceased member representing through heirs or legal representatives and the Co-operative society , its board or any officer, agent or employees of the Co-operative society or liquidator, past or present; or

(c) ...

(d) ...

(2) Any dispute mentioned in sub-section(1) other than a dispute relating to recovery of money shall be filed before the Registrar within three months from the date on which the cause of action arises.

(3)....

(4) Any Civil Court or any consumers' Dispute Redressal Forum shall not have any jurisdiction to try any dispute as mentioned in sub-section (1) .

(5)....."

7. Keeping in mind the aforesaid legislative provisions this court shall

make an endeavour to come to a logical conclusion as to whether the dispute

as involved in Title Suit no.286 of 2019 comes under the purview of the said

Act or not. On perusal of the averments of the plaint, it reveals that originally

the aforementioned society was the owner of 25 bigas 6 katas 11 chitaks 31 sq.

ft of land of which the suit property is a part and parcel thereof. It is the

further plaint case that after preparing a master plan, after making

development and demarcation over the said plot of land, the suit plot i.e plot

no.143 was allocated in favour of Ram Shankar Sinha who in turn with the

Board resolution of the Society transferred the allotment of the said plot in the

name of Satya Narayan Sinha (since deceased) being the predecessor-in-

interest of the parties to the instant lis. On perusal of the aforesaid deed dated

26.03.2014 it reveals that the suit plot of land was allotted by the said society

to the transferee as a member of the society and therefore sufficient prima facie

materials have been placed before this Court that the suit property has not

been transferred to its member as a free hold land by way of outright sale and

on the contrary the same has been transferred in his name by way of allotment

and thus the allottee remains the member of the said society. Such being the

position there is no hesitation in the mind of this Court that when a dispute

arises with regard to the suit property which has been allotted to a member of

a society or in other words; if any dispute arises with regard to such allotted

property, such dispute ought to have come within the meaning of Section 4 (25)

of the said Act and in view of the provision of Section 102 (4) of the said Act,

Civil Court has got no jurisdiction to try such dispute.

8. In view of the discussion made hereinabove the present revisional

application succeeds. The impugned order dated 14.03.2022 as passed in Title

Suit no.286 of 2019 by the learned Civil Judge, Senior Div., 4th Court Alipore is

hereby set aside.

9. Consequently the petition under Order VII Rule 11 of the Code of Civil

Procedure dated 07.07.2021 as filed by the defendant no.1 in Title Suit no.286

of 2019 in the Court of learned Civil Judge, Senior Div., 4th Court Alipore

stands hereby allowed. Consequently the plaint as filed in Title Suit no.286 of

2019 in the court of learned Civil Judge, Senior Div., 4th Court Alipore stands

hereby rejected. With the aforementioned observation the instant revisional

application stands hereby disposed of.

10. Urgent Photostat Certified copy of this judgment, if applied for, be

supplied to the parties expeditiously after complying with all necessary legal

formalities.

(Partha Sarathi Sen, J.)