Yogeshbhai Ochhalal Shah vs Vijay Sachdeva
2021 Latest Caselaw 18529 Guj

      C/SCA/2913/2019                               ORDER DATED: 17/12/2021




            IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

              R/SPECIAL CIVIL APPLICATION NO. 2913 of 2019

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                        YOGESHBHAI OCHHALAL SHAH
                                   Versus
                         VIJAY SACHDEVA & 2 other(s)
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Appearance:
MR DIPEN C SHAH(3374) for the Petitioner(s) No. 1
MR SP MAJMUDAR(3456) for the Respondent(s) No. 1
NOTICE SERVED(4) for the Respondent(s) No. 2,3
SHREYPRATAP S SINGH(9297) for the Respondent(s) No. 1
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 CORAM:HONOURABLE MR. JUSTICE BHARGAV D. KARIA

                              Date : 17/12/2021

                               ORAL ORDER

Heard learned advocate Mr.Dipen C. Shah for the petitioner and learned advocate Mr.S.P.Majmudar with learned advocate Mr.Shreypratap S. Singh for the respondent No.1.

1. By this petition under Article 227 of the Constitution of India, the petitioner has prayed for the following reliefs :

"a) That the Honourable court be please to issue a writ in the nature of certiorari or any other writ quashing and setting aside the impugned judgement and order dated 26/04/18 in Lavad appeal No. 208/2009 as being arbitrary, de hors the law and beyond the jurisdictional contours of Gujarat co-operative societies act, 1961.

b) That in the alternative the Honourable court be further be please to dispose of this petition with the directive that all rights, titles and interest of this petitioner shall be subject to final outcome of Lavad suit No. 340/2018 which has been specifically instituted

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seeking declaration of title and annulment of allotment letter to respondent No. 1.

c) That the Honourable court be further please to grant interim/ad interim injunction in the nature of status quo and preventing respondent from alienating the said demise property which form the subject matter of Lavad suit No. 779/2004

d) That the Honourable court be further be please to pass such further orders or directions as justice of the case mandates."

2.1. The brief facts of the case are that according to the petitioner, properties being Block No.25 in Sunderam Nagar Co-operative Housing Society was allotted to the petitioner by allotment letter dated 23.11.1994 and the respondent No.1 was also allotted the same plot by the Co-operative Society by allotment letter dated 08.12.1997.

2.2. As the petitioner was intending to sell the said plot, he published a public advertisement on 29.11.2002. Thereafter, Lavad Suit No.779 of 2004 was filed by the respondent No.1 for permanent injunction restraining the petitioner from interfering and for protection of possession of the property in question before the Board of Nominees, Vadodara.

2.3. The Board of Nominees allowed the Lavad Suit No.779 of 2004 by judgment and order dated 11th July, 2008 restraining the petitioner from interfering with the lawful possession of the respondent No.1 permanently.

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2.4. The petitioner therefore, filed an Appeal No.208 of 2009 before the Gujarat State Co- Operative Tribunal (for short 'the Tribunal') which was also dismissed by judgment and order dated 26.04.2018 confirming the order passed in the Lavad Suit.

2.5. The petitioner also filed Lavad Suit No.340 of 2018 praying for cancellation of subsequent allotment of Plot No.25 to the respondent No.1 with a prayer to hold the allotment letter dated 08.12.1997 as void ab initio. According to the petitioner, the said suit is pending for adjudication before the Board of Nominees, vadodara.

3.1. Learned advocate Mr.Shah for the petitioner submitted that both the authorities i.e. Board of Nominees and the Tribunal have committed grave error of law in failing to appreciate that the Lavad Suit filed by the respondent No.1 was for the permanent injunction and respondent No.1 did not pray for declaration of his title to the suit property. It was submitted that the petitioner in his reply disputed the title of the respondent No.1 and hence, such suit would not be maintained before Board of Nominees. It was further submitted that both the impugned orders are therefore, required to be quashed and set aside as there are findings to the effects that

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respondent No.1 is the owner of the property in question as the Board of Nominees would not have adjudicated upon title of the properties under Section 96 of the Gujarat Co-operative Societies Act, 1961.

3.2. It was therefore submitted by learned advocate Mr.Shah that the Court below could not have adjudicated upon the ownership of the respondent No.1 to allow the Suit for permanent injunction. In support of his submission, learned advocate Mr.Shah relied upon the decision in case of Anathula Sudhakar V/s. P. Buchi Reddy (dead)

by LRS. And Others wherein, it is held as under:

"(b) As a suit for injunction simpliciter is concerned only with possession, normally the issue of title will not be directly and substantially in issue. The prayer for injunction will be decided with reference to the finding on possession. But in cases where de jure possession has to be established on the basis of title to the property, as in the case of vacant sites, the issue of title may directly and substantially arise for consideration, as without a finding thereon, it will not be possible to decide the issue of possession.

c) But a finding on title cannot be recorded in a suit for injunction, unless there are necessary pleadings and appropriate issue regarding title (either specific, or implied as noticed in Annaimuthu Thevar), Where the averments regarding title are absent in a plaint and where there is no issue relating to title, the court will not investigate or examine or render a finding on a question of title, in a suit for injunction. Even where there are necessary pleadings and issue, if the matter involves complicated questions of fact and law relating to title, the court will relegate the parties to the remedy by way of comprehensive suit for declaration of title, instead of deciding the issue in a suit for mere 1 (2008) 4 SCC 594

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injunction."

3.3. It was therefore submitted that the Tribunal ought to have relegated the parties to the remedy of filing Civil Suit as the Board of Nominees being a Tribunal of summary nature for resolving the disputes between the members and the Society could not have adjudicate on the issue of de-jure possession of the respondent No.1 as issue of title of the respondent No.1 would arise which would be exclusive domain of the Civil Court.

4.1. On the other hand, learned advocate Mr.Majmudar appearing for the respondent No.1 submitted that the petitioner-original defendant in the Lavad Suit No.779 of 2004 did not appear before the Board of Nominees to contest the Suit as recorded in the impugned order of the Board of Nominees and therefore, the Board of Nominees was justified in arriving at the conclusion relying upon the evidence led by the respondent No.1 and for restraining the petitioner from interfering in the possession of the respondent No.1 of the property in question.

4.2. It was submitted that there are concurrent findings of facts arrived at by the Board of Nominees as well as the Tribunal and therefore, no interference is required to be made by exercising extra-ordinary jurisdiction under Article 227 of the Constitution of India.

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4.3. Learned advocate Mr.Majmudar invited the attention of the Court to the prayers made in the Lavad Suit filed by the respondent No.1 as well as the issues framed by the Board of Nominees to submit that the Board of Nominees has framed two issues, one that whether the respondent No.1 proves that he is entitled to get the relief as prayed and secondly, whether the defendant i.e. the petitioner herein, proves that the dispute raised in the written statement with regard to the ownership or not. It was submitted that as the petitioner did not avail the opportunity to submit any oral or documentary evidence in support of his written statement claiming the ownership, the Board of Nominees has rightly allowed the Suit in favour of the respondent No.1 and the judgment and order passed by the Board of Nominees is accordingly, confirmed by the Tribunal in absence of any opposition by the petitioner before the Board of Nominees.

5. Having heard the learned advocates for the respective parties and having gone through the material on record, it appears that the respondent No.1 filed the Suit for permanent injunction as per the reliefs claimed in the Lavad Suit No.779 of 2004. Therefore, the Board of Nominees has allowed the Suit with regard to the permanent injunction claimed by the respondent No.1 which is confirmed by the Tribunal. In such concurrent findings, no

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interference is required to be made by this Court while exercising extra-ordinary jurisdiction under Article 227 of the Constitution of India. The petitioner as well as the respondent No.1 can contest the Suit filed by the petitioner in accordance with law by leading oral and documentary evidence. The petition is accordingly, dismissed with no order as to cost. Notice is discharged.

(BHARGAV D. KARIA, J) PALAK