Madhya Pradesh High Court
Sunil Kumar Shah vs Smt.Menaka Choudhary & Ors on 31 October, 2022
Author: Dwarka Dhish Bansal
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE DWARKA DHISH BANSAL
SECOND APPEAL NO.877 OF 2003
BETWEEN:-
SUNIL KUMAR SHAH, S/O RAM UGRAH SHAH,
AGED 36 YEARS, R/O 16/8, OLD SUBHASH
NAGAR, GOVINDPURA, BHOPAL (M.P.)
.....APPELLANT
(BY SHRI ATUL ANAND AWASTHI, SENIOR ADVOCATE ASSISTED BY
SHRI RUPESH SINGH THAKUR AND SHRI S.K. GUPTA, ADVOCATES )
AND
1. SMT. MENAKA CHOUDHARY W/O SHRI GOPAL
CHOUDHARY, AGED 37 YEARS, R/O 323, GOPAL
NAGAR, KHAJURI KALA, TEHSIL HUZUR,
BHOPAL.
2. GOPAL CHOUDHARY S/O LATE SHRI SHANTI
RAM CHOUDHARY, AGED 46 YEARS R/O 323,
GOPAL NAGAR, KHAJURI KALA, TEHSIL
HUZUR, BHOPAL
3. GOPAL GRAH NIRMAN SAHAKARI SANSTHA
MYDT THROUGH CHAIRMAN, RETN.
NO.373/83, OFFICE 401/2 TYPE III-C,
GOVINDPURA SECTOR, BHOPAL, PRESENT R/O
591, C-3, B SECTOR, PIPLANI, BHOPAL.
....RESPONDENTS
(NONE FOR THE RESPONDENTS)
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Reserved on : 12.10.2022
Delivered on : 31.10.2022
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This appeal coming on for final hearing this day, the court passed
the following:
JUDGMENT
This second appeal has been preferred by the plaintiff challenging
the judgment and decree dated 08.07.2003 passed by District Judge,
Bhopal, in regular civil appeal no.107-A/2002 confirming the judgment
and decree dated 30.09.2002 passed by Second Civil Judge Class-I,
Bhopal, in civil suit no.117-A/02 whereby, suit filed by the plaintiff has
been dismissed by learned Courts below.
2. In short the facts are that, the plaintiff/appellant instituted a suit for
declaration of title and permanent injunction against the
respondents/defendants with the allegations that the defendant 3 Gopal
Grah Nirman Sahakari Sanstha is a registered Society under the M.P. Co-
operative Societies Act,1960, who allotted the plots to its members. The
Society allotted plot no.322 to the defendant 1 Menka Choudhary. Another
adjacent plot no.323 was also allotted to her husband Gopal Choudhary
defendant 2. As per the byelaws of the Society, the plot no.322 could not
be allotted to the defendant 1, as more than one plot cannot be allotted to
the members of a family. As the allotment to the defendant 1 being
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contrary to the rules of Society, the plaintiff filed a case/dispute before
Dy. Registrar, Co-operative Societies, in which the allotment in favour of
defendant 1 was found illegal and was declared to be void and ineffective
and thereafter, the defendant 3 allotted the same plot in favour of the
plaintiff and he after receiving possession, started raising construction
over it, but the defendants 1-2 made interference in the construction
activities and denied title of the plaintiff. With the aforesaid allegations,
the suit was filed by the plaintiff.
3. The defendants 1-2 appeared and filed written statement denying
the plaint allegations. It is contended that the plaintiff and defendants 1-2
are members of defendant 3-Society and according to the provisions
contained in Sections 64 and 82 of the M.P. Co-operative Societies Act,
1960 the present suit is not maintainable. The defendant 1 Menka has on
the basis of validly executed registered sale deed dtd. 15.12.1987 got her
name mutated and the same has not been cancelled so far. The disputed
plot is owned and possessed by the defendant 1 Menka and plaintiff has
never been in possession of the plot. Due to making of complaint by the
defendants 1-2 against the President of the Society, the plot in question has
been allotted in favour of plaintiff just with a view to harass the
defendants. On inter alia contentions, the suit was prayed to be dismissed.
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4. The defendants 3-4 (Mr. V.P. Sharma and Gopal Grah Nirman
Sahkari Sanstha) did not file any written statement and were proceeded
exparte.
5. On the basis of pleadings of the parties, learned trial Court framed 7
issues and recorded evidence led by the parties and vide its judgement and
decree 30.9.2002 held that the defendant 1 is owner and in possession of
the plot no.322 and the plaintiff having no right or possession over the plot
in question, is not entitled for relief of permanent injunction against the
defendants 1-2. Upon appeal filed by the plaintiff, learned first appeal
Court vide judgment and decree dated 08.07.2003 dismissed the appeal
confirming the judgment and decree of trial Court.
6. This second appeal came in hearing before this Court on 10.02.2010
and was admitted for final hearing on the following substantial question of
law:
"Whether Courts below have erred in law in holding that order dated
29.04.1999 passed by Registrar (Exp.P2) does not affect the title of
plaintiff in respect of suit plot and consequently plaintiff is neither the
owner nor in the possession of the suit plot, in view of the decision of the
Supreme Court reported in Housing Board of Haryana vs. Haryana
Housing Board Employees Union & Ors. (1996) Vol 1 SC 435 ?"
7. Learned counsel for the appellant/plaintiff submits that as per the
byelaws of the Society and as per the rules made under the M.P. Co-
operative Societies Act, 1960 allotment of plot cannot be made in favour
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of more than one members of the family and the allotment of plot in
question made in favour of the defendant 1 Menka is illegal and contrary
to the rules because it was got allotted fraudulently and suppressing the
factum of allotment of another plot no.323 in favour of her husband Gopal
Choudhary. Vide order dated 29.04.1999 (Ex.P/2) passed by Dy. Registrar
Co-operative Societies, the allotment made and sale deed executed on
15.12.1987 (Ex.D/5c) has already been cancelled. He submits that in the
light of decision of Supreme Court in the case of Bihar State Housing
Board and others Vs. Satya Narayan Prasad (dead) by Lrs and others AIR
1998 SC 2561; Bhanushali Housing Cooperative Society Limited Vs.
Mangilal and others (2015) 10 SCC 277; Satya Pal Anand Vs. State of
M.P. and ors. (2015)15 SCC 263; Yanala Malleshwari and anr. Vs. Smt.
Ananthula Sayamma and anr. AIR 2007 AP 57 (FB); Madhavrao Kulkarni
Vs. 9th Additional District Judge, Indore and ors. 1991 RN 81; and Single
Bench decision of this Court dtd. 17.11.2016 passed in MA 2446/2008
Smt. Prabhadevi Vs. Laxmi Grah Nirman Sahakari Sanstha Maryadit &
others, the allotment made in favour of defendant 1 and consequent sale
deed executed in her favour is void and ineffective. He submits that the
learned Courts below have erred in not considering the aforesaid aspect of
the matter in its real perspective. With these submissions he prayed for
allowing the appeal.
8. Heard learned senior counsel for the appellant and perused the
record.
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9. The learned Courts below have thoroughly considered the effect of
order dated 29.04.1999 (Ex.P/2) passed by Dy. Registrar, Co-operative
Societies, which was passed upon filing application by the plaintiff Sunil
Kumar Shah and not at the instance of the Society namely Gopal Grah
Nirman Sahakari Sanstha Maryadit, Bhopal. While considering several
decisions of this Court in the case of Manju Shyam Sunder Ramteke and
anr. Vs. Manda and others 2000(1) MPLJ 411; Kusum S. Verma and Ors.
Vs. Pritam Singh Gulati and Ors. 1998(1) MPLJ 579; Suneeta Gupta
(Smt.) Vs. Chandra Devi Khemaria and anr. 1996 Revenue Nirnay 361;
Rashtriya Aadarsh Grih Nirman Sahkari Sanstha Vs. Laxmikant
Bharadwaj 1992(II) MPWN 159; and Madhyam Varagiya Grih Nirman
Sahkari Sanstha Vs. Vasantrao 1987(II) MPWN 249, the learned Courts
have clearly held that the sale deed executed by a Grih Nirman Sahkari
Samiti could not be challenged before the Dy. Registrar, Co-operative
Societies and such dispute was not maintainable before it under Section 64
of the Act and exclusive jurisdiction was available with the civil Court
only, because such suit is not hit by Section 82 of the Act of 1960.
10. Considering the aforesaid legal position, the learned Courts below
have held that the order dated 29.04.1999 (Ex.P/2) is an order passed
without jurisdiction and cannot be given effect because the jurisdiction to
declare the sale deed, null and void or to cancel the same is not vested
with the Dy. Registrar under the Act of 1960 because it is within the
exclusive jurisdiction of civil Court. However, as has rightly been held by
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learned Courts below, I have also perused the order dtd. 29.4.1999,
whereby the sale deed dtd. 15.12.1987 (Ex.D/5c) has not been cancelled.
Conclusive para of the order dtd. 29.4.1999 (Ex.P/2) is quoted as under :
vr% eSa ,l- ,u- dksjh mi iath;d ¼vads{kd½ Hkksiky laHkkx]
Hkksiky ;g ?kksf"kr djrk gw¡ fd izfroknh Ø-2 dh izfroknh Ø-1 ls
izkIr lnL;rk fof/k fo:) o voS/k gS] ?kksf"kr djrk gw¡ rFkk izfroknh
Ø-1 }kjk oknh ds i{k esa fu"ikfnr Hkw&[k.M Ø-322 ls lacaf/kr
gLrkarj.k foys[k fnukad 18-1-91 fu;ekuqlkj gSA
11. It is also well settled that if an order passed by some authority is
without jurisdiction, the same can be ignored being void and as such the
learned Courts below have not committed any illegality in ignoring the
order dtd. 29.4.1999 (Ex.P/2) and in presence of sale deed dated
15.12.1987 executed in favour of defendant 1 Menka, the plaintiff does
not get any right over the disputed plot on the basis of subsequent sale
deed dated 18.01.1991.
12. It is pertinent to mention here that while passing the impugned
judgement and decree, learned Courts below have discussed the evidence
of the parties in detail, and vide common paragraph 15, found that the
plaintiff is not in possession of the suit plot but the defendant 1 Menka is
in possession of the same, after getting raised construction thereon.
Apparently no substantial question of law has been formulated by this
Court regarding perversity of the finding of possession. Even otherwise, as
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per the decision of Supreme Court in the case of Mohan Lal Vs. Nihal
Singh (2001)8 SCC 584, the finding on the question of possession is a
pure finding of fact and is not liable to be interfered with, in the limited
scope of Section 100 CPC.
13. All the aforesaid decisions relied upon by the appellant, are clearly
distinguishable on facts because in none of the decisions, the question of
cancellation of sale deed was involved, whereas in the present case, sale
deed was executed by the Society on 15.12.1987 in favour of defendant 1
and the society had not taken any action to get the same cancelled and
even at the instance of the plaintiff, the same was not cancelled by the Dy.
Registrar. On the contrary, the Dy. Registrar while passing the order dtd.
29.4.1999 has treated the sale deed dtd. 29.4.1999 in question to be a patta
and on that basis decided the dispute filed by the present plaintiff, whose
membership with the Society [as per his (Sunil Kumar Shah-PW1)
statement in para 3] is not clear. However, the learned counsel has not
been able to show any other decision on the aforesaid point to justify the
order dated 29.04.1999 (Ex.P/2) passed by Dy. Registrar.
14. It is also pertinent to mention here that in the present case there are
two sale deeds dtd.15.12.1987 (Ex.D/5c) of the favour of the defendant 1-
Menka and 18.1.1991 or 18.2.1991 (Ex.P/1) of the favour of the plaintiff.
As by way of order 29.4.1999 the sale deed dtd. 15.12.1987 (Ex.D/5c) has
not been cancelled, therefore, the same is still effective and cannot be
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ignored. In the present civil suit, the plaintiff has neither sought
declaration of title in his favour on the basis of sale deed dtd. 18.1.1991
nor has sought cancellation of sale deed dtd. 15.12.1987 (Ex.D/5c) which
was necessary in the light of decision of Supreme Court in the case of
Anathula Sudhakar Vs. P. Buchi Reddy (Dead) By Lrs and Ors. (2008) 4
SCC 594. Para 13.3 of which is quoted as under :
"13.3. Where the plaintiff is in possession, but his title to the property is in
dispute, or under a cloud, or where the defendant asserts title thereto and there
is also a threat of dispossession from defendant, the plaintiff will have to sue
for declaration of title and the consequential relief of injunction. Where the title
of plaintiff is under a cloud or in dispute and he is not in possession or not able
to establish possession, necessarily the plaintiff will have to file a suit for
declaration, possession and injunction."
15. Accordingly, the substantial question of law framed by this Court
on 10.02.2010 is decided against the plaintiff/appellant and in favour of
defendants/respondents.
16. Resultantly, the second appeal fails and is hereby dismissed.
However, no order as to costs.
(DWARKA DHISH BANSAL)
JUDGE
pb
PRASHANT BAGJILEWALE
2022.11.01 10:48:49 +05'30'
