Shanti Potluri, Yellareddyguda, ... vs Gautami Society, Yousufguda, ...
2022 Latest Caselaw 6416 Tel

      THE HONOURABLE SMT. JUSTICE P.SREE SUDHA

                 APPEAL SUIT No.242 of 2009

JUDGMENT:

This appeal suit is filed against the judgment of the trial

Court in O.S.No.19 of 2001 dated 13.03.2009.

2. The Goutami Society vide registration No.1833 of 1991

represented by the President filed O.S.No.19 of 2001 against

Shanti Potluri/first defendant for declaration that the plaintiff is

absolute owner of the suit schedule property measuring an extent

of Ac.1 - 24 gts or 0.2495 Hect in Sy.No.s.190, 197 and 198 at

Kondapur village of SherilingampallyMandal, R.R.District and

also for cancellation of the sale deed vide document No.9202 of

1996 dated 20.11.1996 executed by the plaintiff in favour of the

defendant and for perpetual injunction. During the pendency of

the proceedings one K.Ramaiah, Ex-President of the Society who

executed the sale deed in favour of the first defendant was added

as the second defendant vide I.A.No.2586 of 2005 in O.S.No.19 of

2001 dated 01.08.2005.

3. Plaintiff stated that their Society was registered on

27.07.1991 under A.P (Telangana) Public Societies Registration Act, 1350 fasli. The Society was formed by NRIs with an objective

to provide facilities for accommodation to NRIs on preference

basis, to develop civic consciousness and ideal environment for

healthy living and also to develop Play Grounds, parks, Library

and other facilities for the benefit of the members. With the said

objective Society intended to acquire land to develop lay-outs, to

provide house sites without any profit motive and to develop

decent Township with adequate infrastructure. In pursuance to

the objective of the Society plaintiff acquired the land to an extent

of Acs.31 - 00 gts in Sy.No.190, 197 and 198 at Kondapur

village, SherilingampallyMandal, R.R.District under four separate

registered sale deeds vide No. 4326, 4327, 4328 and 4329 of

1991 dated 21.05.1991 in the office of the District Registrar,

R.R.District. He also obtained a sanctioned layout from HUDA

vide No. 9355/HUDA/MP2/91 dated 05.06.1996 to divide the

total extent of land into convenient plots. In the said layout to an

extent of Ac.0 - 24 gts or 0.2495 Hect or 3020 Sq. yrds was

earmarked for the purpose of school. The then President of the

Society one V.V.Rao was authorized to execute registered sale

deeds in favour of the members as per the resolutionNo. G.S -

9/1993 and accordingly he executed all the sale deeds in favour

of the members in and around 1993.

4. After the term of the earlier body presided over by V.V.Rao,

a new body came into effect and it was presided over by one

K.Ramaiah as President with other managing committee

members i.e., B. Ram Kumar/Secretary, B.S.Chalapathy/Vice

President, K. RajeshwarRao/Treasurer and C.P.Krishna/Joint

Secretary, started running one man show disregarding the

Managing Committee and its authority. He executed registered

sale deed dated 20.11.1996 in favour of his sister - in - law with

dis-honest intention to usurp the area of 3020 Sq. yards which

was earmarked for school purpose. Plaintiff stated that as per

Bye-laws of the Society, the management of the Society vests in

the Managing committee and all the decisions relating to property

of the Society shall be taken by the said committee. The objective

of the Society is that Society shall develop benefits for the welfare

of its members, as such managing Committee or the then

President was not competent to sell the property to the third

parties. The President never informed the same to the Society

and he executed the sale deed unanimously without any

authorization, hence it is void ab-initio, inoperative and

isultravires and in breach of Bye-laws, as such it is not binding

on the plaintiff Society. The present President of the Society

proposed a resolution in the Annual General Meeting held on

04.03.2001 to approve the alienation of land in favour of the

defendant, but the General Body Meeting rejected the proposal of

K.Ramaiah and resolved to cancel the sale deed dated

20.11.1996 as it is nonest in law and also a void document,

therefore requested for declaration.

5. He further stated that Ramaiah has not handed over

records to the newly elected body. He further stated that the

defendant No.1 tried to dispossess them on 05.03.2009 and

09.03.2001 in a highhanded manner. The cause of action arose

on 24.12.2000 only when plaintiff came to know about the fraud

played against them and resolved to cancel the sale deed in

favour of the defendant No.1 on 04.03.2001 when there was

General Body Meeting and when defendant tried to interfere with

their possession. Therefore, requested the Court for declaration

and for cancellation of the sale deed and also for injunction.

6. In the written statement filed by the defendant No.1 she

stated that as per the Bye-laws, President cannot alienate the

property at his discretion and can act only under the guidance of

members of the committee. He executed sale deed by duly

following Bye-laws and she purchased the same by paying the

valuable sale consideration as per the prevailing market rate and

she also became the member of the Society. She further stated

that Bye-laws are silent regarding the responsibility of the Society

to develop facilities for the welfare of the members and hence

property allocated for school purpose can be developed by any

individual by becoming owner of the property. It is true that

property cannot be used for any other purpose other than the

purpose situated under the sanctioned layout. Society decided to

sell the property in her name with a condition that it should be

used only for construction of the school and she undertakes that

it will be used only for the said purpose which was mentioned in

the layout, as such there is no malafide intention in selling the

property by the Society and she became the member of the

Society and procured title and possession over the suit schedule

property and the suit is filed only to settle the personal scores

with the then President. She also stated that the document held

by her is the legally enforceable instrument and it requires no

approval. As she was in possession of the property from

20.11.1996 question of interfering with the property of the

plaintiff does not arise. Plaintiff issued a letter to her on

15.11.1996 informing that her application for membership was

accepted and allotted 3020 Sq. yards land for construction of a

school for sale consideration of Rs.3,02,000/-. She paid the said

amount by Cheque bearing 102024 dated 19.11.1996 and the

registered sale deed was executed by the Society vide document

No.9202 of 1996 dated 20.11.1996, from then onwards she is in

actual possession of the property. She also approached the

Commissioner, Sherilingampally and obtained permission for

construction of compound wall and it was agreed vide

proceedings No.G-560/BP/294/96-97 dated 27.02.1997. After

obtaining permission, she raised compound wall up to basement

level covering 3020 Sq. yards and also constructed a room with

measurement 10'x12' as sanctioned and it is still in existence as

shown in the Photographs filed by her. As the rightful owner, she

is enjoying the property but the plaintiff filed suit after 5 years,

therefore requested the Court to dismiss the same.

7. The trial court after hearing arguments of both sides and

evidence on record decreed the suit in favour of the plaintiff

Society. Aggrieved by the said Judgment defendants preferred an

appeal and mainly contended that there is no prayer in the plaint

regarding return of sale consideration, but the Court directed the

plaintiff to return the sale consideration with interest. She also

stated that President of the Society is examined as P.W.1, but he

was convicted as per his cross-examination and is not eligible to

become a member of the Society as he undergone imprisonment

for more than 6 months and thus, suit filed by him is not

maintainable as per clause 6 of the Rules and Regulations of the

Society, conviction by foreign Court does not bind him is

unsustainable. It is further stated that the issue of

disqualification of a President of the Society is governed by the

statute and the bye-laws should be inconsonance with the

statute. Therefore, the statute prevails over the bye-laws. She

also disputed the resolution filed under Ex.A18 on 04.03.2001

and Ex.A19 and further stated that only 14 members attended

the meeting but not 15. D.W.2 is the Founder President of the

Society and he stated that he has not received any notice

regarding conducting of Annual General meeting on 04.03.2001

and thus conducting of the meeting on that date is in serious

dispute. Defendants further stated that as per Order 6 rule 4 of

C.P.C the allegation of fraud needs to be pleaded and proved by

the parties, but there was no specific allegation of the fraud in

the plaint, as such in view of the citations reported in AIR 2006

SC 1971, (2005) 4 ALT 547 and 1977 SC 615, the trial Court

failed to appreciate the same properly. When P.W.1 admitted

regarding passing of consideration under Section 31 of Specific

Relief Act, it is to be proved that whether written instrument is

void or voidable. As the first appellant was in possession of the

property the question of granting injunction does not arise,

therefore requested the Court to set aside the Judgment.

8. Respondent counsel absent on 02.11.2022, 04.11.2022

and on 15.11.2022. Heard arguments of appellant counsel on

15.11.2022 and in order to give sufficient opportunity to the

respondent counsel listed on 22.11.2022 for respondent

arguments, but he did not turn up and advance arguments and

failed to comply the conditional order dated 15.11.2022, hence

his arguments are treated as nil and reserved for Judgment.

9. Defendant No.2 remained exparte in the suit. Plaintiff was

examined as P.W.1 and marked Exs.A1 to A25, defendant No.1

was examined as D.W.1 and the Founder President was

examined as D.W.2 and marked Exs.B1 to B12. The trial Court

held that Ex.B10 was not executed for residential purpose, as it

was earmarked for school purpose and the sale consideration

was @ Rs.100/- per Sq.yard though the market rate at that time

was Rs.400/- per Sq. yard and the President with malafide

intention executed sale deed in favour of defendant No.1 without

the consent of the Managing Committee. As the second defendant

remained exparte, she failed to establish that Managing

Committee gave consent and ratified his action. Admittedly, the

first defendant is the sister - in - law of the second defendant

and she has not filed any evidence to show that she was a

member of the Society. Ex.B5 and B6 signed by defendant No.2

in favour of defendant No.1 cannot be believed. Ex.B11 and B12

are notices between both the advocates for filing of the suit. As

such, the sale deed executed by defendant No.2 in favour of the

defendant No.1 under Ex.B10 is voidable. Regarding the

conviction of P.W.1 the trial Court held that the conviction of the

Foreign Court is binding on the members of the Society, it was

not taken up seriously by the governing body as such they have

not terminated him. As the Society authorized him to represent

before the Court on 07.03.2001 though he was convicted in the

year 1992 under Ex.A24, the suit filed by him is maintainable.

He also relied upon the resolution passed in Annual General

Meeting on 04.03.2001 and publication given in the news paper

clipping and the bye-laws of the Society executed in the year

1991 and held that plaintiff is entitled for declaration that they

are the absolute owners and sale deed executed on 20.11.1996 is

to be cancelled. As the plaintiff is in possession of the property

they are entitled for perpetual injunction. However, as defendant

already paid Rs.3,02,000/-, plaintiff was directed to pay the same

@ 12% per annum.

10. After passing of the Judgment the respondents herein

addressed e-mails to the administrators of the several schools,

some of them also responded positively, in the meanwhile in view

of the pendency of the appeal stay was granted. The copies of the

e-mails are also filed before the court. I.A.No.544 of 2001 is filed

by the Society for grant of temporary injunction restraining

defendants from alienating the suit schedule property in favour of

third parties and I.A.No.653 of 2001 was filed for the grant of

temporary injunction restraining the defendant No.1 and his men

from interfering with the peaceful possession till the disposal of

the suit. The trial Court by order dated 30.08.2001 dismissed

the I.A.No.653 of 2001 and allowed I.A.No.544 of 2001. Against

the said order C.M.A.No.469 of 2002 was preferred before the

Hon'ble High Court and the same was allowed by order dated

22.07.2008 and the trial Court was directed to dispose of the suit

within 6 months.

11. Now it is for the Court to decide that the Judgment of the

trial Court is on the proper appreciation of facts or not and is

liable to be set aside.

12. The parties herein are referred as plaintiff and defendants

as they are arrayed in the trial Court for the sake of convenience.

13. Admittedly, the Society was registered on 27.07.1991 and

acquired land under four registered sale deeds and four

rectification deeds are also entered between parties on

12.11.1992. Plaintiff himself in the plaint stated that he obtained

sanctioned layout from HUDA on 05.06.1996 to divide the total

extent of Acs.31 - 00 gts into convenient plots and also layout to

an extent of Ac.0 - 24 gts was earmarked for the purpose of

school. He also stated that V.V.Rao President of Society

authorized to register the sale deeds on 09.06.1993 and he

executed sale deeds in favour of the members of the Society in

and around 1993. It clearly shows that all the sale deeds were

executed by the Founder President even prior to the sanctioning

of the layout from the HUDA. No one raised objection against

him, for executing sale deeds for residential plots even without

sanctioning of layout though it is a glaring mistake on his part.

14. As per the bye-laws tenure of the President is 3 years, as

such after completion of the tenure of V.V.Rao, one K.Ramaiah

was elected as the President along with Managing Committee as

mentioned above. He executed sale deed in favour of the

defendant No.1 on 20.11.1996 after receiving valuable sale

consideration, it was questioned by the next President one

S.K.S.N.Prasad when he along with other members formed into

entire committee on 18.08.2000 he stated that he came to know

about the execution of the sale deed only in the 3rd week of

December, as such they obtained certified copy and confronted

the same in the meeting held on 04.03.2001 as the present body

came into effect in March 2001, himself as President along with

other Managing Committee members. The Managing Committee

came to know about the execution of sale deed on 24.12.2000

and also about the fraud played by the defendant No.2 against

the Society. Even as on the date of knowledge the Society was in

possession and occupation of the school site and defendant No.2

also executed several other sale deeds. They filed O.S.No.886 of

2006 against him and sent notices to all the members of the

Society for holding General Body Meeting on 04.03.2001, in

which it was resolved to cancel the sale deed executed by

defendant No.2 in favour of defendant No.1.

"Resolved that the sale deed executed by the Society represented by its President, Sri K. Ramaiah in favour of Smt. ShanthiPotluri in respect of area earmarked for School admeasuring 3020 Sq. yds of land in the layout in Letter No.9355/MP2/HUDA/91 dated 05.06.1996 covered under registered sale deed No.9202/1996 dated 20.11.1996 registered at the office of the Joint Sub Registrar - II, Ranga Reddy District is hereby approved and ratified."

The said proposal of the defendant No.2 was "rejected as wrongful

action in all respects" unanimously. They also cancelled many

resolutions of defendant No.2 including the above sale

transaction and gave paper publication on 16.12.2001 in Deccan

Chronical and Eenadu. The defendant No.2 issued notice to

31.12.2001 through their counsel. Admittedly, even as per the

version of the plaintiff as per the resolution No.G.59/1993 dated

09.06.1993, President of the Society is authorized to execute the

sale deed in favour of the members and accordingly, the Founder

President executed all the sale deeds way back in the year 1993

itself, after completion of his tenure next President/Defendant

No.2 assumed the charge and he also executed certain sale deeds

including the disputed transaction herein i.e., sale deed dated

20.11.1996. The said transactions were disputed by the next

President/P.W.1 in Ex.A13 dated 18.08.2000 when their

committee was formed in para 4, P.W.1 stated as follows:

"4. We place on record our grateful thanks to the out going committee especially to Mr.K.Ramaiah, whose untiring efforts have brought the Society to this current stage."

15. The main contention of P.W.1 is that defendant No.2

executed the sale deed without any authority unanimously and it

was not approved by the then Managing Committee. It is true

that Management of Society shall be vested in the Managing

Committee. But in the above extracted portion it was clearly

stated that the said transaction was approved and ratified, but

who approved and ratified was not explained by both parties

obviously it should be approved by the then managing committee.

None of the then Managing Committee members were examined

before the Court. Though they accepted certain resolutions

executed by the second defendant during his tenure, they

rejected this resolution 'as wrongful action in all aspects'

unanimously, but how it became wrongful action was not

explained anywhere. They also resolved to reclaim the site meant

for the school which was sold without the knowledge of the single

member of the Society and resolved to cancel the unauthorized

sale deed executed on 20.11.1996 in the said meeting.

16. Admittedly, the sale deed was executed in the year 1996

and the resolutions were passed by P.W.1 along with his team on

04.03.2001 that is after 5 years. P.W.1 simply stated that they

came to know about the fraud played by the defendants only on

24.12.2000. But, defendant No.1 stated that after execution of

the registered sale deed, she applied for permission from the

Commissioner, Sherlingampally for construction of compounding

wall and one room on 27.02.1997 and after getting permission,

she also raised the same and constructed one room. This clearly

shows that there was construction in the site earmarked for the

school by the defendant No.1 in the year 1997 itself during the

tenure of the defendant No.2. But, it was neither objected nor

resisted and no steps were taken by any of the Managing

Committee members during the tenure of defendant No.2 for the

reasons best known to them, even the suit is filed only in the year

2001 by the next President of the Society. In view of the above

discussion the argument of the plaintiff that he came to know

about the sale deed dated 20.11.1996 only on 24.12.2000 is not

tenable. In a citation reported in (2007) 2 SCR 980 between

LachhmanDassVs. Jagat Ram it was held that execution of a

sale deed is also to be treated as a notice as per Section 3 of the

Transfer of Property Act, 1882. As Society is party to the sale

deed can't plead ignorance of sale deed, Society ought to have

filed suit within 3 years but filed after 5 years. It appears that he

filed the suit only after the completion of tenure of defendant

No.2 for his personal scores.

17. In fact, even in Annual General Meeting held on

04.03.2001, he along with his Managing Committee approved

certain actions of the defendant No.1 and rejected only two

transactions made by the second defendant during his tenure.

One is in favour of the first defendant and another in favour of

the Chandana Society, merely because defendant No.1 is related

to defendant No.2, it cannot be said that registered sale deed was

executed in her favour with the malafide intention unanimously

without the approval of the Managing Committee. Relationship of

D.1 and D.2 does not ipso facto make the sale invalid and no

presumption of collusion can be drawn.

18. The competency of P.W.1 was also disputed by the

defendant. Admittedly, as per the bye-laws of the Society under

clause 6(b) membership can be terminated on conviction for any

offence. In this case, admittedly P.W.1 was convicted in the year

1992 in Gulf countries, but he was elected as the President of the

Society in the year 2001. When he is not eligible to become

member how he became President of the Soceity is not known,

even afterwards when they came to know about the conviction,

they never took steps for terminating him. Admittedly his

membership is not in accordance with the terms of the bye-laws

of the Society, as such he is not entitled to be elected as the

President and thus the maintainability of the suit filed by him is

also in serious dispute, as he is not competent to depose

credibility of his evidence is to be assessed with great care and

caution. He himself examined as P.W.1, he has not examined

any other witness on his behalf, there is no corroboration to his

testimony and thus the trial Court erred in relying on the

testimony of P.W.1 in arriving to the conclusion, moreover he has

not turned up before the appellate Court and contested the

matter. P.W.1 obtained certificate of market value on 29.10.2008,

in which it was stated that the market value of the suit schedule

property was Rs.400/- per Sq.yard on 20.11.1996.

19. As per Ex.B2, letter addressed by the President of the

Society to defendant No.1 stating that he accepted the

membership of the defendant No.1 and also allotted the land

earmarked for the schoolfor sale consideration of Rs.3,02,000/-,

accordingly they received Rs.3,02,000/- on 20.11.1996 and the

certificate of receipt filed under Ex.B3, shows that amount was

remitted vide Cheque No.102024 dated 19.11.1996. In the sale

deed executed by defendant No.2 in favor of defendant No.1, it

was mentioned that the land was allotted for the residential

purpose. Admittedly, the land was earmarked for the

construction of the school and as per bye-laws of the Society it

should be used only for the said purpose mentioned in the bye-

laws, but not for any other purpose. Therefore, defendant No.1

addressed a letter to the President of the Society on 05.12.1996

for rectification of the sale deed and the defendant No.2 agreed on

10.12.1996 for rectification, but rectification deed was not

executed by the Society in favour of defendant No.1. Defendant

No.1 in the written statement clearly agreed that they want to

construct a school in the said premises as the said site was

earmarked only for the purpose of the school. No doubt, she

obtained permission for compound wall and for construction of a

room under Ex.B8 on 27.02.1997. As the sale deed was executed

in her favour only for residential purpose, she could not apply for

permission for constructing the school as on the date of getting

Ex.B8. Moreover, until and unless the rectification deed is

executed by the Society she cannot obtain permission for

construction of the school, and thus she applied for permission

only for the construction of compound wall and room.

20. The sale deeds which were executed by the Founder

President in favour of all the plot members are for residential

purpose, as per the layout land earmarked for the school and

park was not allotted to anybody. As such when the next

President executed sale deed in favour of defendant No.1 in a

routine manner it was executed for the residential purpose. But,

immediately after noticing the same, defendant No.1 requested

for rectification deed and the President of the Society agreed for it

in the year 1996 itself. In the year 1992, even when the Society

acquired land under four registered sale deeds there was mistake

in the sale deeds and four rectification deeds were entered

between the parties. Therefore, allotting the land for residential

purpose when it was earmarked for the purpose of constructing

school can also be treated as mistake.

21. As the founder President was authorized to execute

registered sale deeds and also even as per the bye-laws framed in

the year 1991 'all contracts and deeds shall be in the name of the

President'. The then President defendant No.2 executed sale deed

in favour of defendant No.1 after duly receiving the sale

consideration as per the prevailing market rate, therefore the

argument of the plaintiff in the suit that it was executed by him

unanimously without any authority is not sustainable. The trial

Court erred in appreciating the facts property and arrived to the

wrong conclusion. The first appellate Court is empowered to re-

appreciate the entire evidence as the appeal is the continuation of

the proceedings of the original Court and it is the valuable right

of the appellants that all the questions of facts and law decided

by the Trial Court are open for reconsideration.

22. Counsel of the appellant submitted that title of suit

schedule property transferred to defendant No.1 under Ex.A12 on

20.11.1996 and it vests with her till decree of cancellation is

granted in favour of Society as Society pleaded that the sale deed

is void, unless it is declared as invalid title vests with defendant

No.1 and the principle possession follows title is applicable to

defendant No.1 and not to the plaintiff.

23. The plaintiff has no clarity, at one point he stated that the

sale deed executed by the defendant No.2 is voidable and again

stated that it is void and asked for declaration to cancel the

same, though he simply stated that he came to know about the

fraud played by defendant No.2 against the Society on

24.12.2000, he has not explained the particulars of the fraud

alleged by him. Plaintiff must set forth the particulars of the

fraud alleged by him. It is not enough to use such general words

as fraud, deceit without any particulars, as per Order 6 rule 4

r/w Order 6 rule 2 of the C.P.C it is required to be separately

pleaded with specificity, particularity and precision and thus it

can be held that there is no pleading of fraud by the defendant

No.2, without any pleading any amount of evidence adduced by

him cannot be considered. But, in this case except the evidence

of P.W.1 no other evidence is available on record to substantiate

their version, plaintiff failed to prove the fraud played by

defendant No.2 against Society and thus there is no cause of

action to file the suit. In the entire plaint inadequacy of the sale

consideration was not raised. In the year 2008, he obtained the

certificate regarding the market value for the year 1986 and

raised objection. P.W.1 in his cross-examination clearly observed

as per bye-laws of 1991, to become a member of the Society there

is no necessity to be a N.R.I. He particularly admitted that they

have not issued any notice to defendant No.1 after passing of

resolution in Ex.A18 for cancellation of sale deed executed in her

favour. He further stated that in the year 1991 V.V.Rao executed

several sale deeds, but they were not ratified and he has not filed

any such ratification proceedings before the Court. He has also

agreed that he purchased one plot in favour of his son and

another in favour of his daughter in the year 1991 at Rs.30/- per

Sq.yard. It was admitted fact that the plots were sold at the

reduced price on the basis of "No loss and No gain".

24. After the Judgment of the trail Court the Society requested

the popular schools to establish school in their premises, it

clearly shows that the third party is authorized to establish

school in the earmarked area. As defendant No.2 executed sale

deed in favour of defendant No.1 and she is ready and willing to

establish school in the said area and also sought for rectification

deed for the mistake crept in the sale deed executed in the year

1996, she is entitled for rectification and no qualification is

required for running a school as argued by the plaintiff in the

trial Court. As such, defendant No.1 is competent for

construction of a school in the land earmarked for the school.

The counsel for the appellants argued that inadequacy of the

consideration is not a ground to cancel the same and also relied

upon the Judgment passed by the Delhi High Court in the case

ofTrilokNath v/s Khem Chand &ors RSA No.165/2017 dated

03.07.2017,1 in which it washeld as follows:

"Unfortunately undervaluing of immovable properties so as to either pay less stamp duty or for other reasons of concealment of income etc, is ripe in this country, however, the appellant/plaintiff cannot take any benefit of the same in view of the provision of Section 25 of the Indian Contract Act, 1872 and which specified that inadequacy of consideration is not a ground for cancelling of a contract. In any case, it is very much possible that the declared consideration need not have been the actual consideration, and which of course this Court does not deal with or is not concerned with in view of the categorical provision of Explanation II to Section 25 of the Indian Contract Act."

25. There was an amendment to the bye-laws of the Society

under Ex.A20, as the revised bye-laws were approved by the

Annual General Meeting on 31.07.2002, the old bye-laws

executed in the year 1996 are applicable to the facts of the case

and it cannot be said that the sale executed by defendant No.2 in

favour of defendant No.1 is not in consonance with the bye-laws

of the Society.

"FUNCTIONS OF THE MANAGING COMMITTEE AND OFFICE BEARERS:

i) PRESIDENT:

He presides over all the meetings of the both General Body and Managing Committee and may exercise his casting vote

1 2017 (3) Cur CC 11 (Del)

in case of equality. He can supervise all the branches of the Society and activities of the Society. All contracts and deeds shall be in the name of the President."

26. D.W.2 was the founder President of the Society. He stated

in his evidence before the Court that he is not related to D.W.1.

He worked as the President of the Society from 1991 to 1995, as

there were no elections till 1995. He also stated that it is for the

Society either to run the school by itself or by selling the site for

the school purpose. The Society will not lose its right in

constructing the school building if the site exists. In order to

purchase the school site one need not become member of the

Society. He also stated that as per bye-laws of the Society, the

person who is convicted in a criminal case will automatically

cease his membership in the plaintiff's Society. The bye-laws of

the Society also extend beyond the limits of Indian Border. He

further stated that the President of the Society shall execute the

sale deed in favour of the allottee after authorization to do so by

the Managing Committee. The counsel for the appellants argued

that if at all defendant No.2 has resorted to mismanagement as

alleged by the plaintiff, it comes within the purview of Section 23

of the Telangana Socieites Registration Act, 1971 and he also

contended that the sale deed was executed in the year 1996, but

suit filed in the year 2001 i.e., after 5 years and it is barred by

limitation, as it is the question of law it is for the Court to

consider the same, but the trial Court erred in not considering

the same.

27. Admittedly possession was handed over to the defendant

No.1 immediately after execution of the sale deed in her favour

and she also obtained permission for construction of compound

wall and room in it and constructed the same and thus it can be

said that she was in peaceful possession and enjoyment of the

suit schedule property. She sought for rectification of the sale

deed and she is ready and willing to construct a school in the

said site as it was earmarked for the purpose of school in

accordance with the bye-laws. Therefore, the trial Court erred in

granting injunction against defendant No.1.

In the result, the appeal is allowed, the Judgment of the

Trial Court is set aside and Society is directed to execute

rectification deed in favour of the appellant to facilitate her for

construction of school as the land was allotted to her only for the

said purpose. Appellant counsel stated that as per the direction

of the trial Court respondents deposited the sale consideration

with interest before the appellant Court and thus they are

entitled for the refund of the said amount from the Court if it is

deposited in the Court or from the appellant herein if it was

withdrawn by her.

Miscellaneous petitions pending, if any, shall stand closed.

_________________________

JUSTICE P.SREE SUDHA

DATED:05.12.2022

TRI

THE HONOURABLE SMT. JUSTICE P.SREE SUDHA

APPEAL SUIT No.242 of 2009

DATED: 05.12.2022

TRI