Judgment · High Court · 2012

c. by declaring that the defendants No.1 and 2 have acquired no manner of r ight to continue with the possession of the suit land and are liable to be evict ed therefrom and d. by declaring that the defendants No.1 and 2, jointly and severally liabl e to pay Rs.6,00,000/- (Rupees six lakhs only) as a measure of wrongful loss cau sed to the plaintiff by virtue of illegal possession of the suit land depriving the plaintiff from its earning and e. by directing the defendants No.1 and 2 to pay the mesne profit at the ra te of Rs.1,000/- (Rupees one thousand) only per diem from the date of institutio n of the suit till defendant Nos.1 and 2 are evicted therefrom and f. by delivering khas possession of the suit land by evicting the defendant Nos.1 and 2 or any person claiming through them from the suit land and g. f Rs.6,00,000/- from the date of institution of the suit till recovery and by granting future interest at the rate of 18% per annum on the amount o h. i. by appointing a Receiver on such terms as the equity permits and by granting ad-interim injunction and perpetual injunction in like terms j. k. y entitled to. (cid:29) by granting the cost of the suit and by granting any other relief or reliefs to which the plaintiff is legall The reliefs sought for rests on the following pleadings made in the plai

#3. nt. The appellant herein as plaintiff brought the suit contending inter alia that th e plaintiff is a duly registered Society registered under the Assam Co-operative Societies Act, 1949 with perpetual succession and a common seal bearing the r egistration No. J.16 of 1960-61 and is a body corporate (for short ’Society’) an d is represented by its President/Chairman. The society owned land measuring about 255B-0K-10L situated at Marangi Mauza in the district of Golaghat, Assam. Out of the said land, the society leased out la nd measuring 100 Bighas covered by Dag No.48(old) 40(new) of No.2 Grant under Ma rangi Mouza to one Apurba Kumar Barua who has been arrayed as proforma defend ant No.3 on 17.08.1979 by a registered deed of lease which is bounded by: - North: Ceiling surplus land boundary of Doigrung Tea Estate South: Farm land occupied by Sri Sonaram Baruah East: Bokial PWD Road West: Individual patta land of Garden Labourers. The said lease was created to enable the proforma defendant No.3 to undertake s pecial cultivation of tea wherefor the rent was fixed at Rs. 500/- per annum. The proforma defendant No.3 as a lessee took over the possession of leasehold land and started cultivation in the name and style as (cid:28)Lower Doigrung Tea Est ate (cid:29) bearing registration No.2670(NC) whereof financial assistance was obtained from Assam Co-operative Apex Bank Ltd by creating a charge on the said tea e state as contained in the deed of lease dated 17.08.1979. Apart from the other clauses in the deed of lease there is a clause of forfeiture on the ground of e ventual denial of the title of the lessor or his successor-in-interest with the stipulation that the lessor shall have the right of recovery by virtue of forfei ture clause.

#4. Similarly the plaintiff on 05.02.1982 had entered into another perpetual deed of lease with one Smti. Punya Bordoloi arrayed as proforma defendant No.4 in the suit in respect of land measuring 112B-0K-5L covered by dag No. 48(old) 40(new) under Marangi Mouza No. 2 Doigrung Grant which is bounded by: - North: Ceiling surplus land of Government South: Land by the lessor East: Lower Doigrung T.E. West: Land of Rayats The aforesaid land was delivered to the proforma defendant No.4 for the purpos e of undertaking special cultivation of tea on yearly rent of Rs.560/-. The term of lease during subsistence was perpetual and to pay the plaintiff as lessor t hereof 1/10th profit of her net profit from selling the tea crops or other agri cultural crops produced in the land beside paying Rs.560/- as annual rent payab le in advance on or before 31st January of every commencing year and in defaul t the lessee or her successor-in-interest or assignee shall be liable to pay any arrear of rent but default in paying rent will not expose the lessee for e viction. The other clauses in the lease deed dated 05.02.1982 are same as the cl auses of the lease deed dated 17.08.1979 which would be referred at the appropri ate time.

#5. In pursuance to the lease deed dated 05.02.1982 the proforma defendant No.4 undertook the special cultivation of tea jointly along with the proforma d efendant No.3 under the nomenclature ’Lower Doigrung Tea Estate’. The sub-clause (e) of clause 2 of both the lease deeds empowered the lessee to sub-let or assi gn his/her interest therein to any sub-lessee or assignee for better management of tea cultivation or other agricultural purposes, provided however, that the su b-lessee or assignee be bounded by the terms of this lease as if the same we re executed by each of them respectively. The lessee was further granted with a liberty to create a charge in respect of the leasehold to obtain financial assis tance from Bank or other financial assistance.

#6. The aforesaid proforma defendant Nos.3 and 4 could not run the leasehold right due to financial crunch whereof in exercise of power under sub-clause (e) of clause 2 of the deed of lease dated 17.08.1979 and 05.02.1982 executed the r egistered perpetual deed on lease on 16.02.1990 in favour of Marangi Ltd., a pub lic Ltd. company arrayed as defendant No.1 represented by the defendant No.2. Ho wever the defendant Nos.1 and 2 have violated the clause 1 of the registered l ease deed dated 16.02.1990 whereby it was agreed that the defendant No.1 would liquidate the liability of Rs.7,00,000/- (Rupees Seven Lakhs) of both the profor ma defendant Nos.3 and 4 to Assam Co-operative Apex Bank Ltd. Guwahati besides n on-payment of Rs.1,060/- (Rupees One Thousand sixty) only as rent thereby forfei ted their right to continue as a lessee of Lower Doigrung Tea Estate since t hey have defaulted in making payment of the consideration money and the payment of annual rent from 1990. 7. The plaintiff in order to assert his right as lessor of the property leased out by the proforma defendant Nos.3 and 4, served a notice on 26.06.19 95 on the defendant No.1 against the non-payment of money due by demanding add itionally the delivery of possession of the said ’Lower Doigrung Tea Estate’ wh ich, however, replied by the defendant No.1 on 29.07.1995 questioning the validi ty of the notice dated 26.06.1995.

#8. Thereafter, on receipt of the reply of the notice dated 26.06.1995 the plaintiff served another notice through his lawyer on 04.09.1995 whereby it was made explicit that the possession of the land through the lease deed dated 16.02.1990 has become illegal, void and had not acquired any legal force thereb y invoking the forfeiture clause as incorporated in the deed of lease dated 17 .08.1979 and 05.02.1982 rendering the subsequent deed of lease made in favour o f the defendant No.1 by the proforma defendant Nos.3 and 4 unlawful and unconsti tutional. The plaintiff in continuation of the earlier notices issued another no tice dated 05.01.1995 addressed jointly to the proforma defendants Nos.3 and 4 f or violation of the clauses 2 and 3 of the deed of lease and demanded delivery of possession of the suit land after expiry of 6 (six) months from the date o f service of notice. The termination of the lease under notice dated 05.01.1995 from which the lease deed dated 16.02.1990 originated stood invalid and becomes inoperative since the right to create sub-lease and assignment ceased to exist a nd the defendant Nos.1 and 2 are trespassers in the suit land.

#9. The plaintiff has further averred that the proforma defendants Nos.3 and 4 being the members of the plaintiff society are not empowered to exercise thei r right to transfer of possession of the land held by both of them and their ri ght is restricted under the Assam Co-operative Societies Act, 1949 and the sub- clause (e) of clause 2 incorporated in the lease deed dated 17.08.1979 and 05.02 .1982 cannot be exercised which is not permissible under the law and the determ ined bid not to vacate the suit land by the defendant Nos.1 and 2 inspite of d emand by the plaintiff had forced to institute the suit to seek the declaration as indicated above. On receipt of the summons, the defendants Nos. 1 and 2 appeared before 10. the court and submitted their written statement taking all the provisions of Or der 8 of the Code and denying the averments made in the plaint, contending inter alia that non-payment of Rs.7,00,000/- as per clause I of lease dated 06.02.199 0 as alleged is incorrect, inasmuch as, the defendant No. 1 delivered four Bank drafts of Allahabad Bank amounting to more than Rs.7,00,000/- to the proforma defendant No.3 against the full and final payment of the consideration amount an d these bank drafts were issued in favour of the Assam Co-operative Apex Bank Ltd. However, the annual rent could not be paid since the plaintiff did not acc ept the same and they are ready and willing to pay the entire annual rent along with interest and the cost of the suit immediately as and when the court passed the order thereby denying the violation of the terms of the lease deed dated 16. 02.1990. It has been further stated in the written statement that the proforma defendant Nos.3 and 4 having the legal competence under the lease deed dated 17.08.1979 a nd 05.02.1982 have entered into the agreement by executing a deed of lease dat ed 16.02.1990 in favour of them which cannot be termed as illegal or void and o n taking over the leasehold right of the suit property they have invested more than Rs.25 lakhs for cultivation of tea, also have employed a large number of p ersons for plantation of tea bushes etc. and is running the tea garden, thus rai sing the question of restrictions by the plaintiff as are available under the Co -operative Societies Act 1949 and the clause of forfeiture would not come into play since they have not denied the title of the plaintiff and hence, prayed fo r dismissal of the suit.

#11. The proforma defendant Nos.3 and 4 have filed their written statement jo intly, contending inter alia that both the lease deeds dated 17.08.1979 and 05 .02.1982 have empowered them to sub-let or assign for better management of tea c ultivation and on taking possession of the suit land, they have created a charg e over the suit land ’Lower Doigrung Tea Estate’ by obtaining financial assista nce from the Assam Cooperative Apex Bank Ltd. and due to financial difficulty th ey executed the perpetual deed of lease in favour of the defendant No.1 with a c ondition to liquidate all the liabilities in terms of clause I of the registered deed of lease dated 16.02.1990 besides paying the annual rent of Rs.1,060.00, w hich, however, the defendants Nos. 1 and 2 have failed to act in terms of clause I of the lease deed dated 16.02.1990 thereby forfeited the right to continue wi th the possession of the said ’Lower Doigrung Tea Estate’, more so, when they we re defaulters, thereby making themselves liable for eviction from the suit land and hence prayed for a decree as sought for by the plaintiff.

#12. The trial court on the pleadings of the parties had framed the following issues - (cid:28)1. 2. 3. Whether there is cause of action for the suit? Whether the defendants are defaulter? Whether the Lease Deed executed by Proforma defendants No.3 and 4 in favour of the defendant No.1 is illegal, void and inope rative? 4. perties by evicting the defendants No.1 and 2? 5. 6. Whether the plaintiff is entitled to get relief as claimed? To what other reliefs, if any, the plaintiff is entitled? (cid:29) Whether the plaintiff is entitled to get khas possession of the suit pro The trial Court further framed the following additional issues;- (cid:28)1. 2. 3. Whether the suit is bad for waiver, acquiescence and estoppel? Whether the notice terminating the perpetual lease deed dated 16-2-90 is Whether the plaint is filed and verified by proper person? valid under the law in force? (cid:29)

#13. During the trial, the plaintiff has examined 4 P.W.s in order to substan tiate the case in his favour and exhibited several documents, whereas the defend ants have also examined 3 DWs and exhibited several documents to demolish the ca se of the plaintiff.

#14. The learned trial Court took up the issue No.2 at the very outset which relates to defaulters. The court has considered the order passed by this Court i n FAO No. 35 of 2001 whereby the court gave a direction that, (cid:28)any outstanding r ent would be paid by the defendant to the plaintiff/respondent (cid:29). The said order was passed relating to appointment of a receiver to the suit property. In pursua nce to the aforesaid order the defendant paid the rent payable from 16.02.1990 t o 25.02.2001 amounting to Rs.12,595/- to the plaintiff society vide receipt date d 01.09.2001 (Ext Ga) (proved in original) which has been supported by DW 1 and DW 3. By another receipt dated 16.02.2001 (Ext Kha) the rent for the period from 16.02.2001 to 15.02.2003 (proved in original) has been paid to the plaintiff. T he plaintiff has cross-examined DW 1 and DW 3 on those receipts as to the genuin eness of Ext ’Kha’ and ’Ga’ but could not dislodge its genuineness. Moreover, th e plaintiff has failed to issue a demand notice as per clause 3(d) of the lease deeds dated 17.08.1979 and 05.02.1982 without which non-payment of rent cannot b e proved. It was, however, pleaded that DW 1, Sri Babula Saikia was not the Secr etary of the plaintiff society rather one Papuli Barua was the Secretary of the plaintiff society, but the plaintiff has not produced Papuli Barua in the witnes s box to dislodge the veracity rather their own witness PW 2 has admitted that S hri Babula Saikia was the Secretary at the time of filing of the suit. In view o f such findings, the learned trial Court decided the issue No. 2 in negative and in favour of defendants.

#15. Thereafter, the learned trial court took up the issue No. 3. From the pl eaded facts of the parties and the evidence on record including clause 2(e) of t he lease deed dated 17.08.1979 and 05.02.1982 whereby unfettered power were give n to the lessee to sub-let or assign their interest to any sub-lessee for a bett er management of tea cultivation but with a stipulation that the sub-lessee shal l be bound by the terms of lease as if the same is executed by each of them resp ectively and accordingly, the perpetual deed of lease has come into operation by a deed of lease dated 16.02.1990 executed in favour of the defendant No. 1 by t he proforma defendant Nos.3 and 4. The suit has been filed against the defendant Nos.1 and 2 without taking recourse to cancellation of earlier two lease deeds dated 17.08.1979 and 05.02.1982 and the reference in connection of perpetual lea se has not been lost sight of in section 111 (G) of the Transfer of Property Act , 1882. The question of transfer of possession of the suit property to non-membe r is restricted under the Assam Co-operative Societies Act 1949 has been raised in paragraph 21 of the plaint but the proforma defendants Nos.3 and 4 have not averred anything as regards paragraph 21 of the plaint, whereas the evidence of PW 3 Shri Apurba Kumar Barua who is one of the Director of Board of Directors of Assam Cooperative Societies Bank Ltd., in cross-examination, has admitted that the defendant No.1 took the suit property from them and not from the plaintiff s ociety which was not consulted with the plaintiff society prior to granting of s ub-lease by him and the restriction was not disclosed before execution of lease deed dated 16.02.1990, whereas the reference of section 63 of the Co-operative S ocieties Act 1949 was made, wherein the Registrar of Co-operative Societies is e mpowered for adjudication of the suit. The learned trial court has held that the consideration of money of Rs.7,00,000/- in terms of clause 1 of the lease deed dated 16.02.1990 has been paid and section 10 of the Transfer of Property Act wo uld not come in the way in case of perpetual lease and the defendants having not denied the title and ownership of the plaintiff society over the suit land, hen ce the lease deed dated 16.2.1990 executed between the proforma defendant Nos.3 and 4 and defendant No.1 is not illegal, void and inoperative to be cancelled an d accordingly, decided the issue No.3 in the negative holding that the suit is n ot maintainable in view of the provisions of section 63 of the Co-operative Soci eties Act 1949. In view of the decisions arrived at by the learned trial Court i n issue No.3, the issue No. 4 is answered in negative and in favour of the defen dants.

#16. While deciding the additional issue No.1, the trial court took into cons ideration section 85 of the Co-operative Societies Act along with the evidence o f PW 2 Shri Benudhar Barua including the evidence of DW 1 holding that Shri Benu dhar Barua was not authorized to file the suit and the authority to file the sui t has not been proved by any documentary evidence since DW 1 has deposed that be ing the Secretary of the Society since 1972 no authority or resolution was taken authorizing Shri Benudhar Barua to file the suit and accordingly, answered the issue in negative.

#17. The additional issue No.2 relates to waiver, acquiescence and estoppel a gainst the defendant No.1 when the property leased out to the defendant No.1 by the proforma defendant Nos.3 and 4 by executing a perpetual lease deed dated 16. 02.1990. It is evident from clause 3 of the said lease deed that the possession of the suit property was delivered to the defendant No.1 on 01.01.1989, i.e. pri or to the execution of the lease deed wherein it would disclose from the evidenc e of PW 2 that during the continuance of sub-lease, the society meetings were he ld since August 1989 till 05.01.1995 being the date of issue of notice to profor ma defendant Nos.3 and 4 by the plaintiff. There is no iota of evidence that the plaintiff society has made any demand or enquiry about the subsisting sub-lease executed in favour of the defendant No.1 by the proforma defendant Nos.3 an d 4 and the plaintiff has failed to make any objection of such sub-lease dated 16.0 2.1990 thereby allowed the defendants to run the Tea Estate of ’Lower Doigrung T ea Estate’ thereof is estopped from challenging the validity of the sub-lease da tes 16.02.1990 and accordingly, decided the issue against the plaintiff. The additional issue No. 3 relates to notices terminating the perpetual 18. lease deed dated 16.02.1990. The learned trial court dealt with the notice dated 05.01.1995 issued to the proforma defendant Nos.3 and 4 by the President of the plaintiff society seeking termination of lease deed dated 17.08.1979 and 05.02. 1982 but in terms of notice, no suit was filed against the proforma defendant No s.3 and 4, nor any step was taken by the plaintiff society with the Registrar of Co-operative Societies and no statutory notice was served under the Transfer of Property Act upon the defendants terminating the lease and the service of statu tory notice on the defendants was not proved in the suit and hence the notice da ted 05.01.1995 cannot be termed as a notice on the defendants, more so, the suit was filed against the defendant Nos.1 and 2 without impleading the lessee, i.e. defendant Nos.3 and 4 as the defendants, therefore, held that the suit is bad f or non-joinder of necessary parties and accordingly, decided the issue in negati ve and in favour of the defendants. 19. In view of decisions arrived at in issue Nos.2, 3, 4 and additional issu e Nos.2 and 3, the learned trial court decided the issue No.1 against the plaint iff holding that no cause of action arose as alleged by the plaintiff and accord ingly, decided the issue Nos. 5 an 6 against the plaintiff and in favour of the defendants, thereby dismissed the suit which has been assailed in the instant Re gular First Appeal before the court. Heard Mr. H Deka, learned Senior Advocate assisted by Mr. P Sundi, learn 20. ed Advocate appearing for the appellant/plaintiff. Also heard Mr. GN Sahewalla, learned Senior Advocate assisted by Md. Aslam, learned Advocate appearing for re spondent Nos.1 and 2. None appeared for respondent Nos.3 and 4.

#21. Criticizing the judgment of the learned trial court holding that there i s no cause of action for the suit, Mr. Deka, learned Senior Advocate would conte nd that the facts pleaded by the parties amply demonstrate that the cause of act ion of the suit arose when members of the society sub-let the properties thereby transferring their possession without the previous approval of the managing bod y to a non-member of the society, therefore, the society has a right to sue for recovery of the properties transferred to a non-member of the society and thus, the decision arrived at issue No.1 by the learned trial court requires interfere nce under appellate jurisdiction, more so, when the point of restriction under t he Assam Co-operative Societies Act 1949 has been pleaded in the plaint.

#22. Mr. Deka, learned Senior Advocate drawing the attention of the court rel ating to clause (e) of Ext 4, wherein the word ’Any’ has been inserted would con tend that the word ’any’ should be construed subject to the provision of law and since there are restrictions imposed under a statute relating to transfer of pr operty of the society by a member of the society to a non-member of the Society is a bar under section 27 of the Assam Cooperative Societies Act 1949 and hence the question of estoppel against a statute would not lay which require interfere nce being the court of first appeal.

#23. Referring the evidence on record Mr. Deka, learned Senior Advocate would contend that lease deed executed on 16.02.1990 by the proforma defendant Nos.3 and 4 in favour of the defendant No.1 being void, the plaintiff is entitled to a decree of khas possession by evicting the defendant Nos.1 and 2 since they have not denied the title of the plaintiff society. In support of his submission, le arned counsel has placed reliance upon the following decisions;-

#1. M/s Mathra Parshad and Sons -vs- State of Punjab and others, AIR 1962 SC 745,

#2. AIR 1969 SC 1320, Deccan Merchants Co-operative Bank Ltd. -vs- M/s Dalichand Jugraj Jain and other s.

#3. A.C. Jose -vs- Sivan Pillai and others, AIR 1984 SC 921

#4. (1996) 7 SCC 665, Union Territory, Chandigarh, Admn and others -vs- Managing Society, Goswami, GDS DC

#24. Referring the decision relating to additional issue No. 1, Mr. Deka woul d contend that a conjoint reading of order 29 Rule 1 of the Code, read with sect ion 85 of the Co-operative Societies Act along with paragraph 4 of the written s tatement where no denial has been averred by the defendants, it can safely be pr esumed that the plaint has been filed and verified by the competent person and a s such the finding arrived at by the learned trial court is perverse which requi re interference by the appellate court.

#25. Countering the attack Mr. GN Sahewalla, learned Senior Advocate represen ting the defendant/respondent Nos.1 and 2 took the court through the evidence of PW 1, PW 2, PW 3, DW 1, DW 2 and DW 3 along with the material Exts-Ka to Ka-4, Ext- Kha, Ext-Ga, Ext- 4, Ext- 5, Ext- 6 and Ext- 7 and would contend that admit tedly the lease deed dated 16.02.1990 was executed by the proforma defendant Nos .3 and 4 in favor of the defendant No.1 in terms of clause (e) of the lease deed dated 17.08.1979 and 05.02.1982 whereof the question of restrictions of transfe r of properties to a non-member of the Society has been raised without taking re course to Section 63 of the Assam Co-operative Societies Act. Hence the suit is not maintainable in its present form and the judgment rendered by the learned tr ial court do not require to be interfered with. In support of his submissions, t he learned counsel has referred to and relied upon the case reported in (2011) 1 0 SCC 420 (Cauvery Coffee Traders, Mangalore -vs- Hornor Resources (Internationa l) Company Ltd.)

#26. Before dealing with the arguments advanced, the Court seems it fit to qu ote the relevant clause of the lease deed executed on 17.08.1979 and 05.02.1982 by the plaintiff society in favour of the proforma defendant Nos.3 and 4 in orde r to adjudicate the matter wherefrom the proforma defendant Nos.3 and 4 executed the lease on 16.02.1990 in favour of the defendant No.1. Sub-clause (e) of clause 2 of lease deed dated 17.8.1979 being relevant is quote d hereinbelow: (cid:28)The Lessee shall be entitled to occupy the said 100 Bighas of the land and poss ession whereof has been delivered to him, in such a manner as he thinks fit and may erect structures or build thereon or demolish or re-erect the same and may s ublet or assign his interest therein to sub-lessee or assignee for better manage ment of Tea cultivation or other Agricultural purposes, provided however, that t he sub-lessee or assignee be bounded by the terms of this lease as if the same w ere executed by each of them respectively and to receive loan from Bank, Financi al Bodies, Tea Board or from any other person by creating mortgage of the land u nder this lease to secure such loan for better management of Tea Cultivation or other Agricultural purposes. (cid:29) Sub-clause (e) of clause 2 of lease deed dated 5.2.1982 is quoted hereinbelow: (cid:28)The Lessee shall be entitled to occupy the said 112 Bighas 0 Katha 5 Lechas of land specifically shown in the schedule below and possession whereof has been de livered to her, in such a manner as she thinks fit and may erect structures or b uild thereon and may demolish or re-erect the same and may sublet or assign her interest therein to any sub-lessee or assignee for better management of Tea Cult ivation or other Agricultural cultivation, provided however, that the sub-lessee or assignee be bounded by the terms of this lease as if the same were executed by each of them respectively and to receive loan from Bank, Financial Bodies, Cr edit Institutions, Tea Board, A.R.D.C. or from any other person by creating mort gage of the land under this lease to secure such loan for better management of T ea Cultivation or other Agricultural cultivation. (cid:29)

#27. Sub-clause (e) of clause 2 of the deed of lease quoted hereinabove empow ered the lessee to sublet or assign their interest therein to any sub-lessee or assignee for better management of tea cultivation and be bound by the terms of t his lease as if the same were executed by each of them respectively. On the basi s of the power vested by sub clause (e) of clause 2, the proforma defendant Nos. 3 and 4 collectively as lessor executed the registered perpetual deed of lease i n favour of the defendant No.1 on 16.02.1990. The said deed of lease was execute d due to financial hardship and liability on account of Assam Cooperative Apex B ank Ltd. alone stood at Rs.7,00,000/- which the defendant No.1 undertook to pay in terms of clause 1 of the deed dated 16.02.1990. The lease deed dated 16.02.1990 contains a forfeiture clause in the even 28. t of denial of title of the lessor and in default of rent which entails eviction but the lease is perpetual in nature. However, in the event of forfeiture the l essor reserves the right to recover possession and to evict the lessee or any su b-lessee from the leasehold right subject to the payment of compensation by the lessor to the lessee for the improvements made on the leasehold land. The other conditions for terminating the lease is by way of notice in advance by six (6) m onths served on the lessee.

#29. The pleaded facts of the plaintiff as averred in the plaint is that in t erms of lease deed dated 16.02.1990 the defendant No.1 as lessee has failed to l iquidate the liability created in terms of clause 1 to Assam Cooperative Apex Ba nk Ltd. beside the payment of rent of Rs.1060/- wherefor the suit was filed seek ing the reliefs as indicated above. The liability to liquidate the charge on ’Lo wer Doigrung Tea Estate’ by the proforma defendant Nos.3 and 4 in favour of Assa m Co-operative Apex Bank Ltd. is required to be judged from the evidence of PW 1 . PW 1, Shri Sasanka Kr. Paul deposed that the entire principal amount was reali zed on 07.09.1989 save and except the interest. After 1990 no money was deposite d in the bank on behalf of Apurba Kumar Barua. The account was closed on 30.12.1 989. PW 1 further stated that (cid:28)Lower Doigrung Tea Estate is still a defaulter fo r not paying the interest. (cid:29) In cross-examination, PW 1 has deposed as thus,- (cid:28)It is not true that Marangi T.E. deposited Rupees Seven Lakhs on behalf of Lower D oigrung T.E. at Golaghat Branch. As per our Rule, the interest is calculated fir st. In this case, we realised the loan first. The principal amount was liquidate d before the interest liquidation. We did not take legal step for realization of the money. (cid:29) The evidence of PW 2 Shri Benudhar Barua would disclose that the rent had not be en received from any party since the land had been given on sub-lease. DW 1 Sri Babula Saikia, Secretary of the plaintiff society while deposing in the court disclosed that the defendants had already paid the annual rent to the pla intiff Samity for possessing the Lower Doigrung Tea Estate. Exts-Kha and Ga are the receipts whereby they have accepted the rent. DW 1 further deposed that the Samity had never empowered the Ex-President to file the suit. He had filed the s uit without power and approval of the Samity. DW 2 Bhola Barua deposed that (cid:28)there is no receivable payment towards our Samaba i Samity from the Marangi Tea Estate and authority of Marangi Tea Estate has not made any harm or loss to our said Samity. (cid:29) DW 3 Nabin Chandra Barua has deposed that he paid the rent to the plaintiff soci ety and accordingly issued receipts. Ext-Kha is the rent paying receipts from 16 .02.2001 to 15.02.2003 for two years (proved in original) including the interest for eleven years, i.e. from 16.02.1990 to 25.02.2001 (proved in original) which evidence, however, the plaintiff could not dislodge when cross-examined. The co nsideration money amounting to Rs.7,00,000/- alleged to have not been paid by th e defendant No.1 loses its credence in view of recital in para 1 of the lease de ed dated 16.02.1990. A reference of the order passed in FAO No.35/2001 by this C ourt also cannot be lost sight of. The totality of the circumstances reveal that the defendants are not defaulter and thereby do not require to be interfered wi th the issue No.2 as held by the learned lower court.

#30. The next question remains to be adjudicated upon as to the restrictions imposed under section 27 vis-à-vis section 63 of the Assam Co-operative Societie s Act and its implication. Admittedly the defendant No.1 is not a member of the plaintiff society. But sub-clause (e) of clause 2 of the lease deed dated 17.08. 1979 and 05.02.1982 empowers the proforma defendant Nos.3 and 4 to sub-lease the ir interest to (cid:28)any (cid:29) sub-lessee but to be bound by the terms of lease as if the same were executed by each of them respectively. In terms of sub-clause (e) of c lause 2, the proforma defendant Nos.3 and 4 executed lease deed to a non-member of the society on 16.02.1990 whereof the possession has been delivered in respec t of ’Lower Doigrung Tea Estate; to the defendant No.1 for cultivation. The rest rictions imposed under section 27 of the Act has not been disclosed by the witne sses of the plaintiff, more particularly, PW 3 Apurba Kumar Baruah wherein he ha s admitted that (cid:28)In the lease deed with Marangi we had not shown any restriction of the Co-operative Act. (cid:29) Therefore, the lease deed executed in favour of the d efendant No.1 amounts to estoppel by election when the lease deed is executed by the proforma defendant Nos.3 and 4 and justice and equity demands, the restric tions, if any, cannot be questioned in view of Exts- Ka -1 to Ka-4 where the res olution was taken in favour of the defendant No.1 considering the welfare of the labourers. Even if the restrictions imposed is taken into consideration, then s ection 63 of the Act would be made applicable and the cause of action is non-sui ted and thereby the court has no hesitation to affirm the issue No.3 as held by the learned trial court. Now the other questions relating to filing and verification of the plain 31. t whether has been made by the proper persons. The evidence of PW 2 Sri Benudhar Barua, who has verified the plaint has not proved any authority allowing him to file the suit for or on behalf of the Society. Admittedly the plaintiff society is a registered society under the Co-operative Societies Act and it is a body c orporate as defined under Section 85 of the Act. In absence of any authority by the Society to file the suit is fatal. PW 1 Sri Babula Saikia, who is the Secret ary of the plaintiff society, deposed that Sri Benudhar Barua had filed this su it on his own without power and approval of the Samity, meaning thereby, the pla int has not been verified by the proper person and on this count also the suit f ailed as has been held by the learned trial court. Now let us have a look at the decisions referred to and relied upon by t

#32. In the other additional issue No.2, the Court has held that the plaintif f society is estopped from challenging the lease deed dated 16.02.1990. The rest rictions imposed under section 27 of the Assam Co-operative Societies Act incorp orated under the statute and there can be no estoppel against statute as has hel d by the Apex Court. 33. he learned counsel appearing for the parties. The case of Mathra Prasad (supra) relates to exemptions on sales tax after the c ommencement of the financial year. The case so cited would not be applicable in the instant case. In the case of AC Jose (supra) and Union Territory, Chandigarh (supra), the Supr eme Court has held that there can be no estoppel against statute. There is no am biguity in the above proposition. In the case of Deccan Merchants (supra), relied upon by the plaintiff side, the Supreme Court has held that dispute within the society can be dealt with by the Registrar, but it must be a dispute between the society and a member in his capa city and therefore, section 63 of the Act would be made nugatory. PW 3 has depos ed that lease deed was executed on 16.02.1990 which makes it abundantly clear th at being the lessor had not shown any restriction of the Cooperative Act meaning thereby the society represented by the plaintiff is estopped by election and ac cordingly answered the additional issue holding that the plaintiff is estopped b y election as has been held by Supreme Court in Cauvery Coffee Traders (supra) r elied upon by the respondents. Another question left to be answered regarding the clause of forfeiture 34. and notice terminating lease. The facts pleaded and established in the case woul d show that the defendants have admitted the title and ownership of the suit lan d of the plaintiff society and hence the forfeiture clause would not come in the way of deciding the case. The notice terminating the lease vide Ext 7 has been issued to proforma defendant Nos.3 and 4 being the lessor of lease deed dated 16 .02.1990 but the proforma defendant Nos. 3 and 4 did not take any steps for term inating the lease of the defendant Nos.1 and 2 and therefore, the notice termina ting the lease of the lessor proforma defendant Nos. 3 and 4 cannot be termed as notice terminating the lease of the defendants in the suit.

#35. that the appeal has no merit. For the reasons stated hereinabove, the Court has no hesitation to hold

#36. o bear their own costs. In the result, the appeal fails and is dismissed. The parties are left t

#37. Send down the lower court record.