RESPONDENTSMr. S v. Kurundkar

Legal Reasoning

IN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABADSECOND APPEAL NO. 283 OF 20041. Govind s/o. Ramrao Uttarwar, Age-40 years, Occupation – Contractor, R/o. Gokulnagar, Nanded.2. Vishwambhar s/o Bhimrao Patil, Age 50 years, Occu – Agril; R/o. Gulabwadi, Tq. Kandhar, District : Nanded --------APPELLANTS(Ori. Deft. No. 2 and 4)VERSUS1. Vijaysingh s/o. Govindsingh Tehra, Deceased, through LRs1-A) Sujitsingh Vijaysingh Tehra, Age 45 years, Occu : Business R/o Gadipura, Nanded, District Nanded.1-B) Ajitsingh Vijaysingh Tehra, Age 42 years, Occu : Business, R/o Gadipura, Nanded, District Nanded.1-C) Ranjeetsingh Vijaysingh Tehra, Age 38 years, Occu : Business, R/o Gadipura, Nanded, District Nanded.1-D) Pooja w/o Bhupendrasingh Pardeshi, Age Major, Occu : Household, R/o Gadipura, Nanded, District Nanded.1-E) Rajni @ Nirmala Vijaysingh Tehra,SA-283-2004.odt1 of 12 (Died through LRs Respondent 1-A to 1-D are legal heirs of Respondent 1-E also) --------RESPONDENTSMr. S. V. Kurundkar, Advocate for AppellantsMs. S. G. Chincholkar h/f Mr. G. N. Chincholkar, Advocate for Respondent Nos. 1-A to 1-DCORAM: R. M. JOSHI, J.RESERVED ON: 05 AUGUST, 2025PRONOUNCED ON: 12 AUGUST, 2025JUDGMENT :-1.This appeal takes exception to the judgment and decree passed bythe First Appellate Court in Regular Civil Appeal No. 216/1988 dated08.04.1993 reversing the judgment and decree passed in Regular Civil Suit No.674/1984 and ultimately decreeing the said suit of simplicitor injunction,restraining the defendants from interferring into the posssession of the plaintiffover the suit property except following due procedure of law.2.Parties are referred to as “Plaintiff’’ and “Defendants” for the sakeof convenience.3.This Court by order dated 12.10.2007 framed substantial questionsof law. Additional substantial question of law was framed by order dated30.07.2025. After framing substantial questions of law, learned counsel forboth sides were heard thereon.SA-283-2004.odt2 of 12 4.Following substantial questions of law arise for consideration anddetermination in this appeal :-(i)Whether the plaintiff can claim any legal rightthough was not admitted as member of the HousingSociety and merely on the basis of a Kararnama(agreement) purportedly executed by original defendantNo. 2 and, therefore, can claim his possession over theplot.?(ii)Whether the possession of the plot can be claimedwhen in case of open plot presumption is that thepossession is that of an owner and that the plaintiff is notadmittedly owner by virtue of any registered documentnor is member of Anandnagar Cooperative HousingSociety and hence, the findings of the first appellate courtare peverse.(iii)“Whether the First Appellate Court has committederror in decreeing the suit by ignoring the pleadings of theplaitniff in the plaint and Section 91 of the MaharashtraCo-operative Societies Act?”5.In order to appreciate the contentions of the rival parties, it wouldbe relevant to take note of the facts involved in this case which reads thus:-Plaintiff filed suit for simplicitor injunction restraining thedefendants from obstructing the possession over the suit plot bearing No. 54Anandnagar Co-operative Housing Society, Nanded. The suit initially came tobe filed against the vendor of the plaintiff i.e., defendant No. 2 and purportedpurchaser of the suit property defendant No. 4. In addition thereto, Co-operative Housing Society as well as Secretary of the society were joined as aSA-283-2004.odt3 of 12 party defendant. Defendant No. 1-Society and Defendant No. 3-Secretary ofthe society however came to be deleted from the array of defendants during thetrial.6.It is a case of the plaintiff that he purchased the suit plot fromdefendant No. 2 who is the member of Anandnagar Co-operative HousingSociety. It is contention of the plaintiff that by agreement dated 14.02.1977, thesaid plot was sold to the plaintiff by defendant No. 2 and a possession thereofwas handed over to him. It is his contention that he constructed hut therein andintially had ran hotel there from. It is claimed that at the time of filing of thesuit, he was using the said structure for his residence. It is also claimed that hehas water and electricity connection in the said premise and that he is payingmunicipal taxes. There is allegation by the plaintiff that the secretary of thesociety had made demand of illegal gratification of Rs. 5,000/- for transferingshare certificate in his name. Since, defendant Nos. 2 and 4 started obstructionof the plaintiff over the suit property, suit for injunction came to be filed.7.Defendant Nos. 2 and 4 filed written statement at Exhibit 34. It isadmitted that defendant No. 2 as the member of the society, he claims to haveallotment letter and share certificate in his name. It is denied that there is anytransaction between defendant No. 2 and plaintiff so also handing over of theSA-283-2004.odt4 of 12 possession of the suit plot to him. It is also denied that there exist any structureon the suit plot. It is specifically claimed that he executed the transferdocument of the plot in favour of defendant No. 4 for consideration of Rs.8551/-. According to this, defendant No. 4 applied for the transfer ofmembership and also paid charges there for to the society. There is also claimby the defendant No. 4 that he received possession of the suit plot from theArchitect. Reference is also made to the resolution passed by the society dated26.09.1984 in respect of the transfter of the plot in the name of defendantNo. 4.8.Learned Trial Court framed issues. Issue was also framed as towhether the plaintiff has proved his possession over the suit plot and issuejurisdiction of the Court was also framed. Plaitniff examined himself at Exhibit47 and also led evidence of Gyanoba Bhaskar at Exhibit 49. As against this,defendant No. 4 examined himself at Exhibit 56 and led evidence of Raosahebat Exhibit 66. Learned Trial Court dismiss the suit by judgment and decreedated 21.10.1988. Plaintiff being aggrieved by the same, preferred RegularCivil Appeal No. 216/1988. First Appellate Court reverse the said judgmentand decree passed by the Trial Court and decreed the suit. Hence, this SecondAppeal.SA-283-2004.odt5 of 12 9.Learned counsel for defendant No. 4/appellant submits that thesuit for simplicitor injunction has filed by the plaintiff is not tenable, in view ofthe fact that doubt has been created in order to his title in the suit plot. Tosupport his submissions, he placed reliance on the judment of Hon’bleSupreme Court in case of Anahula Sudhakar Vs. P. Buchi Reddy (Dead) byLRs and ors AIR 2008 SC 2033 he also drew attention of the Court in thisregard to the judgment in case of Jharkhand State Housing Board Vs. DidiarSingh and another (2019) 17 SCC 692. He further argued that the pleadingsbefore the Trial Court indicate that the issue with regard to the resolutionpassed by the Co-operative Society was also in question for determination. It ishis contention that in spite of the fact the society was deleted from the array ofdefendant, the said issue still survives for consideration of the Court. Bydrawing attention of the Court to Section 91 of the Maharashtra Co-operativeSocieties Act, 1960, (for short “Societies Act”) it is argued that the only Co-operative Court has jurisdiction to decide the said issue and that the jurisdictionof Civil Court is barred. It is his submission that the suit was not maintainablefor want of jurisdiction of the civil Court. It is further argued that in order tosubstantiate any title document in favour of the plaintiff which is absent here inthis case it is also aruged that there are inconsistent stands taken by the plaintiffwith regard to the existence of the structure on the plot and use thereof. FinallySA-283-2004.odt6 of 12 it is argued that the description and the boundaries of the said property is notcorrectly referred and as a result of aforestated facts, the suit is notmaintainable. According to him since lawful possession over the suit plot hasnot been established, question of grant of any injunction in favour of theplaintiff does not arise. Thus, he seeks answer of the specific question of law infavour of defendant No. 4/appellant.10.Learned counsel for plaintiff supported the impugned order.According to her, evidence on record more than clearly demonstrate thatdefendant No. 2 was the original owner of the suit plot and that he hadtransferred the said plot in favour of the plaintiff after accepting entireconsideration and possession thereof was also handed over to him. It is hersubmission that in case of suit for injunction, it is sufficient for the plaintiff toprove his possession. According to her, the evidence led by the plaintiff issupported by his witness and also in view of the cross examination ofdefendant No. 4’s witness, the findings recorded by the First Appellate Courtwith regard to the possession of the suit plot by plaitniff do not deserveinterference. It is further argued that once the society is deleted from the arrayof defendants, the bar has sought to be contended in view of Section 91 orSection 164 of the Societies Act would not attract.SA-283-2004.odt7 of 12 11.Plaintiff, in support of his pleadings with regard to the transfer ofsuit plot by defendant No. 2 in his favour deposed about the transaction i.e.,agreement dated 14.02.1977. He claimed to have been put into the possessionthereof and having errected the hut. He further claimed that he ran hotel for anyear and thereafter he using the same as residence. It is pleaded that he hadwater connection and electricity connection over the structure on the suit plotso also he pays municipal taxes. During the course of cross examination it hascome on record that there is temporary (kaccha) construction over the disputedplot. There is no denial about the existence of a structrue thereon. There isfurther no denial of water and electricity connection being obtained therein soalso payment of municipal taxes. This evidence of the plaintiff gets dulysupported by PW 2 Gyanoba. This witness is friend of defendant No. 2 andscribe of document Exhibit 50. He specifically states about there beingdiscussion in a meeting between plaitniff and defendant No. 2 in the presenceof the witness on 14.02.1977. He claims that in his presence, the considerationamount was paid and that the entire transaction took place at bus stand. He alsostates about defendant No. 2 having brought the stamp paper and asked thiswitness to right the document. He also claims that the possession of the plotwas handed over by defendant no. 2 to plainiff. In the cross examination,nothing has been elicited in order to create doubt about the testimony of thisSA-283-2004.odt8 of 12 witness.12.As against this, the evidence of defendant No. 2 indicates that hehas no knowledge about the transaction between plaitniff and defendant No. 2though he claims that there is no construction on the plot, his witness DW 2Raosaheb clearly admits that there is one hut on the suit plot. However, he doesnot know the material with which the construction has been done. He thereafteraccepts the fact that it is made of lose bricks. He shows his ignorance aboutplaintiff residing on the suit plot however does not denied the same fact.13.The above evidence clearly indicates that plaintiff has provedtransaction between him and defendant No. 2 and finding over the possessionthe suit plot to him on 14.02.1977. There is further evidence to indicate that thesuit plot is not open plot as sought to be contended by the defendants but thereis construction thereon. Even if it can be said that there is no concrete evidencein order to show nature of construction but existence of construction has beenduly established. Thus, the suit plot cannot be said to be an open land. It isimmaterial as to whether the construction has been done with permission of theplaning/local authority. Even if an action is permissible in law for its removal,it cannot be held that suit plot is open land.14.At this stage, it would be relevant to take note of the judgments ofSA-283-2004.odt9 of 12 the Hon’ble Supreme Court in case of Anathula Sudhakar (cited supra). Perusalof the said judgment indicates that it is held by the Hon’ble Supreme Court thatwhere a cloudes raise over the plaintiff’s title and he does not have possession,a suit for declaration and possession with or without consequential injunctionis the remedy. Where plaintiff’s title is not in dispute but he is out ofpossession. He has to sue for the possession with consequential injunction. It isfurther specifically held that where there is merely an interference with theplaintiff lawful possession or threat of possession, it is sufficient to sue for aninjunction to simplicitor injunction.15.Though, it is sought to be argued on behalf of defendant No. 4-appellant about plaitniff being not in lawful possession of the suit plot, furtherthere is evidence led by the plaintiff in order to indicate that he has purchasedthe suit plot from the original owner i.e., defendant No. 2 by paying dueconsideration and he being put into the possession of the suit plot. In view ofthese facts, Section 53 A of Transfer of Propety Act, 1882 will have applicationto the present case. Even if there is no title document in favour of the plaintiffin the form of registered sale deed, it is open for the plaintiff to protect hispossession from defendant No. 2 as well as any other person by filing suit forsimplicitor injunction, restraining his removal except due process of law.SA-283-2004.odt10 of 12 16.In so far as the issue raised about the jurisdiction of the civilCourt, there cannot be any dispute that the civil Court will have jurisdiction torestrain the defendants from causing interference into the possession ofplaintiff over the suit property and construction made thereon suit plot.Though, in the written statement, reference has been made with regard to thecertain actions of the society including passing of the resolutions, the issue ofpossession of the plaintiff of the suit plot with structure thereon, can beindependently decided without going into the issues raised in respect of theacts of the society. The decision of issue of protection of possession of plaintiffover suit plot is not dependant on decision of those issues. In suchcircumstances, after deletion of society and the secretary of society from thearrary of defendants, nothing remained to have been decided by the Trial Courtin respect of resolution or any act done by the society. Consequently, the barcreated by Section 91 or the application to Section 164 of the Societies Actwould have no application to the present case.17.The learned Trial Court has denied the relief of injunction to theplaintiff solely on the ground that he does not have title in suit plot for want ofthe document i.e. registered sale deed in his favour. However, the Trial Courthas failed to take into consideration the relevant facts indicating the transfer ofproperty for consideration by the original owner i.e., defenant No. 2 in favourSA-283-2004.odt11 of 12 of plaintiff including handing over of possession thereof. It has also ignoredthe threat of the dispossession of plaintiff from suit plot without followingprocedure of law at the hands of defendant Nos. 2 and 4. The Court thus hasfailed to take into account the effect of Section 53A of Transfer of PropertiesAct, 1882 that is error committed by the Trial Court has been rightly correctedby the First Appellate Court.18.As a result of above discussion, substantial questions of law areanswered in negative. Consequently no intereference is caused in the impugnedjudgment and decree.19.Appeal stands dismissed.20.Pending Civil Application, if any, stands disposed of.21.At this stage, learned counsel for appellants seeks continuation ofinterm relief for a period of four (4) weeks.22.Learned counsel for Respondents opposes the said request.23.Since the interm relief if in force from 12.10.2007, the same iscontinued for a period of Four (4) weeks.(R. M. JOSHI, J.)bsjSA-283-2004.odt12 of 12