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1995 Supreme(Bom) 15

IN THE HIGH COURT OF BOMBAY
(Nagpur Bench)
V.S. Sirpurkar, J.
Smt. Sarladevi widow of Kundanlal ... Appellant.
Versus
Shailesh s/o Gourishankar Namdeo others .... Respondents.
Second Appeal No. 248 of 1994, decided on 1-11-1995.
Advocates appeared :
S.R. Deshpande, for the appellant.
P.N. Deopujari, for respondents.

Headnote:Section 100-Fact-Concurrent finding of-Reached by completely ignoring material evidence on record-It liable to be set aside.

       Section 25-Member expelled and allotment made in his favour cancelled-Allotment though provisional, is not subject to automatic cancellation if the allotee fails to buy the balance in time-Held; notice us per procedure is required if the provisional allotment is to be cancelled.

       It is true that the plaintiff has not been able to show that the second and final payment was made by K.L. Bandawar towards the purchase price of the plot, but it is also to be remembered that there could be no automatic cancellation of the provisional allotment. There is no notice served by the Society cancelling the provisional allotment of K.L. Bandawar on account of the failure on his part to pay the rest of the consideration.

       MAHARASHTRA CO-OPERATIVE SOCIETIES ACT, 1961

       Section 25 - Member of society - Provisional allotment in his favour-It automatically not get cancelled on failure of allottee for paying balance consideration in time-Fur cancellation of notice necessary.

JUDGMENT

V.S. SIRPURKAR, J. :---This second appeal is filed by the original plaintiff and thereby she challenges the concurrent judgments of the trial as well as the Lower Appellate Courts dismissing her suit.

2. This was a suit for declaration and permanent injunction. By this civil suit, the plaintiff had sought a declaration that she could not be evicted without following the due process of law from plot No. 18 described in schedule appended to the plaint. She had also sought an injunction against the defendants restraining them permanently from dispossessing her from the suit property. In short, the plaintiff had contended that she was a widow of one Shri K.L. Bandawar who was a member of the Income Tax Employees Co-operative Society Limited, Mound Road, Nagpur (hereinafter referred to as 'the Society'), being its share-holder. She had contended that the Society had acquired about 9 acres of land for forming the plots therein to be sold to its members. Her husband had paid a sum of Rs. 2,000/- on 13-12-1965, vide Receipt No. 223 wherein Rs. 50/- were deposited towards the costs of the share and the remaining amount of Rs. 1,950/- was deposited towards the cost of the plot. She contended that in pursuance of this, her husband was allotted plot No. 18 on 15-12-1965 and he was placed in possession of the said plot. She contended that after this, K.L. Bandawar remained in possession of the suit plot till he expired on 14-7-1980 and thereafter, she continued to be in possession of the said plot and also all the documents in respect of the said plot executed by the Society in her husband's favour. She, thus, contended that she was in continuous possession of the said plot. She contended that the society had become defunct in the year 1976. However, the defendant No. 2, who was posing as an office bearer of the Society, had approached the plaintiff on 3-1-1985 and had asked her to get her name mutated in the Corporation record and he had also given No Objection Certificate on behalf of the Society for such mutation, by addressing a letter to the Assessor, Nagpur Municipal Corporation, Nagpur. He had also given a No Objection for releasing the plot No. 18 which was standing in the name of late K.L. Bandawar and as such the plot was released in the name of the plaintiff by the Nagpur Improvement Trust. Nagpur. She further contended that the Society had become defunct and its registration was cancelled by the Deputy Registrar, Co-operative Societies, Nagpur, vide letter dated 30-6-1979, and there was nobody looking after the affairs of this dead Society, nor was there any meeting held nor was any resolution passed by the Society.

3. The plaintiff claimed that the defendant No. 2, without the knowledge or the consent of the shareholders including the plaintiff, got executed the deed of Power of Attorney in his favour from some share-holders and in that capacity, though he had no authority or power to deal with the property of the Society, started some dubious dealings. In that, she contended that no transactions done by the defendant No. 2 were in any manner binding on her. She had asserted that she was in possession of the suit property peacefully and had fenced the boundary by barbed fencing and had also erected a temporary shed on the same, and that the defendant No. 2 was also aware that she was in such possession. She further alleged that in pursuance of this nefarious activities, the defendant No. 2 contracted a sale in favour of defendant No. 1-Shailesh. She contended that she had come to know about this fact from the public notice given by defendant No. 1 through his Advocate, one Shri Gopal Sharma. This public notice was dated 3-2-1987 inviting objections. The plaintiff had, therefore, given a notice to Shri Gopal Sharma, Advocate, that his client defendant No. 1 had no right to deal with the suit property as the defendant No. 1 had never become the owner of the suit property and the suit property belonged to her. The plaintiff
































































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