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Bombay High Court
N. V. DABHOLKAR, M. G. GAIKWAD
SANJAYKUMAR S/o AMRUTLAL SHAH -Appeallant
Versus
UTTAMLAL RATILAL SHAH (DIED) -RESPONDENTS
WRIT PETITION 755 Of 2007
Decided On: 07/18/2007
Maharashtra Co-operative Societies Act, 1960 - Sections 2(16), 12 and 91 - M.C.S. Rules, 1961, Rule 10(1) - Tenant- Ownership Housing Society - Member of society - Member thereof is an owner of house - Society has nothing to do with ownership of bungalow. - This society being a Tenant-Ownership Society, the member is an owner of the house and the society has no concern with the ownership of the bungalow. This legal position is not disputed by the disputants themselves. Because in their pleadings itself, they have specifically pleaded that the disputant No. 2 (present respondent No. 1) is the owner of the property in question and in the dispute, the society did not claim ownership over the suit bungalow.
Maharashtra Co-operative Societies Act, 1960 - Section 91 - Co-operative society - Dispute under - Tenant-Ownership Society - Tenant joining co- operative society - As a party to dispute - By mere joining society dispute cannot be held to be a dispute under Section 91 of Act. - The society allotted the plot and the bungalow is constructed by the member. Hence, the society had no existing interest in the dispute. However, in the dispute filed before the Co-operative Court, the society joined as disputant No. 2. By mere joining the society as a party to the dispute, dispute cannot be said to be a dispute under Section 91 of the MCS Act.
Maharashtra Co-operative Societies Act, 1960 - Section 91 - Dispute under - About title and claim for possession - Cannot be entertained as dispute under Section 91 of Act - Co-operative Court cannot record finding on these issues - Issue of title, a point for adjudication by Civil Court - Issue of tenancy, a matter for adjudication by Rent Court. - In case of Tenant-Ownership Society, as admitted by the Secretary of the Society and also pleaded by both the disputants, the bungalow in question is presently exclusively owned by Uttamlal (predecessor-on- title of respondent No. 1). The society had no control or existing right over that bungalow. Thus, except to recover the taxes, no provision is pointed out which prohibits letting by a member to a third person. It cannot be, therefore, said that the society had any existing right and the dispute is a dispute touching the business of the society.
Maharashtra Co-operative Societies Act, 1960 - Section 91 - Filing of letters patent appeal - Tenant ownership society in dispute - Disputant No. 2 owner of suit bungalow and present appellant occupying as tenant - Society and deceased filed dispute claiming possession of bungalow - Dispute does not fall within the ambit of Section 91 - Joining as member of society does not cover dispute under Section 91 of Act. - By mere joining the society as a party to the dispute, dispute cannot be said to be a dispute under Section 91 of the MCS Act.
Maharashtra Co-operative Societies Act, 1960 - Section 91 - Title main cause of dispute - Claim of dispute of possession and title - Not maintainable in a dispute under Section 91(1) of Act - Finding on this issue by Court not expected - Issue of tenancy is a matter for adjudication of Rent Controller - Issue of title is covered by Civil Procedure Code. - In case of tenant ownership society. As admitted by the secretary of the society and also pleaded by both the disputants, the bungalow in question is presently exclusively owned by ’U’ (predecessor-in-title of respondent No. 1). The society had no control or existing right over that bungalow. Thus, except to recover the taxes, no provision is pointed out which prohibits letting by a member to a third person. It cannot be, therefore, said that the society had any existing right and the dispute is a dispute touching the business of the society.
Maharashtra Co-operative Societies Act, 1960 - Sections 91, 2(16) and 12 - Maharashtra Co-operative Societies Rules, 1961, Rule 10(1) - No using society of tenant ownership - Society includes members - Tenant of society as ownership society, owner of house is member, ownership of bungalow not covered by society. - This society being a tenant ownership society, the member is an owner of the house and the society has no concern with the ownership of the bungalow. This legal position is not disputed by the disputants themselves. Because in their pleadings itself, they have specifically pleaded that the disputant No. 2 (present respondent No. 1) is the owner of the property in question and in the dispute, the society did not claim ownership over the suit bungalow.
(1) HEARD learned counsel, appearing on behalf of respective parties.
( 2 ) LETTERS patent appeal is admitted and with the consent of learned counsel for respective parties, this matter is taken up for final hearing and disposal.
( 3 ) THIS letters patent appeal is directed against the order dated 13-03-2007 in Writ Petition No. 755/2007, whereby the learned Single Judge of this high Court summarily dismissed the writ petition by confirming the judgement of learned Member, maharashtra State Cooperative Appellate Court, Mumbai in Appeal No. 350/1994 as well as the judgement of the Cooperative Court, Jalgaon in Dispute No. 134/1989 directing present appellants to surrender peaceful possession of the suit property to the respondent No. 1 and payment of past mesne profits to the extent of Rs. 18,000/ -.( 4 ) THE subject matter in dispute is plot No. 8-B (bungalow No. 48), situated in respondent No. 2 society at Nandurbar. Present respondent No. 1 is the Chairman of respondent No. 2 Society. Original disputant No. 2 Uttamlal who was father of present respondent No. 1 was the Chairman of respondent No. 2 society in his life time. Present appellants are the legal representatives of one Amrutlal who was real brother of deceased Uttamlal, the father of respondent No. 1. They were having two other brothers, by name, ramniklal and Zutalal. They had constituted a joint family. Besides the subject matter of this litigation, they also owned three other bungalows and some other properties, but the present dispute is in relation to plot No. 8b (bungalow No. 48), which is a bungalow allotted by the respondent No. 2 Society. Admittedly, the allotment of the said plot by the respondent No. 2 Society is in the name of deceased uttamlal, the father of respondent No. 1. After allotment of said plot in the name of deceased uttamlal, construction of a bungalow has been raised. It is not in dispute that the said bungalow is in occupation of present appellants. Uttamlal, original disputant No. 2 issued a notice dated 07-02-1989 contending that he is exclusive owner of the bungalow. The bungalow was let out to Amrutlal in the year 1975 with monthly rent of Rs. 500/- and by this notice, the tenancy came to be terminated and the appellants were called upon to give vacant possession of the bungalow. This notice came to be replied by the present appellants. They have denied title of uttamlal over the bungalow as well as the alleged tenancy. According to them, the plot has been acquired by the joint family of all four brothers. In the family partition, bungalow is allotted to deceased amrutlal and since then, Amrutlal and his legal representatives (present appellants) are the owners in possession of the suit property. After this notice-reply, deceased Uttamlal, who was then the chairman of the respondent No. 2 Society, and the society jointly filed Dispute No. 134/1989 in the cooperative Court at Jalgaon. In the Dispute, same contentions were raised that Disputant No. 2 is the owner of the suit bungalow and present appellants were occupying the same as tenants, however, they denied the tenancy, as such, they are unauthorised occupants. Thus, the Society and deceased Uttamlal filed Dispute claiming possession of the bungalow. These appellants also raised the same contentions before the cooperative Court, claiming themselves to be the owners of this property since the partition, denying the alleged tenancy. One more contention was raised by them that the dispute between the parties does not fall within the ambit of section 91 of the Maharashtra cooperative Societies Act, 1960 (hereinafter referred to as "the MCS Act", for brevity ). Hence, the cooperative Court is having no jurisdiction to entertain the Dispute.
( 5 ) THE Cooperative Court framed issue about title claimed by disputant No. 2. A specific issue also came to be framed as to whether the Dispute is maintainable under section 91 of the MCS Act. After hearing the parties, a finding c
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