Vasant s/o Baburao Katey vs Yeshwant Sahakari Sahabhagidari Gruha Nirman Sanstha

Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2009 Supreme(Bom) 1732

In the High Court of Bombay at Nagpur
THE HONOURABLE MR. JUSTICE A.P. BHANGALE
Vasant s/o Baburao Katey & Another
Versus
Yeshwant Sahakari Sahabhagidari Gruha Nirman Sanstha Ltd. & Others
SECOND APPEAL NO. 172 of 2004
Decided on : 16-12-2009

Advocates appeared:
For the Appellants:S.V. Sohoni, Advocate. For the Respondent: R1,
P.D. Meghe, R2, R.S. Parsodkar, Advocates, R3A & R3B, Served.

Headnote:Maharashtra Control of Organised Crimes Act, 1999 - Section 91 - Civil Procedure Code, 1908, Section 9 - Limitation Act, 1963, Article 65 - Second appeal - Appellants/defendants 1 to 4 challenging judgment and decree passed by First Appellate Court allowing appeal - Plot allotted to defendant-2 by society/plaintiff - Allowed by society to be transferred to defendant-3 - Defendant-3 surrendered it in favour of defendant-1 - Membership of defendant-2 cancelled by society - Suit for recovery of possession by society - Dismissed - Appeal against - Allowed - Held - Society/plaintiff cannot allow transfer of plot to defendant-3 without consent of defendant-2 - Subsequent transfer by defendant-3 to defendant-1 illegal - Possession of defendant-1/appellant permissive - Cannot be termed as adverse under Article 65 of Act 1963 - First Appellate Court has jurisdiction to grant relief against appellant/defendant-1 - No substantial question of law involved - Impugned judgment order warrants no interference - Appeal dismissed. - Court have considered submissions and perused rulings cited. The facts established indicate that the plaintiff society owned as many as 15 plots, of which plot No. 2 was allotted to Dr. Mukund Pawar (original defendant No. 2) who has incurred loan for construction of plot from Maharashtra State Co-op. Housing Finance Corporation and repaid it. The Society or its management could not feign ignorance about this fact and therefore without consent of Dr. Mukund Pawar could not have allotted Plot No. 2 to Smt. Radhabai Tupkar who, in turn, could not have lawfully inducted appellant No. 2 into actual physical possession of plot No. 2 as tenant. Be that as it may, permissive possession of appellant No. 2 herein can never be perfected into adverse possession without necessary animus possidendi or without hostile enimus, continuity and extent in view of Article 65 of the Limitation Act. The Society was never entitled to allot Plot No. 2 to anybody else without concurrence of Dr. Mukund Pawar. Under these circumstances, actual physical possession of appellant cannot have any valid lawful recognition claiming through late Radhabai Tupkar who herself was not entitled to occupy the suit plot when it was subject of mortgage deed between Dr. Mukund Pawar (mortgager) and Finance Corporation (referred above) as mortgagee. The first appellate Court have consider all these aspects in details and arrived at conclusion with a view to do complete justice between the parties to dispute. The first appellate Court was well within its jurisdiction to grant relief against appellant No. 2 who had no legal right, title or interest in the suit plot to continue in its occupation. The decision in favour of real allottee of the suit plot No. 2 Dr. Mukund Pawar was party to the lis and the first Appellate Court adopted correct approach to do complete justice between the parties to adjudicate the controversy finally instead of subjecting the parties to multiplicity of legal proceedings. The Civil Court was well within its jurisdiction to decide civil rights agitated.
Thus, there is no ground to interfere with impugned judgment and order passed by first appellate Court. No substantial question of law is involved. Appeal is dismissed.

Judgment :

By means of this Second Appeal, the appellants /(ori. defendant nos.1 to 4 ) challenge the judgment and decree passed on 9.1.2004 passed by the learned 2nd Additional District Judge, Wardha in Regular Civil Appeal No.21/2001 whereby the appeal was allowed and defendant no.1 and 4 (appellants) were directed to deliver vacant possession of the suit house constructed on Plot No.2 to the plaintiff-society; while the plaintiff-society was directed to deliver possession of suit house to defendant no.2 and to execute the sale deed in favour of defendant no.2 after recovery of necessary amount outstanding in respect of suit transaction from the defendant no.2.

2. Facts which gave rise to this Appeal, in nutshell, are as under:

Suit house-Plot No.2 ad-measuring 70’ x 100’ situated in Yeshwant Colony, Nagpur Road, Wardha. Yashwant Sahakari Sahabhagidari Griha Nirman Sanstha Ltd. (Plaintiff) is a society formed as back as in 1969. Defendant No.2 alleged that he is allottee of the suit plot from the plaintiff society. Radhabai Tupkar (ori. Defendant no.3) was admitted on 28.1.1975 as Member of the society along with two other person by a Resolution No. 2 as Dr. Mukund Keshav Pawar (ori. defendant No.2 ) failed to pay cost of the plot and construction. On 15.11.1975, allotment of the plot in favour of Radhabai was confirmed. The society had agreed with contractor one Mr. Pande to construct houses of three types A, B & C. Since Mr Pande could not construct the houses, his contract was terminated by allotting it to Mr Vasant Katey (ori. Defendant no.1) who constructed houses as required by the society. Mr.Vasant Katey by notice dated 12.5.1978

demanded amount for construction done by him for the society. The society gave reply on 22.05.1978 informing Mr. Vasant Katey to pay amount of Radhabai and adjust his dues payable from the society in order to get the suit plot and house transferred. Mr Vasant Katey got it transfered in the name of his wife Kalpana Katey (original defendant no. 4) and in October, 1978 started residing in suit property. On or about 12.11.1978, the plaintiff-society resolved to take action against Mr Vasant Katey to evict him from suit property and by notice dated 14.11.1982 he was called upon to vacate the suit property and deliver its possession to plaintiff-society. Mr Vasant Katey replied the notice and denied claim in the notice.

3. The plaintiff-society instituted Special Civil Suit No. 19/1984 against Shri Vasant Katey and others for ejectment and possession and damages.

4. Radhabai ( ori. Defendant no.3) expired during pendency of suit and her legal representatives and heirs were brought on record.

5. Shri Vasant and Sau.Kalpana Katey claimed exclusive ownership of suit plot/house by a counterclaim in the suit, claiming that Radhabai Tupkar had relinquished her rights in the suit property by a deed in favour of Sau. Kalpana Katey. It is also claimed that Sau. Kalpana is paying municipal taxes and her name was mutated in revenue and municipal records. The Assistant Registrar, Co-operative Societies, Wardha, by order dated 10.4.1992 directed the plaintiff-society to admit Sau. Kalpana as the member of the society.

6. Dr. Mukund Keshav Pawar (Ori. defendant no.2) has filed written statement on 8.6.1992 and resisted the suit and raised counterclaim demanding possession of suit plot from the plaintiff society.

7. The suit as well as counterclaim raised in suit was dismissed by the trial Court, while counterclaim by Sau. Kalpana Katey was allowed and she was declared owner of the suit plot and house. The society was directed to admit Sau.Kalpana Katey as member of the society. The plaintiff challenged the judgment and order passed by the trial Court by filing Regular Civil Appeal No.21/2001 which was decided as mentioned in para no.1 supra. The first Appellate Court directed the plaintiff-society who had filed appeal to deliver possession of the suit plot with house to defendant no.2 Dr. Mukund Keshav Paw

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2009 Supreme(Bom) 1732

In the High Court of Bombay at Nagpur THE HONOURABLE MR. JUSTICE A.P. BHANGALE Vasant s/o Baburao Katey & Another Versus Yeshwant Sahakari Sahabhagidari Gruha Nirman Sanstha Ltd. & Others SECOND APPEAL NO. 172 of 2004 Decided on : 16-12-2009

Cases Referred (4)

In the High Court of Bombay at Nagpur
THE HONOURABLE MR. JUSTICE A.P. BHANGALE
Vasant s/o Baburao Katey & Another
Versus
Yeshwant Sahakari Sahabhagidari Gruha Nirman Sanstha Ltd. & Others
SECOND APPEAL NO. 172 of 2004
Decided on : 16-12-2009