JUDGMENT :

M.S. Sonak, J.

1. Heard the learned counsel for the parties.

2. The challenge in the Writ Petition is basically to the judgment and orders dated 4th November, 1999 and 29th January, 2003 made by the Cooperative Court and the Cooperative Appeal Court in Dispute No. 461 of 1997 instituted by the Petitioner (Madhukar). The dispute arose in the context of Respondent No. 2 (Society) allotting in favour of Respondent No. 1 (Upasani) the additional area admeasuring 613.41 sq.h. which according to the Petitioner-Madhukar, was a common amenity (pathway) as per the layout plan. Since, the allotment was by way of resolutions dated 11th April, 1987 and 14th October, 1986, Madhukar challenged such resolutions before the Cooperative Court and also sought for an injunction to restrain Upasani from carrying any construction or raising any compound or closing this pathway in any manner whatsoever.

3. The society and Upasani filed their responses to the Dispute No. 461 of 1997 raised by Madhukar before the Cooperative Court. Based upon the pleadings, issues were framed by the Cooperative Court, the main issue being whether the impugned resolutions were illegal, null and void. Madhukar examined himself as witness in the proceeding and produced oral as well as documentary evidence in support of his claim. The society and Upasani failed to lead any evidence in the matter. However, they were permitted to and they filed their written arguments in opposition to the claim of Madhukar. The Cooperative Court by judgment and order dated 29th October, 1999 dismissed the Dispute No. 461 of 1997 instituted by Madhukar. Madhukar's Appeal No. 278 of 1999 was also dismissed by the Cooperative Appeal Court vide judgment and order dated 29th January, 2003. Hence, the present Petition by Madhukar.

4. During the pendency of proceeding before the Cooperative Court and Cooperative Appeal Court, it appears that there was restraint on Upasani undertaking the construction of compound wall on the suit property, which Madhukar had alleged was a common amenity i.e. pathway between the plot allotted to him and the plot allotted to Upasani. However, at some stage this interim order was vacated and Upasani pointed out to this Court that the construction of the compound wall was carried out. Therefore, this Court by its order dated 21st April, 2004 whilst issuing rule in the present Petition, made it clear that the construction of compound wall by Upasani would be subject to the outcome of Writ Petition No. 2968 of 2004 and Upasani was directed to file undertaking in the Court that if the Writ Petition is allowed, Upasani shall remove the construction made on the disputed plot subject to right in Appeal and shall not claim any equity in the matter. The record indicates that such undertaking dated 5th May, 2004 was filed by Upasani.

5. Madhukar also instituted RCS No. 516 of 1991 inter alia against Pune Municipal Corporation (PMC) questioning the issue raised by PMC to Upasani inter alia for construction of the compound wall in the disputed plot. By judgment and decree dated 15th June, 1995, the Civil Suit came to be dismissed. The Appeal against the same was also dismissed by the First Appellate Court vide judgment and decree dated 9th February, 1999. Accordingly, Madhukar instituted Second Appeal No. 223 of 1999 which was ordered to be taken up along with Writ Petition No. 2968 of 2004. This was because the trial Court and the First Appellate Court dismissed Madhukar's suit/Appeal mainly on the ground that Madhukar's challenge to the society's resolutions for allotment of the disputed plot in favour of Upasani, had failed. Therefore, it was deemed appropriate that if Madhukar's challenge to such allotment in Writ Petition No. 2968 of 2004 were to succeed, then, same would have impact upon the decision of the trial Court and First Appellate Court in the matter. Accordingly, Writ Petition No. 2968 of 2004 and Second Appeal No. 223 of 1999 were taken up for consideration t