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IN THE HIGH COURT OF FOR THE STATE OF TELANGANA
M.S. RAMACHANDRA RAO, J.
Future Builders Co-Op Society Rep., by its President Mufaddal Javawala – Appellant
Versus
S. Malla Reddy & Others – Respondents
C.R.P. Nos. 1892, 2967 of 2017
Decided on : 13-09-2019
Telangana Cooperative Societies Act, 1964 – Section 9 & 61 – A.P. Co-operative Societies Act, 1964 – Section 9 – Companies Act, 1956 – Benami Transactions (Prohibition) Act, 198 – Section 4 – Mutually Aided Co-operative Societies Act, 1995 – Section 6 (2) – Transfer of Property Act, 1882 – Section 43 – Evidence Act, 1872 – Section 58 – Civil Procedure Code, 1908 – Order V,VI,VIII,XII – Rule 6.11,8,16 – Section 151 – Constitution of India – Article 227 – Cooperative Housing Society/Plaintiff in above suit assailing order and C.R.P. filed by Defendant Nos.3 and 4 in said suit assailing the order – Whether Defendants are in possession of suit property under fiduciary capacity for Plaintiff and whether Plaintiff is deemed to be in possession of suit property even though physical possession is with Defendants, which has to be decided after trial – Whether Plaintiff-Society had made out case for obtaining decree in its favour in O.S.No.1 of 2000 under Order XII Rule 6 C.P.C – Whether Defendant-3 & 4 made out case for rejection of plaint filed by Plaintiff-Society in O.S.No.1 of 2000 under Order VII Rule 11(a) C.P.C – To what relief – Held, Plea of Defendants 3 and 4 in I.A. No.582 of 2013 has no merit because according to plaint, patta for subject land was transferred in name of these Defendants and 2nd Defendant by1st Defendant – It is contended by Plaintiff in plaint that inspite of several demands by him to Defendants 1 to 4 to transfer patta in name of Plaintiff, they were postponing same on some pretext or other also contended that they tried to interfere with development work which Plaintiff wanted to do in land – Thus there is clear cause of action pleaded against Defendants 3 and 4 as well in Plaint – Consequently, I.A. No.582 of 2013 was rightly dismissed by trial Court accordingly in favor of Plaintiff Society – Plaintiff Society is also entitled to relief of recovery of possession of plaint schedule properties from Defendants 1-4 – Contentions claiming compensation for harassment faced by it from Defendants 1 to 4 in this litigation for the past 40 years by denying enjoyment of plaint schedule property to it – Relief of recovery of possession granted to Plaintiff society, I leave it open to Plaintiff society to invoke Or.XX Rule 12 CPC to claim future mesne profits after institution of suit, because to make such claim, no specific prayer is necessary in plaint by making separate application in that behalf in trial court against Defendants 1 to 4 – Conduct of Defendants 1 to 4 not bonafide and they should be mulcted with exemplary costs for their conduct in matter – CRP No.1892 of 2017 is allowed and CRP No.2967 of 2017 is dismissed (Paras: 135, 142 to 150)
Facts of the case:
Cooperative Housing Society/Plaintiff in above suit assailing order and C.R.P. filed by Defendant Nos.3 and 4 in said suit assailing the order – Whether Defendants are in possession of suit property under fiduciary capacity for Plaintiff and whether Plaintiff is deemed to be in possession of suit property even though physical possession is with Defendants, which has to be decided after trial – Whether Plaintiff-Society had made out case for obtaining decree in its favour in O.S.No.1 of 2000 under Order XII Rule 6 C.P.C – Whether Defendant-3 & 4 made out case for rejection of plaint filed by Plaintiff-Society in O.S.No.1 of 2000 under Order VII Rule 11(a) C.P.C – To what relief
Findings of the court:
Plea of Defendants 3 and 4 in I.A. No.582 of 2013 has no merit because according to plaint, patta for subject land was transferred in name of these Defendants and 2nd Defendant by1st Defendant – It is contended by Plaintiff in plaint that inspite of several demands by him to Defendants 1 to 4 to transfer patta in name of Plaintiff, they were postponing same on some pretext or other also contended that they tried to interfere with development work which Plaintiff wanted to do in land – Thus there is clear cause of action pleaded against Defendants 3 and 4 as well in Plaint – Consequently, I.A. No.582 of 2013 was rightly dismissed by trial Court accordingly in favor of Plaintiff Society – Plaintiff Society is also entitled to relief of recovery of possession of plaint schedule properties from Defendants 1-4 – Contentions claiming compensation for harassment faced by it from Defendants 1 to 4 in this litigation for the past 40 years by denying enjoyment of plaint schedule property to it – Relief of recovery of possession granted to Plaintiff society, I leave it open to Plaintiff society to invoke Or.XX Rule 12 CPC to claim future mesne profits after institution of suit, because to make such claim, no specific prayer is necessary in plaint by making separate application in that behalf in trial court against Defendants 1 to 4 – Conduct of Defendants 1 to 4 not bonafide and they should be mulcted with exemplary costs for their conduct in matter
Result: CRP No.1892 of 2017 is allowed and CRP No.2967 of 2017 is dismissed
ORDER :
1. These two Revisions arise out of the same suit O.S.No.1 of 2000 (previously O.S.No.408 of 1994) on the file of the XVI Additional District and Sessions Judge,-cum-XVI Additional Metropolitan Sessions Judge, Ranga Reddy District at Malkajgiri and so they are being disposed of by this common order.
2. C.R.P.No.1892 of 2017 is filed by the M/s.Future Builders Cooperative Housing Society (for short ‘Society’)/Plaintiff in the above suit assailing the order dt.18-01-2017 in I.A.No.221 of 2004 in O.S.No.1 of 2000 and C.R.P.No.2967 of 2017 is filed by Defendant Nos.3 and 4 in the said suit assailing the order dt.18-01-2017 in I.A.No.582 of 2013 in O.S.No.1 of 2000.
3. The said suit was filed on 07-10-1994 as O.S.No.408 of 1994 before the III Additional Judge, City Civil Court at Secunderabad by the Plaintiff Society against (i) Samala Malla Reddy, (ii) Smt.Jaya Lakshmi, W/o.Samala Malla Reddy, (iii) Sri Raghava Reddy, S/o.Samala Malla Reddy and (iv) Ramachandra Reddy, S/o.Samala Malla Reddy for (a) declaration that the said Plaintiff is the owner of the suit schedule property and (b) for a perpetual injunction restraining the Defendants from interfering with the Plaintiff’s possession of the suit schedule property.
4. The suit schedule property is an extent of Ac.4.10 gts of agricultural land in Tirumalghery village, Secunderabad Mandal, Hyderabad District consisting of (a) Ac.2.19 gts out of Ac.14.09 gts in Sy.No.110/1, (b) Ac.0.25 gts out of Ac.1.09 gts in Sy.No.107, (c) Ac.0.07 gts out of Ac.0.20 gts in Sy.No.108 and (d) Ac.0.39 gts out of Ac.1.24 gts in Sy.No.109 within specified boundaries.
The Brief history of the litigation is as under:
1978-1993
5. Mohd. Abdul Hai was the Chief Promoter of the Plaintiff Society. Before its registration as a Society under the provisions of the A.P. Cooperative Societies Act, 1964 on 28-08-1981, there was an agreement dt.08-03-1978 entered into by the said Mohd.Abdul Hai with Samala Malla Reddy (the 1st Defendant) to the effect that the Chief Promoter, along with others intended to promote the said Society for acquiring land and converting into building sites; that the Society’s promoters had identified the suit schedule properties belonging to Mohd.Sarwar and others for purchase; and the promoters entrusted the work to 1st Defendant, who was experienced in such matters and delivered Rs.10,000/- towards sale price; and 1st Defendant would get the land measured, examine the documents, obtain legal opinion and possession of the land from its owner on behalf of the Society to be incorporated thereafter. The agreement further stated as under:
(3) It is further agreed that after incorporation of the Society, the 1st part will deliver the land to it to the said Society. The Society shall be treated as Owner from the date of its incorporation and necessary changes and mutation shall be done accordingly.”
6. After the registration of the Society on 28-08-1981, a Memorandum of Agreement was executed on 16-09-1981 between the Defendants and the Society stating that the Promoters of the Society including the 1st Defendant agreed to purchase the suit schedule property from its owners for the benefit of the Society; that 1st Defendant was authorized to purchase the suit schedule property as one of the Promoters of the Society by agreement dt.08-03-1978; there was a delay in getting the Society registered and incorporated under the A.P. Co-operative Societies Act,1964; the 1st Defendant purchased under registered sale deed dt.02-01-1979 the suit schedule property in his name with the funds provided by the Promoters
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