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IN THE HIGH COURT OF JUDICATURE AT BOMBAY

NAGPUR BENCH : NAGPUR

LETTERS PATENT APPEAL NO. 102 OF 2009

IN

WRIT PETITION NO. 2429 OF 2007 (D)

Smt. Usha Pandurang Dhabekar,

Aged Major, R/o. 85, Snehnagar, Nagpur

through Power of Attorney

Mr. Pandurang Dhabekar

(Dead through L.Rs.)

1. Pandurang Sadashiv Dhabekar (Husband)

Aged about 78 years, Occ. Business,

2. Sushil Pandurang Dhabekar (Son),

Aged about 50 years, Occ. Business,

3. Prashant Pandurang Dhabekar (Son),

Aged about 48 years, Occ. Business,

4. Kamlesh Pandurang Dhabekar (Son),

Aged about 46 years, Occ. Business,

5. Rachana D/o. Pandurang Dhabekar

(Daughter)(before marriage)

Rachana W/o. Prasad Pathak

(after marriage)

All R/o. Plot No. 64, Central Excise Colony,

Telecom Nagar, Nagpur.

. . . APPELLANTS

...V E R S U S..

1.Shree Prakash Gruha Nirman Sahakari

Sanstha Limited, Sahakarnagar,

Khamla Road, Nagpur through its President

and Secretary.

2. Vijay Vitthalrao Joshi,

Aged Major, R/o. Pawansoot Apartments,

Ramdaspeth, Nagpur.

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3. Smt. Kalpana Vikas Kawade,

Plot No. 104, Chhatrapati Nagar,

Wardha Road, Nagpur.

. . . RESPONDENTS

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Mr. R. L. Khapre, Senior Advocate a/w. Mr. R. G. Kavinandan,

Advocate for appellant/s.

Mr. R. R. Vyas, Advocate for respondent no. 1.

Mr. R. S. Parsodkar, Advocate for respondent nos. 2 and 3.

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CORAM :- Z. A. HAQ AND

AMIT B. BORKAR, JJ.

RESERVED ON :- 09.12.2020

PRONOUNCED ON :- 24.02.2021

JUDGMENT (PER : AMIT B. BORKAR, J.) :-

1.

Invoking Clause 15 of the Letters Patent, the appellant has

taken exception to the judgment passed by the learned Single Judge

on 08.10.2008 in Writ Petition No. 2429/2007, thereby confirming the

judgments passed by the Courts below refusing to grant declaration of

the sale deed executed by the respondent no. 1-Society in favour of the

respondent no. 2 be declared as void and also refusing to direct the

respondent no. 1-Society to execute sale deed in respect of Plot No. 1

in favour of the appellant.

2.

In order to appreciate the grievance of appellant, it will be

necessary to have a glance at a few introductory facts:-

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The appellant, who is original disputant, had filed Dispute

bearing no. 612/1996 before the Co-operative Court, Nagpur under

Section 91 of the Maharashtra Co-operative Societies Act, 1960

(hereinafter referred to as “the said Act”) seeking reliefs of declaration

of sale deed executed by the respondent no. 1-Society in favour of the

respondent no. 2 as null and void and without authority; direction to

the respondent no. 1-Society to execute sale deed in respect of Plot No.

1, admeasuring 50 feet x 100 feet at Somalwada, Layout No. 3, Khasra

No. 152/2, Nagpur in favour of the appellant; to deliver the possession

of the said plot to the appellant. The appellant based his claim on four

material facts viz.

(i)

The Co-operative Court in earlier dispute declared that the

appellant was entitled to plot admeasuring 50 feet x 100 feet

belonging to the respondent no. 1-Society.

(ii)

Sale deed executed by the respondent no. 1-Society in

favour of the respondent no. 2 was without authority as it was

executed by a person, who had no authority to execute the said sale

deed on behalf of the respondent no. 1-Society.

(iii)

The respondent no. 2 was not a member of the Society and

there was no reference in the sale deed that the respondent no. 2 was

member of the Society.

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(iv)

The sale deed executed in favour of the respondent no. 2

was affected by doctrine of lis pendens.

3.

The Co-operative Court, Nagpur by judgment and order

dated 07.06.2003 dismissed the dispute of the appellant holding that it

was barred by the prov