Rajasthan High Court - Jaipur
Roop Narayan vs Raj State Cooperative Tribunal on 3 December, 2013
Author: Mohammad Rafiq
Bench: Mohammad Rafiq
IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR ORDER IN S.B. Civil Writ Petition No.1592/1998 Roop Narayan Vs. Rajasthan State Cooperative Tribunal, Jaipur and Others Date of Order ::: 03.12.2013 Present Hon'ble Mr. Justice Mohammad Rafiq Shri Satyavrat Sharma, counsel for petitioner Shri M.M. Ranjan, Senior Advocate, with Shri H.S. Khandelwal, counsel for respondents #### By the Court:-
Petitioner is owner of Plots No.11 and 12, Gopinath Marg, Purohit Ji Ka Baag, Jaipur and petitioner's family is living there in the houses constructed thereon by his father for the last 60 years peacefully. Respondent no.5 Mitra Grah Nirman Sahkari Samiti framed a scheme known as Housing Scheme no.l8, Purohit Ji Ka Baag. Since the land of aforesaid two plots also fall in the land of the scheme, therefore, the respondent no.5 allotted these plots to the petitioner on 31.03.1976 and the petitioner deposited the sale consideration of Rs.8,674/- on 19.01.1976 and a receipt no.499 dated 19.01.1976 was given to him. He was also issued the allotment letter and site plan of the aforesaid two plots. It was thereafter that the respondent no.4 Smt. Dhapa Bai in the year 1986 submitted an application before the respondent no.3 under Section 75 of the Rajasthan Cooperative Societies Act, 1965 against the petitioner alleging therein that she purchased the aforesaid plots from respondent no.5 and constructed the houses thereon and let out the same to one Prabhu Dayal Pareek, who sub-let the same to petitioner.
Contention of learned counsel for petitioner is that the respondent no.3 the Deputy Registrar, Cooperative Societies, Jaipur City, Jaipur, without affording an opportunity of hearing to the petitioner, decided the said application in favour of the respondent no.4 vide judgment dated 25.04.1988. Against that, the petitioner preferred an appeal under Section 123 of the Act of 1965 before the respondent no.1, who vide judgment dated 31.01.1990 remanded the matter with a direction to the Registrar, Cooperative Society, Jaipur to decide the matter afresh after giving opportunity of hearing to the parties. Thereafter the respondent no.3 vide order dated 10.03.1992 appointed the respondent no.2 as an Arbitrator in the matter under Section 77(C) of the Act of 1965 with a direction to hear and decide the matter within two months from the date of his appointment. However, the matter could not be decided within two months. It is contended that after expiry of two months, the respondent no.2 was not competent to issue even notice in the matter, but the respondent no.2 issued the notice on 04.06.1992. Thereafter the respondent no.2 decided the matter without giving opportunity of examination and cross-examination decided the matter in favour of respondent no.4 vide judgment dated 23.05.1994 without any knowledge to the petitioner. He came to know thereabout only when respondent no.4 submitted the said judgment in the proceedings pending between the parties in the civil court. Thereafter the petitioner preferred an appeal there-against along-with an application under Section 5 of the Limitation Act before the respondent no.1 under Section 123 of the Act of 1965, but the same was dismissed vide judgment dated 06.05.1997. Hence this writ petition.
The civil suit No.245/1986 filed by Smt. Dhapa Devi against Prabhu Dayal and petitioner Roop Narain for eviction and recovery of rent and mesne profit, has been dismissed by learned Civil Judge (Junior Division) & Judicial Magistrate, Jaipur City (East), Jaipur vide judgment and decree dated 14.05.2002. During the pendency of the said suit, respondent Smt. Dhapa Devi expired and her legal heirs Smt. Rachna Joshi and Smt. Aradhna Joshi were brought on record. The learned Civil Judge framed Issue no.6, which was whether defendant no.1 Prabhu Dayal is tenant of defendant no.2 (petitioner) and whether there exist no relationship between the plaintiff and respondent no.2 of landlord and tenant. While deciding this issue, the learned Civil Judge declined to determine the title either of the petitioner or the respondent no.4 over the disputed plots keeping in view the ongoing litigation between them before the Registrar Cooperative Societies with regard to the allotment made by the respondent no.5 Mitra Grah Nirman Sahakari Samiti Limited. The learned Civil Judge further recorded a finding that on the basis of oral statement of defendant no.2 it cannot be determined that the defendant no.1 is his tenant. It was admitted that defendants no.1 and 2 were employees of Purohit family and from the beginning they were residing in the Purohit Ji Ka Baag being the employees of Purohit family. Hence, this issue was partly decided in favour of the defendant no.2 (petitioner). Against that judgment, the plaintiff filed an appeal before the Additional District Judge (Fast Track) No.5, Jaipur City, Jaipur being Appeal No.84/2006 (251/2002), which came to be dismissed vide judgment and decree dated 13.09.2007. While deciding the issue no.6, the learned first appellate court recording a finding that there exist no relationship of landlord and tenant between the petitioner and respondent no.4.
According to the petitioner, he appeared before the Arbitrator on 20.06.1992. Thereafter the matter was fixed for framing of issues on 23.07.1992, on which date the matter was again adjourned for the same purpose for 12.08.1992. On that date respondent no.4 submitted rejoinder with advance copy thereof to the petitioner. It is his contention that for all these dates the Arbitrator did not draw any proceedings nor fixed the next date. It was on his asking that Arbitrator told him 14.09.1992 as next fixed in the matter. On that date also, issues could not be framed as the Arbitrator was busy in some other work and the petitioner was told to enquire about next date after 10-15 days. It happened for three-four occasions that whenever he went to enquire about the next date the Arbitrator told him to come after 10-15 days to enquire about the next date.
Learned counsel for petitioner invited attention of the court towards the certified copies of the proceedings of the Arbitrator, produced by him before the court for perusal, and in the order-sheet dated 03.12.1992 it is drawn that deliberation was made for framing of issue in the suit and both the parties were directed to make their submissions, but no next date was fixed. Subsequently the matter was taken up on 07.12.1992, on which date two issues were framed and it was deferred for 14.12.1992 and then for 22.12.1992, on which date the next date was given as 29.12.1992 but the matter was taken up on 05.02.1993 and there is no order-sheet drawn for 29.12.1992. In the order-sheet dated 05.02.1993 it was written that as usual defendant Roopnarain is not present and due to his absence the disposal of the matter is delaying unnecessarily. The matter was posted for 08.02.1993, on which date it was again deferred for 15.02.1993. In the order-sheet dated 08.02.1993, it is written that Shri D.N. Purohit, the power-of-attorney-holder of plaintiff Smt. Dhapa Devi, is present and as usual the defendants no.2 and 1 remained absent. The Arbitrator fixed 12.02.1992 as the date of site inspection to know about the status of possession. When the site was inspected, the plot of the plaintiff as well as defendant was also inspected. The defendant produced copy of his allotment letter.
The manner in which the proceedings before the Arbitrator have taken place, does not reflect that any effective opportunity of hearing was given to the petitioner. The Arbitrator has finally decided the matter on 23.05.1994. As it is both the parties are disputing the genuineness of the allotment letter issued to each other and both claim to be the owner of the land. All these complicated and disputed questions especially about the genuineness of the allotment letter/pattas would have to be decided on evidence to be led by the parties. The award passed by the Arbitrator and that the order of the Cooperative Tribunal have not adopted proper course. In the peculiar facts of the present case it would be appropriate for the parties to approach the competent civil court seeking declaration as to their title with regard to the disputed property.
In the result, this writ petition is partly allowed. The parties are set at liberty to approach the competent civil court for getting declaration as to their title of the disputed property. If any of the party approaches the civil court, the judgment passed by the Rajasthan State Cooperative Tribunal dated 06.05.1997 and the award dated 31.03.1993 passed by the respondent no.2, would not be an impediment for such civil court to independently decide the issue on evidence led by the parties and the findings recorded therein will not be read against or in favour of either of the party, and also would not be enforced against the petitioner similarly.
With aforesaid direction, the writ petition is disposed of.
(Mohammad Rafiq) J.
//Jaiman// All corrections made in the judgment/order have been incorporated in the judgment/order being emailed.
Giriraj Prasad Jaiman PS-cum-JW