Telangana High Court
M. Sridhar vs Kalyannagar Co.Op.Housing Society ... on 27 March, 2024
THE HON'BLE SRI JUSTICE SAMBASIVA RAO NAIDU
SA NO.722 OF 2017
JUDGMENT:
This Second Appeal has been filed by the unsuccessful plaintiff of OS.No.6951 of 2000 on the file of II Junior Civil Judge, City Civil Court, Hyderabad. Being aggrieved by the judgment and decree in AS.No.26 of 2010 which he preferred against the judgment and decree of the trial Court in the above referred original suit by which the suit was dismissed, the appellant has filed this appeal under Section 100 of Civil Procedure Code (for short 'C.P.C.') with a prayer to set aside the judgment of the trial Court and first appellate Court and sought for declaration to declare the show cause notice dated 24-11-2000 issued by the respondent Society as it was unilaterally issued without following due process of law consequently to cancel the sale deed as illegal beyond the competence and also for a perpetual injunction to restrain the respondent from canceling the sale deed Document No.154/1988 executed in his favour.
2. As could be seen from the averments made by the appellant in the original plaint filed before the trial Court, it 2 SSRN, J SA.No.722 of 2017 was claimed that he is the absolute owner and possessor of Plot No.59 in the lay out made by respondent society out of Survey Nos.52, 137, 138 and 139 at Yousufguda, Hyderabad. The appellant has claimed that the respondent which is a registered society under the provisions of A.P. Co-operative Societies Act acquired land to an extent of Ac.34.19 gts from the above referred survey numbers and converted the same into House plots. Out of the said plots, the respondent society conveyed Plot No.59 in favour of the appellant herein under a registered sale deed dated 28-01-1998 and he was put in possession of the Plot. The appellant has further pleaded in the plaint that originally the said Plot was allotted to one C.R.Rajagopalan, subsequently, he has surrendered the same to the society with a request to transfer the same in favour of the present appellant and accordingly, the society allotted the Plot to the appellant.
3. The appellant further pleaded before the trial Court that he has obtained permission for construction of a House from the concerned authorities and completed the construction of the House to which electricity, water and telephone connections was provided. The appellant has further contended that subsequently on 24-11-2000, a notice 3 SSRN, J SA.No.722 of 2017 that was issued by the respondent herein was served on the appellant calling upon him to show cause why sale deed executed in his favour could not be cancelled on the ground of certain irregularities in allotment. The appellant has claimed such a notice was issued with ulterior motives and due to internal disputes of the management of the society. The appellant having claimed that he has constructed a house and after a lapse of twelve years, the allotment of the Plot cannot be cancelled, consequently, sought for the above referred relief's against the respondent.
4. The respondent having appeared before the trial Court, filed a written statement disputing the material averments made by the appellant and further contended that the suit itself was not maintainable before the trial Court as the same was hit by Section 61 and 121 of A.P. Cooperative Societies Act. The respondent further claimed that the ownership obtained by the appellant herein was in collusion with some other members of the society. Therefore, sale deed executed in favour of the appellant herein was not valid. The sale deed was executed in favour of the appellant by the respondent represented by Mr. B.Veera Swamy and Mr. Adi Seshaiah as if, they are authorized signatories of the society 4 SSRN, J SA.No.722 of 2017 but without any power and authorization. They are not office bearers of the society. Therefore, the sale deed itself is invalid and respondent sought for dismissal of the suit.
5. Based on the above referred contentions and in view of the other claims raised by the respondent vide written statement, the trial Court framed the following issues:
1. Whether the plaintiffs are entitled for mandatory injunction as prayed for?
2. To what relief?
6. During the trial, the appellant himself was examined as PW.1 and he has marked Exs.A1 to A17. The respondent society has examined DW.1 and marked Exs.B1 to B7. The trial Court having appreciated the pleadings, evidence and arguments of both parties held that the appellant herein is not entitled to the relief sought for in the suit, consequently, dismissed the suit vide judgment dated 03-11-2009.
7. The first appeal filed by the appellant herein vide AS.No.26 of 2010 was dismissed by the first appellate Court by judgment dated 23-04-2012. Being aggrieved by the said judgment, the appellant filed the present appeal on the following grounds:
5 SSRN, J SA.No.722 of 2017 The judgment and decree of the trial Court as well as the first appellate Court are contrary to law, weight of evidence. Both the Courts committed an error in holding that the Civil Court has no jurisdiction to decide the litigation.
Both the Courts ought to have seen that the issue involved in the suit is with regard to the proposed action of the respondent for cancellation of the sale deed executed in favour of the appellant, thereby, the Civil Court alone has got jurisdiction to decide the issue and Section 121 of A.P. Co-operative Societies Act has no application for the dispute involved in the suit. The trial Court and first appellate Court were wrong in holding the appellant is not entitled to declaration as well as perpetual injunction. Both the Courts ought to have seen that as per the well settled principles of law, cancellation of the sale deeds do not fall under the disputes under Section 61 of A.P. Co-operative Societies Act. Therefore, the appellant sought for setting aside the impugned judgments and sought for decree in his favour.
8. While filing the Second Appeal, the appellant has formulated the following two substantial questions of law:
a. Whether the Courts below are right in law in holding that the Civil Court has no jurisdiction to decide the dispute with regard to show cause notice for 6 SSRN, J SA.No.722 of 2017 cancellation of sale deed and that Sec.121 of APCS Act, 1964 bars the jurisdiction of the Civil Courts?
b. Whether the Courts below are right and justified in law in giving finding on the merits of the case while dismissing the suit on the ground that the Civil Court has no jurisdiction to decide the dispute as per the bar envisaged under Section 121 of Andhra Pradesh Co-operative Societies Act, 1964?
9. This Second Appeal has been admitted on the above referred two substantial questions of law.
10. Heard both parties.
11. This Second Appeal has been filed mainly on the two substantial questions of law namely the trial Court as well as the first appellate Court were wrong in holding that the Civil Court has no jurisdiction to decide the dispute with regard to the show cause notice and the other relief's sought for in the suit and also on the ground that the trial Court and the first appellate Court could not have decided the suit on merits in view of the finding that the Civil Court had no jurisdiction to entertain the suit.
12. As could be seen from the pleadings and evidence in support of the said claim, it was the specific case of appellant herein that Plot No.59 which was once allotted in favour of another member namely Mr. C.R.Rajagopalan, 7 SSRN, J SA.No.722 of 2017 however, in view of the surrender of the Plot by said Rajagopalan with a request to allot the said Plot in favour of the appellant herein, the society made an allotment and subsequently, the appellant said to have obtained permission from the Municipal Authorities and constructed a building on the Plot.
13. However, the respondent claims that as on the date of the alleged enrollment of the appellant to the society, he being a minor could not have been inducted as a member and that the allotment of Plot in favour of the appellant herein was made by authorized persons, who have nothing to do with the affairs of the society. The respondent has also claimed that since the dispute is in between member and a co-operative society, he could not have filed a suit for the said relief and Civil Court cannot entertain the suit. The trial Court and the appellate Court while placing reliance on Section 61 of the Act held that the dispute touching the affairs of the society could not have been a subject of the original suit before a Civil Court.
14. It may be a fact that the Court while deciding the maintainability of the suit in view of Section 61 of Co-operative Societies Act, a finding that there are no merits 8 SSRN, J SA.No.722 of 2017 in the claim raised by the appellant and dismissed the relief.
15. The learned counsel for the appellant at the time of advancing arguments sought to rely on judgment of this Court in a Writ Petition filed by him vide WP.No.8304 of 2008 questioning the order of Registrar in CTA.5/2004 which was filed against the ARC.3/2002. It may be true that this Court allowed the Writ Petition filed by the appellant herein under the above referred order and set aside the order of Registrar in CTA.5/2004 but there is no finding with regard to the maintainability of the suit before a Civil Court.
16. Therefore, the order sought to be relied on by the appellant herein in the above referred Writ Petition need not be considered for answering the substantial questions on which this Second Appeal has been admitted. As per the pleadings and evidence of both the parties, it appears that the 2nd respondent disputed the claim of appellant on various grounds. The first ground being the right of a minor to be enrolled as a member of Co-operative Society since there was a bar for admission of the minor under the by-laws of the society. Their second contention is even if a plot was allotted in favor of Rajagopalan and the same was said to have been surrendered to the society, it could not have been allotted to 9 SSRN, J SA.No.722 of 2017 the appellant herein and the allotment claimed by the appellant was not made by this society. A part from this particular contention, the respondent also claimed that the Civil Court has no jurisdiction to try the suit. Simply because the trial Court gave a finding on merits, the appellant cannot take advantage for allowing the Second Appeal and for obtaining a decree in his favour.
17. As rightly held by the trial Court as well as the first appellate Court, according to Section 61 of the Co-operative Societies Act, which provides that disputes touching the Constitution, Management or the Business of the society can be referred to the Registrar. The trial Court having relied on a judgment between 'Osmanganj Extension Co-operative Society Limited and its Secretary, Hyderabad Vs. Bhawarlal Bohra and Others 1, wherein it was held that the disputes touching the business of the society being construction of shops and allotment of the same to the members, the dispute can be decided by a Cooperative Society but not by the Civil Court. The trial Court has also relied on another judgment reported in 2000 (2) ALT 391 for this proposition. According to Section 121 of the Act, 1 1995 (1) ALT 5 10 SSRN, J SA.No.722 of 2017 the jurisdiction of a Civil Court is clearly barred when the dispute is with regard to Constitution, Management as the Business of the society.
18. In the case on hand, it was the specific contention of the appellant that on application filed by his father when he was a minor, the society said to have allotted a Plot in his favour. As per the by-laws which are not seriously disputed by the appellant, no person who did not attain majority could be allowed/enrolled as a member of the society. Admittedly, by the time of alleged allotment, the appellant was a minor. Therefore, the basis for the dispute is with regard to entitlement of the appellant for enrollment as a member of the society, consequently, allotment of the Plot in his favour. The respondent has claimed that the persons, who said to have allotted the Plot in favour of the appellant had no authority as on the date of said allotment, therefore, this question also revolves around the management of the society, thereby, the claim of the appellant that he is entitled to seek a declaration to declare the notice issued by the society and the consequential relief's including the perpetual injunction in respect of the property cannot be decided by Civil Court in view of the bar under Section 61 r/w 121 of the Co-operative 11 SSRN, J SA.No.722 of 2017 Societies Act, thereby, the trial Court and the first appellate Court rightly held the same against the appellant and dismissed the suit, as such, there are no merits in the appeal and it is liable to be dismissed.
19. In the result, the Second Appeal is dismissed. Consequently, Miscellaneous applications if any, are closed. No costs.
________________________ SAMBASIVA RAO NAIDU, J 27th March, 2024.
PLV