Andhra HC (Pre-Telangana)
Prapul Chandra Mukpalkar & Anr. vs P. Ramachandra Reddy & Anr. on 24 January, 1997
Equivalent citations: 1998(2)ALD569, 1998(2)ALT766
JUDGMENT
1. The appellants are the plaintiffs in O.S. No.372 of 1981 on the file of the learned District Munsif, Nizamabad. The respondents were the defendants therein. They litigated over the plaint schedule property, a plot bearing No.51 with an extent of 355.55 square yards situated at Nizamabad, to be referred to as "the suit plot". The plaintiffs sought for the relief in the suit for declaration of their title to the suit plot and for possession of the same from defendant No. 1 by evicting him and for mandatory injunction to demolish the construction made by defendant No.1 thereon. The suit was resisted by the., defendants. The parties went to trial on the following issues :
1. Are the plaintiffs entitled for the declaration that they are owners of the suit plot, each having half share in it ?
2. Is D1 liable for eviction from the suit plot?
3. Are the plaintiffs entitled for the delivery of possession ?
4. Is Dl liable for mandatory injunction, to demolish the construction made by him in the suit plot ?
5. To what relief ?
The trial brought in both the oral and documentary evidence, wherein the plaintiffs were examined as PWs. 1 and 2 and six other witnesses as per PWs.3 to 8 respectively and defendant No. 1 examined himself as DW2 and seven witnesses as per DW1, DWs.3 to 8 respectively by way of oral evidence and Exs.A1 to A10 for the plaintiffs and Exs.B1 to B31(a) for the defendants were marked by way of documentary evidence. After hearing both the sides and with such materials the learned District Munsif held issues 1 to 4 in the affirmative and consequently, decreed the suit on 17-10-1989 as prayed, however, with a direction to the plaintiffs to pay Rs.20,000/- to defendant No. 1 on or before 1-12-1989 and costs were also ordered in favour of plaintiffs. Aggrieved by that, defendant No. 1 took the matter in appeal before the learned District Judge, Nizamabad in A.S. No.9 of 1990, wherein after hearing both the sides and with the same materials before him, the learned District Judge set aside the findings of the learned District Munsif as above and consequently, allowed the appeal and dismissed the suit by setting aside the judgment and decree passed in favour of the plaintiffs asking the parties to bear their respective costs. Aggrieved by such a decision, this appeal is filed.
2. At the stage of admission only, having found that the appeal involved certain questions of law to be determined, after a notice to the respondent the appeal was admitted to consider the following questions of law :
1. Whether the suit property was duly transferred to Seshagiri Rao by defendant No.2-Society; if so, whether Seshagiri Rao acquired any vested right or conditional right to the suit property by virtue of such a transfer by the 2nd defendant-Society ?
2. Whether Suryanarayana, who claims to be the legal representative of Seshagiri Rao, acquired any right or title to the suit property on the death of Seshagiri Rao and by virtue of the Will-Ex.B20?
3. Whether the transfer of the suit property by the 2nd defendant in favour of Srinivasa Rao on the death of Seshagiri Rao is legal and valid and whether it divested Seshagiri Rao of any right if he had acquired the suit property during his life time ?
4. Whether the plaintiffs acquired valid title to the suit property through Srinivasa Rao by virtue of the sale deeds-Exs.A2 and A3 ?
5. What is the effect of Sections 6, 54 and 48 of the Transfer of Property Act, 1882 ?
6. What is the effect of Secyions 17 and 49 of the Indian Registration Act, 1908, read with Section 54 (2nd limb) of the Transfer of Property Act, 1882?
7. Whether the judgment and decree of the learned District Judge, Nizamabad, in the appeal interfering with the findings of the learned trial Judge, is sustainable in law ?
8(a) Whether the judgment and decree of the learned District Judge deserves to be set aside ?
(b) If so, to what extent ?
During the course of the arguments, Sri T. Viswanadha Sastry, learned Advocate for the respondents, raised a fresh contention that the suit itself was not maintainable in view of Section 61 of the Andhra Pradesh Cooperative Societies Act as it involved a dispute between the members of the Society viz., defendant No.2 in regard to their right to the suit plot and, therefore, that was to be settled in accordance with law by the competent Court or the authority. Sri Nanda Kishore, learned Advocate appearing on behalf of the learned Advocate for the appellants, has contended that such a question in the first place is not a pure question of law which can be permitted to be raised even in the Second Appeal and secondly, such a question is not either pleaded at any stage nor there are any basic facts emanating from the controversies between the parties to sprout such a question of law to be considered in a Second Appeal and, if that is considered, great prejudice will cause to the plaintiffs, who have no opportunity to meet such a contention on facts and in law also. Thus, the following further questions arise for consideration :
l(a) Whether the suit involves any dispute between the parties to the suit touching the constitution, management or the business of a Society, other than a dispute regarding disciplinary action taken by the Society or its committee against a paid employee of the Society arises;
(b) If so, whether such a question is a pure question of law or mixed question of law and fact or a pure question of fact ?
2. Whether such a contention can be raised in Second Appeal without raising any plea or defence in the suit or in the appeal in accordance with law and, whether this Court can consider such a contention in this appeal ?
3. Whether any prejudice would be caused to the plaintiffs, if such a contention is allowed to be raised or determined in this appeal ? and
4. If such a contention can be permitted to be raised or determined in this appeal, whether the suit was barred for the reliefs claimed by the plaintiffs in view of Sections 61 and 121 of the A.P. Co-operative Societies Act.
3. The facts, matrix and the controversies between the parties pleaded, admitted and decided form the basis to lead to this appeal. The defendant No.2 is a Cooperative Housing Society and the original owner of the suit plot. It was one of the plots formed by respondent No.2 to distribute to its members. Exs.A9, A10 and B31 are the bye-laws of the Society. One Seshagiri Rao was member of the Society. The suit plot was allotted to him by the Society on 1-1-1961. He died on 26-11-1963. Thereafter, the Society admitted one Mr. Sreenivasa Rao, PW5 as its member, allotted the said plot to him and sold it to him under Ex.A1, registered sale deed dated 5-8-1971. In turn PW5 sold it to the plaintiffs in two portions under registered sale deeds Exs.A2 and A3 dated 10-7-1980. Based on that, plaintiffs claimed title to the suit plot. They found that the 1st defendant was putting up construction on the suit plot and, therefore, issued a notice to them as per Ex. A5 dated 25-1-1981 without any success and as the defendant No.1 continued the construction and completed it, they filed the suit for the reliefs stated above. According to the defendants, one Mr. Suryanarayana, the brother and the legal heir of Seshagiri Rao had a Will in his favour executed by Seshagiri Rao as per Ex.B20, dated 12-4-1960 regarding which a probate has been issued as per ExB19, dated 17-4-1973, Seshagiri Rao was in possession of the suit plot and after his death Mr. Suryanarayana has come into possession of the same, he entered into an agreement of sale in favour of defendant No.1 under Ex.B2 dated 18-3-1972, the defendant No.2 Society mutated the suit plot in the name of Suryanarayana on 7-6-1976 and 15-9-1974 and later on defendant No.2 Society executed the sale deed in favour of defendant No.1 as per Ex.B27 dated 5-5-1980. It appears that the 1st defendant paid the property taxes regarding the suit plot as per Exs.B16 and B17, obtained no objection from the Society as per Ex.B29, obtained the approval and the plan and put up the construction on the suit plot and thus has been in possession of the same since long; The learned District Munsif while accepting the case of the plaintiffs regarding the title found that the defendant No.1 had put up the construction on the suit plot and decreed the suit directing the payment of Rs.20,000/- to him by the plaintiffs in regard to such a construction.
4. The learned District Judge has come to the conclusion that the sale deed in favour of Sreenivasa Rao is nominal, sham and violative of bye-laws of the Society, he never came in possession of the suit plot, the so called membership given to Sreenivasa Rao was in collusion with the plaintiffs, who were the relatives of the President and Secretary of the Society, that Suryanarayana having become a member of the Society and being the legal heir of Seshagiri Rao, having entered into an agreement of sale with 1st defendant and the Society having made mutation in the name of Mr. Suryanarayana could aid the Society in transferring the title in making the allotment of the site strictly speaking in favour of defendant No.1 by executing a regular registered sale deed and that the plaintiffs had failed to establish the possession of the suit plot within twelve years next before the suit and thereby Suryanarayana and his successors in interest had perfected their title in respect of the suit plot by adverse possession and thus passed the judgment dismissing the suit by allowing the appeal.
5. Mr. Nanda Kishore, learned Advocate appearing for the learned advocate for the appellants/plaintiffs, has contended that even from the admitted facts and the proved facts, the learned District Munsif was right in holding the proof of title in favour of the plaintiffs to the suit plot and the learned District Judge by assessing the same materials had no reason to take any other view and even while accepting such sale transactions between the two parties through the same owner, Society, it was the title of the former which would prevail over the latter in view of Section 48 of the Transfer of Property Act and further, it was not the case of adverse possession, whereby the plaintiffs were not expected to prove the title within twelve years next before the suit and it was for the defendant No.1 to establish the plea of adverse possession. It was further contended by him that inspite of the notice issued to defendant No. 1 and inspite of the caveat filed before the Court, he managed to complete the construction and, therefore, it was the conduct of a trespasser and a person acting against the equities cannot have the benefit of having the value of the construction regarding which he is challenging the finding of the learned District Munsif also. It is also contended by him that even assuming that there may be a case to consider the equities between the parties in regard to the construction put up on the suit plot, there is no material in regard to the actual value of the construction so as to evoke or invoke the discretionary jurisdiction of the Court by exercising the equity to pass an order under Section 51 of the Transfer of Property Act. Mr. Sastry, learned Advocate for the respondents/defendants, has contended that when the plaintiffs issued the notice to defendant No. 1 as above, they knew that the construction was going on and inspite of that they did not file the suit immediately nor prevented defendant No.1 from putting up the construction and, therefore, by rule of acquiescence, the plaintiffs lost their right to get the remedy of demolition of such a construction, the relief being one in the nature of mandatory injunction, whereby the Court will not exercise the jurisdiction in case of acquiescence by the parties. Mr. Nanda Kishore, learned Advocate appearing for the learned Advocate for the appellants, contends that from the facts and circumstances of the case, the doctrine of acquiescence cannot be warranted to be applied in this case.
6. Although specific questions of law have been arisen as above, and although there are categoric facts available on record dealt with by two Courts consecutively, having due regard to the complexities sprouting from the conduct of the parties in the case and from the materials, this Court permitted both the sides even to deal with the facts also and in that process this Court has gone through the entire evidence and examined the facts of the case fully. Therefore, the scope of Second Appeal under Section 100 of the Civil Procedure Code need not be gone into inasmuch as in view of Section 103 of the Civil Procedure Code the High Court in Second Appeal can always consider the evidence on record where any such question has been wrongly decided or where such facts are necessary to examine the questions of law to be emanated therefrom.
7. Admittedly, the 2nd defendant Society is the original owner of the suit plot. Equally with admission, it was allotted to one Mr. Seshagiri Rao, a member of the Society. It is through him one Mr. Suryanarayana said to be his brother or legal heir claimed the right and title to the suit plot by virtue of the Will Ex.B20 probated under Ex.B19. The actual allotment order in favour of Mr. Seshagiri Rao is not before the Court. No material is placed on record as to what transpired after the allotment in his favour in regard to the payment of the value or registration or any sale deed in his favour. On the other hand, it transpires from the totality of the materials that barring the allotment of the suit plot in his favour, no further conduct was for borne including want of execution of a registered sale deed in his favour. Bye-law No.42(Ex.31(a) deals with the procedure governing the allotment of plots to the members. Sub-clause (11) of Bye-law No.42 of the Society contemplates that every member shall pay the cost of the plot allotted to him within a period of 90 days from the date of allotment and betterment levy as charged by the Society shall also be paid by the member within the time prescribed by the Society. Sub-clause (12) of the same bye-law further contemplates that the Society shall execute the sale deed for the plot allotted to a member on payment of all costs and fees in full; such costs shall include the cost of the land, legal fee, registration charge, betterment charges etc.; and before the Society executes the sale deed, the member shall also execute an agreement undertaking to pay to the Society any additional levy that may be made by the Society to meet any such further charges as it may have to incur in connection with the plot allotted to the member. A1though PW6, the Ex-President of the Society, and DW6, the present Secretary of the Society, are examined there is nothing to indicate in their testimony that Mr. Seshagiri Rao complied with such conditions nor the Society acted in pursuance of such terms by executing any registered sale deed in his favour to confer a real and legal title on him in regard to the suit plot. Therefore, it was a conditional right in favour of Mr. Seshagiri Rao conferred by the Society by allotting the plot in his favour and it can never be a vested right Admittedly, the value of the suit plot exceeds Rs.100/-nor it is pleaded or established that its value is less than Rs.100/-. Therefore, the title on Seshagiri Rao could not have been conferred in regard to the suit plot, being an immovable properly, except in accordance with Section 54 of the Transfer of Property Act and Section 17 of the Registration Act by means of a registered sale deed, etc. Therefore, fundamentally, it must be held that Seshagiri Rao did not acquire any vested right or title to the suit plot till he died. Thus his conferring any right on Suryanarayana by virtue of the Will Ex.B20 will not arise. Mr. Nanda Kishore, learned Advocate for the appellants, has rightly pointed out that Ex.B20 itself is incongruable with the realities and raises suspicion whether at all there could have been an in-anticipation bequeath in favour of the legal heir by Seshagiri Rao even before the allotment as it is patently shown that the date of allotment is 1-1-1961 whereas the date of the Will Ex.B20 is prior thereto viz., 12-44960. Therefore, Seshagiri Rao could not have conferred any title on Suryanarayana which he did not have in regard to the suit plot.
8. Mr. Sastry, learned Advocate for the respondents, has relied upon bye-law No.13 of the Society, wherein a procedure was prescribed to transfer the membership of a member of the Society on his death, which according to him will transfer the assets also in favour of the transferee member and in that context it is possible to think that Suryanarayana might have got the transfer of such membership to be mulcted with the assets of Seshagiri Rao including the suit plot to seek confirmation by the Society when it mutated the name of Suryanarayana in the records. There is no merit in this contention. What Bye-law No. 13 contemplates is that if a member dies his membership shall ipso facto cease and every member may nominate any person or persons to whom in the profits or assets of the Society or any other money due to him shall be transferred or paid. It is nobody's case that Seshagiri Rao has nominated Suryanarayana as a person to whom the assets or profits of the Society belonging to Seshagiri Rao should be transferred nor it was done actually by the Society. Apparently on the death of Seshagiri Rao neither Suryanarayana moved the Society to transfer the membership in his name nor the Society transferred it. On the other hand, it is established that Suryanarayana was admitted as a member subsequently and long time after the death of Seshagiri Rao and not in the context of Bye-law No.13. For both the reasons Suryanarayana cannot be taken to be the beneficiary of suit plot either by virtue of the allotment of the suit plot to Seshagiri Rao or by virtue of bye-law No.13. To conclude on this question, it must be said that the membership of Seshagiri Rao ceased to exist on his death without transfering or devolving upon anybody including Suryanarayana and his contingent right in regard to allotment of the suit plot remained contingent only and did not become vested to be transferred to Suryanarayana or anybody.
9. The learned District Munsif has found, as a question of fact, that the membership was conferred on Sreenivasa Rao, PW5, inasmuch as the suit plot was sold to him by virtue of the registered sale deed Ex.A1. The entries in the resolution book of the Society, Ex.Bl, also supported the same. The learned District Munsif has also found that the so called alterations, etc. in the entries are equally found with reference to the allotment of the membership for Suryanarayana and defendant No.1 also. That only bespeaks that the Society is either capable of altering tilings or manipulating it or that it has been the habit of the Society not to maintain things clean and tidy. Notwithstanding such a thing there has been transfer of the immovable property viz., the suit plot by the Society in favour of PW5, Sreenivasa Rao, under Ex.A1. The registered sale deed which on the face of it shows that it is supported by consideration and that it has been in favour of a member of the Society. How the membership was conferred etc. cannot be the subject mailer of the suit regarding which the Society itself is not challenging at any stage although a party to the suit. If that is examined even Suryanarayana and defendant No.1 will be out of Court. The finding of the learned District Judge that Ex.A1 is not supported by consideration is nothing but an imagination. Possibly certain admissions by PW5, an old man of 90s, appears to have been depended upon which may be inconsistent with the very recitals in the documents and as per the settled law, when once the terms of the contract are reduced into writing no amount of oral evidence can displace it, except on proving the fraud, etc., which is nobody's case. As rightly pointed out by Mr. Nanda Kishore, learned Advocate for the appellants, while the matter was considered by the Society to consider the allotment of the suit plot in favour of defendant No.1 or to confer the membership on him the fact of the sale in favour of Sreenivasa Rao also figured in and that is how such a question was actually deferred. In that view of the matter, even the Society and the persons concerned with it were quite conscious of the fact that the Society has already disposed of the suit plot ui favour of Sreenivasa Rao. Legally, the transaction under Ex.A1 in favour of Sreenivasa Rao by Society is legally brought out within the meaning of Section 54 of the Transfer of Properly Act. The contention or the plea that it is sham and nominal is nothing but a wild imagination of the learned District Judge not borne out from the records. This Court is not able to accept the view of the learned District Judge to accept the contention that Ex.A1 was sham and nominal which was stated so without knowing the real meaning of such expressions. The Supreme Court has explained the meaning of "sham and nominal documents" in the context of examining whether a transaction could be a benami transaction or not in Sree Meenakshi Mills Ltd v. Commissioner of Income Tax, , which is followed by this Court in a recent pronouncement in R.B. Bharatha Charyulu v. A1ivelu Manga Thayaru, . A document may become sham if it is executed by fraud, undue influence, coercion or any other reason by which a contract is vitiated. The fraud stated or considered in this case by the learned District Judge is that the membership was managed to be obtained by the plaintiffs in view of their relationship with the Ex-President and all that. There is nothing to indicate that either Sreenivasa Rao played any fraud on the Society or that Society played any fraud in creating such a document in favour of Sreenivasa Rao. We are concerned with the sale transaction under Ex.A1 to question whether it is sham and nominal but not about the manner in which the membership was brought about. Neither PW6 nor DW6, the Ex-President and the present Secretary of the Society are able to bring out any such ingredient of fraud, etc. in regard to Sreenivasa Rao getting the membership or the sale deed Ex. A1 from the Society. Accidentally or incidentally or even with the admitted endeavours persons might get certain benefits from societies including defendant No.2 Society regarding which defendant No.1 may not be an exception. Even assuming that such transactions are tainted by certain suspicious circumstances, it was for the 2nd defendant Society to question or challenge it. Except joining hands with defendant No.1, the 2nd defendant-Society has not raised even its little finger to challenge the membership or the sale deed in favour of Sreenivasa Rao at any time. Even assuming that it is a voidable transaction, it was for the Society to get over it in accordance with law and not for the Court to make out a case for the parties as has been done by the learned District Judge. Therefore, Sreenivasa Rao was able to get valid title to the suit plot by virtue of Ex.A1, the sale deed executed by the 2nd defendant Society. The learned District Munsif was totally right in accepting such a case as against the wrong approach of the matter by the learned District Judge.
10. Sreenivasa Rao sold away the suit plot in two parts to plaintiffs/appellants under registered sale deeds Exs.A2 and A3. Neither the proof of the sale deeds nor the contents therein are found to be suspicious or disproved. PW5, the executant of the sale deeds, has himself come forward before the Court to testify and support the genuineness of the contents in Exs.A2 and A3. Therefore, what is applicable legally to Ex.A1 is equally applicable to Exs.A2 and A3 also. What Sreenivasa Rao got under Ex.A1 he was able to convey it to plaintiffs/appellants under Exs.A2 and A3. In other words, as on the date of suit, the plaintiffs had acquired the title to the suit plot by virtue of the registered sale deeds Exs. A2 and A3.
11. It is true that there is no positive act of possession by either Sreenivasa Rao or the plaintiffs in regard to the suit plot till an advocate's notice was issued to defendant No.1 before the suit as per Ex.A5. It is not part of the law that every purchaser should come into possession of an immovable property by virtue of the sale transaction nor it is one of the ingredients of the sale of an immovable property under Section 54 of the Transfer of Properly Act because always a person holding title or better title can get the possession of the property either by volition or by enforcement of the same in a Court of law. That the possession not being an ingredient could not have affected the legal title which Sreenivasa Rao and therefore plaintiffs acquired to the suit plot by virtue of sale deeds Exs.A1 and A2 and A3 respectively.
12. As already pointed out, Suryanarayana could not have got any title or right to the suit plot by virtue of Ex.B20, the Will deed and the probate Ex.B19 and by virtue of the allotment of the suit plot to Seshagiri Rao by the Society. Till the membership was conferred on Suryanarayana by the Society of late, he had no right to the suit plot. A1though it was contended or pleaded on behalf of defendant No. 1 at one stage that Seshagiri Rao was in possession of the suit plot, Suryanarayana got it and transferred it and handed over to defendant No.1, there is no material at all except the agreement of sale Ex.B2 and the sale deed Ex.B27. There is no mention of possession of Suryanarayana or Seshagiri Rao under Ex.B2 or the delivery of possession of the same to defendant No.1 under the document. However, it is mentioned in Ex.B2 that Seshagiri Rao had become absolute owner and possessor of the suit plot which is opposed to the facts in the case. The mutation of the name of Suryanarayana in the records of the Society has no meaning at all in the absence of confirmation of any title in his favour by the Society. Patently, neither Seshagiri Rao during his life time nor Suryanarayana after the death of Seshagiri Rao showed any acts of possession and till Ex.B2 was executed like payment of taxes etc. Admittedly, Ex.B27 is not the sale deed executed by Suryanarayana in favour of defendant No.1 and on the other hand, it is the Society which has executed it. As rightly pointed out by the learned District Munsif, Ex.B27 appears as if there was no previous transaction with reference to plot in favour of Sreenivasa Rao nor any other person was interested in the plot inspite of the resolution of the Society deferring the question as the plot had already been sold to Sreenivasa Rao. PW6, the Ex-President and DW6, the present Secretary of the Society are not able to improve the situation in regard to such possession or title in favour of Suryanarayana or defendant No.1 except speaking to Ex.B27. The case of the defendants is inconsistent with the realities that when defendant No. 1 claimed the lille through Seshagiri Rao or Suryanarayana, ultimately the title was sought to be conferred or transferred by the Society under Ex.B27, the registered sale deed. So if at all defendant No. 1 had acquired the title in regard to the suit plot it was only through defendant No.2 and only under Ex.B27, and not at any rate either by virtue of Ex.B2 or by virtue of the allotment of plot in favour of Seshagiri Rao. On the face of it, Ex.B27 appears to be for consideration and brought about in accordance with law both under Section 54 of the Act and under Section 17 of the Registration Act. As a legal formality Ex. B27 was sufficient to create the title in favour of defendant No. 1 in regard to the suit plot through the Society. But the real question hidden at this situation, which is actually considered by the learned District Munsif, is that by the time Ex.B27 was brought about the Society had already lost the title to the suit plot rightly or wrongly which it did not try to rectify either by cancellation in accordance with law or by assailing it as a void or voidable transaction in accordance with law. Therefore, Mr. Nanda Kishore, learned Advocate for the plaintiffs/ appellants is right in contending that even accepting that both the sale deeds Exs.A1 and Ex. B27 can be taken as to legally transfer the title of an immovable property viz., the suit plot in favour of Sreenivasa Rao and defendant No. 1, it is the former by preference which creates the title in law in favour of Sreenivasa Rao and not the latter. Such a postulation has been very much within Section 48 of the Transfer of Properly Act which reads as follows :
"48. Priority of rights created by transfer :--Where a person purports to create by transfer at different times rights in or over the same immovable property, and such rights cannot at all exist or be exercised to their full extent together; each later created right shall, in the absence of a special contract or reservation binding the earlier transferees, be subject to the rights previously created.'' The rule is founded in equitable doctrine qui prior est tempore potior est jure. Therefore, patently it was Sreenivasa Rao and then the plaintiffs who had the valid title to the suit plot than defendant No. 1 in the priority of the sale transactions. The learned District Judge has totally overlooked this legal position as against the correct approach of the matter by the learned District Munsif. In other words, the materials on record were abundant to accept the proof of title to the suit plot by the plaintiffs by virtue of such sale transaction by defendant No.2 Society.
13. It is true that Sreenivasa Rao has violated Bye-law No.42, sub-clause (13) by alienating the suit plot as against the prohibition imposed therein. Such a bye-law is not absolute as such in regard to prohibition against alienation that it cannot be done without the prior approval of the Managing Committee of the Society. In other words, any violation of the bye-law may make the transaction voidable as against the Society. In other words, it was for the 2nd defendant to take appropriate steps to challenge such an alienation as having been violatiye of such a bye-law and instead the Society itself indulged in approving the illegal transaction between Suryanarayana and defendant No.1 and without deference to the legal implications conferring title on defendant No.1 as against the title already conferred in favour of Sreenivasa Rao. Even in this suit defendant No.2 has not reserved its right to challenge such a transaction as void or voidable. In that view of the matter, Ex.A1 or Exs.A2 and A3 cannot be per se held to be void transactions to negate the title of the plaintiffs to the suit plot acquired thereunder.
14. The settled law is that the bye-law of a Society is not law and may amount to the terms and conditions of the Society and the members to be operated between and against each other for certain purposes like the terms of a contract or any such relationship between them. Therefore, in a suit like this, the Court cannot consider the validity or otherwise of the sale transaction in violation of the bye-laws of the Society and on that anvil Exs.A1 to A3 cannot be questioned. The whole process of reasoning of the learned District Judge in thinking that Ex.A1 is sham and nominal without even proper elaboration of the legal position in that regard is not in accordance with law nor stand to judicial reasoning and this Court is not able to approve the manner in which the learned District Judge has dealt with such a question in a most improper way. It is also creditable that the learned District Munsif has dealt with the question in a better manner than the learned District Judge. Therefore, the finding of the learned District Judge against the plaintiffs by disturbing the finding of the learned District Munsif in this regard cannot be supported and the finding of the learned District Munsif deserves to be conferred.
15. As already pointed out neither Sreenivasa Rao nor the plaintiffs actually came into possession of the suit plot by virtue of Exs.A1, A2 and A3 except a recital in the documents. Even according to the testimony of the plaintiffs and Ex.A5, even as on 25-1-1981 it was to the knowledge of the plaintiffs that defendant No.1 was already putting up the construction and the proper understanding of the contents of Ex.A5 and the plan shows that the construction had already been completed as such by the time Ex.A5 notice was issued. There is not even a whisper in the testimony of PWs.1 and 2 or any other witness that Sreenivasa Rao or plaintiffs were actually in constructive possession of the suit plot except by virtue of the possession following the title under the sale deeds. As against it, it is the positive case of defendant No.1 that Suryanarayana had come into possession and he also got the possession and he had paid the taxes supported with documentary evidence Exs.B16 and B17, was obtaining the permission and the sanctioned plan to put up the construction and was putting up the construction on the suit plot by the time Ex.A5 was issued, which is served on defendant No. 1 under Postal Acknowledgment under Ex.A6 dated 16-1-1981. As already pointed out, that is not an infirmity in proving the title of the suit plot by the plaintiffs. Significantly, there is no plea of adverse possession by defendant No.1 in the written statement. On the other hand, it is the rival title which is set up by the 1st defendant. The settled law is that there cannot be any conflicting pleas or contentions of the title and the adverse possession. Inspite of all that, the learned District Judge appears to have dealt with the matter as if the plaintiffs had lost the title to Ihe suit plot by virtue of adverse possession and not being in possession of the property within twelve years next before the suit or that defendant No. 1 and his predecessors in title having in possession for twelve years prior to the filing of the suit. The learned District Judge appears to have dealt with the ' question of limitation under Articles 142 and 144 of the repealed Limitation Act examining the question whether the plaintiffs were in possession of the suit plot within twelve years next before the suit by relying on some pronouncements without following the fundamentals that no repealed law can be made use of unless saved in the new law, which is the Limitation Act, 1963, whereby it was Articles 64 and 65 of the Limitation Act which were relevant to be considered in dealing with the question of limitation. It is true that notwithstanding the parties raising the question of limitation, the Court is bound to dismiss the suit, if it is barred by limitation by virtue of Section 3, sub-clause (1) of the Limitation Act, 1963. It is well settled that question of limitation is a mixed question of law and fact which has been explained and confirmed by a latest pronouncement of this Court in Khaja Quthubullah v. Government of AP,, , which requires plea and proof or otherwise the parties suffering such a finding will be totally prejudiced. Even giving a concession to the learned District Judge that perhaps without referring to Section 3, sub-clause (1) of the Limitation Act, 1963 he was dealing with the matter with some anxiety to do legal justice, the learned District Judge has taken a wrong legal route in deciding such a question. Articles 142 and 144 of the Limitation Act (old Limitation Act) created lot of legal problems in deciding questions leading to conflicting precedents and, therefore, the anomaly in that was removed by making specific two Articles 64 and 65 in the Limitation Act of 1963,. Article 64 deals with the suits based on possession and Article 65 deals with suits for possession based on title. The implications and the distinction between the two Articles, one repealed and the other existing, have been explained by the learned author Sri U.N. Mitra in his book entitled "Law of Limitation and Prescription'' (Volume II, 9th Edition) at pages 1364 to 1366 supported by precedents and there is no reason to improve it as it is quite exhaustive and it reads :
"Distinction between Articles 64 and Article 65 :--The corresponding Articles under the Act of 1908 - Articles 142 and 144 - dealing with suits for recovery of possession of immovable property had given rise to certain difficulties in their application. Article 144 was a residuary Article applicable only in the absence of any other provision specifically covering the particular case. In a suit for recovery of possession it was not the form of allegation of the plaintiff but the substance and The actual facts that would decide whether the suit was to be governed by the one Article or the other. Whenever there was a doubt as to the applicability of the Articles the pleadings had to be scrutinised and the real allegations found out. A certain amount of confusion in the law had crept in regarding suits in ejectment brought by owners of property. A number of decisions had held that Article 142 would apply to such cases also, and to succeed in the suit the plaintiff would have to establish not only his title but also that he was in possession of the property within twelve years prior to suit. This seemed to favour a trespasser as against an owner. Some other decisions had taken the view that when a person brought an ejectment suit as owner Article 142 had no application and it would be sufficient for the plaintiff to prove his title leaving it to the defendant to establish adverse possession against the plaintiff for over 12 years. To avoid hardship to the owner and to effect a clear demarcation between the two Articles the latter view has been adopted and the Articles have been recast in their present form as Articles 64 and 65 of the Limitation Act, 1963.
Both Articles now constitute independent provisions relating to suits for possession brought under different situations. They do not overlap notwithstanding that both provide a period of 12 years' limitation. They stand distinguished from each other in a number of respects. Article 64 governs suits for possession based on previous possession and not on title. Article 65 controls suits for possession based on title. Under Article 64, the burden lies on the plaintiff to prove his former possession and subsequent dispossession within 12 years prior to the suit and it is unnecessary to inquire whether the defendant's possession was adverse or when it became adverse to the plaintiff. Under Article 65, the burden lies on the defendant to show that he or his predecessor-in-interest had been in continuous adverse possession for over 12 years. Under Article 64 the nature of the plaintiff's possession is not material. Under Article 65, however, only possession adverse to the plaintiff is relevant. Article 65 specifically refers to "immovable property or any interest therein" whereas Article 64 mentions only "immovable property" affording room for argument that interest in immovable property stands outside the scope of that Article. Finally while the starting point of limitation under Article 64 is the date of the dispossession, under Article 65 it is the date when the possession of the defendant became adverse to the plaintiff."
In summary, it may be stated that in a suit for possession based on title the plaintiff is called upon to prove title and nothing more than that and it is for the defendant to set up the plea of adverse possession and to prove it that the plaintiff was not in possession of the property within twelve years next before the suit and that the defendant had established the title or acquired the title by adverse possession regarding which there must be specific plea that it was "nec vi, nee clam and nec precarium" viz., open, hostile and adverse. The meaning and legal implication in regard to adverse possession are settled and have been dealt with the aid of precedents by this Court in Yarlagadda Venkanna Choudary v. D. Lakshminarayana, 1996 (1) ALD 641, Ahalya Bai v. G. Shankaraiah, and M. Harichandra Prasad v. Chitturi Krishnamurthy, . The summary of law enunciated therein is that if the plaintiff is not found to be in possession at any time within twelve years prior to suit and where a suit is filed for possession based on title by virtue of Article 65 subject to the proof of adverse possession by the other side the suit will be barred by limitation. Mere possession for any length of time of a property belonging to one person by another person would not by itself constitute an adverse possession unless he demonstrates hostile possession by any means with the three fundamental ingredients stated above viz., "nec vi, nec clam and nec precarium". It is possible to prove that where the plaintiff never comes into possession at all in regard to an immovable property for over twelve years and the adversary establishes the right by prescription and not merely by adverse possession the title of the former will be extinguished under Section27 of the Limitation Act and to be read with Article 65 of the Limitation Act the suit will be barred by limitation. It is true that pleas like adverse possession need not be specifically pleaded but with the materials from the pleadings it should get liberal construction and the Court can mould relief taking judicial notice of subsequent events and drawing inferences without violating the fundamental principles of pleading, natural justice and justice in accordance with law. It is also to be noted that the mere possession of the property belonging to the other for a period of twelve years not amounting to adverse possession will not become adverse possession unless it is hostile to the owner of the properly. In this case the starling point of adverse possession, if any, was 5-5-1980 being the date of the sale deed Ex.B27. The plea or the material that Seshagiri Rao got the possession of the suit plot or that Suryanarayana got it has been negatived for the reasons already afforded above. Even the positive act of the 1st defendant in paying the house tax or obtaining the permission and no objection certificate from the Society were all subsequent to Ex.B27. Even assuming that the period of limitation commences from the date of the sale deed in favour of Sreenivasa Rao under Ex.A1 dated 5-8-1971 the date of the suit being 22-7-1981 it was less than twelve years and even assuming that the owner having not at all come into possession after the sale deed and the adverse possession commencing from that date alleast by the Society for any reason, the suit filed on 22-7-1981 was never barred by limitation under Article 65 of the Limitation Act. There has been a failure of the judicial concern by the learned District Judge in dealing with the question of limitation without reference to the proper law or the facts of the case and this Court is compelled to deprecate it in a matter where the rights of Ihe parties were involved in regard to the immovable properly over which they were litigating with all the bow fide grounds. Even assuming that by the time Ex.A5 notice was issued by the plaintiffs the construction had already been commenced, possibly that being the positive, hostile and open adverse act on the part of the 1st defendant in regard to the suit plot as against the plaintiffs cannot fix the period of limitation under Article 65 of the Limitation Act. The learned District Judge has not even examined these implications of law and facts operating in this case and has led himself into an erroneous finding in regard to the same. Therefore, the learned District Judge has dealt with the matter with judicial impropriety.
16. At this stage we have to consider the new contention raised by Sri Sastry, learned Advocate for the respondents, in regard to the maintainability of the suit in view of Sections 61 and 121 of the A.P. Cooperative Societies Act. He has depended upon the two pronouncements of this Court in V. Souri v. Divisional Co-operative Officer, Vijayawada, 1989 (2) APLJ 1 (SNRC) and R. Subramanyam Reddy v, Gajulamandyam Larger Sized Co-operative Credit Society, 1991 (1) APLJ 66 (SNRC). Before considering the merit of such a contention, it is necessary to examine whether such a question is a pure question of law which can be allowed to be raised in the Second Appeal without any plea or the basic facts to deal with it. Section 61, sub-clause (1) of the A.P. Co-operative Societies Act reads as follows :
"61. Dispute which may be referred to the Registrar :--(1) Notwithstanding anything in any law for the time being in force, if any dispute touching the constitution, management or the business of a Society, other than a dispute regarding disciplinary action taken by the Society or its committee against a paid employee of the Society, arises-
(a) among members, past members and persons claiming through members, past members and deceased members; or
(b) between a member, past member or person claiming through a member, past member or deceased member and the Society, its committee or any officer, agent or employee of the Society; or
(c) between the Society or its committee, any past committee, any officer, agent or employee, or any past officer, past agent, or past employee or the nominee, heir or legal representative of any deceased officer, deceased agent or deceased employee of the Society;
(d) between the Society and any other Society, such dispute shall be referred to the Registrar for decision."
The law enshrined therein depends upon the questions (1) Whether there is any dispute between the members of the Society; and (2) If so, whether it touches the constitution, management or the business of the Society. The constitution, management and business of a Society are relatable to the bye-laws, the manner in which the members of the Society act in a particular situation and the particular law which has to be operated in regard to such a conduct or a transaction. Therefore, fundamentally, it would be a question of fact and secondly, it would be question of fact and law and partly a question of law and in other words, such a dispute can never be a pure question of law. Therefore such a contention cannot be raised in a Second Appeal as a pure question of law to be considered with the materials which are already on record unless the Court for reasons to be recorded in writing will be able to examine the facts of the case and determine such a question of law or mixed questions of law and fact. The present case concerns with the dispute between the plaintiffs who are claiming their title through Sreenivasa Rao, a member of the Society, and defendant No.1, another member of the Society, in regard to the suit plot, possibly to come within the dispute relating to allotment and distribution of the plots by a Housing Society leading to such a transaction as has been held by this Court in V. Souri's case (supra). But if the facts are examined correctly, no such dispute may exist merely in regard to the allotment and distribution of the plots. It is a pure question of rival title between the parties regarding which the 2nd defendant Society is enjoying the fun by sitting neutral being mainly responsible for such a situation. If at all there is a dispute between the Society and the members, sub-clause (b) of clause (1) of Section 61 could have been attracted. Presuming that defendants 1 and 2 were entitled to raise such a dispute to be determined by the Registrar of Co-operative Societies, then only after the determination of such dispute the suit would have been barred and not before that. If we read both Sections 61 and 121 of the A.P. Co-operative Societies Act together, it postulates the law that notwithstanding anything in any law for the time being in force, any dispute touching the constitution, management or the business of the Society, etc., has to be resolved by the Registrar on reference. It is not indicative of the matter as to who should refer the matter to the Registrar. In other words, as Mr. Saslry, learned Advocate for the respondents, rightly points out that if such a dispute is brought to the notice of the Registrar he has to refer it On such a reference under sub-clause (d) of clause (I) of Section 61 of the A.P. Co-operative Societies Act, if such a dispute is decided by the Registrar by passing an order etc., then only the jurisdiction of the Court to consider such a dispute will be barred under Section 121 of the Act and it can be usefully repeated for proper appreciation. It reads :
"121. Bar of jurisdiction of Court :--(1) No order passed, decision or action taken or direction issued under this Act by an arbitrator, a liquidator, the Registrar or an officer or person authorised or empowered by him, the Tribunal or the Government or any officer subordinate to them, shall be liable to be called in question in any Court."
This involves a case where either such a dispute has been referred to the Registrar or has been decided or ordered by him under Section 61, clause (1), sub-clause (d) and, therefore, there cannot be any bar of jurisdiction of the Court in this case under Section 121 of the Act. When no such events occurred, such an opportunity has been preempted by the parties themselves by approaching the Court before referring the matter to the Registrar. In that view of the matter, even on the facts of the case the jurisdiction of the learned District Munsif cannot be taken to have been barred under Section 121 of the Act.
17. The learned District Munsif has directed the plaintiffs to pay Rs.20,000/- to defendant No.1 to get the benefit of the decree to get the possession of the suit plot. That is not challenged by any of the parties, particularly plaintiffs did not question it by filing the cross-objections before the learned District Judge in the appeal. However, Mr. Nanda Kishore has challenged such a finding in this Court and Mr. Sastry, learned Advocate for the respondents, has challenged the finding in regard to Ihe amount awarded and this Court is of the considered opinion that such a finding can be challenged by virtue of Order 41, Rule 23 of the Civil Procedure Code without actually filing appeal or cross-objections.
18. It is true that the learned District Munsif passed such an order without reference to the legal position in this regard. However, it appears that the learned District Munsif has noted that the 1st defendant had put up the construction on the suit plot by the time the plaintiffs had filed the suit and that had been completed. However, Rs.20,000/-are fixed arbitrarily without knowing the actual investment on the building nor without there being any evidence on record to determine such a quantum. It can be presumed that the learned District Munsif has invoked his discretion in this regard in equity. The law in this regard has been settled by precedents including of this Court in Dwarampudi Nagaratnamba v. Kunuku Ramayya, and in a latest pronouncement dealing with a similar matter in R.B. Bharatha Charyulu v. R.K. A1ivelu Manga Thayaru, AIR 19% AP 238. The rule of equity enshrined in Article 226 of the Constitution of India and Section 51 of the Transfer of Property Act has been followed to do the true justice in equity. Where the parties to a litigation act bona fide either by acquiring the property or by putting up the construction, the equities are to be worked out to place them in the original positions. Dwarampudi Nagaratnamba's case (supra) was dealing with the rights of the members of the joint family in applying the principles under Section 51 of the Transfer of Property Act in regard to the improvements made by the transferee in good faith, which is held to be a question of fact. In Bharatha Charyulu's case (supra) this Court was dealing with the rights of the husband and the wife inter se who had fell apart after a divorce and fought the litigation in regard to an open site of the wife over which the husband had put up the construction bona fide. Borrowing the principles from such provisions, ultimately it was directed by this Court in Bharatha Chatyulu 's case (supra) that the wife was entitled to the site and building if she paid the value of the construction on the date of the dispossession and the eviction and if she did not exercise the option, the husband was entitled to get the site by paying its value to be determined as on the date of the dispossession. Mr. Sastry, learned Advocate for the respondents has pleaded that this Court should adopt such a principle in this case also, which, in his contention, has already been done by the learned District Munsif whose judgment is going to be confirmed except in regard to the value of the plot and the construction value has to be determined at the time of the dispossession. Mr. Nanda Kishore, learned Advocate for the appellants/ plaintiffs has very sincerely contended that this is not a case of bona fide on the part of the 1 st defendant in putting up the construction. Inspite of the notice issued by the plaintiffs under Ex.A5 to the 1st defendant, he completed the construction and as between the two parties the equities are more in favour of the plaintiffs than the 1st defendant, according to him. This Court is not able to appreciate or accept his contention. In the first place neither Sreenivasa Rao nor the plaintiffs have shown any positive and active conduct in exercising their possession over the suit plot except obtaining the sale deeds Exs.A1 to A3 between themselves. As against it, the 1st defendant made a positive effort not only to affirm his title by obtaining no objection certificate from the Society but also paying taxes and by putting up the construction to the notice of the plaintiffs by the time the notice was issued and completing the construction as per the evidence in the case and the plaintiffs not filing any suit by the time the construction was completed even after a long time after Ex.A5. To make it more emphatic Ex.A5 is dated 25-1-1981 whereas the suit was filed on 22-7-1981, which is nearly after six months of the notice. The rule of acquiescence operates in such a situation. Patently, there was no mala fide conduct on the part of the 1st defendant except that the Society entertained Suryanarayana as its member and decided to mutate the property in favour of the 1st defendant in a manner so as to prejudice the interest of both the plaintifis and also defendant No.1. The real culprit in such a situation was the defendant No.2 Society and it was neither the plaintiffs nor the 1st defendant. Gaining the benefit by such a conduct by itself may not decide the bona fides or the equities. Both the parties depended upon the title which is in their favour through the same owner. The 1st defendant acted upon such a sale deed with his conduct to enjoy the title and possession by putting up the construction. Whereas neither Sreenivasa Rao nor the plaintiffs did it. Possibly the 1st defendant might have invested some amount, if not substantial amount, which is a matter for enquiry and to that extent the learned District Munsif may not be justified. Even as per the law settled as above both under Section 51 of the Transfer of Property Act and the precedents stated supra, the value of such a plot or construction has to be determined as on the date of eviction or dispossession and not on the date of arbitration or arbitrarily. In the considered opinion of this Court, the learned District Munsif was right in applying the principles of equity, however, not applying the method perfectly in accordance with law requires rectification.
19. Therefore, the appeal succeeds and the judgment and the decree of the learned District Judge dated 6-6-1994 in A.S. No.9 of 1990 deserves to be set aside thereby confirming the judgment and decree dated 17-10-1989 in O.S. No.372 of 1981, however, by modifying the final, order in regard to the payment of the value of the construction etc. as per the observations made above.
20. The appeal is allowed by setting aside the judgment and decree of the learned District Judge and the judgment and decree of the learned District Munsif, Nizamabad in the suit are hereby confirmed. The plaintiffs/appellants shall be entitled to recover possession of the suit plot by virtue of the judgment and decree, however, with the condition that they shall be liable to pay the value of the construction on the suit plot as on the date of the dispossession In this regard, it is directed that the plaintiffs may initially exercise the option in writing before the learned District Munsif within fifteen days from the date of communication of a copy of the judgment of this Court to the learned District Munsif or immediately on obtaining a certified copy of the judgment of this Court in regard to the choice to have the construction to be taken along with the suit plot by paying its value to be determined as on the date of dispossession. If the plaintiffs fail to exercise the option, the 1st defendant shall be entitled to file his choice or option within fifteen days thereafter that he is prepared to take the suit plot itself by paying its value as on the date of dispossession to be determined accordingly. The enquiry shall be conducted by the appropriate Court, viz., executing Court, to determine either the value of the suit plot or the value of the construction thereon on the date of the dispossession or eviction. In the peculiar circumstances of the case, the parties shall bear their respective costs in this appeal.