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skc JUDGMENT-FA 419-01 operative court made in purported exercise of powers conferred by section 91 of the Maharashtra Co-operative Societies Act, 1960 (MCS Act) is a nullity, since, it was the case of the respondent no. 3 society, which had raised a dispute under section 91 that the appellant was only a trespasser in respect of the suit premises. Mr. Toraskar submits that a dispute between the society and any alleged trespasser, is not a dispute which is covered under section 91 of the MCS Act. Mr. Toraskar therefore submits that assumption of jurisdiction by the Co-operative court in matter which did not fulfil the predicates of a dispute under section 91 of the MCS Act, was in excess of jurisdiction and consequently, a resultant order dated 16 December 1990 is a nullity. Mr. Toraskar submits that a suit is always maintainable to seek a declaration that a particular order is a nullity, where, on the basis of such particular order, the rights of the plaintiff are sought to be effected. Mr. Toraskar submits that the oral and documentary evidence on record clearly makes out a case that the appellant is the owner in respect of the suit premises and therefore, the suit was required to be decreed. 7] Mr. Toraskar also submits that the learned trial Judge has incorrectly adverted to certain orders in relation to perjury or tampering with any records, when in fact, such issues have not even attained finality. He submits that criminal prosecution was skc JUDGMENT-FA 419-01 launched against the appellant. However, the orders made by the learned Magistrate have been set aside by the Sessions Judge and the matter is remanded for fresh consideration. In the meanwhile, Mr. Toraskar submits that the learned trial Judge was not at all justified in adverting to the observations and findings in relation to the proceedings making reference to prosecution or for that matter orders in the pending criminal proceedings, in order to non suit the appellant. He submits that the civil suit was required to be decided independently applying the principles of preponderance of probabilities. For these reasons also he submits that the impugned judgment and decree is liable to be set aside and the reliefs as applied for by the appellant are liable to be granted. 8] Mr. Sorankar, learned counsel for respondent no. 4 submits that the order of the Co-operative court dated 16 December 1990 was challenged before the Co-operative Tribunal, the learned Single Judge of this Court as well as the Hon'ble Apex Court and all such challenges have failed. He submits that the issue that the Co- operative court lacked jurisdiction was raised in all such proceedings, but, such issue was answered against the appellant, who was himself, claiming to be the member of the society. In such peculiar facts, Mr. Sorankar submitted that there is no question of the civil court sitting in appeal over the decision of the Co-

(c) to section 92 of the Evidence Act, reads thus :
" (c) An estate called "the Rampure tea estate" is sold by a deed which contains a map of the property sold. The fact that land not included in the map had always been regarded as part of the estate and was meant to pass by the deed, cannot be proved."

23] The oral and documentary evidence on record does not establish that the appellant had any agreement for sale in respect of the suit premises as described in the plaint. The issue as to whether a mere agreement for sale can itself confer any title, has not been gone into. In terms of section 54 of the Transfer of Property Act, a mere agreement for sale of the property, obviously, does not create any interest in or charge on such property. In this skc JUDGMENT-FA 419-01 case further, even if the concept 'title' is to be referred to liberally or in its widest sense, the document dated 27 January 1967, does not, make any reference to the suit premises as described by the appellant in the plaint. The other evidence, in the form of some correspondence, electricity bills, licence under the Shops and Establishment Act, is also not sufficient, by the test of preponderance of probabilities, to connect the suit premises with the document dated 27 January 1967. The oral evidence is also not credit worthy. If such oral evidence is allowed to prevail in the facts and circumstances of the present case, then, the same would be in breach of sections 91 and 92 of the Evidence Act. 24] It is also not a case where the learned trial Judge has placed any excessive reliance upon the Co-operative court's order dated 16 December 1990 for determining the first issue as to whether, the appellant proves ownership in respect of the suit premises. The reference to the Co-operative court's order, cannot, in the facts and circumstances of the present case, be regarded as excessive reliance upon the same. In any case, upon independent assessment of the material on record, both oral as well as documentary, it cannot be said that the appellant has succeeded in proving that he is the owner in respect of the suit premises. In such circumstances, the issue no. 1 was required to be answered against skc JUDGMENT-FA 419-01 the appellant and there is no infirmity in the impugned judgment and decree, when it answers such issue against the appellant. 25] Since, the issue no. 1 is required to be independently answered against the appellant, any discussion on issue no. 2, in the facts and circumstances of the present case can only be academic. However, there is some merit in the submission of Mr. Toraskar that a society cannot raise a dispute under section 91 of the MCS Act before the Co-operative court by alleging that the opponent is a 'trespasser'. However, such an issue need not be decided in the facts and circumstances of the present case. This is because, even without any reference whatsoever to the Co- operative court's order dated 16 December 1990, the appellant, has failed to independently establish that he is the owner of the suit premises on the basis of the agreement dated 27 January 1967 or for that matter the other documentary and oral evidence on record. In such circumstances, the appellant was clearly not entitled to any of the reliefs applied for in the suit and there is no infirmity in the dismissal of the suit by the impugned judgment and decree. 26] This is also not a case where it could be said that the learned trial Judge has been unduly influenced by certain evidence with regard to forgery and tampering any agreement dated 27 January skc JUDGMENT-FA 419-01 1967 by the appellant or at the appellant's behest. There are prima facie findings to this effect and the Metropolitan Magistrate, in fact, had convicted the appellant of such charge. The Additional Sessions Judge has set aside the conviction and remanded the matter not after appreciation of the material on merits but because, evidence on behalf of the prosecution was recorded in the absence of the advocates for the appellant. There is no necessity to rely upon or even refer to the findings on basis of which criminal prosecution was launched against the appellant or the findings recorded in the course of the criminal prosecution. The civil suit has to be decided on the basis of the evidence led by the parties at the trial of the suit and further, such evidence has to be assessed on the touch stone of preponderance of probabilities. Upon perusal of the material on record, as noted earlier, it is clear that the appellant has failed to establish that he is the owner of the suit premises. This is sufficient to confirm the impugned judgment and decree. 27] Accordingly, this appeal is dismissed. Interim order, if any, stands vacated. There shall be no order as to costs.