CRP/4819/2009 of The Lokayata Co-operative Housing Society Limited Vs Arun Kumar Gain on 29 December 2009

O R D E R:

1. This Civil Revision Petition is directed against the order dated 13-8-2009 passed in O.S.No.338 of 2006 on the file of III Senior CivilJudge, CCC, at Secunderabad, whereby and where under the learnedSenior Civil Judge held that the civil court has jurisdiction to entertainthe dispute involved in the suit.

2. Arun Kumar Gain and Barun Kumar Gain-R1 and R2 are plaintiffsin the suit. They purchased plot No.44 in Venture III, Survey No.136admeasuring 226 square yards or 222.96 square meters situated atLothkunta village, Phase III, Secunderabad under a registered saledeed dated 6.10.1999 from Ms.Parul Nath, daughter of Late N.C.Nath.Their vendor purchased the plot under a registered sale deed dated19.8.1998 from M/s Lokayata Cooperative Housing Society Limitedrepresented by its President B.S.Venkat Swamy. Sri.V.R.Jayaprakash-D1 attempted to interfere with their possession. They filed the suit fordeclaration of title and also for grant of perpetual injunction. M/sLokayata Cooperative Housing Society Limited came to be impleadedas D2 in the suit. D2 filed a written statement contending that the saledeed executed in favour of the vendor of the plaintiffs came to becancelled under a deed of cancellation dated 13.7.2006. D1 filedwritten statement disputing the claim of the plaintiffs. Further details inthe written statement filed by D1 and D2 are not required to be elaborated since the issue required to be adjudicated is only withregard to maintainability of the suit. The trial Court settled the followingissues:

1) Whether plaintiffs are entitled to declaration of their titleto the suit schedule property?to the suit schedule property?

2) Whether plaintiffs are entitled to consequentialpermanent injunction?permanent injunction?

3) To what relief?

An additional issue came to be framed on 14.7.2009 i.e.

Whether this court has no jurisdiction to entertain the suit?

D2 contended before the trial court that the suit filed by the plaintiffs isnot maintainable in view of S.61 of A.P. Cooperative Societies Act. In away D2 contended that the dispute involved in the suit is required to beadjudicated by the Registrar of Cooperative Societies. Whereas theplaintiffs contended before the trial Court that the dispute is betweenthe two purchasers of the Society. The said dispute is required to beresolved by the civil court. The trial Court, on considering the materialbrought on record and on hearing learned counsel appearing for theparties, held the additional issue in favour of the plaintiffs by judgmentdated 13.8.2009. The finding recorded on the additional issue isassailed in this revision.

3. Heard learned counsel appearing for the parties.

4. Learned counsel appearing for the petitioner/D2 submits that asper S.61 of A.P. Cooperative Societies Act, 1964 any dispute touchingthe management or the business of the society shall be referred to theRegistrar for decision and as such the disputes involved in the suitsquarely comes within the ambit of S.61 and in which case the suitfiled by the plaintiffs in civil court is not maintainable and accordinglythe same is liable to be dismissed. A further submission has beenmade that if it is the case of the plaintiffs of there being no relief sought for against the petitioner herein-D2, the very continuation ofproceedings in suit against the petitioner is nothing but abuse ofprocess of law.

5. Learned counsel appearing for the respondents submits that thedispute is with regard to title between the two private parties andtherefore the same is required to be adjudicated by civil court. Hewould also contend that the trial court considered the material broughton record in right perspective and held the issue in favour of theplaintiff and the same is not required to be interfered by this court inexercise of the powers under Article 226 of the Constitution of India.

6. Before dwelling deep on the rival contentions of the parties, Ideem it appropriate to refer the reliefs sought for by the plaintiffs in thesuit and they are:

“ Therefore, it is prayed that the Honourable Court may bepleased to pass the judgment and decree in favour of the plaintiffs andagainst the defendants jointly and severally:pleased to pass the judgment and decree in favour of the plaintiffs andagainst the defendants jointly and severally:

a)declaring that the plaintiffs are the absolute owners andpossessors of plot No.44 in Venture III, in Survey No.136admeasuring 266 square yards or 222.96 square meters,situated at Lothkunta Village, Phase III, SecunderabadCantonment with compound wall, bounded by North: Openland, South: Plot No.45, East: 40 feet wide road and West:Society land.possessors of plot No.44 in Venture III, in Survey No.136admeasuring 266 square yards or 222.96 square meters,situated at Lothkunta Village, Phase III, SecunderabadCantonment with compound wall, bounded by North: Openland, South: Plot No.45, East: 40 feet wide road and West:Society land.

b)Grant perpetual injunction restraining the defendant No.1,his agents, attorneys, representatives, followers, workers,henchmen etc from interfering with the peaceful physicalpossession of the plaintiffs over the suit schedule propertyi.e., plot No.44 in Venture III, in Survey No.136 admeasuring266 square yards or 222.96 square meters, situated atLothkunta village, Phase III, Secunderabad Cantonment,with compound wall, bounded by North: Open land, South:Plot No.45, East: 40 feet wide road and West: society land.his agents, attorneys, representatives, followers, workers,henchmen etc from interfering with the peaceful physicalpossession of the plaintiffs over the suit schedule propertyi.e., plot No.44 in Venture III, in Survey No.136 admeasuring266 square yards or 222.96 square meters, situated atLothkunta village, Phase III, Secunderabad Cantonment,with compound wall, bounded by North: Open land, South:Plot No.45, East: 40 feet wide road and West: society land.

c)Award costs of the suit; and

d)Pass such other order or orders as the Honourable Courtmay deem fit and proper in the circumstances of the case.”may deem fit and proper in the circumstances of the case.”

7. It is the specific plea of the plaintiffs that their vendor purchasedplot No.44 from the petitioner-society under a registered sale deedplot No.44 from the petitioner-society under a registered sale deed

dated 19-9-1998 and they purchased the property under a registeredsale deed dated 6-10-1999. The plaintiffs averred in the plaint that theirvendor approached the Registrar of A.P. Cooperative Societies andraised the dispute u/s 63 of A.P. Cooperative Societies Act. Thearbitrator seemed to have adjudicated the issue in favour of the vendorof the plaintiffs. The relevant portion of the plaint needs to be notedand it is thus:

“ …The defendant No.1 also brought documents to manifestthat the plot No.44 belongs to him and not the plaintiffs. On makingnecessary enquiries it was revealed that the defendant No.1 wasoriginally allotted plot No.44 of the society layout but the defendantnO.1 did not opted for the said piece of land as it was a well area. Thesociety therefore allotted plot No.165 to the defendant No.1 and thedefendant No.1 has already constructed the building on the said plotand is in physical possession of the said piece of land even till today.As per the byelaws of the M/s Lokayata Cooperative Housing SocietyLimited a member can won and possess only one single plot. As thedefendant No.1 was already holding the sale deed and had interferedwith the physical possession after the allotment of suit scheduleproperty of the vendor of the plaintiffs Ms.Parul Nath, she hadapproached the Registrar of Cooperative societies and had raiseddispute under Section 63 of A.P. Cooperative Societies Act. Anarbitrator was accordingly appointed in Arbitration Case No.84 of 1993and an award was passed under Section 62 of A.P. CooperativeSocieties Act, under which the defendant No.2 herein was directed toregister the sale deed in respect of Plot No.44. It is based on thedirection under the award in case No.84 of 1983, the sale deedbearing documents No.1363 of 1998, dated 19.8.1998 was executedby the society in favour of the vendor of the plaintiffs. A copy of theaward in Arbitration Case NO.84 of 1993, dated 31.3.1994 is filedherewith and marked as Document No.14. It is further submitted thatthe allotment of plot No.44 to the defendant No.1 herein was cancelledafter he opted for reallotment of plot No.165 of the layout and thedefendant No.1 therefore do not have any right to claim any right overthe suit schedule property on the strength of the sale deed which wasinitially executed for allotment of plot No.44 to the defendant No.1. Theclaim of defendant No.1 on the strength of the original sale deed inrespect of plot No.44 which was cancelled by the defendant No.2society is illegal and amounted to committing the offence punishableunder penal code.”

8. D2 in the written statement did not dispute the fact that ArbitrationCase NO.84 of 1993 ended in favour of the vendor of the plaintiffs. The

plea of D2 in the written statement is the person who represented thecase before the arbitrator on behalf of the society was not competent.Had the said person was not competent, the petitioner-society ought tohave taken necessary steps to set aside the award passed by thearbitrator. Virtually the dispute in the present suit is between theplaintiffs and D1 and it cannot be constituted as a business disputebetween the petitioner-society and its members and therefore theprovisions of A.P. Cooperative societies Act cannot be pressed intoservice to oust the jurisdiction of civil court. It is a matter of record thatthe vendor of the plaintiffs invoked the jurisdiction of the Tribunal asprovided under section 61 of A.P. Cooperative Societies Act andultimately proceedings went in her favour, in which case driving theplaintiffs again to choose the same forum is not contemplated underthe provisions of A.P. Cooperative Societies Act. The trial courtconsidered this aspect in right perspective and held that the civil courthas jurisdiction to adjudicate the dispute involved in the suit betweenthe parties. I do not see any flaw in the order passed by the trial court.

9. Accordingly, this revision fails and it is hereby dismissed. Noorder as to costs.

29[th] December, 2009. (B.Seshasayana Reddy,J)

tnb

29[th] DECEMBER, 2009