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Judgment
The matter is part-heard. Earlier arguments were heard on 20-06-2017. When it became clear that Advocate representing respondent No.3
Society and respondent No.5 also Society was no more, hence notice was issued to said respondents. On 20-07-2017 Shri Anil Chokhandre,
Secretary of Society appeared and sought adjournment to engage Advocate. The matter was then adjourned to 27-07-2017. On that day, society
did not appear and no Advocate was retained by it. We, therefore, heard learned Advocate Shri A.G. Gharote for the appellant/original petitioner
and learned Assistant Government Pleader Shri N.H. Joshi for respondent Nos.1 and 2.
Matter then came to be adjourned today.
Today again there in no appearance for other respondents.
Facts show that the appellant as also one Indirabai Walke (respondent No.4) are members of respondent No.5 cooperative society. Plot
No.12 in layout of that society was allotted to the appellant and plot No.13 was allotted to respondent No.4 Indirabai. Respondent No.3 is
Secretry of that society.
The appellant wanted to raise construction on her plot in May 1992. As construction of respondent No.4 Indirabai had already come up, on
adjacent plot she started her work. Co-operative housing society objected to it. Co-operative housing society pointed out that the appellant was
raising construction on Plot No.11.
This gave rise to a dispute under Section 91 of the Maharashtra Cooperative Societies Act, 1960 registered as Dispute No.143/94. The
appellant in that dispute pointed out that plot No.13 was allotted to respondent No.4 Indirabai and therefore, plot situated before it was plot
No.12. She accordingly sought various reliefs including residuary prayer to grant her any other appropriate relief.
The dispute was opposed by the co-operative society as also respondent No.4.
The co-operative Court has dismissed dispute on the ground that pleadings and prayers were defective and plot No.12 was no longer available
for allotment. This adjudication was questioned by the appellant by filing Appeal No.43/2000 under Section 97 of the Maharashtra Cooperative
Societies Act, 1960. The appellate Court has delivered judgment on 13-11-2001 and maintained the findings recorded by the cooperative Court.
The appellant thereafter approached this Court in Writ Petition No.1567/2004. Learned Single Judge on 25-6-2007 has dismissed the petition.
However, it has been made clear that the appellant/petitioner could approach housing society for resolving the dispute.
Shri A.G. Gharote, learned Advocate, in this background, submits that even if issue of identity of plot as such is ignored, if plot No.12 is
constructed upon by respondent No.4 Indirabai, plot No.13 allotted to her is vacant. Allotment in favour of the appellant is not in dispute and she
has paid necessary amount, as such instead of plot No.12, plot No.13 could have been and ought to have been given and delivered in possession
of the appellant. He submits that looking to the object with which the cooperative housing society is created, in case of dispute of such a nature,
too technical interpretation of pleadings or prayer clause is unwarranted. He has taken us through relevant material to substantiate his contentions.
Learned Assistant Government Pleader states that he is appearing for Courts which have decided the controversy and as such has no interest
either way in the controversy.
The findings recorded by the cooperative Court after appreciation of evidence are not in dispute. The findings in paragraph 7 show that
appellant was earlier in possession of plot No.12 and therefore, only she prayed for its possession and direction to Indirabai to handover the same
to her. It has then observed that prayer clauses and pleadings in dispute were not proper. The cooperative Court has found that on one hand
disputant was praying for delivery of possession and on the other hand she also sought injunction restraining society from disturbing her possession
on plot No.12. We need not dwell more on this aspect. Suffice it is mentioned that the cooperative Court finds Indirabai in possession of plot
No.12. With the result, it becomes clear that the disputant was raising construction on plot No.11. Plot No.11 was never allotted to her and
hence, prayers made by her in relation to that plot could not have been granted.
At this juncture, we find it appropriate to reproduce prayers as amended before the cooperative Court.
(i) It is therefore, humbly prayed that this Hon''ble Court may kindly be pleased to direct the opponent No.2 to handover the
possession of plot No.12 in the layout of the opponent No.1 society to the disputant.
(ii) Direct the opponents No.1 and 2 to make the appropriate payments of compensation been mesne profits to disputant.
(iii) Any other relief deemed fit be granted to the disputant.
(iv) Cost be saddled on opponents.
1A. It is, therefore, necessary in the interest of justice to deliver the possession of plot No.12 to the disputant or direct the
respondent No.1 to declare the present plot over which the disputant was given possession as plot No.12.
ia. Or alternatively declare that the present plot which is under possession of the disputant is plot No.12.
a. And restrain the opponent No.1, its servant, or agents from obstructing and prohibiting the disputant from carrying out the work
over the plot No.12 : further restraining them permanently not to disturb the peaceful and legal possession of the disputant over the
plot No.12.
It is seen that the disputant herself could not have been blamed or made to suffer for such a draft of prayers.
In the backdrop of these prayers and pleadings in paragraph 8, the cooperative Court has then mentioned that it cannot travel beyond
pleadings and evidence. As there was defect in the same, the disputant was not entitled to relief. The case that Indirabai had encroached upon her
plot No.12 was not pleaded and there was no evidence about it.
When this adjudication reached the appellate Court, the cooperative appellate Court has at end of paragraph 5 referred to Exhibit D7. Exhibit
D7 is letter issued by society to the appellant on 08-09-1992. In that letter, it has been mentioned that plot No.12 was allotted to the appellant but
she was making construction on plot No.11 and Indirabai had taken possession of plot No.12. The appellate Court has also found from
photocopy of saledeed that plot No.13 was alloted to Indirabai. These findings reached by the appellate Court in fact bring on record admitted
position between parties. The appellate Court then proceeds to note that Indirabai started construction on plot No.12 while actually it should have
been on plot No.13. The appellant also started construction on plot No.11 presuming it to be plot No.12. It also finds that oral evidence,
therefore, was not of much assistance. It then concluded that plot No.12 was not ""open"" and as such the appellant was not entitled to any relief.
Before the learned Single Judge on 25-06-2007, Indirabai pointed out that she had constructed a well, two rooms, latrine and bathroom and
spent money in making construction with great difficulties. The learned Single Judge, therefore, found that taking overall view of the matter, society
could not have been permitted to disturb her possession. It also observed that the appellant (petitioner before the learned Single Judge) was,
therefore, rendered plotless and therefore, was entitled to canvass her grievance about need of residential accommodation before society.
Hence, with that liberty writ petition was disposed of.
Thus the appellant did not seek any express relief of dispossession i.e. eviction of Indirabai from plot No.12 and relief of removal of
encroachment. Facts before the cooperative Court and other Courts clearly reveal that Indirabai was wrong in raising construction on plot No.12
and she should have been in possession of plot No.13. It is equally true that present appellant also could not have raised any structure on plot
No.11.
In this situation, when Indirabai has already constructed her house on plot No.12 presuming it to be plot No.13, actual plot No.13 is lying
vacant and unoccupied. In the time taken by this Court in hearing the matter, learned Counsel for the appellant has verified position and, upon
instructions, he states that even today plot No.13 is lying open to sky and unoccupied. He, therefore, requested the Court to permit the present
appellant to take possession of plot No.13 and to raise her construction there.
It is obvious that in above circumstances, when Indirabai has erroneously constructed her house on plot allotted to present appellant, the
situation could have been handled by cooperative housing society. An exchangedeed could have been registered between the parties and
possession of plot No.13 could have been made over to the present appellant. Cooperative Court functioning in welfare jurisdiction, could have
also done, this in view of residuary prayer in dispute.
Today Indirabai has raised her construction on plot No.12 though that plot legally does not belong to her. Therefore, it is necessary that she
should also have a proper title deed in relation to plot No.12.
We, therefore, find that interest of justice can be met with by directing respondent Nos.3 and 5 Society with the appellant and respondent
No.4 Indirabai to execute appropriate exchangedeed in relation to plot Nos.12 and 13. We direct respondent No.4 as also cooperative housing
society to execute such exchangedeed in favour of the present appellant within a period of six weeks from today.
If the exchangedeed as mentioned supra is not executed by respondent No.4 Indirabai within a period of six weeks, it shall be open to the
appellant to execute this judgment as a decree and to obtain execution from the civil Court through its Nazir as per law. After exchange-deed is
registered and executed, the appellant shall be placed in possession of plot No.13 and shall be free to develop it as per law.
Expenses of the exercise shall be shared equally by appellant and respondent No.4 Indirabai.
The letters patent appeal is, accordingly, partly allowed and disposed of. No costs.