1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH : NAGPUR WRIT PETITION NO.1225 of 2010 Smt.Rajas wd/o Prabhakar Bawangade and ors. ..vs.. Damuanna Trimbakrao Gaikwad and anr. Office Notes, Office Memoranda of Coram, appearances, Court's orders Court's or Judge's orders or directions and Registrar's orders. CORAM : B.P. DHARMADHIKARI, J. DATED : JUNE 18, 2010. Heard Mr.A.S.Chandurkar, learned counsel for the petitioners and Mr.RR.Vyas, learned counsel for respondent no.1. The dispute between the petitioner and respondent no.1 is whether plot No.389-A is in existence or not. Respondent no.1 claims to be allottee of that plot from respondent no.2/Society and he filed a dispute vide No.576 of 1997 in order to protect his possession and allotment against deceased Prabhakar (predecessor of the present petitioners). In that dispute, he filed application under Section 95(4) of the Maharashtra Cooperative Societies Act, 1960 and sought temporary injunction to restrain said Prabhakar – his agent/servant from disturbing his peaceful possession over plot No.389-A. The Co-operative Court granted order of status quo on 18/4/1997 and that order was continued during pendency of dispute on 12/8/1997. In this back ground, on 4/8/2008, respondent no.1 filed another application and sought restoration of possession contending 2 that on 11/7/2008 the legal heirs of deceased Prabhakar attempted to encroach and disturb his possession and on 14/7/2008 they forcibly erected tin shed and took the possession. He, therefore, sought restoration of his possession by appropriate interim orders. The Co-operative court vide its order dated 2nd April, 2009 rejected that application. Respondent no.1 then approached Co-operative appellate court in revision Application No.10 of 2009 and the revisional court after noticing earlier adjudication in Reg.Civil Appeal No.47 of 1998, found that the petitioner could not establish his possession over plot No.389-A and hence allowed that revision and directed the petitioner/legal heir to remove the tin shed and thus has restored the possession of respondent no.1. Advocate Chandurkar, learned counsel for the petitioner, contends that the issue of possession was never decided on merits and in revision on the basis of some documents issue could not have been adjudicated upon. Advocate Vyas, learned counsel for respondent, on the other hand, points out that the present petitioners had, in fact, relied upon earlier adjudication by civil court in their favour without pointing out that that adjudication was up set in appeal by the competent court. The revisional court, therefore, had rightly relied upon the adjudication of controversy by the appellate court. He further points out that the petitioners already have an adjacent plot i.e. Plot No. 389 and respondent no.1 is retired person and he wants to have his house on plot No.389-A. According to him, if the possession as directed by the Cooperative Appellate Court is restored, respondent no.1 can raise his construction on the 3 said plot. The perusal of consideration by revisional court reveals that the controversy in civil suit was in relation to Plot No.389. Though there are some observations about plot no.389-A, the said observations cannot be looked into at this stage. Advocate Vyas has pointed out that there was admission in cross-examination by deceased Prabhakar in said civil suit. All these aspects need to be looked into by the Co-operative court in accordance with law after due opportunity to parties. The proceedings for restoration of possession before the Co-operative court could not have been decided as interlocutory application without recording any evidence. The Cooperative Court earlier had directed parties only to maintain status quo. In these situation, I find that plot as in existence needs to be protected till appropriate final orders are passed by the Cooperative court. It is admitted position before me that the petitioners have already erected a tin shed on that portion. The petitioner shall not use that tin shed for any purpose whatsoever till the Co-operative court decides the dispute before it on merit. The petitioner shall also not create any third party interest or create any encumbrance on the portion of land stated to constitute plot no. 389-A and said tin shed structure till the Co-operative Court decides the matter finally. The proceedings in Dispute No.576 of 1997 are expedited and Co-operative Court is directed to decide the same as early as possible and in any case by 31st October, 2010. Subject to this, direction to remove tin shed issued by Cooperative Court on 28/1/2010 is quashed and 4 set aside. It is made clear that this court has not considered the controversy on merits because facts in dispute cannot be resolved at this stage when relief in the nature of final relief is being sought by respondent no.1 from the Co-operative Court. Rule accordingly. In the circumstances of the case, there shall be no order as to costs. Parties to appear before the Co-operative court on 30/6/2010 and to abide by its further directions in the matter. JUDGE chute