1 LPA89-10.sxw IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION LETTERS PATENT APPEAL NO.89 OF 2010 IN WRIT PETITION NO.2513 OF 2009 Nasir Khan Akbar Khan and anr. ..Appellants Vs Jai Co-operative Housing Society Ltd. and ors. ..Respondents -- Mr.P.K.Dhakephalkar, Senior Counsel with Mr.Amol Mhatre, for appellants. Mr.G.S.Godbole with Mr.S.S.Kanetkar, for respondent no.1. Mr.S.R.Nargolkar, Addl. G.P. for respondent nos.4 and 5. -- CORAM : V.C.DAGA & R.G.KETKAR, JJ. DATE : 15 th FEBRUARY, 2011 P.C: Heard learned Senior Counsel for the appellants. 2] This Appeal is preferred against the order dated 4 th January, 2010 passed by the learned single Judge of this Court, whereby the Writ Petition filed by the appellants/petitioners came to be dismissed. While dismissing the Writ Petition, the learned single Judge found that the predecessor of the appellants/petitioners was not a member of the Society and as such, there could not have been transfer of membership in favour of the present appellants. In order to support these findings, substantial material available on record is taken into account. 2 LPA89-10.sxw 3] One of the circumstantial evidence considered by the learned single Judge is that the construction of the bungalow was on the open space meant for recreation as such, the construction of the bungalow itself could be said to be illegal. If that be so, no membership could have been given to the predecessor of the present appellants in the Society. 4] Learned Senior Counsel appearing for the appellants contends that so far as the question of validity and legality of the construction of bungalow is concerned, that question could not have been gone into by the Authorities including the learned single Jude of this Court. He placed reliance on a judgment of this Court in the case of Videocon Appliances Ltd. Vs. Maker Chambers V Premises Co-op. Socy. Ltd and ors, 2006(1) Bom.C.R.6 The above judgment relied upon by learned Senior Counsel in this Appeal is the same which was cited before the learned single Judge. The learned single Judge has considered the said judgment. 5] It is no doubt true that the question about illegality of the construction of bungalow cannot be gone into in the proceedings for considering the membership of the appellants. However, in order to consider whether the predecessor of the appellants could be a member of the Society or not, it was relevant to consider the legality of construction of the bungalow in question. 6] Another circumstance which was taken into account by the learned single Judge is that the appellants claimed that the Society issued Share Certificate No.196 on 7 th December, 1968, whereas the respondent nos.2 3 LPA89-10.sxw and 3 claimed to have made payments to the Society in installments on 27 th October, 1972. Therefore, the learned single Judge has rightly held that when the amount was paid to the Society in the year 1972, the Share Certificates could not have been issued in the year 1968. 7] The third circumstance considered by the learned single Judge relates to the sanction plan of the building and layout which shows that bungalow could not have been constructed on the subject land. At this juncture, it is relevant to note that the person willing to purchase a property was expected to verify the title of the property and obtain sanction plan in respect of the subject property. No person can be heard of saying he has purchased the property without taking inspection of the above documents of title and legality of the construction. Under these circumstances, non production of these documents leads us to draw an adverse inference. The submission advanced by learned Senior Counsel, thus, cannot be accepted. 8] At any rate, the view taken by the learned Single Judge is a reasonable and possible view. By no stretch of imagination the impugned order can be said to be perverse. Appeal is, thus, dismissed in limini. No order as to the costs. [R.G.KETKAR, J.] [V.C.DAGA, J.]