1 IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD CIVIL REVISION APPLICATION NO.28 OF 2010 (with Civil Application No.13135/2009) 1. Waman Dodhuji Baste, age 68 yrs., Occu. Service, r/o Sangeeta Colony, Near Nandanvan Colony, Bhavsingpura, Aurangabad. 2. Pandit s/o Trimbak Pawar, Age: 65 yrs. Occu: Retired, r/o Bhavsingpura, Bhim Nagar, Aurangabad. 3. S.K.Kamble, Age: 62 yrs. Occu: Retired, r/o Quarter No.28, W/Line, Cantonment, Aurangabad. 4. Jai Bharat Magas Wargiya Co.Op. Housing Society Ltd., Padegaon, Taluka and Dist. Aurangabad. ...PETITIONERS (Original defendants no.1 to 4) VERSUS Shrungmuni s/o Shivaji Niranjan Since deceased, through L.R.s. (i) Smt.Lonabai w/o Shrungmuni Niranjan, Age: 65 yrs., Occu: Household, R/o. B-17, G.No.4, CIDCO, Aurangabad. 2 (ii) Ramrao s/o Shrungmuni Niranjan, Age: 42 yrs, Occu: Service, r/o as above. (iii) Pravin s/o Shivaji Niranjan, age 38 yrs, Occu: Service, r/o as above. (iv) Anuradha w/o Shailesh Rangari, Age: 36 yrs, Occu: Household, r/o. H.P.T. College, Road, Nasik. (v) Manish s/o Shrungmuni Niranjan, Age: 34 yrs, Occu: Service, r/o as above. (vi) Nilam s/o Shrungmuni Niranjan, age 32 yrs, Occu: Service, r/o as above. L.R. NO.1 is the G.P.A. of the LRs.Nos.(ii) to (vi). ...RESPONDENTS (Original PLAINTIFF) ... Mr.M.D.Joshi, Adv., h/f Mr. V.P.Muley, Advocate, for the petitioner. Mr. S.V.Gangapurwala, Counsel for respondents. ... CORAM: K.U. CHANDIWAL, J. DATE :15th Feb.,2010 *** PER COURT : 1. Heard. By consent of the parties, as directed on 8th Feb.,2010, the matter is finally heard at admission stage. 3 2. An application was moved by the defendants before the learned third Joint Civil Judge, Junior Division, Aurangabad, to decide the issue of jurisdiction. Consequently, the learned Judge has framed an issue which reads as under: " Is this Court having jurisdiction to try the present suit in view of provisions of Section 91 and 164 of the Maharashtra Cooperative Societies Act." Learned Judge, after allowing the parties to lead evidence and perusal of the documents, reached to the conclusion that the Civil Court has jurisdiction. Said order dt.9th March, 2009 is questioned by the defendants. 3. Learned Counsel for the defendant/applicant herein claimed that the property was purchased for the society and all the prospective members had contributed to it. The sale deed, though was in favour of the plaintiff, with two others, however, it will not change colour and complexion of the matter, as the intention will have to be gathered, to be read along with the pleadings of the plaintiff. The society is registered being defendant no.4 in the proceedings on 2nd June, 2001, the jurisdiction will necessarily be to the 4 Cooperative court. As the dispute falls within the ambit and terms of Section 91 of the Maharashtra Cooperative Societies Act. The Counsel urged, in terms of Section 163 thereof, there is bar of jurisdiction of Civil Court. The mandatory compliance in terms of Section 164 of the Act is not effected as no notice is issued. The effect of Section 2(19A) of the said Act was also elaborated. It was also pointed out, the property is not in possession of the defendant nos. 2 and 3, it is with the society, no decree could be passed by the learned Judge as the prayers seek relief against the society as a whole, including other two defendants. 4. Learned Counsel representing original plaintiff Mr. Gangapurwala informed that the very document of sale dt.17.10.1966 will have its pivotal role in the matter. The pleading as a whole on the date of the suit in the year 1996 will have its prominence over subsequent changes or developments taken by any of the litigant. The registration of the society dt.2.6.2001, could not change the status of the plaintiff to seek partition. The jurisdiction will have to be viewed in the light of the pleadings in the plaint. The defendant no.4 having come as a body corporate subsequent, will not adversely effect of the plaint and the relief claimed, 5 will be available before the Civil Court only. 5. Different contentions as to death of the plaintiff being in the year 1999, issuance of share certificate in the year 2008 and plaintiff being not signatory to the affairs of the formation of the society were raised by the Counsel. 6. Learned Judge had the occasion to verify the evidence and documents. He has referred about the sale deed dt.17.10.1966. The sale deed, in unequivocal terms, is in favour of the plaintiff with two others, namely, Waman s/o Dodhuji Baste and Pandit s/o Trimbak Pawar ( defendant nos. 1 and 2). Reading the sale deed, as a whole, an impression is generated that it was the three persons who had purchased the property. The plaintiff has indicated it was running in the mind of the three persons to form a society, however, they could not activate the same for various reasons and the amount of contribution, if any, paid by any of the prospective member was refunded to such person. The idea of formation of the society came to be abandoned and, consequently, the matter as to the ownership of the property was oscillating with three persons the purchasers of the same. 7. It is clear, plaintiff has not 6 suppressed in the plaint as to what has happened in the past, as could be seen in paragraph nos. 4, 6 and 15 of the plaint. Since the prayer in the plaint incorporate a partition, naturally, the dispute as is referred in terms of Section 91 of the Maharashtra Cooperative Societies Act having its limitation to travel, will not be affording any such decree in favour of the plaintiff, if he succeeds in his efforts. That apart, the formation of the society was not in force when the suit came to be filed in the year 1996. The society being come in picture on 2.6.2001, it being a subsequent event, will not have pre-dominance over the staked aspects of the plaintiff. It will not bestow any zenith in favour of the defendants that the society being formulated and the society being in possession of the property, there could not be a decree. All these aspects will have to be considered by the learned Judge dealing with the issues. 8. The bar of Section 163 to which repeated reference was given by the learned Counsel for the defendants, is taken due care by the learned Judge while dealing with Sections 91, 163 and 164. The contention that there is no proof of return of money to the proposed members of the society, though is coined before this Court, since it being a matter of evidence, it could not be addressed, it can be proved by the respective 7 parties by leading evidence. 9. The only point that is to be seen by this Court is, whether, based on the pleadings, the jurisdiction to the Civil Court could be seen vested. In the matter of Ramchandra Harishchandra Vatkar Vs. Jawaharnagar Cooperative Housing Society Ltd. and another ( 2002-04 Mah.Co.op.C. 1006) wherein it has been held, " The jurisdiction of the court would not depend on the defence taken by the opposite side in reply or written say filed before the Court, but the Court will have to address itself strictly on the basis of plaint or the dispute as presented by the plaintiff before the Court." The controversy centers to the rights in the immoveable property, which was subject of purchase in the year 1966 and subsequent development will seldom change the text of contention. Consequently, the finding recorded by the learned Judge, holding jurisdiction to the Civil Court does not require interference. Civil Revision Application dismissed. Civil Application disposed of. No costs. 8 The observations are prima facie in nature. The learned Judge shall not be influenced by the same. [K.U. CHANDIWAL, J.] agp/28-10cra