1 PGK IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE Writ Petition No.8191 of 2009 Siddram Shankar Nikambe .. .. Petitioner V/s. Harnabai @ Haribai Nagappa Nikambe & ors. .. Respondents Mr.V.S. Deokar with Ms.Ujwala S. Waychal for Petitioner. Mr.Ashok G. Toraskar for Respondent No.1. ---- CORAM : SMT.ROSHAN DALVI, J. Date of reserving the order : 13th January, 2010 Date of pronouncing the order : 15th February, 2010 P.C. : 1. Heard the learned Advocates for the parties. 2. Rule. Rule is made returnable forthwith. 3. The Petitioner has impugned the order of the Maharashtra State Co-operative Appellate Court Mumbai Bench, Nagpur at Pune, setting aside the order of the Co-operative Court, dismissing the dispute filed by Respondent No.1, on the preliminary 2 issue of limitation and allowing the dispute and directing the Petitioner as well as Respondent Nos.2 and 3 to hand over possession of the premises in dispute to Respondent No.1 herein. 4. There has been litigation between the husband of Respondent No.1, who was her predecessor-in-title, and Respondent No.2 herein. The Petitioner claims through Respondent No.2 under the sale executed in his favour. 5. The premises, being Block No.11 in the 3rd Respondent-Society initially belonged to the husband of Respondent No.1. He is stated to have executed Kararnama on 28.6.1975 in favour of Respondent No.2, transferring the said block to Respondent No.2. This is stated to be with the consent of his wife, Respondent No.1 as well as the 3rd Respondent- Society. The 3rd Respondent-Society passed a resolution transferring the block to Respondent No. 2. Consequently, membership in the Society was transferred to Respondent No.2. The possession of the block is claimed to have been given to Respondent No.2. 6. It is the case of the Petitioner that Respondent No. 1 requested Respondent No.2 to allow her to keep 3 some belongings in the verandah (or one room) of the block. Respondent No.2 did not take any steps until 1987. 7. In 1987, Respondent No.2 filed a dispute in the Co- operative Court being Dispute No.437 of 1987 against Respondent No.1 to obtain possession of the verandah. 8. The dispute was decreed ex-parte on 30.10.1987. Respondent No.2 sought to take possession of the verandah of Block No.11 through the bailiff on 23.2.1988. Respondent No.1 applied for restoration of the dispute. However, Respondent No.2 transferred Block No.11 to the Petitioner in 1996. The Petitioner claims to be the owner of the entire block. The Petitioner, therefore, claims through Respondent No.2 and would have the legal rights which Respondent No.2 had. 9. On 28.2.2002, the ex-parte decree passed in Dispute No.437 of 1987 was set aside. The Petitioner was added as Opponent No.2 in Dispute No.437 of 1987. The dispute was heard upon evidence. The Petitioner claims that the issue relating to his ownership was answered in the affirmative upon considering all the documents relating to the first transfer by the 4 husband of Respondent No.1 to Respondent No.2 with the consent of Respondent No.3-Society. The documents of the Society show notice of the transfer given to the Society. The resolution passed at its meeting and the consent of the Society are independent documents proved in evidence and marked Exhibits. This dispute was filed by Respondent No.2 for possession of the verandah of Block No.11 only. The dispute came to be dismissed on 27.9.2005 upon the premise that Respondent No.2 had no right, title and interest in the block after transfer to the Petitioner. The right, title and interest of the Petitioner was accepted. 10. Respondent No.1, however, challenged the right of Respondent No.2 in the entire block. She, therefore, had to file a Suit for possession. For that purpose, she had not only to defend the dispute filed by Respondent No.1 for possession of the verandah, but file a counter claim thereto or file a separate Suit for possession in respect of the entire block. Respondent No.1 filed such dispute two months after the dispute of Respondent No.2 came to be dismissed. Her dispute was filed on 23.11.2005 being Dispute No.833 of 2005. The Petitioner was, inter alia, a party. The Petitioner raised certain preliminary issues. This related to 5 the bar of jurisdiction as well as the bar created by limitation. He also raised the dispute of the bar of res judicata. The first two of these issues could be tried as preliminary issues under the provisions of Order XIV Rule 2 of the Code of Civil Procedure. 11. Based on the aforesaid admitted chronology, the dispute filed by Respondent No.1 came to be dismissed on the ground of limitation. Respondent No.1 preferred an Appeal to the Appellate Tribunal being Appeal No.832 of 2006. The Appellate Tribunal allowed the Appeal by observing that the limitation period began to run in 2005 only after the judgment was passed in Dispute No.437 of 1987 filed by Respondent No.2. He also observed that in the absence of the counter claim of Respondent No.1, she had to separately sue for possession. 12. He allowed the dispute with costs and directed possession to be handed over to Respondent No.1. He also observed on merits that her Application was essentially for restoration of possession under Section 144 of the Code of Civil Procedure. What he considered was that upon the ex-parte order passed in Dispute No.437 of 1987 in favour of Respondent No.2, the possession which she had, was taken by 6 Respondent No.2 through the bailiff and that her Suit for possession was essentially for restoration of that possession back to her. 13. The aforesaid chronology shows reliance upon the Kararnama dated 28.6.1975 by the Petitioner as well as Respondent No.2. Respondent No.2 claims title under the Kararnama. It is because of such title that Respondent No.2 contended that he could transfer that title to the Petitioner. However, Respondent No.1 claims possession of the entire block. That block admittedly belonged to her husband initially. It would be a matter of evidence as to how Respondent No.1 came to be dispossessed from that block to have to claim restoration of possession. If her case is under Section 144 of the Code of Civil Procedure, it must show possession taken over under the order of the Court. Since she claims possession of the entire block, the possession of the entire block shall have been taken over under the order of the Court. The only order of the Court which has been passed is in Dispute No.437 of 1987 ex-parte. It is the case of the Petitioner that that was only for the verandah. The remainder of the block was, therefore, lawfully transferred by Respondent No.1 to Respondent No.2. 7 14. The very dispute of Respondent No.1 for possession of the entire block shows that she disputes the passing of the title itself. Respondent No.1 would have to show continuance of her possession in Block No.11 until she came to be dispossessed from the entire block. Her dispossession is shown to be only upon execution of the aforesaid ex-parte decree. If Respondent No.1 claims only the possession which was taken from her under that decree, her claim would be under Section 144 of the Code of Civil Procedure. That would be only for the verandah since the ex- parte decree was passed for the verandah. If Respondent No.1 claims possession of the entire Block No.11, she would have to show when she was dispossessed. She was not dispossessed from the entire block under any order of any Court. Respondent No.1 would have to show how and when she was dispossessed since she can claim to sue only upon her dispossession. This she has not done. The Kararnama and the consequent documents of the Society, duly proved, show her dispossession since about 1975. Her claim of possession is upon such dispossession. That claim should have been agitated within 6 months of such dispossession, failing which she should prove her continuous possession until she claimed to be dispossessed. 8 15. Respondent No.1 has accepted the Kararnama executed by her husband as early as on 28.6.1975. The order and judgment on merits in Dispute No.437 of 1987 shows that after the Kararnama was executed, Respondent No.1 had thumb impressed it and she as well as her husband applied for consent of Respondent No.3-Society to the transfer. Hence the right, title and interest came to be transferred to Respondent No.2 in the entire block. She has not challenged the Kararnama. She, however, retained possession of one verandah/room. Respondent No.2 sued for possession of that verandah/room in 1987. He obtained the ex-parte decree in 1987. Since Respondent No.1 resisted giving possession, he had to obtain possession from the bailiff. Thereafter Respondent No.1 applied for setting aside the ex- parte decree and applied for restoration of the dispute. She did not apply for possession of the entire block. Her dispute was only in respect of what the claim of Respondent No.2 was. That dispute came to be heard on merits. It was decided on evidence that Respondent No.1 herein had no right in any part of Block No.11 because she has herself consented to transfer it to Respondent No.2 as per Kararnama executed by her husband with Respondent No.2. Her husband had applied for consent of the 9 3rd Respondent-Society, which was given. The documents of the Society showed a valid and proper transfer, duly executed. Respondent No.1 had no right in any part of Block No.11 thereafter. 16. It was further seen that Respondent No.2 transferred the entire block for consideration to the Petitioner. He was put in possession of the entire block. At that time, no one, including Respondent No.2, resided in that block. No one has objected to the transfer in his favour, including Respondent No. 1. That transfer took place in 1996. Since then the Petitioner continued in possession. Even prior thereto, Respondent No.2 was restored possession through the bailiff. That aspect can be seen from the judicial record itself. This possession was given to Respondent No.2 in 1998. Since then Respondent No.1 had never been in possession. Dispute No.437 of 1987 was decided on merits on all the issues considering the claims of all the parties, including Respondent No.1, Respondent No.2 and the Petitioner. On merits, upon the evidence, the claim of Respondent No.2 was rejected because of the transfer he had effected in favour of the Petitioner. The title as well as possession of the Petitioner was seen and accepted. The claim of Respondent No.1 was rejected. This shows that 10 whatever be her claim to possession in the block initially belonging to her husband, but later admittedly transferred and consented by her by putting her thumb impression gave her no right as against Respondent No.2 as well as the Petitioner. Though Dispute No.437 of 1987 filed by Respondent No.2 was dismissed, the issue with regard to the possession of the Petitioner was answered in his favour. 17. It is then that Respondent No.1 essentially claimed possession of the entire Block No.11 in her Dispute No.833 of 2005 filed on 23.11.2005. This was filed for the first time 30 years after the Kararnama was executed, which she had thumb impressed, showing her consent. In any event, it was filed 17 years after Respondent No.2 took possession from her through the Court bailiff. Respondent No.1 had not even filed any counter claim in Dispute No.437 of 1987 when she applied for restoration of that dispute by setting aside the ex-parte decree passed in favour of Respondent No.2. Hence though she contested the dispute upon her dispossession, she never sued for possession. The Co-operative Court Judge correctly considered this aspect while rejecting her claim as having been barred by the Law of Limitation by way of the preliminary issue raised by the Petitioner 11 herein. His observations are correct. The learned Judge of the Co-operative Appellate Court has not only set aside that judgment of dismissal of her dispute as having been barred by limitation, but allowed the dispute and delivered her possession upon the premise that her claim was under Section 144 of the CPC. That premise is completely erroneous. The possession taken by the Court was not of the entire block. Respondent No.1 can never be restituted / restored possession of the entire block. This possession is in effect granted to her for the first time without agitating her claim on merits 17 years after possession was taken by the bailiff and 30 years after the execution of the Kararnama. 18. The possession claimed by her is independent of the ex-parte order of the Court since it is in respect of the entire block. That claim is barred by the Law of Limitation. 19. The order of the Co-operative Court is correct. The order of the Co-operative Appellate Court is seminally erroneous and is required to be set aside. Consequently, the Writ Petition succeeds. Rule is made absolute as prayed. No order as to costs. [SMT.ROSHAN DALVI, J.] 12