1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY: NAGPUR BENCH: NAGPUR SECOND APPEAL NO.409/2010 GURJAR KSHATRIYA SAMAJ GONDIA & ORS ..VS.. AMRITLAL MORARJIBHAI PARMAR & ORS Office Notes, Office Memoranda of Coram, Appearances, Court’s orders or directions and Registrar’s orders Court’s or judges Orders. CORAM: SMT. VASANTI A. NAIK, J. DATE: 22 /10 / 2010 Heard Shri Chandurkar, the learned counsel for the appellants and Shri Mundra, the learned counsel for the respondents. The appellants are the original defendants. A suit was filed by the plaintiff for a declaration that the election held to the defendant no1. Society for the period from year 2007 to 2010 was illegal and was not in accordance with the constitution of the society. The plaintiff also sought a declaration that the election of the defendant no.11 as the President of the society was bad and illegal. The defendants denied the claim of the plaintiff and also denied that the elections to the defendant no.1 society were not held in accordance with the constitution of the society. The defendant sought for the dismissal of the suit. The trial court on an appreciation of the evidence on record held that the plaintiff had been successful in proving that the defendant no.11 along with his panel was invalidly notified to be declared elected. The trial court further held that the defendant no.3 the election officer did not prove that the 2 election proceedings were conducted by him legally and validly as per the constitution of the defendant no.1 society. While holding so, the trial court held that the amendment to the constitution was not legal and valid. The trial court therefore, restrained the defendant no.1 society from depriving the general members of the benefits and rights as the members of the society. The election conducted by the defendant no.3 was set aside by the trial court and the Commissioner was appointed for holding fresh election. In an appeal filed against the judgment passed by the trial court, the first appellate court recorded a finding that the defendant no.11 was elected as President against the procedure laid down in the constitution. The first appellate court held that the trial court was justified in setting aside the election on the basis of the strength of the evidence on record and appointing the commissioner for holding fresh elections. The findings recorded by both the courts are pure findings of facts based on a proper appreciation of the material on record. They do not give rise to any substantial question of law. The submission made on behalf of the appellant that the validity of the amendment to the constitution of the society was not an issue before the court and therefore, the trial court was not justified in holding that the amendment to the constitution was not valid, is not well founded, as the pleadings in the plaint and the written statement clearly show that the plaintiff had pleaded the facts which showed that the election to the society was not legal as it was based on the amended 3 constitution which was not valid. Though the issue of validity of the amended constitution was not separately framed by the courts, the said issue incidentally arose for consideration while deciding the issue of holding the elections in accordance with the constitution. In any case, the first appellate court has found that the election to the society was not held by the defendant no.3 in accordance with the provisions of the constitution. The judgment reported in AIR 1954 SC 256 and relied upon by the learned counsel for the appellant, cannot be made applicable to the facts of this case, as the courts had not decided the matter which did not come within the purview of the issues framed by the courts and based on the pleadings. Since no substantial question of law arises in this second appeal, the same is dismissed with no order as to costs. JUDGE SMP.