1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION SECOND APPEAL NO. 3 OF 2009 The Chairman, Korvi Sahakari Bomboo Wetkam Society Ltd. ..Appellant. v/s. Appasaheb Pirappa Kumbhar. ..Respondent. Mr.N.J.Patil for Appellant. Mr.Amit Borkar for Respondent No.1. CORAM:- A.M.KHANWILKAR, J DATED :- SEPTEMBER 10, 2009. P.C.: 1. Heard Counsel for the parties. 2. Only three points have been raised before me. According to the Counsel for the Appellant, the first substantial question of law that needs to be addressed is in the context of non-service of notice under Section 164 of the Maharashtra Cooperative Societies Act, 1960. This argument has been considered by the Appellate Court and in my view rightly negatived on the finding that illegal encroachment upon the immovable property cannot 2 be a business of any Co-operative Society. Notice under section 164 of the Act is required to be served only in relation to the matters of business of the Society. 3. The question is: whether the Appellant can claim legitimate right, and ownership in respect of the disputed property ? The Appellate Court on analysing the evidence on record has come to a positive finding that the Appellant was claiming right, title and interest in respect of CTS No.6967 on the basis of sale deed executed in its favour by Samasta Kumbhar Samaj who claimed to be the owner of the said property. This claim however, will have to be stated to be rejected on the basis of documentary evidence which are adverted to by the Appellate Court. The Appellate Court has analysed that evidence in paragraphs 32 to 34 of its judgment and has found that the entry with regard to the right of Samasta Kumbhar Samaj was wrongly inserted by the Assistant Director, Town Planning, Kolhapur, who has had no authority to allot the plot to any private party. The said mutation entry was deleted in terms of the decision dated 29th July, 1989. In other words, Samasta Kumbhar Samaj had no right, title or interest in CTS No.6967, from whom the Appellant claimed to have acquired the right in respect of the said plot. 3 4. The next question raised by the Counsel for the Appellant is about the suit being barred by limitation. Even this issue has been examined by the Appellate Court and in my opinion, has been rightly rejected. The Appellate Court has found that except averment in the written statement that suit is barred by limitation, no factual foundation was laid to make good the said plea. The Appellate Court has considered the argument regarding limitation in paragraph-52 of the Judgment to conclude that the suit was within limitation. The fact that the suit property was allotted to the Respondent in 2002 by the Collector is indisputable. It is only thereafter, the Respondent amended the plaint and asked for relief in the context of the right accrued on account of the allotment of the suit land by the Collector, i.e.CTS No.6967. Thus, the amendment was introduced in 2004, to effectuate the said right. The relief as claimed by the Respondent will have to be granted having regard to the fact that the amendment was carried out within less than three years from the date of allotment of CTS No.6967 to the Respondent. 5. The last contention raised by the Counsel for the Appellant is that the Suit was bad for non-joinder of the original owner Samasta Kumbhar 4 Samaj. This argument does not commend to me. The Court below has rightly rejected this contention having regard to the finding of fact recorded by the Appellate Court that the Samasta Kumbhar Samaj has had no right, title and interest in plot bearing CTS No.6967. Thus, non-impleading the said party as defendant in the suit does not take the matter any further. It is the Defendant who claims to be in possession of the suit property. The fact that the Defendant has entered into some agreement with Samasta Kumbhar Samaj in relation to the suit property will not invest right, title and interest in the Appellant/Defendant as the said Samasta Kumbhar Samaj itself possessed no transferable right in the suit plot. In this view of the matter, there is no substance even in the third contention raised by the Appellant. 6. Accordingly, this Appeal should fail. No substantial question of law arises for consideration. Hence dismissed. 7. In view of dismissal of the Appeal, nothing survives in the Civil Application. The same is disposed of accordingly. 8. At this stage, the Counsel for the Appellant prays that the interim protection enuring in favour of the Appellant be continued for some time, as 5 the Appellant intends to take up the matter in appeal before the Apex Court. In the peculiar circumstances of the present case, that request is accepted. However, the protection will continue in favour of the Appellant only for a period of four weeks from today. It is made clear that no request for extension of time will be entertained. (A.M.KHANWILKAR, J)