1 FARAD CONTINUATION SHEET NO. IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE NAGPUR BENCH, NAGPUR WRIT PETITION NO. 2429/2007 (Smt. Usha Pandurang Dhabekar Vs. Shree Prakash Gruha Nirman Sahakari Sanstha & ors.) Appeal District : Application No. of 200 Writ petition Office Notes, Office Memoranda of Coram, appearances, Court's orders or directions Court's or Judge's orders and Registrar's orders. Mr. R.L. Khapre, Adv. for the petitioenr. Mr. R.R. Vyas, Adv. for R-1. Mr. R.S. Parsodkar, Adv. for R- 2 and 3. CORAM : Smt. Vasanti A. Naik, J. DATED : 8 th OCTOBER, 2008. Heard the learned counsel for the parties. By this petition, the petitioner impugns the judgment passed by the Cooperative Court, Nagpur, on 7/6/2003, in Dispute No. 612 of 1996, as also that of the Cooperative Appellate Court dated 24/11/2005 in Appeal No. 89 of 2003 confirming the judgment passed by the Cooperative Court by which the dispute filed by the petitioner was dismissed. The petitioner also challenges the order passed by the Cooperative Appellate Court on the review application filed by the petitioner. According to the petitioner, the petitioner had advanced certain money to the respondent no.1- Cooperative Housing Society, for the allotment of a plot since 2/5/1974. Finally, the amount towards the allotment of the plot was paid by the petitioner 2 on 11/2/1988. One Mr. Bagaddeo, who was working as a Secretary of the Society, was removed by the order of the Deputy Registrar on 11/4/1988. He had refunded the amount paid by the petitioner, towards the allotment of a plot, by two demand drafts. The petitioner, however, returned those demand drafts to the Society. On 26/2/1988, an Administrator was appointed on the Society. Thereafter, by an order dated 17/1/1990, a Board of three Administrators was appointed. It is not in dispute that one Shri M.R. Sathe was one of the Administrators on the Board of Administrators. It is the case of the petitioner that Shri M. R. Sathe alienated Plot No.1 from the lay out of the Society in favour of the respondent no.2 on 29/8/1991. On 8/8/1991, the petitioner had filed a dispute before the Cooperative Court making a prayer that the Society should allot one plot admeasuring 50'X100' from the concerned layout in his favour. The dispute was allowed by the Cooperative Court on 15/5/1993 by an ex parte judgment. After the judgment was passed by the Cooperative Court on 15/5/1993, the petitioner tried to execute the decree through the Civil Court. A warrant of possession was issued for taking possession of Plot No. 1, though the Cooperative Court had not held by the judgment dated 15/5/1993 that the petitioner 3 was entitled for allotment of Plot No.1. Since the possession of Plot No.1 was illegally obtained by the petitioner by executing the warrant of possession, the respondent no.2 filed an application before the Executing Court for restoration of possession. The Executing Court restored the possession in favour of the respondent no.2. The order passed by the Executing Court restoring the possession was challenged by the petitioner in Civil Revision Application No. 15/1996. The High Court, however, by the judgment dated 2nd July, 1996, dismissed the civil revision application. The judgment dated 2nd July, 1996 was challenged by the petitioner in a Special Leave Petition which was also dismissed by the Hon'ble Supreme Court. The petitioner thereafter filed the present dispute before the Cooperative Court challenging the sale deed executed by the respondent no.1- Society in favour of the respondent no.2 on 29/8/1991. The challenge to the sale deed dated 29/8/1991 was mainly on two grounds. According to the petitioner, Shri M.R. Sathe, one of the Administrators of the Board of Administrators, had no authority to execute the sale deed in favour of the respondent no.2 and secondly, that the sale deed was hit by the doctrine of lis pendens and hence the sale deed dated 29/8/1991 was liable to be set aside. 4 The Cooperative Court, Nagpur, by the judgment dated 7/6/2003 dismissed the dispute filed by the petitioner by holding that the second dispute filed by the petitioner was barred by the provisions of Order II, Rule 2 of C.P.C., by the provisions of Limitation Act and the decision of the Cooperative Court dated 15/5/1993 in the earlier Dispute No. 479/1991 operated as a res judicata. Apart from holding that the dispute was not tenable on technical pleas, the Cooperative Court further held that the petitioner had not succeeded in proving that Mr. Sathe had no authority to execute the sale deed dated 29/8/1991, or that the sale deed was liable to be set aside by applying the provisions of Section 52 of the Transfer of Property Act. The Cooperative Appellate Court, by the judgment dated 24/11/2005, confirmed the findings of the Cooperative Court so far as they pertained to the validity of the sale deed, but reversed the findings on the issue of bar under Order II, Rule 2 C.P.C., limitation and res judicata. Thus, the Cooperative Appellate Court rejected the claim of the petitioner, though it held that the dispute was not barred by the provisions of Order II Rule 2 C.P.C. limitation, or by the principles of res judicata. The judgments passed by the Cooperative Court and the Cooperative Appellate Court are challenged in 5 this petition. Shri Khapre, the learned counsel for the petitioner, submitted that Shri M.R. Sathe, one of the Administrators on the Board of Administrators, was not competent to execute the sale deed in favour of the respondent no.2. The counsel for the petitioner relied on the provisions of Section 77A (2) of the Maharashtra Cooperative Societies Act to canvass that the Committee or the Administrators appointed under Section 77A would have power to discharge all or any of the functions of the Committee or of any officers of the Society. Placing reliance on the aforesaid provisions, it is submitted on behalf of the petitioner that all the three Administrators on the Board of Administrators had not executed the sale deed in favour of the respondent no.2 and hence the same was liable to be set aside. It is then submitted on behalf of the petitioner that the petitioner had filed Dispute No. 479 of 1991, for allotment of plot admeasuring 50' X 100' on 18/8/1991 and Plot No.1 could not have been sold in favour of the respondent no.2 on 29/8/1991 during the pendency of the dispute. According to the counsel for the petitioner, since the Cooperative Court, in the earlier dispute, had held by the judgment dated 15/5/1993, that the petitioner was entitled to one plot admeasuring 6 50'X100' and since plot no.1 is also a plot admeasuring 50'X100', the respondent no.1-Society could not have sold the plot to the respondent no.2 and the principle of lis pendens clearly applies to the facts of the case. The counsel for the petitioner then submitted that this Court must, while exercising the jurisdiction under Article 227, direct the respondent no.1- Society to allot any other plot admeasuring 50'X100' to the petitioner as the petitioner has paid the entire price towards the allotment of one plot of that measurement. The counsel for the petitioner relied on the decisions reported in AIR 2004 Supreme Court 3952, 2005 (5) BCR 470, 2005 (5) BCR 404, 2000 (1) BCR 122, AIR 1989 Madhya Pradesh 38, AIR 1993 Punjab and Haryana 114, AIR 2005 Punjaba and Haryana 121, to substantiate the aforesaid submissions. Shri Vyas, the learned counsel for the respondent no.1, supported the judgments passed by the Cooperative Court and the Cooperative Appellate Court. It is submitted on behalf of the respondent no.1 that Shri. M. R. Sathe was duly authorized to execute the sale deed on 29/8/1991. It is submitted on behalf of the respondent no.1 that no specific plot was mentioned in Dispute No. 479/1991 and it was held by the Cooperative Court in the judgment dated 15/5/1993 that the petitioner 7 was entitled to a plot admeasuring 50'X100'. According to the counsel for the respondent no.1, the present dispute filed by the petitioner was not tenable. It is further submitted on behalf of the respondent no.1 that the amount paid by the petitioner towards the allotment of plot was duly returned to the petitioner in the year 1988 and hence, the plaintiff was not entitled to any relief in this dispute. Shri Parsodkar, the learned counsel for the respondent nos. 2 and 3, supported the judgments passed by both the Courts and submitted that the present dispute is misconceived. It is submitted on behalf of the respondent nos. 2 and 3 that the operative part of the judgment passed by the Cooperative Court on 15/5/1993 in Dispute No. 479/1991 does not refer to the plot which is sold by the respondent no.1-Society to the respondent no. 2 and this Court had, therefore, held in the judgment dated 2nd July, 1996 in Civil Revision Application No. 15/1996 that the order of restitution of plot to the respondent no.2 was just and proper. The learned counsel for the respondent nos. 2 and 3 submitted that it is observed by this Court in the judgment dated 2nd July, 1996 that there is no direction given by the decree dated 15/5/1993 to allot a plot, much less, plot No. 1 to the 8 petitioners. However, on merits, according to the counsel for the respondent nos. 2 and 3, both the Courts have concurrently held that the sale deed dated 29/8/1991 was valid and cannot be set aside on the ground that Mr. M. R. Sathe was not authorized to execute the sale deed or that the transaction was hit by the doctrine of lis pendens. It is submitted on behalf of the respondent nos. 2 and 3 that both the Courts have categorically held that the transaction was not hit by the doctrine of lis pendens, and Mr. Sathe was authorized to execute the sale deed in favour of the respondent no.2. It is submitted on behalf of the respondent nos. 2 and 3 that the findings recorded by both the Courts are pure findings of facts and this Court may not interfere with the findings while exercising the jurisdiction under Article 227 of the Constitution. I have considered the submissions made by the learned counsel for the parties. I have perused the three judgments which are impugned in this petition, and have also perused the judgment passed by this Court on 2nd July 1996. The counsel for the respondents are justified in submitting that the petitioner has no reason whatsoever to proceed against the respondent no.2 for having purchased plot no. 1 from the respondent no.1- Society on 9 29/8/1991. It is the case of the respondent no.1- Society that Mr. M.R. Sathe was duly authorized to execute the sale deed dated 29/8/1991. It is not in dispute that Shri M.R. Sathe was one of the Administrators on the Board of Administrators. Certain documents were produced before the Cooperative Court to show that Shri M.R. Sathe was authorized to execute the sale deed and also to perform certain similar acts. It is not necessary that each and every Administrator must compulsorily execute a sale deed in favour of a party and it is enough if a person authorized by the Board of Administrators executes a sale deed in favour of a party. The provisions of Section 77-A (2) of the Maharashtra Cooperative Societies Act, are not of much assistance to the case of the petitioner for seeking the relief of invalidation of the sale deed dated 29/8/1991. It is necessary to note that by the judgment dated 15/5/1993 in Dispute No. 479/1991, it was declared that the petitioner was entitled for allotment of plot admeasuring 50'X100' in Somalwada Layout No. 3, Kh. No. 152/2 belonging to the respondent no.1- Society. A permanent injunction was granted in favour of the petitioner restraining the respondent no.1- Society from transferring or alienating plot no.1 10 admeasuring 50'X100' to any other member except the disputant. This Court has held in the judgment dated 2nd July, 1996, that the second part of the operative order of the Cooperative Court referring to the permanent injunction, had been rendered ineffective in view of the fact that plot no.1 was already sold to respondent no.2 by the respondent no.1. This Court had further observed in the judgment dated 2nd July, 1996 that there was no mention of plot no.1 or even a passing reference to plot no.1 in the dispute presented by the petitioner in the Cooperative Court and the whole judgment of the Cooperative Court was also silent about plot no.1. This Court observed that there was only a passing reference in the evidence of the husband of the petitioner to suggest that plot nos. 1 to 3 were vacant and those three plots were admeasuring 50'X100'. This Court had further observed that it was difficult to believe as to by what process, Plot No.1 had been chosen to be included in the order of permanent injunction. Since the declaration granted in favour of the petitioner by the judgment dated 15/5/1993 refers to a plot admeasuring 50'X100', it was obvious that the Cooperative Court was generally referring to a plot of the aforesaid measurement and did not refer to plot no.1. Though the judgment passed by this Court on 2nd 11 July, 1996 in C.R.A. No. 15/1996 was challenged by the petitioner in a Special Leave Petition, it is already referred herein above that the Special Leave Petition was dismissed, thereby, the findings recorded by this Court in the judgment dated 2nd July, 1996, were confirmed. Since the petitioner had not referred to plot no.1 in the concerned layout in Dispute No. 479/1991 and the petitioner had also not prayed for the allotment of plot no.1 in the said layout, there was no question of applicability of the doctrine of lis pendens to the facts of the case. In fact, the petitioner's husband had deposed before the Cooperative Court in Dispute No. 479/1991 that there were three plots admeasuring 50'X100' and plot no.1 was one of them. Since the dispute was not filed specially claiming plot no.1, there was no reason for the respondent no.1 to desist from selling plot no.1 to respondent no.2 or to any other party during the pendency of Dispute No. 479/1991. Both the Courts have rightly held that principles of lis pendens could not be made applicable to the facts of the case, apart from the fact that both the Courts have concurrently held that Shri M. R. Sathe was authorized to execute the sale deed on 29/8/1991. It is also necessary to note that the petitioner could not have effectively challenged the sale deed dated 12 29/8/1991 only on the ground that there was a decree passed by the Cooperative Court in his favour on 15/5/1993 in Dispute No. 479/1991 specially when the claim of the petitioner in that dispute was not in respect of plot no.1. The judgments reported in AIR 2004 Supreme Court 3952, 2005 (5) BCR 470, 2005 (5) BCR 404, 2000 (1) BCR 122, AIR 1989 Madhya Pradesh 38, AIR 1993 Punjab and Haryana 114, AIR 2005 Punjaba and Haryana 121, and relied on by the counsel for the petitioner, are totally inapplicable to the facts of the case. The petitioner cannot seek a direction from this Court to the respondent no.1, to allot any other plot admeasuring 50'X100' in favour of the petitioner as these are not the original proceedings and the decree passed by the Cooperative Court in Dispute No. 479/1991 on 15/5/1993 cannot be executed in this manner. For the reasons aforesaid, the writ petition is dismissed with no order as to costs. JUDGE RMP