1 cra132.07 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD CIVIL REVISION APPLICATION NO.132 OF 2007 Wajedkhan Usmankhan Pathan, Age: 68 years, Occ: Business, R/o. Ajenta Power Loom Society, M.I.D.C. Area, Chikalthana, Aurangabad. ...APPLICANT VERSUS 1. Sk. Nisar Sk. Sattar, Age: years, Occ: Business, R/o. Ellora Power Loom, House No.11, MIDC Area, Chikalthana, Aurangabad. 2. Administrator/Manager, Power Loom Society, Plot No.55 & 56, C/o. Co-operative Office of Taluka Registrar, Anjuman Bungalow, Near Kranti Chowk, Aurangabad. 3. Ex-Chairman, M. Nawab Ellora Power Loom Co.Op. Society, Plot No.5 & 56, M.I.D.C. Area, Chikalthana, Aurangabad. ...RESPONDENTS ... Mr. S.V. Chandole, Advocate for applicant. None for the respondents. ... 2 cra132.07 CORAM: S.S. SHINDE, J. DATE : 22ND JUNE, 2011 ORAL JUDGMENT : This Civil Revision Application is filed challenging the judgment and order dated 12-07-2007 passed by the Co-operative Appellate Court, Aurangabad in Appeal No.147 of 2006 thereby confirming the order dated 01-07-2006 passed by the Co-operative Court, Aurangabad in Dispute No. 154 of 2002. 2. It is the case of the applicant that he is member of Ellora Power Loom Society and had presented a Dispute bearing No. 154 of 2002 before the Co-operative Court, Aurangabad against the respondents for recovery of possession of two rooms i.e. House No. 11 situated at Ellora Power loom society, Plot No.56, M.I.D.C. Chikalthana, Aurangabad. In the said Dispute, it was contended that respondent No. 2 society has allotted two rooms i.e. House No. 11 in favour of the applicant 3 cra132.07 but vacant possession of the said house could not received by the applicant due to temporary arrangement made by respondent No. 2 society. It was further stated that House No. 11 which was allotted to the applicant is in possession of respondent No.1. Despite of several requests to respondent No.1, he refused to vacate the possession of House No.11. It is further case of the applicant that on 05-05-2001 the applicant requested to respondent No.1 for delivering possession but respondent No. 1 refused for the same, which gave rise for filing the Dispute under Section 91 of the Maharashtra Co-operative Societies Act, 1960. 3. Respondent No. 1 resisted the Dispute by filing Written Statement at Exhibit-8. It was contended in the said Written Statement that the applicant had already filed one civil suit which came to be dismissed by the Civil Court. The other contentions were also raised in the said 4 cra132.07 Written Statement. 4. It is further case of the applicant that respondent No. 2 has supported the case of the applicant by filing Written Statement before the Co-operative Court. It is the case of the applicant that specific issue was framed by the Co-operative Court in respect of ownership and allotment of House No.11 and the Co-operative Court has answered the same issue in favour of the applicant. However, the Co-operative Court erroneously dismissed the dispute and same order of dismissing the suit is confirmed by the Co-operative Appellate Court. Hence this Civil Revision Application. 5. Learned Counsel appearing for the applicant submitted that when the issue in respect of ownership and allotment of House No. 11 was answered in favour of the applicant herein, Co- operative Court should not have dismissed the dispute filed by the applicant. Learned Counsel 5 cra132.07 further submitted that the documentary proof in respect of the said House at Exhibit-12/1 i.e. original ownership certificate, at Exhibit-12/2, electric bill, at Exhibit-12/3 copy of municipal tax receipt i.e. payment receipt was produced on record to show that House No. 11 was allotted to the applicant. It is further submitted that even respondent No. 2 supported claim of the applicant, it is further submitted that respondent No. 2 himself admitted ownership of the applicant in respect of House No. 11 and to that effect, finding has also been recorded. Therefore, learned Counsel appearing for the applicant would submit that finding recorded by the Co-operative Court and the Co-operative Appellate Court that the applicant failed to prove illegal possession of respondent No. 1 in House No. 11 is perverse and illegal. Therefore, learned Counsel for the applicant would submit that Civil Revision Application may be allowed. 6 cra132.07 6. I have given due consideration to the submissions of the learned Counsel for the applicant. I have also carefully perused the judgment of the Judge, Co-operative Appellate Court. A specific issue was framed in respect of entitlement of the applicant to get the possession of Plot No. 11. There was another issue which was framed by the Co-operative Court i.e. whether disputant prove that opponent is illegally occupying disputed plot No. 11. Said issue has been answered in the negative by the Co-operative Court. While answering the said issue, learned Judge found that on perusal of plaint nowhere averments in the dispute is made that electric connection provided by him to opponent No. 1. In absence of said pleading in the plaint on the basis of electric bill which is placed on record it is inferable that in the year 2002 also disputant used to reside in the house situated at Ellora Power loom society. Co-operative Appellate Court has appreciated the documents in Para-15 of the judgment including tax payment receipts and 7 cra132.07 ultimately Co-operative Court has recorded the finding that electric bill and property tax cannot be said to be conclusive proof to hold that property of disputant is in possession of opponent No.1. Therefore, the Co-operative Court concluded that disputant failed to prove that opponent No.1 is in possession of the suit premises. 7. The Co-operative Appellate Court has extensively dealt with issue raised by the applicant and in Para-9, the Co-operative Appellate Court has discussed evidence of the parties. The Co-operative Appellate Court has observed in the said Paragraph that there is no mentioning of the dispute or evidence when respondent No. 1 has made encroachment on the house of the disputant applicant. On the contrary, admission has been given that because of temporary arrangement made by the society, respondent No. 1 was residing in the house of disputant. But there is no evidence on record that such arrangement was made and in what year respondent No.1 was residing 8 cra132.07 in the house of disputant - applicant. Therefore, the pleadings and evidence on the point of allegation of disputant that opponent No. 1 is in illegal possession of the suit premises is vague. Therefore, ultimately Co-operative Appellate Court concluded that there is no sufficient evidence on record to establish that defendant/respondent No. 1 has illegally occupied the House No. 11 from the disputant applicant. Therefore, the applicant is not entitled to relief of possession. 8. On careful scrutiny of the judgment and order of the Co-operative Court and also Co- operative Appellate Court and other documents placed on record, I am of the opinion that the applicant herein who is original disputant, utterly failed to bring on record cogent evidence so as to hold that respondent No. 1 is in illegal possession of the suit premises. The point raised by the disputant in the dispute is that, opponent No. 1 is in illegal possession of the suit premises. However, no sufficient evidence was 9 cra132.07 placed on record so as to arrive the conclusion that respondent No. 1 is in possession of the suit premises. Whether opponent No. 1 is in possession of the suit premises or not would necessarily depend upon the evidence brought on record by the applicant. Both the Courts below on the strength of evidence which was brought on record by the applicant, recorded concurrent findings of fact that respondent No. 1 is not in unauthorised or illegal possession of the suit premises. Nothing has been brought on record by the applicant to hold that concurrent findings recorded by both Courts are perverse in any manner. Scope of Civil Revision Application is very limited. Unless the jurisdictional error is brought to the notice or the concerned Court has exceeded its jurisdiction or Court has not exercised jurisdiction vested in him or while appreciating the evidence irregularities are committed by the concerned Court or findings recorded by the Court are perverse, in that case only, it is permissible for this Court to interfere with Civil Revision 10 cra132.07 Application. 9. Taking over all view of the matter, in my opinion, no case is made out to interfere with this Civil Revision Application. Hence Civil Revision Application stands dismissed. 10. In case, the applicant is having sufficient and cogent evidence to prove that the respondent No. 1 is in illegal or unauthorised possession of the suit premises, he can take recourse to appropriate remedy in accordance with law and in case, such remedy is availed, the concerned Court will decide the dispute in accordance with law. sd/- [S.S. SHINDE, J.] sut/JUL11