THE HON’BLE SRI JUSTICE L. NARASIMHA REDDY SECOND APPEAL No.574 of 2010 JUDGMENT: The appellant filed O.S.No.633 of 2001 in the Court of the III Additional Junior Civil Judge, Kadapa for the relief of declaration of title and perpetual injunction in respect of Ac.0.32 cents of land bearing D.No.3/328-2A of Kadapa Town on Kadapa-Renigunta road. She pleaded that the suit property and the vast extent of surrounding land is owned by the Government and her mother raised a small hut, brought into existence, a hotel in the year 1969, and after her death, she has been continuing in possession and enjoyment of the same. She further pleaded that Kadapa District N.G.Os Cooperative House Building Society Limited, respondent Nos.1 and 2 herein, through its office bearers, made claim for it, issued a written notice requiring her to remove the structures and threatened to demolish the hut, etc. The declaration of title was based upon the plea of adverse possession. The suit was mainly opposed by respondent Nos.1 to 4 (for short ‘the respondents’). They pleaded that an extent of Acs.324.00 of land in various survey numbers of Chinnachowk Village, Kadapa District, was allotted to them by the Government on a consideration of Rs.8,10,000/- and that the appellant is in unauthorised occupation of the property. Objection was raised for the maintainability of the suit on the ground that notice under Section 126 of the A.P. Co-operative Societies Act, 1964 (for short ‘the Act’) was not issued by the appellant before the suit was filed. Through its judgment, dated 24.07.2006, the trial Court dismissed the suit on finding that it is defective for non-issuance of notice. Discussion was also undertaken on the merits of the matter. The appellant filed A.S.No.3 of 2007 in the Family Court-cum-Additional District Court, Kadapa. The appeal was dismissed on 18.03.2010. Hence, this second appeal. Sri L.J.Veera Reddy, learned counsel for the appellant, submits that the trial Court and the lower appellate Court took the view that the suit was not maintainable for non-issuance of notice under Section 126 of the Act and that the same is contrary to the judgment rendered by this Court. He contends that the necessity to issue notice would have arisen if only the appellant was a member of the society or had any business dealings. He further submits that once the suit was found to be not maintainable for want of notice, there was no justification for the Courts below in undertaking discussion on merits. Sri V.R.Reddy Kovvuri, learned counsel for the respondents, on the other hand, submits that the affairs of the society are governed by the provisions of the Act and the failure to issue notice before filing the suit against the defendants is fatal. The appellant claims the relief of declaration of title on the basis of continued adverse possession. The respondents resisted the suit mainly by raising an objection as to the maintainability. The trial Court framed the following issues for its consideration: (1) Whether the suit is not maintainable as per Section 126 of A.P. Cooperative Societies Act as alleged by the defendant? (2) Whether the suit schedule property was occupied by the plaintiff’s 20 years back as alleged by the plaintiff? (3) Whether the plaintiff is in possession of the suit schedule property as on the date of filing of the suit? (4) Whether the cause of action shown by the plaintiff is true and correct? (5) Whether the plaintiff is entitled for the relief of permanent injunction as prayed for by them? The appellant examined P.W.1 to 7 and marked Exs.A1 to A18. On behalf of the respondents, D.Ws.1 and 2 were examined and Exs.B1 and B2 were marked. A Commissioner was appointed and the record relating to the report was filed as Exs.C1 and C2 and Exs.X1 and X2. The issue as to the maintainability of the suit was answered against the appellant. The trial Court, however, proceeded to decide other issues also. Before the lower appellate Court, almost the same result ensued. It is, no doubt, true that Section 126 of the Act mandates that a notice must be issued to the Society before a suit is filed against it for the relief, touching the constitution, management or the business of the society. The appellant did not challenge the constitution nor she was concerned with the management or business of the society. Her grievance was that the respondents were trying to invade her rights vis-à-vis the suit schedule property. She is not a member of the society. In Mahendra C.Mehta Vs. M/s.Kousalya Co-op. Housing Society Limited[1], a Division Bench of this Court held that when the relief claimed in the suit does not touch the constitution, management or the business of the society, it is not necessary for the plaintiff to issue notice under Section 126 of the Act. The trial Court does not appear to have referred to this precedent. The lower appellate Court did mention and took note of the same. However, an observation was made to the effect that it is not applicable to the present case. The findings recorded by the trial Court and the view expressed by the lower appellate Court that the suit was not maintainable for want of notice under Section 126 of the Act are untenable and cannot be sustained. Another flaw in the judgments of the Courts below is that they have proceeded to discuss the matter on merits even after finding that the suit is not maintainable. Once a Court finds that the proceedings before it are not maintainable or barred by any law, it must desist from discussing the matter on merits. There is an underlying reason for this. If the proceedings, in fact, are not maintainable, the plaintiff has to choose another forum or file fresh suit after complying with the deficiencies pointed out by the Court. If the findings are recorded on merits, even after taking the view that the suit is not maintainable, the adjudication in the future proceedings, which the plaintiff may pursue, becomes complicated if not difficult. Since this Court has taken the view that notice under Section 126 of the Act is not mandatory for the suit filed by the appellant herein, the matter has to be decided afresh on merits, duly giving opportunity to the parties. Hence, the second appeal is allowed and the judgment, dated 24.07.2006, rendered by the trial Court in O.S.No.633 of 2001 and the one rendered by the lower appellate Court, dated 18.03.2010, in A.S.No.3 of 2007 are set aside. The matter is remanded to the trial Court for fresh consideration and disposal. Issue No.1 framed by the trial Court shall stand excluded from consideration. There shall be no order as to costs. _________________________ L.NARASIMHA REDDY,J Dt:30.06.2010 Note: L.R. copy to be marked. (B/o) kdl [1] 2001 (5) ALT 197