1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY, BENCH AT AURANGABAD SECOND APPEAL NO. 254 OF 1986 ( BOMBAY) SECOND APPEAL NO. 65 OF 2003 ( AURANGABAD) 1 Nivrutti Rambhaji Autade ( deceased through LRs) 1-a Jalindar Nivrutti Autade age 24 years, occ. agril. 1-b Navnath nivrutti Autade age 28 years, occ. agri. 1-c Mandabai Sudhakar Phatangare age 30 years, occ. household 1-d Anjanabai Nivrutti Autade age 65 years, occ. household All r/o Pohegaon, Tq. Kopargaon Dist. Ahmednagar. 2 Gangadhar Rambhaji Autade 3 Vithal Rambhaji Autade 4 Babu Rambhaji Autade .. APPELLANTS VERSUS Jagannath Jayaji Autade .. RESPONDENT Shri V.S. Kadam, Advocate holding for Shri R.N. Dhorde, Advocate for the appellants. Shri N.C. Garud, Advocate for respondent. ===== 2 CORAM : P. R. BORKAR, J. DATE : 22 nd JUNE, 2010. ORAL JUDGMENT : 1 This is an appeal preferred by original defendants against whom declaration was given that the sale dt. 17-10-2008 in respect of suit land was void ab-initio and further the defendants / appellants are directed to deliver possession of suit land to the extent of 13 guntha within three months from the date of order on condition that plaintiff shall deposit an amount of Rs. 1200/- in the court within one month from the date of the order. Said judgment and decree passed by the Jt. Civil Judge, Jr.Dn., Kopargaon in Regular Civil Suit no. 289/1976 is confirmed in appeal by District Judge, Ahmednagar by deciding Regular Civil Appeal no. 38/1981 on 8-1-1985. 2 Briefly stated, facts giving rise to this appeal may be stated as below:- . The suit land is 13 guntha land out of survey no. 108/1+2/3/P2/2 situate at Pohegaon, Tq. Kopargaon. Suit land was originally belonging to the plaintiff / respondent. Some of the history of the litigation is undisputed at this stage and may be summarised as below :- 3 . Plaintiff filed suit bearing Regular Civil Suit no. 310/1962 for possession against the present appellants on the ground that they have made encroachment. The suit was decreed. In execution petition no. 4/1966, possession of 13 gunthas land was given to the plaintiff. In 1968, plaintiff / respondent filed Regular Civil Suit no. 91/1968 for perpetual injunction against the present appellants / defendants. The matter was compromised. Plaintiff / respondent executed sale-deed in respect of disputed 13 guntha land in favour of defendants / appellants. Consideration paid was Rs.1200/-. In view of said sale, defendants were put in possession of the property and the suit Regular Civil Suit no. 91/1968 filed for perpetual injunction was withdrawn. . It is further not disputed that plaintiff thereafter filed Regular Civil Suit no. 289/1976 for declaration that the sale-deed is null and void as it contravened the provisions of Bombay Prevention of Fragmentation and Consolidation of Holdings Act ( hereinafter called as the ‘Consolidation Act’) and also sections 47 and 48 of the Maharashtra Co-operative Societies Act and also for possession. Trial court held that the sale-deed executed by plaintiff / respondent on 17-10-1968 is null and void as it is hit by provisions of sections 47 and 48 of the Maharashtra Co-operative Societies Act. However, no issue was framed under the provisions of Consolidation Act. The suit was 4 ultimately decided in favour of plaintiff / respondent declaring that the sale- deed dt. 17-10-1986 was void ab-initio and the defendants / appellants were directed to deliver possession of the disputed land. As against said judgment, Regular Civil Appeal no. 38/1981 was filed in the District Court, Ahmednagar. The District Judge framed issue as to whether the trial court committed error in holding sale-deed to be illegal and invalid and holding that the suit was not barred by limitation and by principle of Res-judicata. He observed in paragraph no. 7 of the judgment as follows : . The present suit is in respect of recovery of the said portion of 13 gunthas on the ground that the document of sale is illegal and invalid in view of the provisions of the Consolidation Act and Maharasthra Co-operative Societies Act. AT this juncture, it may be noted that the case initiated assailing the legal nature of the document of sale on the ground of provision of the Consolidation Act has not been pressed on behalf of the respondent- plaintiff and the decree of the trial court is only supported on the provisions of the Co-operative Societies Act. . Thus, decree regarding declaration about sale-deed and delivery of possession came to be confirmed and it is this decree which is challenged in this appeal. 5 3 This appeal is admitted on substantial questions of law disclosing point nos. (b) and (c) of the appeal memo. They are as follows : (b) Whether the sale deed though executed in the circumstances above mentioned, was invalid a against the plaintiff who had executed the sale deed with full knowledge of the fact that land in question was charged in favour of a co-operative society. (c) Whether the plaintiff executing the sale deed in the abovementioned circumstances can plead any illegality and take advantage of his own wrong. 4 Heard Shri B.S. Kadam, Advocate holding for Shri R.N. Dhorde, Advocate for the appellants and Shri N.C. Garud, Advocate for the respondent. The question whether the transferror can challenge transfer of land as violative of section 47 of the Maharashtra Co-operative Societies Act has been considered by this court in the case of Malhari Gangaram Kale vs. Shenfad Namdeo Tayade reported in 2004(4) Mh.L.J. 577. The learned Single Judge of this court referred to the decision of the Supreme Court in the case of Sindav Hari Rancchod vs. Jadav Lalji Jaymal AIR 1997 SC 3479 under the provisions of Gujrat Co-operative Societies Act. It is observed by the Supreme Court that no relief was claimed by the plaintiff against the society but the grievance made by the plaintiff in substance was of course on behalf of the society and whether such society was covered by section 49 or 6 not and whether such society had waived its statutory right or not in favour of the plaintiff’s father were all questions which could have been thrashed out only in presence of the society which conspicuously was not joined as at least a proper party. The society had not challenged the sale deeds executed by plaintiff’s father at any time. The court ultimately held that the plaintiff could not legitimately and effectively challenge the sale transactions entered into by his father in favour of the alienees on the ground of violation of section 49(a) of Gujrat Co-operative Societies Act. This court in the case of Malhari Gangaram Kale Vs. Shenfad Namdeo Tayade (cited supra) has considered the abovesaid ratio in detail and ultimately it has come to the conclusion that the transaction could not have been declared as null and void by the trial court or the first appellate court under the provisions of section 47 of the Maharashtra Co-operative Societies Act. Observations in paragraph no. 8 of the Judgment are reproduced as follows : . It will have therefore to be held that if at all it be so void it is so only as against the society whose interest is sought to be protected by said provision of law and if need be, society can avoid such transaction as void without any declaration, however, said protection is unavailable to those who wish to use said provision in disguise and their true intentions are to avoid liability incurred under solemn promise. The transaction which violate section 48, has to be viewed in the light of the 7 scheme of sections 47 and 48 together. These sections are placed under the title “prior claim of society”. Though the transactions which violate these sections have been declared void, those being void, will have to be construed to be void qua the society. It shall never be allowed to lie in the mouth of the person ( or his heir ) entering into the said transaction and committing of an open act of violating it and transferring the interest in the property adverse to the interest of the society, to say that transaction is void on account of mandatory prohibition contained in section 48. If allowed, this would amount to be abuse of law by granting incentive and bonus on commission of illegality. . Same view as earlier taken in the case of Narayan Kisan Gade Vs. Machchindranath Kundlik Tarade reported in 1994 Mh.L.J. 558. It is held that it is only the society which could have challenged the transaction as void and not the plaintiff. 5 Considering the settled position of law as laid down by this court, I am of the considered opinion that this appeal is liable to be allowed. In the result, judgment and decree passed by both the courts below are hereby set aside. The original suit is dismissed. Parties to bear their cost. ( P. R. BORKAR, J.) dyb/office/sa254.86.odt 8 FARAD CONTINUATION SHEET NO.__________ IN THE HIGH COURT OF JUDICATURE AT BOMBAY, BENCH AT AURANGBAD. CIVIL APPLICATION NO. 5284 OF 2003 WITH CIVIL APPLICATION NO. 4049 OF 2007 IN SECOND APPEAL NO. 254 OF 1986 Office Notes, Office Memoranda of | Coram, appearances, Court’s orders | Court’s or Judge’s orders or directions and Registrar/s orders | and Registrar’s orders | CORAM : P. R. BORKAR, J. DATE : 22 nd JUNE, 2010. . Both the civil applications do not survive in view of disposal of the second appeal. ( P. R. BORKAR, J.) dyb / office / sa254.86.odt