(1) IN THE HIGH COURT OF JUDICATURE AT BOMBAY, AURANGABAD BENCH, AT AURANGABAD. WRIT PETITION NO. 10106 OF 2010 Babasaheb s/o. Marutrao Borkar, Age : 42 years, Occupation : Agriculture and Advocate, R/o. Siddhi Vinayak Cooperative .. Petitioner Housing Society, Savedi, (Original Disputant) Ahmednagar. versus Siddhi Vinayak Cooperative Housing Society Ltd., Savedi, Ahmednagar, through its Chairman, .. Respondents and 3 others. (Original opponents) ....................... Mr. V.D. Salunke, Advocate, for the petitioner. Mr. V.D. Hon, Advocate, for respondent no.4 / caveator. ........................ (2) CORAM : B.P. DHARMADHIKARI, J. DATE : 17TH FEBRUARY 2011 COURT'S ORDER : 1. Matter is part heard. After giving adjournment to learned Counsel on earlier occasion, today again they are heard. 2. The petitioner / disputant claims to be member and also in possession of plot in dispute. The plot in dispute is situated adjacent to Plot No.24 which is admittedly allotted to his sister-in-law. He states that he is residing in that Plot No.24 and this adjacent plot (plot in dispute) is also in his possession. He has planted some trees on it. 3. Adv. Salunke, for the petitioner, argues that there was no prayer seeking declaration or status of membership and only prayer was to make allotment in preference looking to the seniority of the petitioner as a member. For that purpose, allotment of plot in dispute to opponent no.3 (present respondent no.4) was also questioned. He has invited attention to prayers in dispute for the said purpose. The dispute is not annexed along with the petition and its copy, as amended, has been produced for perusal of this Court. (3) 4. Adv. Mr. Hon has contended that the petitioner never claims any allotment of land in dispute by Society in his favour. He attempted to show that it was in his possession. But then, in his cross examination before Cooperative Court, it has been brought on record that its possession earlier was with opponent no.3 and thereafter with present respondent no.4. He has urged that the issue of possession of the petitioner though not specifically framed, has been considered while answering Issue No.6 by the Cooperative Court and there is no jurisdictional error or perversity. 5. With the assistance of both the learned Counsel, I have perused the dispute as filed, as also, both the judgments. The dispute, as filed, shows that the petitioner claimed to be a member because of initial payment by him to the Society. He has not pointed out any resolution by the Society enrolling him as a member or then, any participation by him as a member of Society at any point of time. The initial payment is stated to be in the year 1972-73. 6. The dispute also nowhere shows that plot in dispute has been allotted to him. He only claims to be in its possession because it is situated adjacent to Plot No.24 where he is residing. How and by whom he was placed in possession has not been (4) explained. The record show that the Society allotted land in dispute to original opponent no.3 way back in 1976 and petitioner accepts that opponent no.3 was in possession as owner. The said opponent no.3 is predecessor in title of present respondent no.4. 7. The Cooperative Court has framed issue and attempted to find out whether Society proved that the opponent no.3 has lawfully transferred the suit plot in favour of opponent no.4. It has been answered in the affirmative. While answering that issue, finding on possession of disputed plot has also come on record. The admission of petitioner itself demonstrates that he was not in possession. 8. The another contention is, without expressly framing the issue on the possession of the petitioner, the answer to it could not have been recorded by the Cooperative Court. The petitioner himself has admitted absence of possession and his dispute also nowhere shows that he claimed any legal allotment from the Society. The amended prayer, at the most, sought injunction to restrain others from interfering with his possession. 9. I, therefore, find that both the courts have correctly applied their mind in this respect and dispute has been rightly (5) rejected. There is no jurisdictional error or perversity. 10. In the result, the petition is dismissed. No costs. ( B.P. DHARMADHIKARI ) JUDGE ......................... bgp/wp10106