JUDGMENT - V.S. DESHMUKH, J.:---This is a dispute between the petitioner and the society named, "The Embassy Apartments Co-operative Housing Society Ltd." of which he is the member. 2. The dispute raised by the Society was referred to an Officer on Special Duty which was concluded in favour of the society. The petitioner filed an appeal before the Maharashtra State Co-operative Tribunal, Bombay which was also dismissed. Being aggrieved, the petitioner has filed the petition. 3. The Western Building Corporation, who were the builders, constructed a building on the Nepean Sea Road consisting of the ground floor and 2 upper floors. The builders sold individual flats to various purchasers on the basis of an agreement which stipulated that ultimately either a company or a co-operative society will be formed. This was ultimately done when the respondent No. 5 society was registered in February of 1966. Various purchasers have become members of the society and a conveyance was executed in favour of the society but is awaiting registration. The actual behaviour of the parties, however, is to treat the society as the legal entity and the legal owner of the entire building and the members thereof as allotees of the flats being tenant-owners or tenant-occupiers. There is no dispute that the petitioner is a purchaser of flat No. 12-A on the first floor of this building. The plot on which the building is constructed lies to the west of the Nepean Sea Road. The entrance is on the main Nepean Sea Road. The southern as well as the western part of the plot opens up directly to sea. Due to the peculiar situation and the width of the plot, the Corporation permitted garages to be constructed on the ground floor but on the top of the garages a set back is given. Accordingly, the main building commences where the set back of the first floor ends, which set back has been described in these proceedings as the "Terrace Garden". Admittedly, this terrace has mozaic flooring with a parapet wall at the end. The parapet wall is to prevent entry from the southern side of the plot which opens to east. 4. A sketch map of the building relating to the first floor is on record of this petition a Ex. G (page 123). Admittedly, this terrace has mozaic flooring with a parapet wall at the end. The parapet wall is to prevent entry from the southern side of the plot which opens to east. 4. A sketch map of the building relating to the first floor is on record of this petition a Ex. G (page 123). A look at the map will make it clear that out of the 4 flats on the first floor, the petitioners flat seems to be second from the Nepean Sea road side. At the southern end of the flat, there is a living room ending with a balcony and flower bed. In a portion of it, the flat ends at the bath room. Beyond the bath room and the flower he lies the open terrace described as "Terrace Garden". It appears that the petitioner, after purchasing the flat on 24th May, 1965, constructed, in due course, two separate covers on the open space. One is a cover on a very small portion in front of the bath room extending upto and in line with the flower bed on the south. Beyond this line the entire terrace garden measuring about 600 sq. feet. This terrace garden is also covered with asbestos cement sheets at the top with two parallel walls running from the eastern and the western ends of the flat. These north-south walls cover the entire terrace garden and reach upto the parapet wall. These walls do not actually touch the roof which is slanting one. There is a small gap on the southern roof with a clearance of about 1½ at the northern end. The photographs of this portion produced before the Maharashtra State Co-operative Tribunal give a clear idea of the portion covered and the nature of the construction. 5. It may now be very briefly noted that after the Society was formed in February, 1966, the conveyance was executed and lodged for registration on 14th June, 1967. From this point of time, the Society began briefing itself as the owner of the entire premises and an objection was raised within a month thereafter by writing a letter to the petitioner. The Society pointed out that two open spaces which formed part of the terrace garden have been covered by the petitioner unlawfully and he also has constructed partition walls on either side of the terrace garden equally unlawfully. The Society pointed out that two open spaces which formed part of the terrace garden have been covered by the petitioner unlawfully and he also has constructed partition walls on either side of the terrace garden equally unlawfully. He was, therefore, requested to remove the entire construction including the walls and the roofs. Correspondence went on for some time and it appears that the petitioner on realising that he had made these constructions without the prior permission of the Corporation, wrote to the Corporation and obtained an approval or permission of the Corporation. However, the Society was not satisfied by the relies given by the petitioner and they wrote to the Registrar for referring the matter for arbitration. That was done on 2nd March, 1968. In fact, at that time, the premises belonging to the petitioner were in possession of J.K. Synthetics as a licensee. For their convenience, J.K. Synthetic have added much more to the original flat by constructing a false roof, introducing a partition wall and making two independent rooms out of the terrace garden portion. Along with the petitioner, J.K. Synthetic were added as party opponents. In the arbitration case, the Society wanted to remove all the construction including the two covers in the roof and also wanted to restrain the petitioner from making non-residential use of the flat by permitting the original opponent No. 2 to house an office in the flat. It appears that the objection raised for the occupation of the premises by J.K. Synthetics was not required to be decided because that company left the flat and all the additions and alterations made by that company were removed so that the cause of action did not survive. However, so far as the two sheds are concerned, both on the sought, the petition resisted by filing a written statement. 6. The petitioners pleaded that the construction of the two sheds and the walls was not unauthorised. In fact, the walls were already constructed by the builders in order to demarcate the dividing line between the three flats whose rear portion abuts on the terrace garden. After the occupation, the petitioner found that the open spaces were exposed to the windows of that flats on the above floors and article falling from them was likely to endanger the safety of the occupant of the flat who would be using the terrace garden. After the occupation, the petitioner found that the open spaces were exposed to the windows of that flats on the above floors and article falling from them was likely to endanger the safety of the occupant of the flat who would be using the terrace garden. In the circumstances, he covered those portions with the express consent and permission of the builder. The petitioner, later on, realised that the Municipal permission was also necessary and accordingly after some correspondence with the Municipality he obtained the permission to cover these spaces on the year to year basis by paying appropriate licence fees to the Municipality. Both the parties very clearly argued as to who was the owner of the trace garden portion and what were the respective rights of the parties amongst themselves. The pleading was merely confined to the prior permission from the Municipality and the builder at a time when the society was not in the picture. 7. In this Court, an additional question about the jurisdiction of the Tribunals to entertain the dispute is also raised. As we have already pointed out, both the Tribunals unanimously held that the petitioner had no right to cover the open terrace which was not a part and parcel of his flat No. 12-A. It was a set back for the building as such and anything that is not allowed to a member always vests in the Society which is the owner of the entire building. Technically, even the flats vest in the Society but they are available to the tenant members for their use in terms of the Rules and regulations which constitute a contract between the Society and the members. There was no occasion for those Tribunals to decide the question of the jurisdiction as none was raised. Having heard the learned Counsel on either side and having gone extensively through the record of the proceedings before the Tribunals, we are satisfied that this petition has no substance and must be rejected. 8. Taking the question of jurisdiction in the first instance, we find that it is not possible to uphold the same. What is pleaded in this petition is that the builders granted permission and long before the Society was formed there was construction already. 8. Taking the question of jurisdiction in the first instance, we find that it is not possible to uphold the same. What is pleaded in this petition is that the builders granted permission and long before the Society was formed there was construction already. On this assumption, it is alleged that the interference with the property being earlier than the date of the formation of the Society and expressly with the consent of the builders, a cause of action does not arise so as to raise a dispute under section 91 of the Maharashtra Co-operative Societies Act, 1960. The factual position is disputed and we will presently show that the basis assumed for raising this point of law also does not exist. But assuming for the time being that the facts are to be assumed as alleged, does it really shut out the jurisdiction under section 91 of the Maharashtra Co-operative Societies Act ? 9. Dr. Naik, the learned Counsel for the petitioner, referred to a judgment of the Supreme Court in (I.R. Hingorani v. Pravinchandra Kantilal Shah and others)1, A.I.R. 1972 S.C. 2161. The facts before the Supreme Court were that A, the owner of the flat, entered into a leave and licence agreement with B in 1959. Subsequently in 1962, a Housing Society was formed and A became its member. In 1963, B applied for fixing his monthly compensation (Rent) and in that litigation. A moved the Registrar for referring the dispute to arbitrator. On these facts, the Supreme Court held that when A entered into the agreement with B, A was not acting as a member of the Society but as the owner of the flat. Hence, the case did not fall within section 91(1)(b) of the Maharashtra Co-operative Societies Act. We fail to understand how this case can assist the petitioner. In the matter before the Supreme Court, the Co-operative Housing Society became the purchaser of the property on which encumbrances were lawfully erected before the formation of the Society. Simply because the property came to be owned by the Co-operative Society, the rights of the parties which arose earlier on the basis of valid contract do not automatically come to an end. Simply because the property came to be owned by the Co-operative Society, the rights of the parties which arose earlier on the basis of valid contract do not automatically come to an end. In those circumstances, the Supreme Court, with respect, came to the conclusion that the disposal of such a dispute based upon earlier rights cannot fall within the purview of section 91 of the Maharashtra Co-operative Societies Act. We find no analogy between that situation and the present situation. The Society is the full owner of the entire property and the petitioner has the right to occupy his flat. In fact, when the so called purchase was made, there was an express understanding that all the purchasers of the various flats are going to form a Co-operative Housing Society and that Co-operative Housing Society will get the conveyance done in its favour. The moment this happens, it is the Society which is the full owner of the entire property with the tenant-members having the rights under their contract with the Society viz. the regulations and the lease deed. This being the statutory provision, unless it is pleaded and proved with satisfactory evidence that the petitioner was not only the purchaser of flat No. 12-A. but was also a purchaser of additional space which otherwise belongs to the Society, he can have no defence to justify the construction. This construction, according to us, is on the property of the society not vested in the petitioner. Assuming that such a construction is done earlier than the formation of the society to what consequence can it lead? It will only lead that the petitioner is a trespasser who had encroached upon the societys property even before the formation of the Society. The moment, the Society is formed and the petitioner becomes a member of the Co-operative Housing Society, his rights are regulated by the contract between the two. By what provision of any contract either with the Society or with the builders earlier, can the petitioner plead that he had right to encroach upon the property and to continue to be in possession of the encroached property. The encroachment so called, according to us, is a continuing wrong. Even after the formation of the Society so long as any member of the Society encroaches on the property of the Society, a new cause of action arises to get the encroachment removed. The encroachment so called, according to us, is a continuing wrong. Even after the formation of the Society so long as any member of the Society encroaches on the property of the Society, a new cause of action arises to get the encroachment removed. If, therefore, this is a dispute which ultimately can fall within the ambit of the Maharashtra Co-operative Societies Act, can the Society go except the arbitration under section 91 of the Maharashtra Co-operative Societies Act? All other Tribunals are closed for a dispute between the Society and the member. This is Housing Society. It is the owner of the house. If one of its members encroaches, it is a dispute touching the business of the Society between the Society and its member. In our view, the only coram where such a dispute can be taken is the Tribunal created under the provisions of the Maharashtra Co-operative Societies Act. In this view, we see no substance in the technical defence raised before us for the first time. In our view, the matter was properly referred to the Officer on Special Duty appointed under the provisions of the Maharashtra Co-operative Societies Act. Undisputable, therefore, the Appellate Tribunal had the right to dispose of the appeal on merits. 10. Let us then examine the defence on facts. It is extremely doubted as to what was the position of the structures which are now in dispute, at a time when the Society was registered. What is now pleaded is that the southern open portion forming the terrace garden is open to sky. That is obvious. What is then pleaded is that the occupation of various flats began as early as in 1965. That also appears to be correct. When, therefore, the upper floors were occupied, some of the occupants of those flats performed uncivil acts of throwing rubbish out of their windows. That is a possibility which cannot be denied. The complaint appears to be that waste papers and banana peels have been thrown out. That would certainly be a nuisance to the ground floor occupants and to some extent a danger when somebody is actually using the terrace. Granting these facts in favour of the petitioner, it would be legitimate to assume that to ward off this nuisance, the petitioner covered the open space. That would certainly be a nuisance to the ground floor occupants and to some extent a danger when somebody is actually using the terrace. Granting these facts in favour of the petitioner, it would be legitimate to assume that to ward off this nuisance, the petitioner covered the open space. The open space seems to be divided notionally in two different parts, if we look to the map at Ex. G. In line with the outer of the southern wall of the main building, a small open potion could be seen in front of the bath room which is an attached bath room to the bed room of the petitioners flat. Beyond the southern outer walk of the building, and upto, the Parapet wall, there is second portion of the open terrace which is, in fact, the roof over the garages below. The elevation of the building on this side in front of the two adjoining bath rooms to one of the flat of the petitioner and the other flat on the west of the petitioners flat has horizontal concreted beams showing the division of each flat. It, therefore, adds to the beauty of that column and the horizontal beam is readily available for resting the cover. The petitioner has covered the inner portion, as we call it in front of the bath room, by merely placing asbestos cement sheets resting on the horizontal beams which is a part of the elevation. So far as the outer space on the terrace garden is concerned, the petitioners case is that in line with the eastern and western walls at his flat two protruding walls extending upto the parapet wall on the south were already constructed by the builders even before the flat was handed over to the petitioner. What the builders had not done was to cover these open spaces. The petitioner, therefore, sought permission from the builders who executed a letter in his favour indicating no objection if the Municipality granted him permission. However, through an error of judgment and without actual permission from the Municipality, the petitioner put the roof over those portions. In this Court, reliance was placed upon the letter Ex. A to the present petition dated 24th May, 1965. 11. Mr. Rane, the learned Counsel for respondent No. 5 society, objected to the use of this letter. However, through an error of judgment and without actual permission from the Municipality, the petitioner put the roof over those portions. In this Court, reliance was placed upon the letter Ex. A to the present petition dated 24th May, 1965. 11. Mr. Rane, the learned Counsel for respondent No. 5 society, objected to the use of this letter. He stated that eversince the correspondence began between the society and the petitioner over the removal of the roofs there was no reference to the letter dated 24th May, 1965 earlier. Even after the dispute was taken to the Co-operative Tribunal, there was no pleading based upon this letter. When the Secretary of the Society entered the witness-box, this letter was not put to him. It is the defendant who is the present petitioner who sought to produce this letter for the first time when he entered the witness-box. An objection was raised to the exhibition of this letter without examining the builders who wrote it. The Co-operative Tribunal, therefore, merely marked this letter as "A" for identification. No further effort was made to prove this letter. In the circumstances, the letter which is now joined as Ex. A to the petitioner should not be read in evidence and it should not be permitted to be read by Dr. Naik. He examined the record from that point and find that the grievance made is fully justified. If this letter was really in existence and if it really formed the so-called permission of the builders, we fail to understand why the petitioner should not have referred to it at an earlier stage. Either, therefore, the existence of this letter on the date it purports to have been written doubtful or it was never treated as being the permission of the builders by the petitioner and, therefore, no reliance was placed upon it. 12. Apart from the manner in which the objection is now presented before us regarding this letter, we find that there seems to be a basic reason why this letter can be of a very limited value to the petitioner. What is now pleaded is that the builders had already constructed the protruding walls and the petitioner had merely put the roof of asbestos cement sheets. Could this allegation itself be true? What is now pleaded is that the builders had already constructed the protruding walls and the petitioner had merely put the roof of asbestos cement sheets. Could this allegation itself be true? are appraised of the facts that the Corporation of Bombay does permit the covering of open portion on the first floor in certain circumstances and on the fulfilment of certain conditions. A circular of the Corporation dated 25th August, 1967 bearing No. CE-1724/11 issued by the City Engineer was brought to our notice. It is produced at Ex. D to the petition. Condition No. 2 is very important. It says that no side enclosures whatsoever shall be permitted. If the opening paragraph of the circular is read, it would make clear the intention of the authorities in issuing such a circular. It was realised that in the case of such set backs where the terrace has to remain open to sky, the ground floor occupants who could have access will have the temptation to use that terrace. If, human-beings are actually using the terrace, say, for sitting in the open in the evening any act of occupants of the floors above in not behaving properly by throwing something outside might endanger the safety of the people sitting below. The Corporation, therefore, appears to have decided to permit a roof only supported, obviously, by more pillars without any side enclosures like wall or other things. In other words, it is a mere cover to stop the nuisance from above and it is not the construction of a further enclosed area like a room. The building is not extended. A mere cover to ward off the danger from the above alone is offered. 13. Since the petitioner persuaded the Municipality on the basis of such a circular granting permission, though belatedly, he had to write to the Corporation that the circumstances existing in this building permit the Municipality to accommodate the petitioner by permitting the construction of a roof. Of 1st February, 1966, the petitioner wrote to the Municipal Commissioner himself a letter requesting him to regularise the roof which was already constructed and to grant requisite permission, if at all, the Municipal Rules so require. The petitioner states that he was not aware that even for a weather covering prior permission of the Municipality was needed. Of 1st February, 1966, the petitioner wrote to the Municipal Commissioner himself a letter requesting him to regularise the roof which was already constructed and to grant requisite permission, if at all, the Municipal Rules so require. The petitioner states that he was not aware that even for a weather covering prior permission of the Municipality was needed. When this letter was written by the petitioner under his signature, his representation to the corporation is worth nothing. He states that there is an open terrace of 300 to 350 Sq. feet. The first floor flat No. 12-A is let out by him to an Englishman Mr. Morrison. The waste articles thrown from the windows by the occupants of the flats above may endanger the safety of the young children of that occupant. For that purpose, he has put on an asbestos cement sheets roofing supported on wooden pillars. The next sentence is very important and it is worthwhile to quote it in the words of the petitioner himself: "The space is entirely open on all sides excepting the top". Such a representation is clearly in consonance with the Municipal expectation where the nuisance from above floors is alone to be warded off by merely providing a roof over the set back portion. This was the pleading on 1st February, 1966 before the Municipality. We are now told and we are further asked to believe that even before May 1965 when the flat was occupied by the petitioner, the builders had already constructed the protruding walls right top the parapet walls which now forms the eastern and the western walls below. It is true that between the slanting roof and this was there is a trangular narrow gap. The roof does not touch the walls in its entire portion. Since there is some gap in between this roof and these walls, Dr. Naik argued that the description given in letter dated 1st February, 1966 could not be construed inaccurate. At beast, it may be a slightly erroneous description. We are at pains to see that it is impossible to accept such an argument, from a person holding some high office in life. We are, therefore, satisfied that the present pleading that the builders constructed the wall is utterly unsupported by the evidence and it is difficult to believe any such pleadings of the petitioner. We are at pains to see that it is impossible to accept such an argument, from a person holding some high office in life. We are, therefore, satisfied that the present pleading that the builders constructed the wall is utterly unsupported by the evidence and it is difficult to believe any such pleadings of the petitioner. That being the only pleading, the whole thing remains at large and we have to merely imagine as and when the alleged construction had taken place. We are satisfied that the builders have got done anything of the kind. We are further satisfied that the builders know their limitations. They know that the terrace is not the part and parcel of the flat. If, at all, the letter dated 24th May, 1965 had been issued by the builder, it is a most equivocal letter where they merely state that the petitioner may cover the open terrace if the Municipal Corporation permits. We are, therefore, satisfied that this letter of the builder is a mere make show and the petitioner has himself undertaken the entire construction by disregarding the societys rights and his own limitations. He has not taken the Municipal permission which he was obliged to do. This is on the footing that the letter dated 24th May, 1965 is a genuine letter appraising him of the legal position. Now could such a petitioner thereafter, plead that he was unaware of Municipal permission and the Corporation should merely regularise what he has done out of ignorance. 14. We have examined the original agreement of sale between the builders and the petitioner. It is only confined to flat No. 12-A. For the reasons best know to the parties, no description of the flat is given. Forgetting that disability, common sense requires us to hold that if any flat is sold or let out to any tenant, the tenant must put before the Court the documents of title entitling him to make use of such a property. No such document is coming forward. In fact, looking to the situation of the building, the photographs that are available, and the Architects map, it seems to be inconceivable that the space over the roof of garages below, which is in the nature of the set back to the Society building could be the subject matter to any flat holder. No such document is coming forward. In fact, looking to the situation of the building, the photographs that are available, and the Architects map, it seems to be inconceivable that the space over the roof of garages below, which is in the nature of the set back to the Society building could be the subject matter to any flat holder. In that behalf, in the absence of circumstantial evidence as also the documentary evidence, we are inclined to believe the Society and the Secretary that the petitioner has nothing to do whatsoever with the open space beyond the southern flat of his flat. The entire construction of the roof as well as wall is, therefore, in the nature of clear encroachment and violation not only of the Societys rights but a breach of the Municipal regulation. We are, therefore, inclined to hold that the two Tribunals under the Maharashtra Co-operative Societies Act, have taken a correct and proper view of the matter. The petition has no substance and it is dismissed. 15. The rule is discharged. The petitioner will pay the costs of respondent No. 5 alone. There will be no order as to costs in respect of other respondents. -----