JUDGMENT - A.M. KHANWILKAR, J.:---Both these appeals can be disposed of together as the subject-matter in both the appeals is common and, in fact, the suits filed by the respective parties came to be decided by the Court below by common judgment and order, which is the subject-matter of the appeal in the present appeals. 2. Both the appeals take exception to the judgment and decree passed by the Civil Judge, Senior Division, Margao, dated December 31, 1993, in Special Civil Suits No. 263/90/A and 267/90/A. The above said Special Civil Suit No. 263/90/A was filed by the respondent-society for a direction against the appellants to pay compensation to the respondent society being a sum of Rs. 5,10,000/- with interest at the rate of 15.5% per annum from the date of filing of the suit till actual payment; whereas Special Civil Suit No. 267/90/A was filed by the appellants herein for direction against the respondent-society to cut/demolish a portion of the building by giving proper shoring to the structure about 4 to 5 metres from the edge of the buildings and, thereafter, to construct a retaining wall as suggested by Engineer Mayenkar, in his report dated June 20, 1990; further direction to the respondent-society to remove the debris and collapsed portion of the staircase; and to close the trench, or to make alternative arrangements to prevent the water from coming in the appellants' property through the trench. There is no dispute that both the suits were tried and decided together. In the suit filed by the respondent-society, the respondent-society examined four witnesses in support of its case and in the suit filed by the appellants herein, the appellants examined five witnesses in support of their case. Before the trial Court, both the parties agreed that the evidence of the plaintiffs in one suit should be treated as evidence of the defendants in the other suit. The trial Court on analysing the evidence of the respective parties proceeded to decree the suit preferred by the respondent-society by directing the appellants to pay to the respondent-society an amount of Rs. 5,10,000/- and interest at the rate of 6% per annum from the date of filing of the suit till the entire amount is paid. The trial Court on analysing the evidence of the respective parties proceeded to decree the suit preferred by the respondent-society by directing the appellants to pay to the respondent-society an amount of Rs. 5,10,000/- and interest at the rate of 6% per annum from the date of filing of the suit till the entire amount is paid. The trial Court, however, was pleased to dismiss the suit preferred by the appellants, both on merits as well as on the ground that same was not maintainable against the respondent-society for want of legal notice within the purport of section 164 of the Maharashtra Co-operative Societies Act, as applicable to the State of Goa. 3. In the circumstances, the appellants have, by First Appeal No. 36/94 assailed the correctness of the judgment and decree passed in Special Civil Suit No. 263/90/A-which was filed by the respondent-society; and by First Appeal No. 37/94 the judgment and decree passed in Special Civil Suit No. 267/90/A-filed by the appellants herein, has been assailed. 4. Briefly stated, the appellants (original plaintiffs) were husband and wife. The appellant No. 1 by a Deed of Sale dated September 9, 1971, purchased landed property known as MALBHAT Lote 'A' situated at Margao in the Taluka of Salcete and District of Goa, from one Vishnu Sinai Khandeparkar and his wife Smt. Sundarbai Sinai Khandeparkar. The said property is described in the Land Registration Office under No. 46124 at page 128 of book 120 (new), which corresponds to 1/3 of the property enrolled in the Taluka Revenue Office. The said property is bounded on the East by the property of same name of Custodio Francisco Fernandes and his wife M. Piedada Baptista Fernandes and by the property of same name (Lote 'B') described in the Land Registration Office under 46151 (new) of Margao, Goa; on the West by hilly land of Jose Luis Caetano E Alvares and piece of land where exists a Muslim cemetery; on the North by the said Lote 'B' described under No. 46151 and on the South by the hilly land of the said Alvares Manual Rosario Barreto and the respondents. 5. The respondent-society on the other hand is owner in possession of a distinct plot of land being separately described in the Land Registration Office, Salcete under No. 46151 of Book B, No. 120, new series. 5. The respondent-society on the other hand is owner in possession of a distinct plot of land being separately described in the Land Registration Office, Salcete under No. 46151 of Book B, No. 120, new series. That property is surveyed for the purpose of city survey of Margao under Chalta No. 63 of P.T. Sheet No. 217, wherein there are three buildings of the respondent-society which are shown in the city survey plan under Chalta Nos. 64 to 76 of the same P.T. sheet. The property owned and possessed by the respondent-society is bounded on the East by the property belonging to Custodio Francisco Fernandes and his wife, presently bearing Chalta No. 61 of P.T. sheet No. 217; on the West by the cemetery of Muslims bearing Chalta No. 51 of P.T. sheet No. 216 and partly by Malbata- plot A, of appellants bearing Chalta No. 77 of P.T. sheet No. 217; on the North by the property of P.T. sheet No. 217; on the North by the property of Gregorio Felizardo D'Costa, bearing Chalta No. 58 of P.T. sheet No. 217; and on the South by the property Malbata- plot A of the appellants bearing Chalta No. 77 of P.T. sheet No. 217. The three buildings on the said property were constructed by the respondent-society after complying with all formalities in the year 1967 and 1968. The surface of the said property is a slope of hill. The property of the appellants being adjacent property was also the slope of the same hill. The property owned and possessed by the respondent-society, more particularly known as plot B admeasures 2187 sq. mts. having a figure of an irregular polygon of seven sides measuring on its Eastern side 22.45 mts., Northern side 93 mts. and 11 mts., Western side 10.25 mts. and 13.75 mts. and on the Southern side 14.20 mts. and 87.20 mts. The respondent-society thus constructed three buildings for residential purposes in the said plot 'B' and members of the said society started occupying the said buildings. Whereas the appellants in the property owned and possessed by them, which is adjacent to the property of the respondent-society, on the Eastern part of the said property (plot 'A') started constructing a dwelling house. Before constructing the dwelling house they started cutting the hillock. Whereas the appellants in the property owned and possessed by them, which is adjacent to the property of the respondent-society, on the Eastern part of the said property (plot 'A') started constructing a dwelling house. Before constructing the dwelling house they started cutting the hillock. Undisputedly, even the respondent-society before constructing the three buildings, had cut the hillock, but the appellants resorted to cutting of the hillock excessively on account of which the difference between the level of the portion of land whereon the dwelling house of the appellants stands and that of the respondents, the upper point of cutting of the hillock is about 40 mts. This excessive cutting of the hillock was resorted to by the appellants in or around 1977. Since the appellants were hurriedly cutting the hillock excessively, the staircase constructed by the respondent-society on their portion of land collapsed. Thereafter, the respondent-society immediately constructed a new staircase more to the North of the previously existing staircase, as the staircase was the only access to their building, spending their own funds, amounting to Rs. 10,000/-. The respondent-society thereafter brought this fact to the notice of the Margo Municipal Council, consequent to which the Council vide its letter/notice dated March 4, 1978, asked the appellants to construct walls (retaining walls) on the Western and Northern sides, for which purpose the appellants by the same letter, were asked to submit the necessary plans for approval. This direction was issued by the Municipal Council to the appellants to ensure that the earth pressure is not disturbed and by constructing the retaining walls it would avoid any collapse of the staircase in future. The appellants, however, did not construct the retaining walls which they were obliged to do in view of the notice given by the Municipal Council and they instead from 10th January, 1979, started further cutting of the land on the Western and Northern sides adjoining the staircase in such a way as to endanger the collapse of the staircase again, even the foundation of the buildings of the respondent-society. The appellants undertook the cutting of the land on the Western and Northern sides hurriedly and without obtaining any permission from the Margao Municipal Council. The appellants undertook the cutting of the land on the Western and Northern sides hurriedly and without obtaining any permission from the Margao Municipal Council. In the circumstances, the respondent-society, brought the fact to the notice of the Municipal Council and Margaao Police strongly opposing any further cutting of the land, but since no response was forthcoming, the respondent-society eventually filed the suit before the Court of Civil Judge, Senior Division, Salcete at Margao, being Special Civil Suit No. 7/79 sometime on January, 12, 1979, inter alia praying for;--- "(a) for a permanent injunction restraining the defendant, her family members representatives, agents, servants, labourers, etc. from continuing/proceeding further with the cutting work of the Western portion and also of the Northern portion which belongs to the plaintiff's society and restraining them from cutting/depositing earth on the said road of 3 metres width and/or obstructing it by any manner whatsoever; (b) for mandatory injunction directing the defendant to construct retaining walls towards Western and Northern sides, as directed by the Margao Municipal Council vide letter No. ENGG/411/78 dated 4-3-1978 and also directing the defendant to remove the earth deposited on the road reserved as mentioned in para 6 above, putting land into its primitive State." 6. There is no dispute that the parties arrived at an amicable settlement pursuant to which the said suit was disposed of. It would be apposite to reproduce the Consent terms arrived at between the parties, which were tendered before the said Court and the suit was eventually disposed of in terms of the said. Consent terms. The same read thus:--- "CONSENT TERMS MAY IT PLEASE YOUR HONOUR: The plaintiff and the defendants have settled the suit amicably on the following terms:--- 1. The defendant, her family members, relatives, representatives, agents, servants, labourers etc. shall not continue/proceed further with the cutting of the land near the northern and/or the western boundary of the defendant's property and also shall not put/deposit earth or any substance on the road width of 3 metres adjacent to the eastern boundary of the defendant's property and/or shall not obstruct the said road in whatsoever manner. 2. It shall be deemed that the boundaries of the property of the plaintiffs and defendant's shall be as demarcated and settled by Shri Eleuterio Barreto, whose report is in the file of the Court. 3. 2. It shall be deemed that the boundaries of the property of the plaintiffs and defendant's shall be as demarcated and settled by Shri Eleuterio Barreto, whose report is in the file of the Court. 3. It shall be deemed that the road width of 3 metres shall be measured from the eastern boundary points of the property of the defendant and of the plaintiff as traced and settled in the said report of Shri Eleuterio Barreto. 4. The plaintiff shall be entitled to construct a retaining wall as per the report of Shri Eleuterio Barreto and report and annexed plan of Shri Luis D'Costa which are both on record of this case, and also re-construct a staircase. 5. For the purpose of constructing retaining wall the plaintiffs and its labourers shall be entitled to enter into the northern portion of the property of the defendant with construction material and utilize so much portion of the land of the defendant's property not exceeding the width of one metre as may be found necessary as per the report of Shri Luis D'Costa. Such land of the defendant's property shall be used free of cost by the plaintiff. 6. The plaintiff shall have a right to maintain and repair the said retaining wall to be constructed and shall have all the time a right to enter with labourers and materials or otherwise into the northern portion of the defendant's property for the purposes of carrying out the works of repairs and maintenance of the retaining wall, without any payment to the defendant. But before entering into the defendant's property, the plaintiff shall give by registered post A.D. notice of at least 2 says in writing to the defendant. 7. The defendant shall not require to pay any amount towards the repairs, etc. of the retaining wall to the plaintiff. 8. Towards the costs or the construction of the retaining wall the defendant shall pay to the plaintiff a sum of Rs. 16,000/- in the following three instalments :--- (a) the first instalment of Rs. 5,000/- shall be paid at the commencement of the work of the retaining wall. (b) the second instalment of Rs, 5,000/- shall be paid when the work of the retaining wall has reached to 3/4th of the total work and (c) the final instalment of Rs. 6,000/- shall be paid after completion of the said wall. 5,000/- shall be paid at the commencement of the work of the retaining wall. (b) the second instalment of Rs, 5,000/- shall be paid when the work of the retaining wall has reached to 3/4th of the total work and (c) the final instalment of Rs. 6,000/- shall be paid after completion of the said wall. The plaintiff can serve notice of demand of the instalment on the defendants and the defendants within 15 days of such notice shall make the payment. The defendant shall not require to pay any additional amount in case the cost of the retaining wall is increased. 9. The plaintiff shall remove all the mud, waste and left over material from the northern portion of the defendant's property immediately after the completion of the construction of the retaining wall. 9A. The plaintiff shall not divert any monsoon or other waters from the plaintiff's property and buildings into the property of the defendant's in whatsoever manner. The defendant shall not direct any water from her property so as to enter it into the said road. 10. The party shall bear their own costs. 11. The plaintiff shall not cause any damage to the defendant's building and other property of the defendant except the area being utilised for retaining wall. 12. The plaintiff shall be responsible to compensate the defendant if defendant's building is damaged by fall of retaining wall or staircase in future. It is therefore prayed that decree be passed in above terms. Margao, 24th November, 1982. Sd/- The Chairman of the plaintiff. Sd/- The Advocate for the plaintiff. Sd/- The defendant Sd/- The Advocate for the defendant." 7. As per the aforesaid decree, the respondent-society was allowed to carry on the construction as per the Report of Engineer Eleuterio Barreto dated August 13, 1982 and the Report of Shri Luis D'Costa dated October 16, 1982. It is the respondent-society's case that subsequent to the said decree the respondents performed their part under the said decree by constructing the retaining walls and reconstruct the staircase even by obtaining permission from the Margao Municipal Council. It is the respondent-society's case that subsequent to the said decree the respondents performed their part under the said decree by constructing the retaining walls and reconstruct the staircase even by obtaining permission from the Margao Municipal Council. It is the respondent-society's case that subsequent to the construction of the said retaining wall, the appellants undertook further cutting of the hill in their portion of the property on the Western side of their building and partially constructed a masonry wall in the North-South direction against height left over after such cutting. Although it was expected of the appellants to cover the entire height left over after cutting of the hill, however the appellants constructed masonry wall in the North-South direction only in part and which did not cover the entire height but the major height of the said hill was left unprotected. According to the respondents, further cutting of the hill was done by the appellants in various phases and lastly, till the year 1986 or so. It is the respondent's case that because of the further cutting of the hill and left without the support of the retaining wall, a terrible landslide occurred on June 24, 1990, in which the retaining wall constructed by the respondent-society as per the decree and the staircase of the respondent-society collapsed totally. The landslide was so much that the two buildings of the respondent-society on the rear side, i.e. Western side, are posted with danger of collapse and already damage has been caused to the said buildings and to the sanitary piping, water piping of the said buildings. After the collapse, the Municipal authorities extended help to the occupants of the buildings to get the said two buildings vacated and that from June 24, 1990, the said buildings are fully vacated. The respondent-society thereafter got the site inspected through Engineer S.N. Bhende to assess damage and to find out the cause of such landslide and consequent collapse. Shri Bhende, in turn, prepared a report dated July 10, 1990, based on his inspection and every available material and opined that due to the further cutting of the hill, leaving the portion of the hill in the property of the appellants vertical, the real cause of the collapse is due to excessive height of cutting without the support of the retaining wall above the wall presently existing in the property of the appellants. Shri Bhende in his report also observed that the corner of the Western and Northern walls of the appellants where the height of the wall is not supported and is more than 6-7 metres, has caused the side trench and seepage of water through the retaining wall to the buildings of the respondent-society thus rendering it weak for several years and on account of such weakness, the corner has first collapsed and further collapse has been the consequence of collapse of the said corner. Due to the said collapse, the respondent-society and its members suffered severe, damages and with a view to take preventive measures to maintain the buildings of the respondent-society and to avoid further landslide, the respondent-society incurred expenditure which was estimated at Rs. 5,10,000/-. The respondent-society therefore filed Special Civil Suit bearing No. 263/90/A before the Civil Judge, Senior Division at Margao, inter alia praying that:--- "(a) by a decree of this Hon'ble Court the defendants be directed to pay the plaintiff a compensation of Rs. 5,10,000/- (rupees five lakhs ten thousand only) with interest at the rate of 15½% per annum from filing of this suit till actual payment; (b) Costs of this suit be provided for." 8. On the other hand the appellants herein filed a separate suit against the respondent-society, before the same Court, being Special Civil Suit No. 267/90/A inter alia praying that :--- "(a) the defendants be directed to cut/demolish the portion of the building by giving proper shoring structure of about 4-5 metres from the edge of the building and thereafter to construct a retaining wall as suggested by Engineer Mayenkar in his report dated 28th June, 1990; (b) the defendants be directed to remove the debris and collapsed portion of the staircase; (c) the defendants be directed to close the trench or to make alternative arrangements to prevent the water coming in the plaintiffs' property through the trench; (d) costs of the suit; and (e) any other equitable remedy." The respondent-society claims that the appellants with a view to cover up their fault not only hurriedly addressed a notice to the respondent-society through their Advocate Shri P.N. Sukhtankar on June 27, 1990, alleging that the collapse had been on account of the negligence of the respondent-society to repair the said wall and claiming damages, but also filed suit for aforesaid reliefs, making false and baseless allegations. The respondent-society denied the allegations made in the aforesaid legal notice given by the appellants through Advocate Shri Prakash Prabhu Dessai and asserted that the collapse had taken place on account of fault of the appellants. The respective parties contested the suit by filing written statement. The appellants herein filed a joint written statement resisting the suit filed by the respondent-society, whereas the respondent-society filed written statement resisting the suit filed by the appellants. The stand taken in the plaint filed by the respondent-society was reiterated in the written statement filed by the respondent-society besides denying all the material allegations in the suit of the appellants. Similarly, the appellants in their reply not only reiterated the stand taken in their suit, but also denied material allegations in the suit filed by the respondent-society. On the basis of the rival pleadings, the trial Court proceeded to frame issues in the respective suits. By Exhibit 14 the trial Court framed as many as seven issues in the suit filed by the respondent-society, whereas it framed as many as 13 issues vide Exhibit 25 in the suit filed by the appellants. The issues framed in the suit filed by the respondent-society read thus:--- "1. Whether the plaintiff proves that the defendants in the year 1977 started cutting the eastern portion of the property to a considerable depth leaving the suit property and the western portion of the property of the defendants at a considerable height? 2. Whether the plaintiff proves that on account of the said cutting the staircase of the plaintiff in the suit property for the access of the rear building collapsed? 3. Whether the plaintiff proves that on account of the said collapse the plaintiff built another staircase costing Rs. 10,000/-? 4. Whether the plaintiff proves that the plaintiff is entitled to recover Rs. 5,10,000/- on account of various damages caused as well as certain preventive measures to be taken by the plaintiff on account of the acts of the defendants of cutting the hill and leaving its west-north corner unprotected? 5. Whether the defendants prove that the plaintiffs had undertaken the entire responsibility to construct the retaining wall and which was constructed in the year 1982-83 under the supervision of the plaintiff? 6. Whether the defendants prove that the staircase collapsed on account of weak reconstruction of the retaining wall and sheer negligence of the plaintiff?" 7. What relief? 5. Whether the defendants prove that the plaintiffs had undertaken the entire responsibility to construct the retaining wall and which was constructed in the year 1982-83 under the supervision of the plaintiff? 6. Whether the defendants prove that the staircase collapsed on account of weak reconstruction of the retaining wall and sheer negligence of the plaintiff?" 7. What relief? What order?" 9. The issues framed in the suit filed by the appellants read thus:--- "1. Whether the plaintiffs prove that the retaining wall was constructed by the defendants and under defendants' supervisions and responsibility? 2. Whether the plaintiffs prove that the said retaining wall on 24-6-1990 collapsed and fell on the building of the plaintiffs due to sheer negligence of the defendants? 3. Whether the plaintiffs prove that there is soil erosion and two buildings of the plaintiffs are likely to collapse at any time? 4. Whether the plaintiffs prove that in order to avoid danger to their buildings both the buildings of the defendants have got to be demolished by giving proper shoring and by demolishing 4-5 metres portion of the buildings from the edge of the buildings? 5. Whether the plaintiffs prove that a retaining wall is also required to be constructed after demolishing the said portion of the buildings? 6. Whether the plaintiffs prove that the defendants constructed a soak pit and septic tank below the staircase and the waste water from the same percolated in the retaining wall? 7. Whether the defendants prove that the suit is not maintainable under Maharashtra Co-operative Societies Act? 8. Whether the defendants prove that in past several years the plaintiffs are constantly excavating soil from their property to dangerous depth leaving the property of the defendants at the risk of landslide? 9. Whether the defendants prove that the properties of both parties were lying on the same slope of the hill adjacent to one another? 10. Whether the defendants prove that the plaintiffs excavated their property, after construction of buildings of defendants and left dangerous perpendicular level? 11. Whether the defendants prove that the damage was caused by the plaintiffs to the retaining wall by doing excavations which resulted in landslide? 12. Whether the defendants prove that the plaintiffs dug a drain and diverted the waters at the foot of retaining wall? 13. What relief? What order?" 10. 11. Whether the defendants prove that the damage was caused by the plaintiffs to the retaining wall by doing excavations which resulted in landslide? 12. Whether the defendants prove that the plaintiffs dug a drain and diverted the waters at the foot of retaining wall? 13. What relief? What order?" 10. As aforesaid, the appellants as well as the respondent-society led evidence by examining witnesses in support of their claim. The trial Court after considering the rival pleas and the evidence on record was eventually pleased to decree the suit preferred by the respondent-society, whereas it dismissed the suit preferred by the appellants herein. The trial Court broadly found that the defence taken by the appellants that the mud was taken from their property by the members of the public could not be believed, but there was sufficient evidence on record to show that the appellants had started cutting the entire portion of their property in the year 1977. The trial Court, concluded that the appellants had resorted to further excavation of the land from the property prior to 1983 and thereafter. The trial Court accepted the plea taken by the respondent-society that the retaining wall collapsed mainly on account of the fact of the appellants excavating the land at the North-Western corner of their property resulting in seepage of water in the retaining wall on the West end. The trial Court further concluded that there was no satisfactory evidence on record to establish that the retaining wall and the staircase collapsed on account of its weak construction as contended by the appellants. On the other hand, the trial Court recorded a clear finding that the construction was done as per the report indicated in the Consent terms. That the retaining wall in question contained R.C.C. columns. The trial Court has also observed that at no point of time the appellants lodged any complaint with the respondent-society regarding the weak construction of the retaining wall. The trial Court, therefore, concluded that the retaining wall had collapsed on account of the damage caused by the appellants to the retaining wall due to seepage of water in the retaining wall and because of the excavation of the appellants, resulting in landslide and that the retaining wall did not collapse due to negligence of the respondent-society, on account of weak construction of the retaining wall as alleged by the appellants. In so far as compensation amount is concerned, the trial Court took the view that the witness examined on behalf of the respondent-society was an independent person. The trial Court noticed that the report of P.W. 4, Shri P.J. Menezes, Executive Engineer, (Exhibit 45) had estimated the approximate costs of the work on account of the collapse at Rs. 10,50,000/-, whereas according to P.W. 2, Engineer Mayenkar, the estimated costs of the retaining wall would be Rs. 7,00,000/-. The trial Court opined that there can be no dispute that the retaining wall had collapsed and that the respondent-society suffered damages which could be estimated, even taking the conservative approach, at Rs. 5,10,000/-. Accordingly, the trial Court directed the appellants to pay the said amount to the respondent-society in that behalf. Insofar as the suit filed by the appellants, the trial Court negatived the stand taken by the appellants that the construction of the retaining wall and staircase was weak and the same had collapsed due to the negligence of the respondent-society, or that the collapse had occurred due to damage caused due to discharge of waste water of the building inasmuch as the septic tank was constructed in the middle of the staircase, which was overflowing and the waste water was entering the property through the retaining wall. This plea has been negatived by the trial Court by holding that there is absolutely no corroboration on this aspect. The trial Court further took the view that the suit instituted by the appellants was not maintainable in law for want of legal notice within the purport of section 164 of the Maharashtra Co-operative Societies Act, as applicable to the State of Goa. Accordingly, the trial Court decreed the suit preferred by the respondent-society and dismissed the suit preferred by the appellants. It is this common judgment and decree passed by the trial Court dated December 31, 1993, which is the subject-matter of challenge in the respective appeals before this Court. 11. The points which arise for consideration in the present appeals are:- (a) Whether the collapse of retaining wall and staircase as a consequence of which there was landslide damaging the building, is attributable to the appellants, or the respondent-society? (b) Whether the quantum determined by the trial Court for amount towards damages is appropriate? (c) Whether the suit filed by the appellants is maintainable in law? and (d) What relief? (b) Whether the quantum determined by the trial Court for amount towards damages is appropriate? (c) Whether the suit filed by the appellants is maintainable in law? and (d) What relief? 12. Point (c): Before I proceed to examine the merits of the rival stands, I think it appropriate to first consider the question about the maintainability of the suit filed by the appellants being barred by the provisions of section 164 of the Maharashtra Co-operative Societies Act, as applicable to the State of Goa. It is not disputed that the appellants instituted suit without giving prior notice to the Registrar, or the Management of the Society, as required under the said provision. The stand taken on behalf of the appellants is that the subject-matter of the suit filed by them was not one touching the business of the society and, therefore, the provisions of section 164 of the Act had no application. Before I elaborate on this aspect, it is apposite to advert to section 164 of the said Act, which reads thus :--- "164. Notice necessary in suits.---No suit shall be instituted against a society, or any of its officers, in respect of any act touching the business of the society, until the expiration of two months next after notice in writing has been delivered to the Registrar or left at his office, stating the cause of action, the name, description and place of residence of the plaintiff and the relief which he claims, and the plaint shall contain a statement that such notice has been so delivered or left." On plain language of the said provision, it is obvious that no suit concerning any act touching the business of the society can be instituted against the society, or any of its officers until expiration of two months after notice in writing is delivered to the Registrar, or the Management of the Society mentioning the cause of action, description and place of residence of the plaintiff, the relief which he claims coupled with the fact that the plaint shall contain a statement that such notice has been so delivered. Admittedly, in the present case, no such notice was delivered either to the Registrar, or the Management of the Society. However, as mentioned earlier, the stand of the appellants is that the subject-matter of the suit was not in respect of any act touching the business of the society. Admittedly, in the present case, no such notice was delivered either to the Registrar, or the Management of the Society. However, as mentioned earlier, the stand of the appellants is that the subject-matter of the suit was not in respect of any act touching the business of the society. The Counsel for the appellants to buttress the submissions, placed reliance on the decision of the Apex Court in (Deccan Merchants Co-operative Bank Ltd. v. M/d. Dalichand Jugraj Jain others)1, reported in A.I.R. 1969 S.C. 1320, of the Rajasthan High Court in (Shyamlal v. Upbhokta Sahakari Samiti another)2, reported in A.I.R. 1981 Rajasthan 41 and another judgment of our High Court in (Lokmitra Co-operative Housing Society Ltd. another v. Yojana Co-operative Housing Society Ltd.)3, reported in 1991(1) Bom.C.R. 138 . On the other hand, the learned Counsel for the respondent-society has adopted the reasoning given by the trial Court while concluding that the subject-matter of the suit was in respect of an act touching the business of the society and, therefore, the suit as filed by the appellants was not maintainable, being barred by section 164 of the Act. It is well-settled that whether the act which is the subject-matter of the suit does touch upon the business of the society, or not is a question of fact, which can be decided having regard to the relevant provisions of the Act, Rules and bye-laws governing the society. It is, therefore, necessary for us to refer to the relevant bye-laws of the respondent-society. Bye-law No. 2 of the respondent-society reads thus :--- "2. The objects of the society shall be to carry on the trade of building and of buying, selling, hiring, letting and development of land in accordance with the co-operation of members and to establish and to carry on social, recreative and educational work in connection with its tenants and the society shall have full power to do all things it deems necessary or expedient for the accomplishment of all objects specified in its bye-laws, including the power to purchase, hold, sell, exchange, mortgage, rent, lease, sub-lease, surrender, accept surrenders, or deal with lands of any tenor, and sale by instalments and is subject to any terms or conditions and to make and guarantee advances to members for building or purchasing and to erect, pull down, repair, alter, or otherwise deal with any building thereon." (Emphasis supplied). Having regard to the relevant bye-law, it would be now appropriate to refer to the nature of the relief sought in the suit instituted by the appellants. According to the appellants, the respondent-society had constructed a soak pit and septic tank below the staircase and the waste water from the septic stank was percolating and passing through the retaining wall and the respondent-society did not take any remedial steps inspite of objection taken by the appellants to stop the waste water percolating from the septic tank/soak pit. Besides this allegation, the plaint proceeds to assert that the respondent-society had constructed retaining wall in terms of the compromise decree obtained by the parties in the previous suit which construction was not safe and, in fact, very weak, which required reinforcement. The appellants further asserted that they reposed confidence in the respondent-society that the retaining wall and the staircase in question were constructed by the respondent-society in accordance with the report referred to in the Consent terms, but the same was belied by the events that followed, constraining the appellants to institute suit. The reliefs claimed in the said suit have been already reproduced in the foregoing paragraphs. The first relief claimed by the appellants is a direction against the respondent-society to cut/demolish the portion of the building by giving proper shoring to the structure about 4-5 metres from the edge of the building and, thereafter to construct a retaining wall as suggested by Engineer Mayenkar in his report dated 28th June, 1990. The second relief prayed by the appellants in the said suit is for a direction against the respondent-society to close the trench, or to make alternative arrangements to prevent the water coming in the plaintiffs property through the trench. Having regard to the allegations on the basis of which the suit has been instituted by the appellants, and more particularly, in view of the reliefs claimed therein, I have no hesitation to conclude that the act complained of in the plaint is one touching the business of the respondent-society. Having regard to the allegations on the basis of which the suit has been instituted by the appellants, and more particularly, in view of the reliefs claimed therein, I have no hesitation to conclude that the act complained of in the plaint is one touching the business of the respondent-society. From the bye-law reproduced above, it can be seen that the business of the society includes amongst others, developing land in accordance with co-operation of members, the society shall have full power to do all things it deems necessary or expedient for the accomplishment of all objects specified in its bye-laws, including the power to deal with the lands of the respondent-society, to erect, pull down, repair, alter, or otherwise deal with any building thereon. Understood thus, the act of construction of retaining wall as well as the staircase which is obviously part of the buildings standing on the land of the respondent-society, was essentially an act done by the respondent-society, which was touching the business of the society. In other words, construction of the retaining wall and staircase was surely the business of the society. At any rate, the relief that is claimed by the appellants in the suit instituted by them, particularly relief (a), is for a direction against the respondent-society to cut/demolish the portion of the building by giving proper shoring to the structure and thereafter to construct a retaining wall as suggested by Engineer Mayenkar in his report dated 28th June, 1990. I have no hesitation, therefore, in observing that this relief is, in substance, requiring the respondent-society to do an act which touches the business of the Society. It is possible to contend that so far as relief (b) is concerned, direction is sought against the respondent-society to remove debris and collapsed portion of the staircase, not an act touching the business of the society. However, even this relief can be encompassed by the wide expression used in the aforesaid bye-law of "repair", "or otherwise". However, since this is an arguable issue, I would prefer to confine the present decision with reference to relief (a) and (c). In relief (c), the appellants have prayed for a direction against the respondent-society, to close the trench, or to make such alternative arrangements to prevent water coming in the appellants' property through the trench. However, since this is an arguable issue, I would prefer to confine the present decision with reference to relief (a) and (c). In relief (c), the appellants have prayed for a direction against the respondent-society, to close the trench, or to make such alternative arrangements to prevent water coming in the appellants' property through the trench. If the respondent-society was to undertake this act, it would surely come within the expression "erect, pull down, repair, alter, or otherwise". In the circumstances, I have no hesitation in upholding the view taken by the trial Court that the act of construction of the retaining wall and the staircase and in any case cut/demolish the portion of the building are a part of the business and the function of the respondent-society. It is wholly unnecessary to refer to the evidence that has been adduced by the rival parties with reference to this issue for, in my view, it would be enough to advert to the relevant provisions to find out whether the act complained of, or the act which will have to be carried out by the respondent-society, in the event relief is granted by this Court, would be an act touching upon the business of the society. The evidence of the witnesses would only be in the nature of opinion and, therefore, of no consequence. 13. Reverting to the authorities relied upon by the appellants, it would be seen that the decision of the Apex Court in the case of Deccan Merchants Co-operative Bank Ltd. (supra) in fact, would assist the case of the respondent-society. There is no doubt that the expression "touching the business of a society", has been considered by the Apex Court in the said decision. The Apex Court in para 17 of the said decision has observed that the word "business", in the context of the language of the said provision would not mean affairs of a society, but will have to be understood in a narrower sense, means the actual trading or commercial or other similar business activity of the society, which the society is authorized to enter into under the Act and the Rules and its bye-laws. Learned Counsel for the appellants relied on the observations of the Apex Court in para 18 of the said decision. Learned Counsel for the appellants relied on the observations of the Apex Court in para 18 of the said decision. In my view, the same in fact supports the case of the respondent-society, for the Apex Court has observed that when it is the business of the society to construct and buy houses and let them out to its members, in that case letting out property may be part of its business and the word "touching" is also very wide and would include any matter which relates to, concerns or affects the business of the society. For the view that I have already taken in the foregoing paragraphs, I have no doubt that the decision of the Apex Court can be used in aid of the stand taken by the respondent-society and is of no avail to the appellants. 14. The next decision relied upon by the appellants in the case of Shyamlal (supra) decided by the Rajasthan High Court, is also of no avail to the appellants. In this decision, the Rajasthan High Court was considering the provisions of section 143 of the Rajasthan Co-operative Societies Act, 1965, which the analogous to the provisions of section 164 of our Act, which mandates that prior notice is essential for maintaining a suit. This decision mainly reiterates the principle enunciated by the Apex Court in the Deccan Merchants' case. 15. The last decision relied upon by the appellants decided by our High Court, is in the case of Lokmitra Co-operative Housing Society Ltd. another (supra) to contend that the subject act cannot be said to be one touching the business of the society. In the first place, the said decision proceeds to adjudicate the rival stand of the parties before it, merely on the basis of the provisions contained in sub-section (16) of section 2 of the Maharashtra Co-operative Societies Act, which defines the term, "Housing Society". This is obvious from the observations made in para 11 of the judgment, which states that no bye-laws were produced before the Court and the learned Advocate for the petitioner relied only on the definition of "Housing Society". In my view, this decision also is of no avail to the appellants. This is obvious from the observations made in para 11 of the judgment, which states that no bye-laws were produced before the Court and the learned Advocate for the petitioner relied only on the definition of "Housing Society". In my view, this decision also is of no avail to the appellants. In the present case, I have already referred to the relevant provisions of the bye-laws, which in my view, are squarely applicable; and there can be no doubt in concluding that the act complained of in the plaint as well as the relief prayed for by the appellants in the suit, if granted, would require the respondent-society to do such act which would essentially touch upon the business of the respondent-society. 16. In the circumstances, section 164 of the Act is clearly attracted and for which reason the suit as instituted by the appellants was not maintainable in the absence of statutory notice. Accordingly I answer this issue in favour of the respondent-society and against the appellants. The consequences are that the suit filed by the appellants will have to be dismissed, being barred by the law. 17. Point (a): The respondent-society in its suit has alleged that the appellants had resorted to illegal and excessive cutting of the hill before constructing the building in the plot owned and possessed by them and on account of such excessive and illegal cutting of the hill the staircase constructed by the respondent-society collapsed and since no remedial measures were taken by the appellants, the respondent-society had eventually filed suit being Special Civil Suit No. 7/79. It is also alleged that the said suit was eventually compromised whereby the appellants have admitted to have resorted to illegal and excessive cutting of the hill near the Northern and/or Western boundary of their property and they undertook that they will not resort to cutting of the hill in future. That the appellants undertook further cutting of the hill in their property on the Western side of their building in various phases and lastly till the year 1986, or so, notwithstanding the consent decree. That the appellants undertook further cutting of the hill in their property on the Western side of their building in various phases and lastly till the year 1986, or so, notwithstanding the consent decree. According to the respondent-society, on account of excessive cutting of the hill and also because of not constructing the retaining wall on the North-South direction to fully cover the hill and because of further cutting of the hill even after the Consent terms were arrived at and undertaking given by the appellants, it resulted in damaging the respondents' property and ultimately collapse of the retaining wall as well as the staircase constructed by the respondent-society and, as a consequence of which there was a terrible landslide damaging the buildings of the respondent-society. The version of the appellants on the other hand, is that it is not the appellants, but the respondent-society who are at fault and the collapse in question occasioned because of the negligence of the respondent-society. According to the appellants, the respondent-society had taken the entire responsibility to construct the retaining wall which had collapsed and that the respondent-society did construct the retaining wall, but not in conformity with the report of the Engineers referred to in the Consent terms. In substance, the allegation is that the respondent-society had constructed the retaining wall and staircase which were weak and infirm. The appellants further allege, that the respondent-society constructed a soak pit and a septic tank below the staircase and the waste water from the septic tank was percolating and passing through the retaining wall, for which the appellants had objected. The appellants not only denied that they had resorted to any further cutting of the hill, but also asserted that they had constructed retaining wall as per the requirements. The respondent-society examined four witnesses, whereas the appellants examined five witnesses to support their version. Besides the oral evidence, both the sides relied on documentary evidence, mainly on the report of the Engineers, as well as the proceedings in the previous suit. 18. In view of the rival stands the question that emerges is whether the collapse is attributable to the appellants or to the respondent-society. Besides the oral evidence, both the sides relied on documentary evidence, mainly on the report of the Engineers, as well as the proceedings in the previous suit. 18. In view of the rival stands the question that emerges is whether the collapse is attributable to the appellants or to the respondent-society. At the outset it may be noted that both the parties are ad idem that the appellants resorted to cutting of the hill which resulted in collapse of staircase sometime in the year 1978 and, thereafter, the respondent-society re-erected the staircase and also constructed the retaining wall. There is no dispute that the appellants were also under obligation to construct the retaining wall on their portion towards North-South direction. There is also no dispute between the parties that on 24th June, 1990 the retaining wall as well as the staircase constructed by the respondent-society collapsed and severe damage was caused to the buildings of the respondent-society, which have been vacated and are lying unoccupied since 24th June, 1990. The moot question however, is what is the cause of the said collapse. As observed earlier, the respondent-society asserts that the collapse is attributable to the excessive and illegal cutting of the hill by the appellants, prior to 1978 and also thereafter. In so far as cutting of the hill prior to 1978 is concerned, the appellants have admitted the said position as is evident from the Consent terms arrived at in the earlier suit, being Special Civil Suit No. 7/79. However, whether the appellants had resorted to further cutting even after the consent decree, on this aspect no doubt the Court below has recorded a finding in favour of the respondent-society, but on analysing the evidence on record it seems that the said finding has been wrongly recorded by the trial Court, inasmuch there is no clinching evidence regarding further cutting of the hill. In the plaint, the respondent-society has alleged that the appellants have resorted to further cutting of the hill in various phases and lastly till the year 1986, or so. In that sense, there is no clear averment as to when the further cutting of the hill was resorted to. The evidence of witnesses examined on behalf of the respondent-society is also vague in this regard. In that sense, there is no clear averment as to when the further cutting of the hill was resorted to. The evidence of witnesses examined on behalf of the respondent-society is also vague in this regard. This witness has merely stated that around 1978, the appellants started further excavation of the hill in their property in the North-South direction and behind their building, very close to the retaining wall constructed by the respondent-society for the protection of the open height. This evidence has, however, not been corroborated. On the other hand, P.W. 1 at a later stage in the evidence deposed that the appellants continued further excavation on a large scale in the months of March, April and May, 1990. This version is obviously not in accord with the stand taken in the plaint, but travels much beyond the period referred to therein. As observed earlier, there is no corroboration on this assertion. On the other hand, in the cross-examination this witness clearly admits that he did not lodge any complaint with any authority for digging (excavation) of the land, nor did he file any suit in any Court for restraining the appellants from digging the land. Another witness relied on by the respondent-society, was P.W. 3, who deposed that in the month of April, 1990, he had observed that the appellants were cutting the hill at the North-West corner of the property of the respondent-society. However, during the cross-examination this witness has been shattered as he deposes that he is not in a position to give the measurements, nor does he remember as to on how many occasions he visited the house of Massani from March to June, 1990, nor does he know as to who had engaged the labourers for cutting the hill during the months of March to June, 1990. This witness further deposes that he had not noticed any cutting prior to March to May, 1990. According to the appellants this witness was an interested witness and he wanted to favour the respondent-society as he was doing work of repairing the refrigerator of P.W. 1, who was examined by the respondent-society. In the circumstances, it would be unsafe to hold that the appellants resorted to further cutting after the consent decree. According to the appellants this witness was an interested witness and he wanted to favour the respondent-society as he was doing work of repairing the refrigerator of P.W. 1, who was examined by the respondent-society. In the circumstances, it would be unsafe to hold that the appellants resorted to further cutting after the consent decree. In that sense further cutting of the hill cannot be said to be the cause for collapse or landslide which took place on 24th June, 1990. 19. Therefore, the other allegations made by the respondent-society will have to be examined to find out the cause of collapse. According to the respondent-society, the appellants had failed to construct the retaining wall for the entire height of, the portion of the hill which was vertically cut by the appellants. It is stated that since the appellants did not cover the entire portion by a retaining wall, the open portion was exposed for all these years, and on account of percolation and seepage of water from this end the retaining wall constructed by the respondent-society became weak and resulted in collapse. From the evidence on record, the respondent-society has been able to establish that at North-West corner of their property, which portion was not covered by the appellants by constructing retaining wall partially, the same was exposed to seepage of water in the retaining wall and staircase of the respondent-society, resulting in collapse on account of the said structures becoming weak in due course of time. To support this plea the respondent-society not only examined P.W. 1, but also adduced expert's evidence by examining P.W. 2, Sakaram Bhende, as also reliance has been placed on evidence of P.W. 4, Francisco Da Gama, who was working as Assistant Engineer in Margao Municipal Council. The trial Court has analysed the evidence with regard to the said aspect; and, in my view, rightly recorded the finding that there was an uncovered portion of the corner of the retaining wall and the retaining wall and staircase collapsed because of seepage of water entering from this open corner of the retaining wall at the West end for all these years rendering it weak which resulted in its collapse. The expert examined on behalf of the respondent-society has deposed in this behalf and the evidence of the said witness has not been shaken. The expert examined on behalf of the respondent-society has deposed in this behalf and the evidence of the said witness has not been shaken. However, to counter the said evidence and the stand taken by the respondent-society, the appellants contended that the collapse was, in fact, on account of negligence of the respondent-society. According to them, construction of the staircase and the retaining wall done by the respondent-society was weak and not in accordance with the report of the Engineers mentioned in the consent terms. The appellants have further alleged that besides the weakness in the construction, there was further reason that the respondent-society had constructed soak pit and septic tank below the staircase and the waste water from the septic tank was percolating and passing through the retaining wall, which made the said structure weak and resulted in collapse. The appellants in support of their stand have examined P.W. 1, P.W. 4, as well as expert witness P.W. 2, Ravindra Mayenkar. However, on analysing the evidence on record both documentary and oral, there is absolutely no legal evidence to support the appellants' plea on either count. The trial Court, in my view, rightly found that the basis on which the plea has been taken by the appellants was totally misplaced and the witnesses, particularly the expert witnesses, had no personal knowledge about the nature of the construction done by the respondent-society. Further, I find no reason to interfere with the finding and conclusion recorded by the trial Court while rejecting the plea of the appellants that the respondent-society had constructed a soak pit and septic tank below the staircase and the waste water from the septic tank was percolating and passing from the retaining wall. The trial Court has analysed the evidence and rightly recorded that there was absolutely no legal evidence in that behalf. On the other hand, the evidence adduced by the appellants does not support the case of overflowing of waste water from the soak pit and septic tank. Besides, the trial Court has also rightly considered other circumstances to discredit the appellants' version. On the other hand, the evidence adduced by the appellants does not support the case of overflowing of waste water from the soak pit and septic tank. Besides, the trial Court has also rightly considered other circumstances to discredit the appellants' version. While discarding the evidence adduced by the appellants, the trial Court, instead recorded a clear finding that from the evidence adduced by the respondent-society, it was more than clear that construction of the retaining wall and staircase done by the respondent-society was in conformity with the report of the Engineers referred to in the consent decree. No doubt the learned Counsel for the appellants has taken this Court through the entire evidence and criticised the same on more than one count. However, after examining the evidence adduced by the respondent-society as a whole as also that of the appellants, I find no reason to depart from the conclusion reached by the trial Court that the collapse was not due to the weakness in the construction of the retaining wall, or the staircase constructed by the respondent-society, or on account of the negligence of the respondent-society as alleged, but was obviously on account of excess cutting of hill and the seepage of water in the open (uncovered) portion of the hill on the West end, which rendered the retaining wall constructed by the respondent-society weak, resulting into collapse of retaining wall as well as the staircase, as a consequence of which extensive damage was caused to the buildings of the respondent-society. Accordingly, I have no hesitation in upholding the conclusion reached by the trial Court that the collapse in question occasioned because of the reasons ascribed by the respondent-society except of further cutting of the hill, which were duly established from the evidence on record. In the circumstances, this issue will have to be answered in favour of the respondent-society and against the appellants. 20. Point (b) : Since the collapse is attributable to the appellants, the trial Court has awarded damages to the respondent-society for a sum of Rs. 5,10,000/-. In the plaint, the respondent-society has averred that on account of collapse various damages were caused and certain preventive measures were necessary to be taken to maintain the building of the respondent-society and to avoid further landslide. The estimated cost of such work was Rs. 5,10,000/-. 5,10,000/-. In the plaint, the respondent-society has averred that on account of collapse various damages were caused and certain preventive measures were necessary to be taken to maintain the building of the respondent-society and to avoid further landslide. The estimated cost of such work was Rs. 5,10,000/-. In support of this plea the respondent-society not only examined P.W. 1, but also the expert witness P.W. 2, Bhende, who was supported this position. Besides the evidence adduced by the respondent-society, the evidence of P.W. 4, P.J. Mane, who is a Civil Engineer, in the Municipal Council, examined on behalf of the appellants, is also useful and would assist the case of the respondent-society. The trial Court having analysed the evidence of the relevant witnesses, no doubt observed that the approximate cost mentioned in the report, Exhibit 45 prepared by the said Shri Mane (P.W. 4), is stated to be Rs. 10,50,000/- and as deposed by P.W. 2, Shri Mayenkar, again examined by the appellants, would indicate that the estimated costs is around Rs. 7,00,000/-. However, the trial Court chose to award damages only to the extent of Rs. 5,10,000/-, as claimed by the respondent-society. The learned Counsel for the appellants mainly argued that there is absolutely no justification on the quantum of damages to be paid to the respondent-society and the trial Court has mechanically granted the amount as prayed for in the suit. This submission deserves to be rejected inasmuch as the trial Court has referred to the relevant evidence, including the evidence which has come on record through the appellants' witnesses. The trial Court has, therefore, taken the view that there is no reason to disbelieve the case of the respondent-society that they had suffered damages to the extent if Rs. 5,10,000/-. There is no doubt that the damage caused to the respondent-society has been extensive due to the said collapse. Not only the retaining wall and the staircase of the respondent-society collapsed, but extensive damage has been caused to the buildings of the respondent-society and it is undisputed that all the buildings are lying vacant since June 24, 1990. The members of the respondent-society who have invested their fortunes in purchasing flats in the said buildings have become victims of circumstances. The suit however, restricts the claim to the extent of Rs. 5,10,000/- only. The members of the respondent-society who have invested their fortunes in purchasing flats in the said buildings have become victims of circumstances. The suit however, restricts the claim to the extent of Rs. 5,10,000/- only. To justify the said amount, the respondent-Society has examined expert witness and the report submitted by the said witness has been proved in evidence. The break up of the said amount of Rs. 5,10,000/- has been indicated in the said report. Taking overall view of the matter, I find that there is no resason to interfere with the conclusion reached by the trial Court that the respondent-society was entitled for damages to the extent of Rs. 5,10,000/-. Accordingly, even this issue will have to be answered in favour of the respondent-society and against the appellants. 21. Issue (d): In view of the aforesaid, discussion, both the appeals would fail and the same deserve to be dismissed and instead the order and decree passed by the trial Court, which is impugned in the present appeals is affirmed. ORDER Both the first appeals are dismissed with costs in the cause. Appeal dismissed. -----