Research › Search › Judgment

Madhya Pradesh High Court · body

2008 DIGILAW 1070 (MP)

Mohd. Jiyawul Hakh v. Trilonchan Singh Chopda

2008-08-25

K.C.SHARMA, P.D.MISHRA

body2008
JUDGMENT Sharma, Chairman -- 1. Being aggrieved with the order passed by the Joint Registrar Cooperative Societies, Jabalpur in FA No. 78-214/05 dated 30.12.2006, the appellant has preferred this second appeal u/s 78(2) of the M.P. Cooperative Societies Act, 1960 (for short "the Act"). 2. Facts of the case are that appellant has purchased plot bearing No. 16, Khasra No. 63, 64 measuring 40x60, situated in village Baitala, Tahsil and District Jabalpur settlement No.52 from one Shri Kemchand Jain S/o Shri Kundanlal Jain, by a registered sale-deed, who were the members of the respondent No.2 society. The said Kemchand Jain had purchased this plot by registered sale-deed dated 9.3.1977 from the society. The appellant had obtained the possession of the said plot from Shri Kemchand Jain. Appellant had submitted an application before the Municipal Corporation, Jabalpur along with the proposed map for raising construction on the said plot. However, permission was not granted to the appellant, as the said society was illegal. Respondent No.2 society published General Notice dated 14.8.1998 and 6.9.1998 in the daily newspaper, 'Nav Bharat' informing the members of the society that those members who have not constructed the house within the stipulated time on the plots allotted to them by the society then they were directed to surrender their plots in favour of the society respondent No.2, so that these plots may be allotted to some other members. Thereafter vide order dated 29.10.1998 society forfeited the disputed plot to the appellant (Jiyawul Hakh) vide registered sale-deed dated 30.10.1998. 3. Plaintiff-respondent No.1 Trilokchan Singh Chopda filed a dispute before Deputy Registrar Cooperative Societies, Jabalpur u/s 64 of the Act, which was registered as 64-1/1999 and prayed for the following relief: (a) that the order dated 29.10.1998 passed by the respondent No.1 regarding admission of plot No.16 be cancelled; (b) respondent No.1 be directed to restore the membership of the plaintiff; (c) bank draft dated 29.10.1998 against the costs of the plot be accepted, which was returned on 10.12.1998 tot he appellant by the respondent; and, (d) permanent injunction against the respondent No.1 be issued with a direction to the appellant not to interfere in peaceful possession of the plaintiff respondent No.1. 4. 4. Learned Deputy Registrar returned the suit on the ground that the dispute filed by the respondent No.1 does not come into the purview of section 64 of the Act and directed the respondent No.1 to file a dispute before the competent Court, i.e., civil Court. Against this order plaintiff-respondent No.1 filed First Appeal No. 78-214/05. Joint Registrar Cooperative Societies vide order dated 30.12.2006 allowed the appeal. Against this order, the appellant filed this second appeal. 5. Following substantial question of low was formulated: "Whether cooperative Court has jurisdiction to adjudicate the dispute u/s 64 of the M.P. Cooperative Societies Act, 1960 wherein immovable property has been transferred by a registered sale-deed." 6. Learned counsel for the plaintiff respondent No.1 Shri K.N. Dubey submits that the question to the validity of the sale-deed relied upon by the plaintiff included the question concerning the validity of the membership or the vendee, and the competence and authority of the office hearers of the society in regard to execution or the sale-deed for and on behalf of the execution of the sale-deed for and on behalf of the society and since the dispute raised by the respondent No.1 Society touched the constitution, management and business of the society, the exclusive jurisdiction to decide them vested with the Registrar and the civil Court had no jurisdiction to entertain a Suit. Learned counsel of the plaintiff respondent No.1 further contended that as provided u/s 64 (1)(c) of the Act, any dispute touching the constitution, management or business of the society was liable to be referred to the Registrar. Learned counsel for the plaintiff respondent No.1 submitted that the sale relied upon by the appellant was complete with the execution or the sale-deed by the society in favour of Shri Kemchand Jain. With the permission or the society, plaintiff respondent No.1 purchased this plot by registered sale-deed on 9.3.1977. From 9.3.1977, society ceases to have any right, title or interest in the plot of land, which was the subject-matter of the sale-deed of which right, title and interest stood passed on in favour of Shri Kemchand Jain and thereafter plaintiff-respondent No.1. With the permission or the society, plaintiff respondent No.1 purchased this plot by registered sale-deed on 9.3.1977. From 9.3.1977, society ceases to have any right, title or interest in the plot of land, which was the subject-matter of the sale-deed of which right, title and interest stood passed on in favour of Shri Kemchand Jain and thereafter plaintiff-respondent No.1. Learned counsel for the plaintiff-respondent No.1 placed reliance on Nagrik Grih Nirman Sahkari Samiti, Jagdalpur and another v. Anil Kumar Mane [2000RN 343], wherein Hon'ble High Court has observed that, "sale-deed of plot executed after allotment to its member by the society and same plot again disposed or in favour of another member then the nature of this dispute is covered by section 64 of the Act and no civil suit is maintainable". He further submitted that appellant has no locus standi to contest the suit as he has already sold the plot to some another person by registered sale-deed. He also submitted that the plaintiff had tried his level best to comply the conditions mentioned in sale-deed for construction, within the stipulated period, but as the colony was illegal. Therefore, permission was not given by the Municipal Corporation, Jabalpur for raising the constructions. 7. Learned counsel for the non-applicant contended that his sale-deed has been cancelled mainly on the ground of violation or the conditions of bye-law No. 43(1) and clause 11 of the sale-deed. According to the learned counsel the present model bye-law No. 43 (1) have been adopted in the year 1981 and sale-deed of non-applicant No.1 is of the year 1981 and thus this condition is not applicable to non-applicant No.1. As per this bye-law the member has to build a house in the allotted plot within three years from the date of allotment and this period of three years can be extended from time to time but only for two occasions for one year each. Proviso added to this byelaw further clarify that such members who have been allotted the plot prior to coming into force of these bye-laws shall be governed by the then existing bye-law and not by the present bye-law. It has also been held in Prem Narayan v. Shilpakar Sahakari Mazdoor Sangh, Shivpuri and others [1971 RN 521], and Samsunder Verma and others v. Assistant Registrar, Rajghar [1989 RN 129], that subsequent change in bye-law will not invalidate earlier allotment. It has also been held in Prem Narayan v. Shilpakar Sahakari Mazdoor Sangh, Shivpuri and others [1971 RN 521], and Samsunder Verma and others v. Assistant Registrar, Rajghar [1989 RN 129], that subsequent change in bye-law will not invalidate earlier allotment. In this way the provisions of bye-law No. 43(1) would not he applicable to the present case. There is no clause like clause No.11 in the sale-deed or non-applicant No.1 and thus, there was no any question to violate the terms and conditions contained in this clause. Learned counsel for the non-applicant further pointed out that prior to 1990 the other model bye-laws were applicable. Bye-law No. 40(3) also provided that if the allottee does not build a house on the allotted plot within three years from the date of allotment his allotment order shall be cancelled. According to him it is not a simple case of allotment but at the same time the registered sale-deed was executed in favour of non-applicant No.1 and therefore the non-applicant No. 2 was not competent unilaterally to cancel the registered sale-deed. Consequently, this cancellation is void and non-est. But it is not a case of cancellation hut at the same time other sale-deed has also been executed in favour of the petitioner and thus it is voidable at the instance of non-applicant No.1. 8. Refuting the aforesaid arguments the learned counsel fur the appellant submitted that the respondent No.1 in this case claiming the relief to the effect that he is still the owner and in possession at the disputed plot and the appellant docs not get any right title or interest on the said plot by virtue of subsequent sale-deed in his favour. In the light and the background of the facts the learned counsel for the appellant contended that this dispute is not covered under section 64 of the Act and is not cognizable by the cooperative Courts. Such dispute can only be decided by the civil Court. In support of his contention he has relied on a judgment of our High Court in Rathan Singh v. Radhe Shayam and seven others passed in Appeal No.218/98 judgment dated 23.4.1998. In this case the honorable High Court has held that the Registrar could not go beyond the scope or section 64 of the Act as jurisdiction conferred by this section only in relation to the nature of dispute mentioned therein. In this case the honorable High Court has held that the Registrar could not go beyond the scope or section 64 of the Act as jurisdiction conferred by this section only in relation to the nature of dispute mentioned therein. None of the clause under section 64 of the Act confer this jurisdiction upon the registrar to decide the question to declare the sale-deed as null and void, granting permanent injunction on the basis of easementary rights. This is cognizable only by the civil Court and jurisdiction of civil Court is wider and general under section 9 of the CPC. In this connection two more judgment of our High Court may usefully be referred here. One is reported Smt. Sunita Gupta v. Chandra Devi and others [1966 RN 361]. In this case it has been held that if the plot is transferred to the plaintiff again transfer to third person by same cooperative society, civil Court is not barred under section 82 of the Act and remedy under section 64 of the Act cannot be availed. Second case is reported in Dr. Kusum Verma and others v. Preetam Singh and others [1998 (1) Vidhi Bhasvar 203 = 1998 (1) MPLJ 578]. In this case it has been held that the dispute in regard to invalidity of the sale-deed and its cancellation on the ground of it being voidable can only be determined and adjudicated by the civil Court. Dispute relating to the transaction of sale can be referred to the Registrar only up to the stage anterior to the passing of title and not thereafter. 9. However, taking into consideration the pleadings of the parties and the nature of the claim as set forth in the plaint and in the appeal it is obvious that the dispute raised by the plaintiff cannot by any stretch of imagination be taken to be a dispute touching the constitution, management or business of the society. The society exfacie had parted with its interest in the plot in dispute with the execution of the sale-deed dated 9.3.1977. The transaction of sale of the plot stood completed with the registration of the sale-deed. In case, this sale-deed was voidable its effect could only be taken away by avoiding the same and getting it cancelled through a civil Court of competent jurisdiction. The transaction of sale of the plot stood completed with the registration of the sale-deed. In case, this sale-deed was voidable its effect could only be taken away by avoiding the same and getting it cancelled through a civil Court of competent jurisdiction. So long as a voidable sale-deed is not cancelled, it continues to remain valid and effective. It is not the case of the appellant that the sale-deed dated 9.3.1977 and 14.3.1981 was void which could be ignored. Business of the society as has already been noticed herein above was to acquire the land and after carving out the plots sel1 them to its members for raising residential houses. In a case where the transaction of sale is claimed by the society to be voidable and further in all such cases where the relief claimed by the plaintiff is such which cannot be granted by the Registrar or any Forum contemplated under the Act, even in those cases the bar of section 84 of the Act cannot be said to have been attracted. A decree of permanent prohibitory injunction and declaration as sought for by the plaintiff could not have been granted in any Forum provided under the Act. 10. Without cancellation of the earlier registered sale-deed no relief can be granted to the plaintiff by the Court of Deputy Registrar and the relief of cancellation and permanent injunction can only be granted by the civil Court. Hence, as a result what had been said above, the present appeal is allowed and the impugned order passed by the Joint Cooperative Societies dated 30.12.2006 in FA No.78-214/05 is hereby quashed. Record of the lower Court be returned along with the copy of this order. Parties to bear their own costs.