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2013 DIGILAW 1599 (BOM)

Lilabai v. Maruti Raoji Choudhari

2013-08-14

A.B.CHAUDHARI

body2013
JUDGMENT 1. Partly unsuccessful plaintiff has put to challenge the judgment and decree dated 30th June, 1983, passed by the Civil Judge, Junior Division, Akole in Regular Civil Suit No.92/1979, who dismissed her suit in its entirety; and the Judgment and decree dated 30th September, 1989 passed by the 4th Additional District Judge, Ahmednagar in Regular Civil Appeal No.257/1983, who did not decree her suit in full. FACTS: 2. Lilabai, the plaintiff, filed a suit for declaration and possession in respect of various suit lands, described in detail in Para 1 of the plaint, in the court of Civil Judge, Junior Division, Akole. It was her case, that all the defendants in the suit had absolutely no concern, whatsoever, with the suit property, which was originally held by her father – Dagadu Chaudhari. Father of the plaintiff Dagadu died when the plaintiff was only 56 months old and due to his demise, plaintiff – Lilabai, with her mother Sulabai, left to Nawalewadi, leaving all the properties. The plaintiff, her mother and Dagudu’s mother – Rukhamabai were the only legal heirs. However, all the defendants took over the suit properties and even got mutated, mutation entries Nos.1429 and 1430 on 18th December, 1962, in the name of deft.no.1, showing transfer by Rukhmabai, who had no right to do so. Both the aforesaid entries were taken on the same day, i.e. on 18th December, 1962, clearly indicating that the defendants took full advantage of minority of the appellant – Lilabai and her mother, having left the village in distress due to death of Dagadu. It is in this background, the appellant – Lilabai, who is the only legal heir of deceased Dagadu, had filed the aforesaid suit for possession of all those properties. 3. The defendants filed their written statement and raised an objection that the suit was bad for non-joinder of necessary parties, as the properties stood in the name of some other sharers/persons, who were not joined as parties to the suit. It was further stated by the defendants that the lands were mortgaged to the Land Development Bank (for short, the Bank) but that Bank was also not impleaded as a party to the suit. It is further stated that the other persons/sharers, in whose names the lands stand viz. It was further stated by the defendants that the lands were mortgaged to the Land Development Bank (for short, the Bank) but that Bank was also not impleaded as a party to the suit. It is further stated that the other persons/sharers, in whose names the lands stand viz. Mahadu Ranu, Dhondu Khandu, Govind Balaji, Dattatraya Dharma, Jijaba Damu Ranu, Shankar Nawaji, were also not added as parties defendants to the suit. 4. On the basis of mutation entries in their favour, the defendants contended that they were the owners of the suit properties and they are also in possession thereof and, therefore, the suit was bad for non-joinder of necessary parties and was liable to be dismissed. 5. The trial court framed as many as ten issues and dismissed the suit of the plaintiff; while the lower appellate court framed six points for determination and finally partly allowed the appeal and decreed the suit in respect of land Survey Nos. 49/B 50/B, 47/6A/6/B/4, as described in detail in Para 1 of the plaint, but dismissed rest of the claim. Hence, the present second appeal. 6. In support of this appeal, learned Counsel for the appellant, argued that the courts below committed an error in holding that the Bank or other persons/sharers, referred above, allegedly having shares and interest in the said properties, were necessary parties to the suit. 7. It is not correct to say that other sharers have legal right in the suit property, when according to the plaintiff, they have no right, title or interest in the suit property; and what was genesis thereof, merely on the basis of mutation entries. According to him, mere mutation entries do not confer title and, therefore, the defence raised by the defendants about their ownership and possession was clearly contrary to the law. He then argued that none of them were necessary parties to the suit and, therefore, there is clear cut injustice caused to the appellant/plaintiff. He further argued that the trial court relied on the provisions of Sections 47 and 48 of the Maharashtra Cooperative Societies Act, 1960 (hereinafter to be referred as “the Act”) while the lower appellate court had relied on the provisions of Section 118 of the said Act. None of those provisions have any relevance whatsoever in the suit for recovery of possession, the property belonging to the appellant/plaintiff. None of those provisions have any relevance whatsoever in the suit for recovery of possession, the property belonging to the appellant/plaintiff. Then the courts below fell in clear error in doing so. He, therefore, prayed for passing a decree in the suit filed by the appellant/plaintiff. 8. Per contra, learned Counsel for the respondents, vehemently opposed the appeal and supported the impugned judgment and decree. He argued that several long–drawn mutation entries have been in favour of the defendants and they have been also in possession of the suit properties. The mutation entries were never challenged by the appellant/plaintiff, and on the contrary, the defendants have been in long, continuous and adverse possession. He further argued that the suit is liable to the dismissed since the defendants must be held to be in adverse possession. 9. The counsel then argued that the provisions of the Maharashtra Cooperative Societies Act, which have been relied upon, are clear enough, in the sense, that the Bank has first and foremost charge over the property mortgaged to it and, therefore, the Bank was necessary party. He then argued that the other sharers/persons, who were having shares in the suit property, were also not impleaded as parties defendants to the suit and, therefore, the suit is bad for non-joinder of necessary parties to the suit. There are concurrent findings on this aspect and, therefore, no interference is required and he prayed for dismissal of the second appeal. CONSIDERATION: 10. I have gone through the impugned judgments. I have seen the record and proceedings. Heard the learned counsel for rival parties. 11. The trial court, in answer to the issues framed by it, held thus, i) The plaintiff proved that the mutation entries No.1429 and 1439 dated 18th December, 1962, were effected illegally, fraudulently and falsely contrary to the interest of the appellant/plaintiff; ii) Deft. No.1Salubai, mother of the plaintiff, was concerned with the suit property; iii) The suit was bad for non-joinder of necessary parties; iv) The suit was not barred by law of limitation; v) The defendants did not prove that they became absolute owner of the suit property by adverse possession; vi) Deft.Nos.1 to 5 did not prove that the suit property was joint Hindu family of deft. Nos.1 to 5 and the plaintiff; It is thus clear that though the trial court answered on merits of the issues in favour of the appellant/plaintiff, it dismissed the suit for non-joinder of necessary parties. 12. The lower appellate court framed, in all, six points for determination and it answered the points, thus- a) The mutation entries No.1429 and 1430 are not legal and correct; b) The deft.Nos.1 to 9 have absolutely no concern with the suit property; c) The defendants failed to prove that the suit property is joint Hindu family property of the plaintiff on one side and deft.Nos.1 to 5 on the other side; d) The defts. failed to proved that they became absolute owner of the suit property by adverse possession; e) The suit was bad for non-joinder of necessary parties in part in respect of some of the properties. f) The plaintiff was entitled to the relief, in part. Thus, the lower appellate court decreed the suit, in part; and to be precise, in respect of the land Survey Nos.49/B, 50/B and 47/6A/6B/4 as described in detail in Para 1 of the plaint. The lower appellate court, however, refused the relief in relation to land survey Nos.26/1, 250/3, 54/3+4+5A, 55/2, 61/1+2 and 54/8. In so far as part of the decree granted in favour of the plaintiff by the lower appellate court, following reasons in Para No.9 of the judgment of the lower appellate court, are relevant, which I quote thus,“ 9. It is the contention of the defendants that the suit is bad for non-joinder of necessary parties. While considering this question, we have to take into consideration each and every land separately. From the perusal of the 7 x 12 extracts of the suit lands, as well as the mutation entry, which is produced at Exh.43, we find that all the defendants or any other persons are not having share in all the suit lands. Even then it appears that the learned trial judge has dismissed the entire suit. We find that the land bearing S.No.49B, 50/D 46/6A+B/4, hare been allotted to the share of Dagadu. Hoover, now the said lands are in possession of deft.No.1 and his names is entered in the record of rights. There is nothing on record to show that besides the deft. Any other person is in any way connected with the said lands. We find that the land bearing S.No.49B, 50/D 46/6A+B/4, hare been allotted to the share of Dagadu. Hoover, now the said lands are in possession of deft.No.1 and his names is entered in the record of rights. There is nothing on record to show that besides the deft. Any other person is in any way connected with the said lands. So under such circumstances, by no strewth of imagination, it can be said that the plaintiff's claim in respect of these lands is bad for want of necessary parties. So in my opinion, the finding recorded by the learned trial Judge to the effect is not legal and correct." I agree with the aforesaid finding recorded in para No.9 above by the lower appellate court. 13. There is no cross-objection filed by the other side, nor the finding has been shown to be wrong and perverse in any away. I find that the said finding recorded by the lower appellate court is legal, correct and proper. 14. As regards land survey Nos.250/3 and 52/2, the lower appellate court has recorded finding in para 10 of its judgment, thus- “10. So far as the lands bearing No. 250/3 and 52/2 are concerned, we find that besides Dagadu, some other persons, who are not impleaded in the present suit, are having share in the said properties. Naturally, no effective decree can be passed in respect of these lands in the absence of those sharers. So it can be said that the said sharers are necessary parties to the present suit in respect of the above mentioned two lands and as they are not made parties, the suit is bad so plaintiff's claim in respect of these two lands cannot be granted.” 15. In the light of the above, the following substantial questions of law arise for my consideration,- (i) Whether, merely because names of some persons appeared in the Mutation entry No. 1430, about which, both the Courts below have concurrently recorded a finding that the said entries were not legal and correct, but were got effected by fraud, the suit could be dismissed holding that those persons were necessary parties to the suit? No. (ii) Whether the courts below committed an error in holding that the Land Development Bank was necessary party to the suit for possession in the light of Sections 47, 48 and 118(5) of the Maharashtra Cooperative Societies Act, 1960? No. (iii) Whether the suit was consequently liable to be decreed in its entirety? Yes. (iv) What order? Second Appeal is allowed. 16. From reading of the Para 10 of the judgment of the lower appellate court, referred above, to my mind, the reasons given therein are absolutely wrong and illegal. As earlier stated, the lower appellate court itself recorded a finding in answer to point Nos.2 and 3, that the deft.Nos.1 to 9 absolutely have no concern with the suit properties and the suit properties were exclusive properties of appellant/plaintiff and her mother. It is also held that all the deft.Nos.1 to 9 are rankstrangers. Thus, there is a concurrent finding that plaintiff and her mother are the only exclusive owners and none else. The other persons appearing in the Mutation entries are not at all concerned. Despite this finding, in answer to point Nos.2 and 3, the lower appellate court has recorded a finding in Para 10 of its judgment that such other persons were necessary parties. When none of the defendants, as has been found, had any right, title or interest in the suit properties, but for false, bogus and fraudulent reasons, mutation entries were recorded in their favour, they could not be necessary parties to the suit. I, therefore, hold that the above finding is clearly illegal and perverse. Hence, I answer the question No.(i) in negative. 17. In so far as Survey Nos.26/1, 54/3/4B, 61/1+2, 54/8, the lower appellate court has refused the relief in respect of those properties by recording the reasons in Para 11 of its judgment, which again in my opinion are absolutely wrong and illegal. 18. The only ground, on which the lower appellate court has refused the relief in respect of those properties mentioned in Para 11 of its judgment, is that Section 118(5) of the Maharashtra Cooperative Societies Act, is applicable in the case as hand and, therefore, the Bank, which was appearing as Kabjedar in the revenue record, was in charge of the properties and, therefore, the Bank was necessary party to the suit and the suit was not tenable in the absence of the Bank. The reason given by the trial court in this context is reliance place on Sections 47 and 48 of the Maharashtra Cooperative Societies Act. It would be better to quote Sections, 47, 48 and 118(5) of the said Act, which read thus,- 47. Prior claim of society. - (1) Notwithstanding anything in any other law for the time being in force, but subject to any prior claim of Government in respect of land revenue or any money recoverable as land revenue and to the provisions of sections 60 and 61 of the Code of Civil Procedure, 1908. (a) any debt or outstanding demand, owing to a society by any member or past member or deceased member, shall be a first charge,- (i) upon the crops or other agricultural produce raised in whole or in part whether with or without a loan taken from the society by such member or past member or deceased member,- (ii) upon any cattle, fodder for cattle, agricultural or industrial implements or machinery, or raw materials for manufacture, or workshop, godown or place of business supplied, to or purchased by such member or past member or deceased member, in whole or in part, from any loan whether in money or goods made to him by the society, and (iii) upon any movable property which may have been hypothecated, pledged or otherwise mortgaged by a member with the society, and remaining in his custody; (b) any outstanding demands or dues payable to a society by any member or past member or deceased member, in respect of rent, shares, loans or purchase money or any other rights or amounts payable to such society, shall be a first charge upon his interest in the immovable property of the society, Explanation. — The prior claim of Government in respect of dues other than land revenue, shall be restricted for the purpose of subsection (1) to the assets created by a member out of the funds in respect of which the Government has a claim. (2) No property or interest in property, which is subject to a charge under the foregoing subsection, shall be transferred in any manner without the previous permission of the society; and such transfer shall be subject to such conditions, if any, as the society may impose. (3) Any transfer made in contravention of subsection (2) shall be void. (2) No property or interest in property, which is subject to a charge under the foregoing subsection, shall be transferred in any manner without the previous permission of the society; and such transfer shall be subject to such conditions, if any, as the society may impose. (3) Any transfer made in contravention of subsection (2) shall be void. (4) Notwithstanding anything contained in subsections (2) and (3), a society, which has as one of its objects the disposal of the produce of its members, may provide in its bylaws, or may otherwise contract with its members, (a) that every such member shall dispose of his produce through the society, and (b) that any member, who is found guilty of a breach of the bylaws or of any such contract, shall reimburse the society for any loss, determined in such manner as may be specified in the bylaws." "48. Charge on immovable property of members borrowing from certain societies.-Notwithstanding anything contained in this Act or in any other law for the time being in force, (a) any person who makes an application to a society of which he is a member, for a loan shall, if he owns any land or has interest in any land as a tenant, make a declaration in the form prescribed. Such declaration shall state that the applicant thereby creates a charge on such land or interest specified in the declaration for the payment of the amount of the loan which the society may make to the member in pursuance of the application, and for all future advances (if any) required by him which the society may make to him such member, subject to such maximum as may be determined by the society, together with interest on such amount of the loan and advances; (b) any person who has taken a loan from a society of which he is a member, before the date of the coming into force of this Act, and who owns any land or has interest in land as a tenant, and who has not already made such a declaration before the aforesaid date shall, as soon as possible thereafter, make a declaration in the form and to the effect referred to in clause (a); and no such person shall, unless and until he has made such declaration, be entitled to exercise any right, as a member of the society; (c) a declaration made under clause (a) or (b) may be varied at any time by a member, with the consent of the society in favour of which such charge is created; (d) no member shall alienate the whole or any part of the land or interest therein, specified in the declaration made under clause(a) or (b) until the whole amount borrowed by the member together with interest thereon, is repaid in full: Provided that, it shall be lawful to a member to execute a mortgage bond in respect of such land or any part thereof in favour of an agriculture and Rural Development Bank or of the State Government under the Bombay Canal Rules made under the Bombay Irrigation Act, 1879 or under any corresponding law for the time being in force for the supply of water from a canal to such land, or to any part thereof: Provided further that, if a part of the amount borrowed by a member is paid the society with the approval of the Central Bank to which it may be indebted may, on an application from the member, release from the charge created under the declaration made under clause (a) or (b), such part of the movable or immovable property specified in the said declaration, as it may deem proper, with due regard to the security of the balance of the amount remaining outstanding from the member; (e) any alienation made in contravention of the provisions of clause (d)shall be void; (f) Subject to all claims of the Government in respect of land revenue or any money recoverable as land revenue, and all claims of the Agriculture and Rural Development Bank in respect of its dues, in either case whether prior in time or subsequent, and to the charge (if any) created under an award made under the Bombay Agricultural Debtors Relief Act, 1947 or any corresponding law for the time being in force in any part of the State, there shall be a first charge in favour of the society on the land or interest specified in the declaration made under clause (a) or (b),for and to extent of the dues owing by the member on account of the loan. (g) and in particular, notwithstanding anything contained in Chapter X of the Maharashtra Land Revenue Code,1966, the Record of Rights maintained thereunder shall also include the particulars of every charge on land or interest created under a declaration under clause (a)or (b), and also the particulars of extinction of such charge. (i) any resource society, the majority of the members of which are agriculturists and the primary object of which is to obtain credit for its members, or (ii) any society, or any society of the class of societies, specified in this behalf by the State Government, by a general or special order." Explanation.— For the purposes of this section, the expression "society" means - "118(5) If any person interested in the land has failed to present his objections (if any) under subsection (1) in time, the application for loan shall be considered in his absence, and if the loan applied for is sanctioned such person shall not withstanding anything contained in this Act or any other law for the time being in force, have no claim whatsoever against the land to be improved or offered as security till such time as the amount of loan together with interest thereon or any other dues arising out of the loan are paid in full by the loanee." 19. In my opinion, the reasons given by both the courts below regarding the aforesaid provisions of the Act, qua the suit between the parties for possession, have absolutely no relevance. For no reasons, the courts have held that the Land Development Bank was necessary party to the suit. 20. Apart from the above, Mr. Shelke, learned Counsel for the appellant has made a statement before me that all the dues of the Bank were already paid and, therefore, even for that reason, the question of joining the Bank as party to the suit, did not arise. I need not to go into that aspect of the matter. But then I find that none of the above said provisions have any relevance, whatsoever, in the present suit between the parties when the plaintiff – Lilabai wanted back her properties from the defendants. If at all the Bank had any cause or reason to proceed against the suit property, that cannot be a subject matter of the instant suit, to say that the Bank was necessary party to the suit. If at all the Bank had any cause or reason to proceed against the suit property, that cannot be a subject matter of the instant suit, to say that the Bank was necessary party to the suit. Under the provisions of Maharashtra Cooperative Societies Act, remedy for the Bank is independently provided. But then the suit between the private parties cannot be dismissed on such flimsy ground. At any rate, reading of the aforesaid provisions, to my mind, clearly shows that these provisions are only for protecting the interest of the Bank in respect of the loans taken from the said Bank and nothing more. But, then that by itself cannot be mixed up with the civil remedies of the parties. At any rate, the defendants cannot be allowed to raise such a plea by invoking the said provisions under the Maharashtra Cooperative Societies Act, which had nothing to do with the civil rights of the plaintiff and defendants as they are. Thus, the finding that the Bank was necessary party to the suit and, therefore, the suit was liable to be dismissed, is totally perverse and illegal. In the result, the Second Appeal must succeed. Hence, I make the following order, - ORDER (i) Second Appeal No.219/1990 is allowed with costs throughout; Civil Applications disposed of. (ii) The judgment and order dated 30th September, 1989 passed by the 4th Additional District Judge in Regular Civil Appeal No.257/1983, is hereby set aside; (iii) The judgment and decree passed by the lower appellate court dated 30th September, 1989 in respect of declaration and possession of the land survey No.26/1, 250/3, 54/3+4+5A, 55/2, 61/1+2 and 54/8, is set aside and the judgment and order in respect of Survey No.49/B, 50/B and 47/6A/6B/4, is confirmed. (iv) The suit of the plaintiff in respect of declaration as to the lands survey No.26/1, 250/3, 54/3+4+5A, 55/2, 61/1+2 and 54/8,is decreed; (v) An inquiry be made in respect of future mesne profits, in terms of order XX Rule 12 (1)(c) of Civil Procedure Code, in respect of all the lands, as described in Para 1 of the Plaint. After pronouncement of this judgment, learned Counsel for the respondents prays for stay of the judgment, which prayer is opposed by the counsel for the appellants. The judgment is stayed for a period of six weeks from today.