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2016 DIGILAW 2887 (PNJ)

Sohan Lal v. Ved Kumari

2016-10-05

AMIT RAWAL

body2016
JUDGMENT : AMIT RAWAL, J. 1. The appellant-plaintiff is aggrieved of the concurrent findings of facts and law, whereby, the suit for injunction with regard to plot bearing No.74 measuring 30'x72' situated at village Nakanpur Punhana, Tehsil Ferozepur Jhirka, District Gurgaon, has been dismissed by both the Courts below. 2. Mr. S.S. Brar, learned counsel appearing on behalf of the appellant-plaintiff submits that both the Courts below gravely erred in dismissing the suit as the appellant-plaintiff had led evidence and appeared as PW3, supported the version in the plaint on the premise that he was a nominee of Sewa Ram son of Tola Ram and member of the Society namely Pursarthi Co-operative House Building Society Nanakpur Punhana. 3. He further submits that Sewa Ram died issueless in the year 1960 and after his death, the plaintiff as his legal heir, succeeded to the said plot, which was allotted to Sewa Ram. In the year 1958, Sewa Ram, had taken the possession of the plot in question. The Assistant Registrar, Cooperative Societies Narwana while appearing as PW2 clearly stated that he is still a member of the Society. The aforementioned witness specifically stated that the quorum in the meeting held on 24.09.1976, was not complete and thus, meeting was in violation of bye-laws of the Society as many other members also referred to sign the resolution. 4. Both the Courts below have erred in misinterpreting statement of the plaintiff. Once the possession of Sewa Ram has been proved, plaintiff being his nominee succeeded to the same, therefore, was liable to seek injunction, the remedy, if any, was only before the Civil Court and not before the competent authority, in essence, the jurisdiction of the Civil Court was not barred as per the provisions of Section 102 of the Haryana Cooperative Societies Act, 1984 (hereinafter referred to as “Act 1984”). The defendants have failed to discharge the burden qua issue no.2, i.e., withdrawal of the membership. The letter dated 28.03.1994 (Ex.P4) sent by the Assistant Registrar of the Cooperative Society clearly established that the plaintiff was/is still a member of the Society when the suit was filed, thus, both the Courts below gravely erred in not treating the appellant plaintiff as a member and therefore, declined to grant injunction, as sought for. The letter dated 28.03.1994 (Ex.P4) sent by the Assistant Registrar of the Cooperative Society clearly established that the plaintiff was/is still a member of the Society when the suit was filed, thus, both the Courts below gravely erred in not treating the appellant plaintiff as a member and therefore, declined to grant injunction, as sought for. The defendants through secondary evidence placed on record the certain photocopies of the documents and resolution which could not be taken into consideration, for, as the same were manufactured and outcome of conspiracy. The plaintiff had never appended signature, in Urdu. Handwriting expert - Vijay Kumar Rustogi, DW4, in cross examination, admitted that he did not at all know Urdu and thus, the report pales into insignificance. The award of the Arbitrator clearly held that there was no quorum in the meeting held on 24.09.1976 and thus, urged this Court for setting aside the findings under challenge. 5. During the course of arguments, Mr. S.S. Brar, has relied upon the decision dated 10.03.2016 rendered by the Hon'ble Supreme Court in Civil Appeal No.4646 of 2006 titled Indrani Wahi vs. Registrar of Cooperative Societies and others and Civil Appeal No.4930 of 2006, wherein, a question arose whether the nominee other than the family member appointed would be recognized in law or not, the answer given was in “Positive” as it has been held that the nominee other than family member is recognized in law. 6. Per contra, Mr. Shakti Kaushik, Advocate, for Mr. Vinod S. Bhardwaj, learned counsel appearing on behalf of the respondents submits that the judgments and decrees of both the Courts below are based upon the appreciation of oral and documentary evidence. The concurrent findings of facts and law cannot be interfered until and unless, there is gross illegality and perversity. Once the appellant has not been found to be member, he could not seek the injunction. Assuming for an argument sake, he was a member but the fact remains that he failed to discharge the onus qua possession. No documentary evidence, i.e., direct and cogent, much less, corroborative evidence, in this regard had been proved on record, therefore, cannot protect the possession through the intervention of the Court and thus, urged this Court for affirming the findings under challenge. 7. No documentary evidence, i.e., direct and cogent, much less, corroborative evidence, in this regard had been proved on record, therefore, cannot protect the possession through the intervention of the Court and thus, urged this Court for affirming the findings under challenge. 7. I have heard learned counsel for the parties and appraised the judgments and decrees of the Courts below and of the view that once in the other case regarding plea of nominee, wherein, two arbitration awards dated 12.02.1985 and 11.12.1986, the appellant had been held to be a nominee of Sewa Ram. This Court cannot form a different opinion vis-a-vis one plot or other. The award has attained finality. The relief sought by the plaintiff is not with regard to the challenge to the membership but with regard to protection of the possession vis-a-vis the plot, therefore, the remedy, if any under Section 9 of the Code of Civil Procedure was before the Civil Court. It cannot be said to be barred under Section 102 of 1984 Act. The Court was required to confine the aforementioned dispute only. 8. Even otherwise, the copy of the proceedings relied upon by the respondent has not been proved on record as witness of Society in cross-examination divulged that the appellant is still in possession of the suit property, much less, he denied that he had ever appended the signatures on the aforementioned documents. No explanation has come forth under what circumstances, the appellant has appended the signatures in Urdu. 9. It has been proved on record that Sewa Ram had already been allotted a plot and taken the possession. Once the nominee of the appellant is recognizable, the possession would definitely go with the same person. The Courts below ignored the aforementioned facts, thus, there is gross illegality and perversity in the findings under challenge. 10. No doubt, this Court, on earlier occasions had been framing the substantial questions of law while deciding the appeals but in view of the ratio decidendi culled out by five learned Judges of the Hon'ble Supreme Court in Pankajakshi (dead) through LRs and others Vs. 10. No doubt, this Court, on earlier occasions had been framing the substantial questions of law while deciding the appeals but in view of the ratio decidendi culled out by five learned Judges of the Hon'ble Supreme Court in Pankajakshi (dead) through LRs and others Vs. Chandrika and others AIR 2016 SC 1213 , wherein the proposition arose as to whether in view of the provisions of Section 97(1) CPC, provisions of Section 41 of the Punjab Courts Act, 1918 would apply or the appeal i.e. RSA would be filed under Section 100 of Code of Civil Procedure so there is need to frame the substantial questions of law or not. The Constitutional Bench of Hon'ble Supreme Court held that the decision in Kulwant Kaur and others Vs. Gurdial Singh Mann (dead) by LRs and others 2001(4) SCC 262 on applicability of Section 97(1) of CPC is not a correct law, in essence, the provisions of Section 41 of the Punjab Courts Act, 1918 had been restored back. 11. For the sake of brevity, the relevant portion of the judgment of five learned Judges of the Hon'ble Supreme Court in Pankajakshi 's case (supra) reads thus:- “Since Section 41 of the Punjab Act is expressly in conflict with the amending law, viz., Section 100 as amended, it would be deemed to have been repealed. Thus we have no hesitation to hold that the law declared by the Full Bench of the High Court in the case of Ganpat [ AIR 1978 P&H 137 : 80 Punj LR 1 (FB)] cannot be sustained and is thus overruled." [at paras 27 - 29]” “27. Even the reference to Article 254 of the Constitution was not correctly made by this Court in the said decision. Section 41 of the Punjab Courts Act is of 1918 vintage. Obviously, therefore, it is not a law made by the Legislature of a State after the Constitution of India has come into force. It is a law made by a Provincial Legislature under Section 80A of the Government of India Act, 1915, which law was continued, being a law in force in British India, immediately before the commencement of the Government of India Act, 1935, by Section 292 thereof. It is a law made by a Provincial Legislature under Section 80A of the Government of India Act, 1915, which law was continued, being a law in force in British India, immediately before the commencement of the Government of India Act, 1935, by Section 292 thereof. In turn, after the Constitution of India came into force and, by Article 395, repealed the Government of India Act, 1935, the Punjab Courts Act was continued being a law in force in the territory of India immediately before the commencement of the Constitution of India by virtue of Article 372(1) of the Constitution of India. This being the case, Article 254 of the Constitution of India would have no application to such a law for the simple reason that it is not a law made by the Legislature of a State but is an existing law continued by virtue of Article 372 of the Constitution of India. If at all, it is Article 372(1) alone that would apply to such law which is to continue in force until altered or repealed or amended by a competent Legislature or other competent authority. We have already found that since Section 97(1) of the Code of Civil Procedure (Amendment) Act, 1976 has no application to Section 41 of the Punjab Courts Act, it would necessarily continue as a law in force.” 12. Therefore, I do not intend to frame the substantial questions of law while deciding the appeal aforementioned. 13. For the reasons aforementioned, impugned judgments and decrees of both the Courts below are set aside. The suit of appellant-plaintiff is decreed. 14. Resultantly, the Regular Second Appeal stands allowed.