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2024 DIGILAW 793 (TS)

Vasireddy Navaneet Kumari Died v. M. Sreedhar

2024-09-21

ALOK ARADHE, SREENIVAS RAO

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JUDGMENT: (Per the Hon’ble the Chief Justice Alok Aradhe) Mr. Bharath Chandra Madas, learned counsel appears for Mr. Srinivasa Rao Bodduluri, learned counsel for the appellant in W.A.No.1422 of 2013/respondent No.3 in the writ petition. Mr. Mummaneni Srinivasa Rao, learned counsel appears for the appellant Society in W.A.No.1661 of 2013/respondent No.4 in the writ petition. Mr. R.N. Hemendranath Reddy, learned Senior Counsel represents Mr. M. Pratheek Reddy, learned counsel for respondent No.1 in W.A.No.1422 of 2013/petitioner in the writ petition. Mr. A. Dheeraj, learned counsel appears for Mr. D. Jaipal Reddy, learned counsel for respondent Nos.12 and 14 in W.A.Nos.1422 and 1661 of 2013 respectively. 2. W.A.No.1422 of 2013 has been filed by a Member of Kalyan Nagar Cooperative Housing Society Limited (hereinafter called, ‘the Society’), whereas W.A.No.1661 of 2013 has been filed by the Society. Both the appeals emanate from an order dated 24.06.2013 passed by the learned Single Judge in W.P.No.8304 of 2008. Therefore, the appeals were heard analogously and are being decided by this common judgment. 3. The parties are hereinafter referred to as they are arrayed in the writ petition, for the facility of reference. 4. Facts giving rise to filing of these appeals in nutshell are that the petitioner was admitted as member of the Society on 27.01.1988. Thereafter, he was allotted a plot, namely plot bearing No.59 measuring 493.3 square meters situate in survey Nos.52, 138, 139 and part of survey No.137, Yousufguda, Hyderabad (hereinafter referred as ‘the subject plot’). A registered sale deed was executed in his favour on 28.01.1988 by the respondent Nos.5 and 6. The petitioner obtained permission for construction on 29.03.1989 from the Municipal Corporation, Hyderabad. 5. The Society issued a notice on 24.11.2000 to the petitioner proposing to cancel the sale deed executed in his favour by the Society. The petitioner thereupon filed O.S.No.6951 of 2000 before the Second Junior Civil Judge, City Civil Court, Hyderabad seeking a declaration that the said notice dated 24.11.2000 is illegal. The aforesaid suit was decreed on 30.07.2003 ex parte. Thereafter, an application was filed to set aside the ex parte decree, which was dismissed by the trial Court on 07.04.2006. The said order was set aside vide order dated 11.06.2009 by a Bench of this Court in C.R.P.No.3894 of 2006. The suit was restored to file and was eventually dismissed on 03.11.2009. 6. One Mr. Thereafter, an application was filed to set aside the ex parte decree, which was dismissed by the trial Court on 07.04.2006. The said order was set aside vide order dated 11.06.2009 by a Bench of this Court in C.R.P.No.3894 of 2006. The suit was restored to file and was eventually dismissed on 03.11.2009. 6. One Mr. V.G.K.Prasad, the husband of respondent No.3 initiated a proceeding under Section 61 of the Andhra Pradesh Cooperative Societies Act, 1964 (hereinafter referred to as ‘the Act’), namely A.R.C.No.38 of 2000 before the Divisional Cooperative Officer, Charminar, Hyderabad against the petitioner and the respondent Nos.4 to 6 seeking a declaration that the allotment and registration of plot No.59 in favour of the petitioner is illegal. A direction was also sought to the Society to re-allot it in his favour. The claim in the proceeding was inter alia made on the ground that the respondent No.3 is his wife, who was a member of the Society. It was averred that his wife transferred the membership to him in the year 2000. It was also averred that the petitioner, even though he was a minor on the date of admission as a member to the society, was illegally admitted as such by respondent Nos.5 and 6, which is contrary to bye-law No.4 of the bye-laws of the Society. It was pleaded that the respondent Nos.5 and 6 were not holding the post of President and Secretary of the Society at the relevant time and even though a sale deed in respect of plot in question namely Plot No.59 was existing in favour of respondent No.8, the same was sold to the petitioner. 7. By an award dated 25.04.2002 passed by the Divisional Cooperative Officer, the aforesaid A.R.C., was dismissed. The claim of the husband of respondent No.3 was rejected inter alia on the ground that the transfer of membership by his wife in his favour is invalid. It was further held that the claim was barred by limitation. It was also held that the sale of plot No.59 to the petitioner is not invalid on the ground that he was minor on the date of execution of the sale deed. The husband of the respondent No.3 did not challenge the order passed by the Divisional Cooperative Officer before the higher forum. 8. Thereafter, the respondent No.3, namely wife of Mr. The husband of the respondent No.3 did not challenge the order passed by the Divisional Cooperative Officer before the higher forum. 8. Thereafter, the respondent No.3, namely wife of Mr. V.G.K.Prasad filed another petition under Section 61 of the Act seeking to declare the allotment of plot made in favour of the petitioner as void, illegal and to allot her the plot No.59 or plot No.198 on the ground that she is the senior most member of the Society. 9. The Divisional Cooperative Officer, Charminar, Hyderabad by an award dated 15.09.2003 inter alia held that the proceeding initiated by the petitioner under Section 61 of the Act is not barred by res judicata. It was further held that the alienation of plot No.59 by the Society in favour of the petitioner is the outcome of fraud and collusion between the petitioner and the respondent Nos.5 and 6. It was also held that the sale deed dated 28.01.1988 executed in favour of the petitioner is void ab initio. The Divisional Cooperative Officer held that after expiry of their term, the President and the Secretary of the Society had admitted the petitioner as member of the society and had executed a sale deed in his favour. 10. The petitioner challenged the aforesaid award in an Appeal, namely C.T.A.No.5 of 2004, before the Andhra Pradesh Cooperative Tribunal, Hyderabad. The aforesaid Tribunal by a judgment dated 04.03.2008 inter alia affirmed the findings recorded by the Divisional Cooperative Officer contained in the order dated 15.09.2003 and dismissed the appeal. The petitioner challenged the said judgment in a writ petition, namely W.P.No.8304 of 2008. The learned Single Judge by an order dated 24.06.2013 inter alia held that the Society had no right, title or interest in respect of the subject plot in the absence of any registered conveyance deed. It was further held that the respondent No.3 again claimed the subject plot through the Society. It was also held that the fraud, if any played by the petitioner does not entitle the Society to deprive the respondent No.1 to the plot and allotted to respondent No.3. The learned Single Judge found that the orders passed by the Divisional Cooperative Officer and the Cooperative Tribunal suffer from error apparent on the face of record. It was also held that the fraud, if any played by the petitioner does not entitle the Society to deprive the respondent No.1 to the plot and allotted to respondent No.3. The learned Single Judge found that the orders passed by the Divisional Cooperative Officer and the Cooperative Tribunal suffer from error apparent on the face of record. The learned Single Judge, therefore, set aside the award dated 15.09.2003 passed in A.R.C.No.3 of 2002 by the Divisional Cooperative Officer and the judgment dated 04.03.2008 passed in C.T.A.No.5 of 2004 by the Cooperative Tribunal. Accordingly, the writ petition was allowed. Being aggrieved, the respondent No.3 has filed W.A.No.1422 of 2013, whereas the Society has filed W.A.No.1661 of 2013. 11. The learned counsel for the appellant in W.A.No.1422 of 2013 submitted that the learned Single Judge ought to have appreciated that the respondent No.8 had conveyed the said plot to the Society and the Society was the owner thereafter. It was further submitted that the learned Single Judge ought to have appreciated that the petitioner had no right, title or interest in respect of the said plot. Attention of this Court was also invited to the petition, namely A.R.C.No.3 of 2002 and it was pointed out that the averment was made in respect of subject plot even in the body of the petition. However, the learned counsel for the appellant fairly admitted the fact that the husband of the deceased appellant in W.A.No.1422 of 2013 had filed A.R.C.No.38 of 2000, which was dismissed vide award dated 25.04.2002 was not mentioned in the petition filed by the original appellant. 12. Learned counsel for the appellant Society in W.A.No.1661 of 2013 submitted that the learned Single Judge ought to have appreciated that the respondent Nos.5 and 6 had ceased to be the members of the Society on 10.06.1987. However, even after the expiry of their term, they admitted the petitioner to be member of the Society and executed a sale deed in his favour. It is further submitted that the petitioner was admitted as a member in contravention of the bye-laws of the Society. However, the learned Single Judge has failed to appreciate the aforesaid aspect of the matter. 13. It is further submitted that the petitioner was admitted as a member in contravention of the bye-laws of the Society. However, the learned Single Judge has failed to appreciate the aforesaid aspect of the matter. 13. Learned Senior Counsel for petitioner has submitted that the husband of respondent No.3 had filed a petition under Section 61 of the Act, namely A.R.C.No.38 of 2000, which was dismissed by an award dated 25.04.2002. However, the respondent No.3, namely wife of Mr. V.G.K.Prasad without disclosing the fact of dismissal of A.R.C.No.38 of 2000 by an award dated 25.04.2002, filed the petition under Section 61 of the Act, namely A.R.C.No.3 of 2002 seeking the relief in respect of plot No.59. It was further submitted that the respondent No.3 is guilty of suppression of material facts. It is contended that in the absence of any conveyance deed in favour of the Society, the Society has no right, title or interest in respect of the subject plot. The learned Senior Counsel for the petitioner has supported the order passed by the learned Single Judge. 14. Learned counsel for the respondent No.12 (newly impleaded respondent) has adopted the submissions made on behalf of the learned Senior Counsel for the petitioner. 15. We have considered the rival submissions made on both sides and have perused the record. 16. Admittedly, the husband of the respondent No.3 had initiated the proceedings under Section 61 of the Act, namely A.R.C.No.38 of 2000 inter alia on the ground that his wife, namely the respondent No.3 has transferred the membership in his favour. In the aforesaid petition, it was pleaded that the writ petitioner has been illegally admitted as a member of the Society, as he was minor on the date when he was admitted as member of the Society. It was also pleaded that the plot No.59 has been illegally allotted to him. The husband of respondent No.3 has assailed the sale deed executed in favour of the writ petitioner on the ground that the same was executed by the respondent Nos.5 and 6 after expiry of the term as President and Secretary of the Society. It was also pleaded that the plot No.59 has been illegally allotted to him. The husband of respondent No.3 has assailed the sale deed executed in favour of the writ petitioner on the ground that the same was executed by the respondent Nos.5 and 6 after expiry of the term as President and Secretary of the Society. In the said petition, the relief was sought in respect of plot No.59 only and the issues with regard to the admission of the petitioner to the membership of the Society in contravention of the bye-laws and the issue that the respondent Nos.5 and 6 had no authority to execute the sale deed in favour of the writ petitioner were also raised. The petition filed by the husband of the respondent No.3, namely V.G.K.Prasad was dismissed vide award dated 25.04.2002. The husband of the respondent No.3 accepted the aforesaid award passed by the Divisional Cooperative Officer and did not challenge it further. Therefore, the aforesaid award attained finality. 17. Without disclosing the factum of dismissal of the proceeding initiated by the husband of the respondent No.3 under Section 61 of the Act, the respondent No.3 again filed a petition under Section 61 of the Act, namely A.R.C.No.3 of 2002 seeking the relief in respect of plot No.198. The relevant extract of the prayer is extracted below for the facility of reference: “(2) to direct the Society to cancel all such illegal, unlawful, in valid allotments and registrations as recommended by the Enquiry Officer and re-allot one such plots to the petitioner a senior most member who paid plot advance and total cost before 15.10.1964 as desired by the respondent Society and who is denied and deprived of allotment of plot. The petitioner prays this Hon’ble Arbitrator to direct the Society to allot and register Plot No.59 or 198 which is not registered so far in view of the promise and commitment given to the petitioner by the respondent Society through their notice dated 29.09.1964.” 18. It is pertinent to note that in the aforesaid relief, in Plot No. 59 or 198, the words “59 or” have been written in hand and have not been either initialled by the respondent No.3 or by her counsel. It is pertinent to note that in the aforesaid relief, in Plot No. 59 or 198, the words “59 or” have been written in hand and have not been either initialled by the respondent No.3 or by her counsel. Admittedly, the respondent No.3 neither filed an application for amendment of the petition under Section 61 of the Act nor any order was passed by the Divisional Cooperative Officer permitting the respondent No.3 to add the words “59 or” by hand. 19. Admittedly plot No.59 was allotted to respondent No.8 by registered sale deed dated 20.05.1975 and 01.05.1984. Thereafter, the respondent No.8 surrendered the same to the Society. It is also not in dispute that the respondent No.8 has not executed any registered deed of conveyance in favour of the Society. It is trite law that in the absence of any registered sale deed, title of immovable property is not transferred (see Pandit Chunchun Jha vs. Sheikh Ebadat Ali, (1954) 1 SCC 699). Therefore, the learned Single Judge has rightly held that in the absence of a registered conveyance deed, the Society did not have any right, title or interest in the subject plot. The learned Single Judge has therefore rightly concluded that the respondent No.3 had no right to claim subject plot through the Society as it had no title in respect of the subject plot. 20. Twin principles, firstly that finality should be attached to binding decisions of the Court and secondly, that individuals should not be vexed twice over the same kind of litigation from the foundation of general rule of res judicata. The principles of res judicata applied to the writ proceeding (see Daryao vs. State of Uttar Pradesh, AIR 1961 SC 1457 , Virudhuttagar Steel Rolling Mills Limited vs. Government of Madras, AIR 1968 SC 1196 and Shankara Cooperative Housing Society Limited vs. M.Prabhakar, (2011) 5 SCC 607 ). Similarly, the issue whether principles of constructive res judicata apply to writ proceedings has also been answered in the affirmative by Supreme Court (see Direct Recruit Class II Engineering Officers’ Association vs. State of Maharashtra, (1990) 2 SCC 715 , S.Nagaraj (dead) by LRs vs. B.R.Vasudeva Murthy, (2010) 3 SCC 353 , M.Nagabhushana vs. State of Karnataka, (2011) 3 SCC 408 and Union of India vs. Major S.P.Sharma, (2014) 6 SCC 351 ). The issue with regard to induction of the writ petitioner as member of the Society and execution of the sale deed by the respondent Nos.5 and 6 in favour of the writ petitioner has attained finality in the proceeding under Section 61 of the Act initiated by the husband of the respondent No.3, namely Mr. V.G.K.Prasad. 21. In the aforesaid proceeding, the Society was also a party and therefore, the findings recorded in the award dated 25.04.2002 passed by the Divisional Cooperative Officer in A.R.C.No.38 of 2000 binds the Society as well as the respondent No.3. 22. For the aforementioned reasons, we do not find any ground to differ with the view taken by the learned Single Judge. In the result, the writ appeals fail and are hereby dismissed. There shall be no order as to costs. Miscellaneous petitions, pending if any, shall stand closed.