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Dr. Gopilal Garg and anr. Vs. the Adrashnagar Co-operative Housing Society and anr. - Court Judgment

LegalCrystal Citation
SubjectTrusts and Societies
CourtRajasthan High Court
Decided On
Case NumberS.B. Civil Second Appeal No. 383 of 1970
Judge
Reported in1974WLN(UC)228
AppellantDr. Gopilal Garg and anr.
RespondentThe Adrashnagar Co-operative Housing Society and anr.
DispositionAppeal dismissed
Cases ReferredIn Yeshwant Singh v. Jagdish Singh
Excerpt:
.....had no right or title to the land in dispute. he had admittedly transferred the possession of the suit plot to phool chand-plaintiff no. 2 on 6-4-1984; and there was therefore no question of dispossessing him. the suit by him for possession is not maintainble.;(b) civil procedure code - res judicata--right to plot not recognized in previous suit-present suit is barred by priniciple of res judicata.;he filed a suit to assert his right to the plot in dispute against the society as well as ram prasad, but failed and his right to it was not recognized. he, therefore, cannot claim any right to the plot in dispute by the present suit and his claim is clearly barred by res judicata on account of the judgments ex. a. 6 & ex. a. 7. - section 2(k), 2(1), 7 & 40 & juvenile justice (care and..........representatives of ram prasad, who had meanwhile died praying for a decree for possession of the suit plot no. 92 and also for damages to the tune of rs. 570/-. the suit was resisted by all the defendants, who filed joint written statements and pleaded inter alia that the plaintiff no. 1 had no locus standi to maintain the suit and so far as the plaintiff no. 2 is concerned the suit was barred by the principle of res judicata on account of the judgments ex. a. 6 and ex. a. 7. bar of limitation was also pleaded. the trial court dismissed the suit and the appeal filed by the plaintiffs was dismissed by the additional civil judge, ajmer. hence this second appeal.3. learned counsel for the appellant has urged that the award ex. 1 had the force of a decree and was executable as such and as.....
Judgment:

C.M. Lodha, J.

1. The facts and event leading to This second appeal by the plaintiffs of course long but the point involved is short.

2. It appears that the respondent Cooperative Housing Society, Ajmer (which will hereinafter be referred to as 'the Society') sold plot No. 92, situated in Ajmer to the appellant Dr. Gopilal by a sale deed dated 15-5-1936, A dispute having arisen between Dr. Gopilal and the Society the matter was referred to arbitration, and while it was pending before the Arbitrator Dr. Gopilal transferred by sale the plot in question to one Phoolchand, who is plaintiff No. 2 in the present suit by a sale deed dated 6-4-1956. The Arbitrator gave the awrad on 8-4-1956, marked Ex. 1 and held that the sale by Dr. Gopilal to Phoolchand was unauthorized and could not be recognised. He further held that the sale by Society of plot No. 92 in favour of Dr. Gopilal be also annulled, and the plot would revert to the Society which shall refund to Dr. Gopilal the price of Rs. 390/- recovered from him Dr. Gopilal filed appeal to the Registrar but was unsuccessful and the revision filed by him from the order of the Registrar also failed. The Society thereafter agreed to sell plot to Ramprasad on 15-12-1956, and Ramprasad took possession of the same. Thereafter Phoolchand filed a suit for injunction against the Society as well as Ramparsad restraining them from interfering with his possession. This suit was dismissed by the Additional Munsiff, Ajmer City, Ajmer on 22-12-1959 (vide judgment Ex. A-7). Thereafter Dr. Gopilal and Phoolchand filed the present suit in the Court of Munsiff, Ajmer (East), Ajmer against the Society as well as the legal representatives of Ram Prasad, who had meanwhile died praying for a decree for possession of the suit plot No. 92 and also for damages to the tune of Rs. 570/-. The suit was resisted by all the defendants, who filed joint written statements and pleaded inter alia that the plaintiff No. 1 had no locus standi to maintain the suit and so far as the plaintiff No. 2 is concerned the suit was barred by the principle of res judicata on account of the judgments Ex. A. 6 and Ex. A. 7. Bar of limitation was also pleaded. The trial court dismissed the suit and the appeal filed by the plaintiffs was dismissed by the Additional Civil Judge, Ajmer. Hence this second appeal.

3. learned Counsel for the appellant has urged that the award Ex. 1 had the force of a decree and was executable as such and as no execution was taken out and possession was unlawfully taken from the plaintiffs by the Society and Ramprasad the plaintiffs were entitled to get back the possession of the plot. In support of his contention he relied upon Yeshwant Singh v. Jagdish Singh AIR 1968 SC 620. On the other hand it was contended on behalf of the respondents that the plaintiff No. 1 Dr. Gopilal had transferred the possession of the plot in question to Phoolchand-plaintiff No. 2 on 6-4-1956, two days before the award Ex. 1 and consequently he had no (sic) standi to maintain the suit. In support of this contention learned Counsel has relied on Hardeva v. Ismail 1970 RLW 316 and Nagubai v. B. Shama Rao : [1956]1SCR451 . He had further submitted that the right of the plaintiff No. 2 Phoolchand had already been negatived in the suit filed by him and consequently he also could not maintain the suit. Apart from the points which have been decided in the defendants' favour by the learned Additional Civil Judge, Ajmer, learned Counsel for the respondent has supported the judgment and decree by the Additional Civil Judge on the additional ground that the suit was not maintainable for want of notice Under Section 143 of the Rajasthan Cooperative Societies Act, 1965 and in support of his contention he has relied upon Khubilal v. Power House Karamchari Samiti 1973 WLN 6.

4. In Yeshwant Singh v. Jagdish Singh AIR 1968 SC 620 relied upon by the learned Counsel for the appellants it was held that Under Section 82(3) Kanoon Ryotwari, the right of a Khatedar is extinguished if the Rhatedar keeps in arrears the land revenue of his khata but there is no automatic extinguishment of his right because Section 137 of Kanoon Ryotwari enables the Collector to accept arrears if the Khatedar is a good payer, and there are special reasons beyond his control for not paying the land revenue. It was further observed that landlord cannot take possession forcibly but has to take action for dispossession Under Section 137 This authority, in my opinion, is distinguishable & has no application to the present case. In the case on hand the sale in favour of Dr. Gopilal was annulled by the award and it was further directed that the land would revert to the Society which shall refund the amount of Rs. 390/- received by it from Dr. Gopilal. There is, therefore, no denying the fact that Dr. Gopilal had no right or title to the land in dispute. He had admittedly transferred the possession of the suit plot to Phool Chand plaintiff No. 2 on 6-4-1956, & there was therefore no question of dispossessing him. Besides that if he relied upon forcible dispossession and wanted to take back possession on the ground of forcible dispossession then he ought to have filed the suit for restoration of possession under Specific Relief Act but he cannot maintain the present suit instituted after about 10 years of the alleged dispossession by Ram Prasad. Thus there is no escape from the conclusion that the suit by him for possession is not maintainable.

5. Coming to the case of plaintiff No. 2 Phoolchand it is a matter beyond dispute that he filed a suit to assert his right to the plot in dispute against the Society as well as Ramparsad, but failed and his right to it was not recognised. He, therefore, cannot claim any right to the plot in dispute by the present suit and his claim is clearly barred by res judicata on account of the judgments Ex. A. 6 and Ex. A. 7. In This view of the matter, the judgment and decree by the courts below do not call for any interference. In view of the conclusion to which I have came it is not necessary to deal with the additional grounds regarding absence of notice Under Section 143 of the Cooperative Societies Act urged by the learned Counsel for the respondent to support the judgment and decree by the lower court.

6. The result is that 1 do not find force in this appeal and hereby dismiss it without any order as to costs.

7. Before parting with the case, I may mention that a cheque for Rs. 378/- was sent by the Society to Dr. Gopilal in pursuance of the award, but Dr. Gopilal refused it then. However, now, since his claim for plot in question haSectionbeen negatived, the Society shall deposit the amount of Rs. 378/- for payment to Dr. Gopilal-plaintiff.


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