PATEL MADHAVLAL PARSHOTTAMDAS Vs. JAITARAM MADHAVLAL

JUDGEMENT

(1.) The Housing Society purchased lands bearing S. Nos. 2, 3 and 4 to construct houses for its members. Subsequently the society purchased S. No. 17 for putting up 38 bungalows at the first instance but later they decided to construct ten more bungalows. Applications were called for allotment with a deposit of Rs. 5,000/-. The present appellant as well as the first respondent deposited the money on 2nd July, 1959. It was resolved to allot the bungalows to the three persons, the first respondent, the appellant and one Lilachand Kalidas. Subsequently the General Body of the Society on 22nd November, 1964 confirmed the resolution.

(2.) The Sociey allotted the bungalow in dispute to the appellant. Along with it respondents Nos. 3, 4, 5, 7, 8, 9 and 10 were also allotted other bungalows. The first respondent was not allotted any bungalow. A dispute was raised between the appellant and the respondent and matter was referred to the Registrar who nominated his nominee to go into the dispute. The nominee allowed the claim of the first respondent. In pursuance of that decree of the nominee of the Registrar, first respondent filed an execution application. The City civil Judge who heard the matter in Chambers on 19th December, 1968 passed an order appointing a Commissioner to go into the application of the petitioner for executing the decree. The Commissioner after hearing the parties and checking the accounts reported that the appellant's possession was illegal and the first respondent was entitled to possession of the bungalow. The City Civil Judge confirmed the order of the nominee of the Registrar.

(3.) Against the order of the City Civil Judge, the appellant preferred an appeal. In the appeal the appellant contended that he was entitled to preference over the first respondent. He also submitted that between the other allottees viz. respondents Nos. 3, 4, 5, 7, 8, 9 and 10, he must be preferred and should be given one of the bungalows. The High Court while setting out the five contentions, did not go into the actual point for determination. It confirmed the finding of the City Civil Court that the first respondent is entitled to priority over the appellant but the question as to whether the appellant would be entitled to a bungalow in preference to the other respondents was not considered. The question has to be decided by the High Court. The matter is remitted to the High Court. The High Court will see that all the respondents to whom the houses were allotted are parties in the proceedings before it, if they are not the High Court will implead them and decide the question as to whether the appellant is entitled to preference over the other respondents. So far as the order of the High Court relating to the first respondent is concerned, it is confirmed.