HARIKRUSHNADAS CHHAGANLAL NANALAL AND ISHWARDAS MOHANLAL (SEVA SAMAJ TRUST) Vs. VINODCHANDRA G. VAGHELA AND ANR.

JUDGEMENT

(1.) The short facts of the case appear to be that the petitioner is the trustee of one Harikrushnadas Chhaganlal, Nanalal Hargovinddas and Ishwarlal Mohanlal Seva Samaj Trust. As per the petitioner, respondent No. 2 - Maruti Cooperative Housing Society Ltd. (hereinafter referred to as 'the Society') was holding the land admeasuring about 400 sq yards, of the common plot. It appears that the society passed the resolution for sale of the land to the so - called trust and based on the said resolution, on 26.05.1993, vide No. 11820, the land of common plot has been sold by the society against the consideration of Rs. 80,001/ - in favour of the trust through its trustees. It appears that the suit came to be filed by respondent No. 1 in capacity as the member of the society being Lavad Suit No. 2256 of 1994. At a stage where the petitioner was to make the construction over the said land, the learned Nominee, on 29.09.1994, had issued the interim injunction restraining the society as well as the petitioner herein from making any construction over the land. Inspite of the same, the petitioner continued with the construction and it appears that pending the suit the construction was already over. The respondent No. 1 who is plaintiff in the suit had also filed an application for disobedience of the injunction granted by the learned Nominee. The learned Nominee ultimately tried the suit and the evidence was also recorded before the learned Nominee including on the aspect of the Panchnama drawn for showing the position of the land at the time when the injunction was granted and making of further construction thereafter. The learned Nominee after hearing both the sides ultimately passed the award whereby he granted the suit and declared that the society has no right to undertake any transaction for transfer of common plot admeasuring 400 sq.yards except for common purposes of the society and the resolution passed by the society for sale of the plot to defendant No. 2 -petitioner herein as well as the subsequent actions based on the same are declared as illegal and are set aside. The petitioner had carried the matter in appeal before the Gujarat State Cooperative Tribunal being Appeal No. 265 of 1999 and the Tribunal, in the appeal, after hearing both the sides, found that the petitioner has acquired rights through the society and the Chairman of the society was the trustee of the trust and the Tribunal also found that the common plot has been sold without any prior permission of the Competent Authority and the construction is made in breach of the injunction, therefore ultimately dismissed the appeal. It is under these circumstances, the present petition before this Court.

(2.) Heard Mr. Pravin Panchal with Mr. Jani for the petitioner and Mr. Soni for respondent No. 1 - original plaintiff. Respondent No. 2 society is served but nobody has appeared. However, it may be recorded that the society has not resisted the suit before the learned Nominee also. It is the allegation of the original plaintiff that inspite of the injunction served, no steps are taken by the society for prohibiting the construction or otherwise.

(3.) It is an admitted fact that the society has sold the land of the common plot to the petitioner. It can hardly be disputed that the land of the common plot in any residential society is meant for common use and common purposes of all members of the society, and all members of the society, so far as common plot and common facilities and common area are concerned, they are holding joint and common interest in such portion. It is not the case of the respondent society that the land has been permitted to be used for creating of any common facilities for the members of the society. The resolution of the society goes to show that upon the application of the trustees of the trust, the society has resolved for sale of the land of common plot admeasuring 400 sq.yards to the trust at Rs. 200/ - per sq. yard and against the total consideration of Rs. 80,001/ -.