MANJULABEN DAHYABHAI TRIVEDI Vs. PUSHPABEN MANGALDAS PATEL

JUDGEMENT

(1.) The short facts of the case are that the respondent filed Lavad Suit No. 2577 of 1978 before the Registrar, Board of Nominee with a prayer inter alia to restrain the petitioner herein who was defendant in the suit from making any construction in the margin land on the eastern side and to restrain him from using the same. The learned Nominee after the trial of the suit, ultimately passed the judgment and order dated 29-10-1993 whereby he found that as the dispute is outside the scope and ambit of Sec. 96 of the Gujarat Co-operative Societies Act (hereinafter referred to as the "Act"), there is no jurisdiction with him and therefore, the suit was dismissed. The respondent No. 1 preferred the appeal being Appeal No. 457 of 1993 before the Gujarat State Co-operative Tribunal. The Tribunal found that the dispute would fall under Sec. 96 of the Gujarat Co-operative Societies Act (hereinafter referred to as the "Act") and it has also further examined the matter on merits and found that certain construction are made inspite of the injunction and therefore, ultimately as per the order dated 10-11-1995, the Tribunal allowed the appeal and granted the injunction as prayed in Para 7(A) and qua relief of Para 7(B). It is ordered by the Tribunal that the staircase shall remain but the other constructions of wash area (Chokadi), water tank and a sitting place (Otla) if in existence, shall be demolished by the petitioner at her cost. Under these circumstances, the petitioner has approached to this Court by preferring the present petition.

(2.) Heard Mr. Shirish Joshi for the petitioner and Mr. Ravindra Shah for the respondent No. 1, respondent No. 2 though served, has chosen not to appear.

(3.) Mr. Joshi, learned Counsel for the petitioner contended that the dispute would fall outside the scope and ambit of Sec. 96 of the Act and in his submission as it was a dispute between the member and another member of respondent No. 2-Society and as no reliefs were prayed against the respondent No. 2-Society, the matter would fall outside the scope ana ambit of Sec. 96 of the Act. He, therefore, submitted that the Tribunal ought not to have exercised the juridiction by allowing the appeal as the learned Nominee has no jurisdiction. For supporting his contention, he has relied upon the order dated 20-4-1988 passed by this Court (Coram : A. P. Ravani, J.) in Misc. Civil Application No. 459 of 1988 in Civil Revision Application No. 157 of 1988 and he, therefore, submitted that there is a jurisdictional error committed by the Tribunal while allowing the appeal.