JOHN KHUSHABA DSOUZA Vs. FRANCIS JOKIM DSOUZA

JUDGEMENT

(1.) By this petition, Petitioner challenges order dtd. 28/9/2015 passed by the Co-operative Court in Dispute No.333/2003 as well as the Order dtd. 21/10/2016 passed by the Co-operative Appellate Court.

(2.) The dispute amongst the parties relate to Room No.10 owned by late Jokim Bastab D"souza. Respondent No.1-Plaintiff is son of late Jokim Bastab D"souza. He claims that a Will was executed by his father on 5/2/1990 bequeathing Room No.10 in his name. That his father expired on 16/3/2003, after which the Respondent No.1-Plaintiff approached the Society for transfer of membership in respect of Room No.10. However Petitioner, who is the nephew of late Jokim Bastab D"souza relied on Will dtd. 26/3/1992 and on that basis, got the membership in respect of Room No.10 transferred in his name in the records of the Society. Respondent No.1 therefore filed Dispute No.333/2003 for recovery of possession of Room No.10 and for injunction. The dispute was allowed by the Co-operative Court by Judgment and Order dtd. 28/9/2015, directing the Petitioner to handover possession of Room No.10 to Respondent No.1 within three months. Aggrieved by the decision of the Co-operative Court, Petitioner filed Appeal No. 42 of 2016 before the Co-operative Appellate Court. By Judgment and Order dtd. 21/10/2016, the Appellate Court has proceeded to dismiss the Appeal. The Petitioner has accordingly filed the present Petition challenging the decisions of the Co-operative Court and Co-operative Appellate Court.

(3.) I have heard Mr. Nighot, the learned counsel appearing for the Petitioner. According to him, the Co-operative Court did not have jurisdiction to decide the dispute seeking prayer for recovery of possession of Room No.10. That the Petitioner did not get opportunity to lead evidence before the Co-operative Court on account of mistake of his Advocate. That Petitioner cannot be made to suffer on account of his Advocate's mistake and in this regard, he would rely on the judgment of the Apex Court in Rafiq V/s. Munshilal (1981) 2 SCC 788. He would further submit that Respondent No.1 specifically gave admission in his cross-examination that he was not residing in the suit premises at the time of death of late Jokim D"souza. That non-probated Will produced by the Plaintiff-Respondent No.1 could not have been relied upon. He would therefore pray for setting aside the order passed by the Co-operative Court and Co-operative Appellate Court and the Dispute be remanded to the Co-operative Court for grant of opportunity to the Petitioner to lead evidence.