SANTOSH RANI AND ORS. Vs. THE HONBLE MEMBER, MAHARASHTRA STATE COOPERATIVE APPELLATE COURT, MUMBAI AND ORS.

JUDGEMENT

(1.) Both the appeal are heard finally with consent of the parties. The appellants challenge the order passed by the learned Single Judge of this court dated 17.1.2012 thereby dismissing the petitions filed by the present appellants and upholding the order passed by the learned Maharashtra State Cooperative Appellate Court dated 1.7.2011, by which the learned Appellate Court had reversed the order passed by the learned Cooperative Court dated 23.5.2011 holding the disputes filed by the respondent to be barred by limitation and as such dismissing the same.

(2.) The facts in brief giving rise to the present appeals are as under That the appellants being members of the respondent society were alloted plots in the respondent society. Sale deeds in respect of said plots came to be executed on 7.8.1987. It appears that a correction deed was executed betweens the appellants and the respondent on 12.8.2008. A dispute came to be filed by the respondent society on 14.1.2011, interalia praying for quashing and setting aside the sale deeds dated 7.8.1987 and for directing the present appellants to surrender plot nos. 3 & 4 admeasuring 3600 sq. fts. In the said dispute a preliminary objection came to be filed by the present appellants on the ground that the same is barred by limitation. An application Under Order 7 Rule 11 was also filed by the present appellants. However, the learned Judge of the Cooperative Court held that for deciding the preliminary issue as well as the application under Order 7 Rule 11 it would be necessary for the parties to lead evidence and as such vide order dated 23.5.2011 framed preliminary issue and directed the parties to lead evidence. Accordingly evidence was led on behalf of the respondent society. After evidence was lead, the learned Cooperative Court came to a finding of fact that the dispute was beyond limitation and as such dismissed the same. Being aggrieved thereby appeals came to be preferred by the respondent society before the learned Cooperative Appellate Court. The learned Cooperative Appellate Court allowed the appeals and reversed the order passed by the learned Cooperative Court. Being aggrieved thereby the appellants filed writ petitions before this court being Writ Petition Nos. 3548/11 and 3549/2011. The learned Single Judge dismissed the writ petitions. Being aggrieved thereby the present appeals are filed.

(3.) Shri Samarth, the learned counsel appearing on behalf of the appellants submits that in so far as the dispute praying for cancellation of the sale deed is concerned, assuming that the request for cancellation has to be made within a period of 10 years, still the dispute would be beyond limitation inasmuch as the cause of action would arise on or prior to 7.8.1987 since the sale deeds were executed on 7.8.1987. It is submitted that if the dispute is not filed within a period of three years therefrom, the same would not be within limitation. He submits that in so far as the finding of the appellate court regarding the detection of the fraud and the dispute being filed within a period of three years therefrom is concerned, the same finding is also not sustainable. He submits that there is no requirement that a member of the society has to be resident of Nagpur and unless a person is resident of Nagpur he cannot be allotted a plot. He therefore, submits that findings of the appellate court that a cause of action arose in favour of the respondent on 12.8.2008 is without any foundation.