RAMCHANDRA KRISHNA YADAV Vs. SAKHARAM GANGARAM MALI

JUDGEMENT

(1.) THIS an Appeal against the Judgment and decree dated 11th June 1979 in Special Civil Suit No. 9 of 1971 on the file of the Civil Judge, Senior Division, Sangli. I have heard the learned Counsel appearing for both the parties.

(2.) THE Respondents Nos. 1 to 41 in this Appeal filed a suit against the Appellants and others Respondents for possession of the suit land, for accounts and other reliefs. The Plaintiffs; case briefly stated, is as follows : The first Defendant is the father of the second Defendant. The first Defendant came to reside at Tapkire Mala, Shivajinagar, Sangli where the other Plaintiffs were residing. At the instance of Defendants Nos. 1 and 2, the Plaintiffs and other villagers decided to form a co-operative housing society, acquired land for the purpose of constructing a housing Society thereon. The Defendants Nos. 1 and 2 took a leading part in arranging the meeting. The Defendant No.1 was elected as President and Defendant No.2 was elected as Secretary of the proposed society. As decided in that meeting, each member was to contribute rupee one for expenses and Rs.50.00 as subscription. The Defendants Nos. 1 and 2 started collecting money from all the members and issued printed receipts in the name of "Ashok Housing Society." They opened an account in the Central Co-operative Bank and deposited the amount collected. This was some time during 1955-56. By about 1957, the Defendant No.1 has collected about Rs. 12,000.00 to Rs. 13,000.00 from many members. Some of the members who did not want and who were in urgent need of money, took back the money from the first Defendant. In another meeting held by the Members it was agreed to purchase the land Survey No. 296-2A area 6-7 assessed at Rs.15-55 from Defendant No.4 and 5. Since Defendants Nos.4 and 5 were not willing to sell the lands outright but wanted some land in exchange as agreed by the Members, the first Defendant purchased 5 acres in Survey No. 70/1 and gave it to Defendant Nos. 4 and 5 in exchange of Survey No. 296-2A. The said deed and Exchange Deed came to be executed on 3.5.1958. The first Defendant withdrew Rs.8,000.00 from the Bank and paid it to the purchaser. It is also alleged that the first Defendant asked the Members to retain the original receipts and collected those receipts from the members and then issued receipts in his own name. He also formed 16 plots in the purchased land and sold them to 16 members at the rate of four annas per sq.ft. The first Defendant has committed a breach of trust in making money from selling plots. He misappropriated the sale-proceeds. A portion of land for the purpose of road and some portion was given for Burial ground for Muslims. The present suit is filed for the remaining land of area 283288812 sq.ft. after deducting the area of 16 plots and land acquired for road and land given for kabarasthan the Defendants Nos. 1 and 2 are liable to account for the money received by them for acquisition of land for the road and burial ground for Muslims. The Defendants Nos.1 and 2 were in position as trustees regarding the fund (sic) or property of the proposed Society. Now the suit is restricted for the land which is now in the possession of Defendants Nos. 1 and 2 which is shown as open space in the map. The first Defendant is liable to account for the amount collected by him and the compensation amount, that the Defendants Nos. 1 and 2 have also taken crops in the suit land for 4 years and they are liable to pay Rs. 400.00 on this account. The suit is filed in a representative capacity on behalf of the members of the proposed Ashok Housing Society under Order 1 Rule 8 of the Code of Civil Procedure. The Plaintiffs pray for possession of the land which is still in possession of Defendants Nos. 1 and 2, for a direction to Defendants Nos. 1 and 2 to render true and correct accounts collection in respect of the proposed Housing Society for mesne profits of Rs.400.00 and for grant of interest from the date of the suit on the amount due to the Plaintiffs.

(3.) THE learned trial Judge framed the following issues :