USHA Vs. PRAKASH SAHAKARI GRIHA NIRMAN SANSTHA

JUDGEMENT

(1.) CORRECTNESS of the order passed by the Executing Court under section 151 of the Civil Procedure Code, directing the restoration of possession of the suit plot in favour of non-applicant No. 2 Vijay Vithalrao Joshi, is challenged in this Civil Revision Application. The following facts will highlight the controversy.

(2.) APPLICANT Usha Pandurang Dhabekar filed a dispute before the Judge, Co-operative Court, Nagpur, against non-applicant No. 1 Prakash Sahakari Griha Nirman Sanstha (hereinafter called the Society for the sake of brevity) and others, for a declaration that the applicant/disputant was entitled for allotment of a plot admeasuring 50 x 100 in its Somalwada Layout No. 3, Khasra No. 152/2. The disputants further request was to permanently restrain the Society from transferring or alienating one plot, admeasuring 50 x 100, from its Somalwada Layout No. 3, Khasra No. 152/2. Her further case was that she had deposited the total amount of Rs. 9,241/- from time to time for the allotment of a plot admeasuring 50 x 100 from Somalwada Layout No. 3 in her capacity as a member of the said Society. She pointed out that the opponents had, by their communication dated 15-5-1980 confirmed this fact. She further alleged that opponent No. 2, who was on the helm of affairs of the Society was removed from the Managing Committee and he had sent back the Demand Draft of Rs. 4,650/- dated 11-2-1988 to her on the ground that he had resigned from the post of the President of the said Society. She thereafter had also received a letter from the opponent No. 2 with a Demand Draft of Rs. 4,530/- dated 19-5-1988. She claimed that these refunds were of no consequence since the opponent No. 2 was already removed from the Managing Committee by the order dated 11-4-1988. She claimed that she gave a legal notice to the Society and returned the Demand Drafts sent to her. She insisted that she was and remained a member of the opponent/society right from 1974 and, therefore, she had every right, title and interest in respect of one plot admeasuring 50 x 100 in Somalwada Layout No. 3. In her dispute, she further claimed that the Society was allotting plot to various persons who were not the members of the Society, ignoring her rights and claims. She also filed, alongwith the dispute, an application under section 95 (4) of the Maharashtra Co-operative Societies Act. Though the notices were sent , the opponent No. 1/society as also the opponent No. 2 remained absent, and the Co-operative Court, vide order dated 21-12-1991, granted injunction and restrained the opponent Society from transferring/alienating one plot admeasuring 50 x 100 on Somalwada Layout No. 3, pending hearing and final disposal of the dispute.

(3.) THE opponents, i. e. , the Society and opponent No. 2, its erstwhile President, chose to remain absent and the Court proceeded ex parte. The disputant lead her evidence by examining her husband who deposed to the effect that the disputant had completed all the formalities for allotment of the plot and that she had also made the payments as per the Rules of the Society. In his evidence, he claimed that Plot Nos. 1, 2 and 3 of the Somalwada Layout No. 3, admeasuring 50 x 100 each, were vacant. On the basis of this evidence, following order came to be passed :