GENPAT MAHADEO VIRKUD Vs. CHINTAMAN MAHADEO VIRKUD

JUDGEMENT

(1.) THIS appeal arises out of the judgment and order passed by the learned Judge, Co-operative Court No. IV, Bombay on 22-7-1987, by which he dismissed the dispute saying that it was not touching the business of the Society. Therefore, it seems that the dispute which was filed by the appellant has to be considered whether it was maintainable on this aspect as considered by the learned trial Judge for dismissal. the dispute is filed by the appellant and the Respondent No. 2 jointly as co-disputants against the present respondent No. 1. It was filed some where at the end of March, 1981. The principles laid down are well settled as to how the mintainability of a suit or claim or a dispute as filed, oa the ground of jurisdiction, to be determined, i. e. on the averments in the plaint and not on the basis of the written statement where the defendants are always prone to dislodge plaintiff from the jurisdiction of the choice of the plaintiff and, therefore, the settled principle has to be considered in view of the facts as narrated in the plaint. In para 1 of the plaint, it is set out that the disputant No. 1 is a Co-operative Housing Society, the disputant No. 2 appellant herein, in the owner of the flat in dispute, by virtue of his being the member of the Society. The Society also made clear, in para 2 of the dispute application about internal arrangement between the appellant and the respondent No.

(2.) THE averments in the plaint show that the appellant was admitted as a member and a share certificate and the flat were transferred to his name in the Society's record. It is also stated therein as to how the respondent No. 1 remained in possession as a younger brother of the appellant at the most as a licensee, which could be made out from the avernments. It is also made clear that the Despondent No. 1 failed and neglected to make the payments of the dues of the Society though he had agreed when he was allowed to occupy through the appellant. The Society also claimed in the plaint these facts that the Respondent No. 1 was jobless, he was 'ndebted and, therefore, he wanted to dispose of the flat to earn money. He had also filed a suit fa the City Civil Court against the appellant for a declaration that he was the owner of the flat. However, injunction against the appellant was refused. A complaint was also lodged to the police Station by the appellant against the Respondent No. 1. The Society also contended that the Society was formed to provide accommodation to it's members. But some of the members accommodated non-members in violation of the Bye-laws. The policy of the Society is that, such member be given reasonable time to remove non-members and remedy breach of Bye-laws. Pursuant to the object of the Society, it felt that only the members should occupy their allotted flats and non-members in occupation thereof asked to vacate one by one. The Respondent No. 1 did not vacate the flat and did not allow the appellant to make full use of the flat. Therefore, the Society made averments further, the respondent No. 1 should be directed to hand over possession of the premises in his occupation considering the requirements of the appellant and this was made clear to the respondent no. 1. The Society claimed that it does not wish to encourage the non-members to occupy the premises allotted to it's member. Interim relief restraining the respondent No. 1 from creating third party interest in the flat. Under these circumstances the dispute has been filed with the prayers for possession, injunction, etc.

(3.) THE Respondent No. 1 filed the written statement. He raised contentions as were raised in the City Civil Court Suit. His contentions were that he was the real owner. Though the flat was transferred on his application and writing in the name of the appellant, he pleaded that it was under certain circumstances; though he set out the circumstances differently at different stages and, therefore, since he is occupying the premises, paying outgoings charges thereof, he is the real owner ; for these reasons the dispute is substantially a dispute between two owners of the property and such dispute over title would not be maintainable under Section 91 of the M. . C. S. Act. So he raised the contention of hearing a preliminary issue of 'mintain-ability of the dispute'.