DAMODAR RAMCHANDRA KUMTHEKAR Vs. KAMALABAI KASHINATH CHAKRANARAYAN

JUDGEMENT

(1.) THE appeal arises out of the judgment and award passed by the learned Judge of the co-op. Court No. 1st, Pune holding that the disputants were entitled for the vacant and peaceful possession of the disputed property and the opponent in the dispute should deliver vacant and peaceful possession of the said property to the disputants. It is also directed that the opponent should pay Rs. 13. 552/- to the disputant. However, if any amount is paid during the pendency of the dispute it shall be given credit of This order was passed on 24-4-1987.

(2.) THE facts of the case are briefly stated as follows : The respondents filed a dispute against the appellant stating that the respondent No. 1 is a member of the Society-respondent No. 2. The Society is a Cooperative Housing Society. It is deemed to be registered under the maharashtra Co-operative Societies Act, 1960. The respondent No. 1 is it's member. The plot bearing No. 16 is a plot held by the respondent No. 1 as a member. She with the permission of the Society constructed a building on the said plot after the plot was allotted to her. She was expected to use the premises for her residence only. The Respondent no. 1 was serving in Telephone Department at Pune. Therefore, she used to stay with her sister during her employment in Telephone Department as the office of Telephone Exchange was in Pune City, while the property in dispute is at Hadapsan in Tehsil Haveli in Pune District. So it is stated in the plaint that she allowed the appellant to reside in the building on leave and licence basis. She retired thereafter. Her sister requested her to vacate the premises as it was difficult to allow her to continue for want of sufficient accommodation. The premises are owned by the respondent No. 1. She required the said premises bonafide for her use and occupation. She wrote to the appellant on 7-7-1982 to vacate the premises within 3 months, but the appellant did not. It is further stated) that the Society was also insisting on the respondent No. 1 to occupy and reside in the premises, these facts were informed by subsequent, letter to the appellant. The respondent No. 1 executed certain documents in favour of the Society and there would be breach of Bye-laws and also the breaches of those terms in the document so executed. The Respondent No. 1 informed the Society. that the appellant was avoiding to vacate. The Society, therefore, resolved to file the dispute for possession from the appellant. The dispute was to be filed along with the respondent No. 1. The appellant has no right te continue to occupy the premises. The appellant has also not paid the amount of compensation for use and occupation at the rate of Rs, 275/-per month from May, 1983 to August, 1983 to the respondent No. 1. Therefore, she has claimed in the dispute Rs. 1100/- on that count and Rs:55. 95 towards water charges from January, 1983 to April, 1983. The reliefs sought in the dispute are, declaration be given that the appellant is no longer entitled to retain possession of the premises in question and the premises are required for bonafide use and occupation of the respondent No. 1 and further the appellant's occupation is in breach of the bye-laws and terms of lease and further award be passed against the appellant directing him to vacate the premises and hand over possession to the disputants namely respondents because of the case and mesne profits at the rate of Rs. 500/- per month are also claimed.

(3.) THE appellant resisted the claims by filing written statement. His defences are that he is tenant of the respondent No. 1 and was never licensee as alleged. The dispute is between the landlord and a tenant and the Small Causes Court at Pune alone has jurisdiction to try the dispute under Section 28 of the Bombay Rent Act. The dispute is not, therefore, maintainble under Section 91 of the M. C. S. Act. He is protected from eviction under the provisions of the Rent Act, It is admitted that the construction on-Plot No 16 is absolutely owned by the Respondent No. 1 and the appellant has taken the same on monthly lease. The Respondent no. 1 claims relief of eviction in respect of the same. Therefore, the dispute raised does not touch the business of the Society and hence the provisions of Section 91 of the Maharashtra Co-operative Societies Act cannot be attracted. The Society is unnecessary party to the dispute. So the dispute is bad for misjoinder of parties. The Society is not and cannot be interested as to whether the appellant is and continue to be in the occupation of the suit premises or not. The Society was formed only to purchase land. It was not it's business to carry out any construction on the land. The member was entitled to let out the premises after construction and that cannot be the business of the Society. The respondent No. 1 created tenancy in her capacity as owner of the premises and not in the capacity of member of the Society. The Society is an idle party to the dispute. The Society is not interested in asking possession of the suit premises. There cannot be breach of any Bye-law if the appellant is allowed to occupy the premises. It is, therefore, contended that the allegations about Society's interest, breaches of Bye-laws creation of licence and exigencies of services for giving licence and passing of resolution by the Society as alleged in the plaint are not admitted as the resolutions, if any, are passed by fraud. Therefore, the dispute be dismissed with costs.