PRAPUL CHANDRA MUKPALKAR Vs. P RAMACHANDRA REDDY

JUDGEMENT

(1.) The appellants are the plaintiffs in O.S. No.372 of 1981 on the file of the learned District Munsif, Nizamabad. The respondents were the defendants therein. They litigated over the plaint schedule property, a plot bearing No.51 with an extent of 355.55 square yards situated at Nizamabad, to be referred to as "the suit plot". The plaintiffs sought for the relief in the suit for declaration of their title to the suit plot and for possession of the same from defendant No. 1 by evicting him and for mandatory injunction to demolish the construction made by defendant No.1 thereon. The suit was resisted by the., defendants. The parties went to trial on the following issues : 1. Are the plaintiffs entitled for the declaration that they are owners of the suit plot, each having half share in it ? 2. Is D1 liable for eviction from the suit plot? 3. Are the plaintiffs entitled for the delivery of possession ? 4. Is Dl liable for mandatory injunction, to demolish the construction made by him in the suit plot ? 5. To what relief ?The trial brought in both the oral and documentary evidence, wherein the plaintiffs were examined as PWs. 1 and 2 and six other witnesses as per PWs.3 to 8 respectively and defendant No. 1 examined himself as DW2 and seven witnesses as per DW1, DWs.3 to 8 respectively by way of oral evidence and Exs.A1 to A10 for the plaintiffs and Exs.B1 to B31(a) for the defendants were marked by way of documentary evidence. After hearing both the sides and with such materials the learned District Munsif held issues 1 to 4 in the affirmative and consequently, decreed the suit on 17-10-1989 as prayed, however, with a direction to the plaintiffs to pay Rs.20,000.00 to defendant No. 1 on or before 1-12-1989 and costs were also ordered in favour of plaintiffs. Aggrieved by that, defendant No. 1 took the matter in appeal before the learned District Judge, Nizamabad in A.S. No.9 of 1990, wherein after hearing both the sides and with the same materials before him, the learned District Judge set aside the findings of the learned District Munsif as above and consequently, allowed the appeal and dismissed the suit by setting aside the judgment and decree passed in favour of the plaintiffs asking the parties to bear their respective costs. Aggrieved by such a decision, this appeal is filed.

(2.) At the stage of admission only, having found that the appeal involved certain questions of law to be determined, after a notice to the respondent the appeal was admitted to consider the following questions of law : 1. Whether the suit property was duly transferred to Seshagiri Rao by defendant No.2-Society; if so, whether Seshagiri Rao acquired any vested right or conditional right to the suit property by virtue of such a transfer by the 2nd defendant-Society ? 2. Whether Suryanarayana, who claims to be the legal representative of Seshagiri Rao, acquired any right or title to the suit property on the death of Seshagiri Rao and by virtue of the Will-Ex.B20? 3. Whether the transfer of the suit property by the 2nd defendant in favour of Srinivasa Rao on the death of Seshagiri Rao is legal and valid and whether it divested Seshagiri Rao of any right if he had acquired the suit property during his life time ? 4. Whether the plaintiffs acquired valid title to the suit property through Srinivasa Rao by virtue of the sale deeds-Exs.A2 and A3 ? 5. What is the effect of Sections 6, 54 and 48 of the Transfer of Property Act, 1882 ? 6. What is the effect of Secyions 17 and 49 of the Indian Registration Act, 1908, read with Section 54 (2nd limb) of the Transfer of Property Act, 1882? 7. Whether the judgment and decree of the learned District Judge, Nizamabad, in the appeal interfering with the findings of the learned trial Judge, is sustainable in law ? 8(a) Whether the judgment and decree of the learned District Judge deserves to be set aside ? (b) If so, to what extent ?During the course of the arguments, Sri T. Viswanadha Sastry, learned Advocate for the respondents, raised a fresh contention that the suit itself was not maintainable in view of Section 61 of the Andhra Pradesh Cooperative Societies Act as it involved a dispute between the members of the Society viz., defendant No.2 in regard to their right to the suit plot and, therefore, that was to be settled in accordance with law by the competent Court or the authority. Sri Nanda Kishore, learned Advocate appearing on behalf of the learned Advocate for the appellants, has contended that such a question in the first place is not a pure question of law which can be permitted to be raised even in the Second Appeal and secondly, such a question is not either pleaded at any stage nor there are any basic facts emanating from the controversies between the parties to sprout such a question of law to be considered in a Second Appeal and, if that is considered, great prejudice will cause to the plaintiffs, who have no opportunity to meet such a contention on facts and in law also. Thus, the following further questions arise for consideration : l(a) Whether the suit involves any dispute between the parties to the suit touching the constitution, management or the business of a Society, other than a dispute regarding disciplinary action taken by the Society or its committee against a paid employee of the Society arises; (b) If so, whether such a question is a pure question of law or mixed question of law and fact or a pure question of fact ? 2. Whether such a contention can be raised in Second Appeal without raising any plea or defence in the suit or in the appeal in accordance with law and, whether this Court can consider such a contention in this appeal ? 3. Whether any prejudice would be caused to the plaintiffs, if such a contention is allowed to be raised or determined in this appeal ? and 4. If such a contention can be permitted to be raised or determined in this appeal, whether the suit was barred for the reliefs claimed by the plaintiffs in view of Sections 61 and 121 of the A.P. Co-operative Societies Act.

(3.) The facts, matrix and the controversies between the parties pleaded, admitted and decided form the basis to lead to this appeal. The defendant No.2 is a Cooperative Housing Society and the original owner of the suit plot. It was one of the plots formed by respondent No.2 to distribute to its members. Exs.A9, A10 and B31 are the bye-laws of the Society. One Seshagiri Rao was member of the Society. The suit plot was allotted to him by the Society on 1-1-1961. He died on 26-11-1963. Thereafter, the Society admitted one Mr. Sreenivasa Rao, PW5 as its member, allotted the said plot to him and sold it to him under Ex.A1, registered sale deed dated 5-8-1971. In turn PW5 sold it to the plaintiffs in two portions under registered sale deeds Exs.A2 and A3 dated 10-7-1980. Based on that, plaintiffs claimed title to the suit plot. They found that the 1st defendant was putting up construction on the suit plot and, therefore, issued a notice to them as per Ex. A5 dated 25-1-1981 without any success and as the defendant No.1 continued the construction and completed it, they filed the suit for the reliefs stated above. According to the defendants, one Mr. Suryanarayana, the brother and the legal heir of Seshagiri Rao had a Will in his favour executed by Seshagiri Rao as per Ex.B20, dated 12-4-1960 regarding which a probate has been issued as per ExB19, dated 17-4-1973, Seshagiri Rao was in possession of the suit plot and after his death Mr. Suryanarayana has come into possession of the same, he entered into an agreement of sale in favour of defendant No.1 under Ex.B2 dated 18-3-1972, the defendant No.2 Society mutated the suit plot in the name of Suryanarayana on 7-6-1976 and 15-9-1974 and later on defendant No.2 Society executed the sale deed in favour of defendant No.1 as per Ex.B27 dated 5-5-1980. It appears that the 1st defendant paid the property taxes regarding the suit plot as per Exs.B16 and B17, obtained no objection from the Society as per Ex.B29, obtained the approval and the plan and put up the construction on the suit plot and thus has been in possession of the same since long; The learned District Munsif while accepting the case of the plaintiffs regarding the title found that the defendant No.1 had put up the construction on the suit plot and decreed the suit directing the payment of Rs.20,000.00 to him by the plaintiffs in regard to such a construction.