PRITAM SINGH Vs. KUSUM VERMA

JUDGEMENT

(1.) THIS is plaintiffs second appeal under section 100 of the CPC assailing the judgment of reversal passed by the first appellate Court in dismissing the suit for declaration and injunction filed by the plaintiff.

(2.) PLAINTIFF Preetam Singh filed the suit in question inter alia contending that his mother was a member of the respondent No. 3 Society. She was allotted the plot in question by the society vide allotment No. 28 on 20th May 1970, at the time when the allotment was made plaintiffs mother staying in Gwalior. In the year 1972 plaintiffs father expired and therefore, she moved an application for allotment of the plot in favour of the appellant. It is stated that the permission was granted and vide sale deed dated 19.6.1981 respondent No. 3 transferred the plot in question to the plaintiff. Plaintiff claims that by virtue of this sale deed he became absolute owner of the said property and physical possession was also given to him after the date of registration of the sale deed. Thereafter the Municipal Corporation, Gwalior also mutated his name in the suit property when defendant No. 1 Society for the first time vide letter dated 10.4.1986 and thereafter vide letters dated 24.3.1987 and 22.6.1987 intimated to the plaintiff that the sale deed executed in his favour is deemed to be cancelled as sale made by president and secretary of the society is wholly illegal and unsustainable. When this intimation was given, plaintiff filed the suit in question and temporary injunction was granted on 25.8.1987 by the competent Court with regard to alienation of the suit property till the next date, however this suit was returned to the plaintiff for presentation in proper Court for want of pecuniary jurisdiction thereafter plaintiff instituted the present suit in the Court of competent jurisdiction. Case of the plaintiff is that even though in the suit in question temporary injunction was granted and it was confirmed on 8.2.1993 but the respondent No. 3 society for the first time filed written statement pointing out that after cancellation the sale deed of the plaintiff, property in question has been sold vide registered sale deed dated 23.5.1992 to defendant No. 3 and 4 namely respondent No. 1 and2who were arrayed as defendant No. 2 and 3, suit was put to trial and on the basis of evidence and material that came on record learned trial Court found that cancellation of the sale deed which was executed is wholly illegal and decreed the suit. However the first appellate Court has reversed this finding and has dismissed the suit. According this appeal under section 100 of CPC has been filed by the plaintiff.

(3.) SHRI K.N. Gupta, senior counsel representing the plaintiff argued that allotment of the plot of the plaintiff is cancelled merely on the ground that plaintiff is not staying in Gwalior, as per the by-laws of the society plot can be allotted only to resident of Gwalior. On the basis of evidence and material that have come on record it is ample clear that plaintiff is a resident of Gwalior, Shri Gupta emphasised that rinding recorded by first appellate Court in this regard is wholly perverse. It was stated that as the sale deed was executed after payment of full consideration it became final and the sale deed could not be cancelled. Shri K.N. Gupta, senior counsel taking me through the provision of section 33 and section 19 of the M.P. Co-operative Societies Act argued at length that an order of membership of the society and termination of the membership can be passed only by the competent authority like Registrar and in the present case as no order superseding of the society passed by the Registrar as per the provision of Co-operative Societies Act is available, the finding recorded by the first appellate Court is perverse and illegal. Shri K.N. Gupta emphasized that without there being pleading by the society to the effect that the society is superseded, finding recorded by the first appellate Court is perverse. Shri Gupta took me through the statement of witnesses and various documents available on record and it was emphasized by him that the concluded contract by a sale deed in question has been cancelled by the society in an arbitrary manner and therefore, same is unsustainable. Accordingly it is submitted by Shri Gupta that apart from the question of law already framed the question indicated in the application LA. No. 201/07 arise for consideration and placing reliance on the following judgments he prays for interference in the matter and setting aside of the judgment and decree passed by the first appellate Court. Judgment relied upon by Shri Gupta are :