MANJU RAMTAKE Vs. MANDA VAIDYA

JUDGEMENT

(1.) THIS is a petition under Article 227 of the Constitution of lndia challenging the order dated 25.1.1994 of the Court of 8th Additional District Judge, Jabalpur . by which the revision under section 115 CPC filed by the petitioners against order dated 22.1.1993 of 5th Civil Judge Class I, Jabalpur has been rejected.

(2.) RESPONDENT No. 1 Smt. Manda Vaidya filed civil suit No. 140-A of 1993 in the Court of 5th Civil Judge, Class I, Jabalpur for declaration of title and injunction against the petitioners. It was stated in the plaint that she had purchased plot No. 40 area 1500 sq.ft. from petitioner No. 2 Dr. Baba Saheb Ambedkar Grih Nirman Shahkari Samiti by registered sale-deed dated 2.4.1987. The Society has sold this plot again to the petitioner No. 1 by registered transfer deed dated 3.9.1993. In this civil suit the petitioners filed an application under Order 7 rule 1 1 CPC for rejecting the plaint on the ground that the civil Court has no jurisdiction to entertain this suit. A copy of that application is Annexure P-13. According to the defendants this dispute could be decided by the Registrar, Cooperative Societies under section 64 of the M.P. Cooperative Societies Act, 1960 and therefore, the jurisdiction of the civil Court was barred under section 82 of the Act. No written statement was filed. The defendants did not disclose how the plot could be sold by the Society to the petitioner No. 1 when it had already been sold to the respondent No. 1 in the year 1987. The Civil Court rejected the said application and a revision filed against that order by the petitioners has been dismissed by the impugned order. Meanwhile the temporary injunction has been granted against the defendants and that has been confirmed in appeal and revision.

(3.) AFTER hearing the learned counsel for both the sides and perusal of the material on record this Court is of the opinion that in the facts and circumstances of this case the civil Court has jurisdiction to entertain the suit for declaration of title and injunction. As already stated the defendants have not filed their written statement and therefore it is not known what is their case. In the application under Order 7 rule 11 CPC the defendants have not stated the relevant facts. The case of the plaintiff in short was that the Society having sold the plot to her in 1987 by a registered sale-deed could not transfer it to the respondent No. 1 in the year 1993. The plaintiff was not claiming anything as a member of the Society. According to her she had become owner of the plot after its purchase by her. If that sale is legal and valid the Society would have no right to transfer that plot to anyone. The Society would have no right or title over the plot nor even over the air blowing on that plot after its sale to the plaintiff. The Society had no power, authority or jurisdiction over that plot after its sale to the plaintiff. Such an unauthorised act of the Society which is a nullity could not be said to be "touching the business of the Society" as it could not be the business of the Society to defraud others. Section 64(2) (iv) includes the 'dispute' regarding rights between a housing Society and its members. After the purchase of the plot by registered sale-deed in the year 1987 the plaintiff claims to have become owner of that plot. She is no longer claiming any right as a member of the Society after acquisition of title over the plot. She is now challenging a totally unauthorised and illegal act of the Society and therefore this dispute is cognizable by the civil Court. It does not come within the purview of section 64 and it is not barred by section 82 of the Act. The decisions relied upon by the petitioners are not applicable in the present case as the 'dispute' within the meaning of section 64 of the Act does not exist in the suit filed for declaration of title and injunction. Resale of the plot by the Society when it has already been sold to another person cannot be said to be an act of the Society authorised by the Act, rules or bye-laws. It is dehors the authority and power of the Society. A challenge to such an act of the Society by the prior purchaser is not qua the member of the Society but in his right as title-holder or owner of the plot. In M. V. G. Nirman Sahakari Sansatha v. Vasantrao AIR 1988 MP 94 = 1987(11) MPWN 249 = 1988 MPLJ 326 the Society had executed a sale-deed of a plot of land in favour of a member. The member in turn sold that plot to another person and executed a sale-deed in his favour in violation of the terms of the sale-deed executed by the Society. The Society filed the civil suit against the member and also the third person for cancellation of such sale-deed executed by the member in favour of third person. It was held that the civil Court had jurisdiction to try the suit. In the present case the principle involved is the same. Under the general law the exclusion of jurisdiction of civil Court is not readily inferred. This rule is based on the theory that civil Courts are Courts of general jurisdiction and the people have a right, unless expressly or impliedly barred, to insist on free access to the Court of general jurisdiction.