RAKESH KUMAR Vs. PREM SINGH THAKUR & ANR

JUDGEMENT

(1.) By way of the present appeal, the appellant has challenged the judgment passed by the Court of learned District Judge, Bilaspur, District Bilaspur, (H.P), in Civil Appeal No.50/13 of 2014, dated 14.12.2016, setting aside the judgment and decree passed by the learned Civil Judge (Senior Division), Bilaspur, District Bilaspur, in Civil Suit No.133/1 of 2009, dated 14.10.2014.

(2.) Material facts necessary for adjudication of the present appeal are that respondent/plaintiff (hereinafter referred to as the 'plaintiff') maintained a suit for mandatory injunction against the appellant/defendants (hereinafter referred to as the 'defendant') directing defendant No.1 to regularize/restart membership No.569, in the name of plaintiff, in case, the membership is transferred in the name of defendant No.2, as defendant No.2 is not eligible to become the member of defendant No.1. It is alleged that plaintiff was a truck operator and a member of the Bilaspur District Truck Operators Cooperative Transport Society Ltd. Barmana, District Bilaspur (H.P) (hereinafter referred to as 'BDTS') having his membership No.569 (old) and 533 (new) and was doing his transport work/business upto 2005. Under compelling circumstances, he had to sell his truck, as he had financial constraints. The plaintiff has sold his truck bearing No.HP-07- 5586 in favour of defendant No.2 on 15.3.2005 through affidavit, in which, membership was not sold. Defendant No.2 after obtaining and attestation of affidavit of plaintiff interpolated (alongwith Gatta number of B.D.T.S, Barmana) and has committed forgery with the plaintiff. The plaintiff had not transferred the membership number alongwith the truck. The affidavit given by defendant No.2 in favour of the plaintiff does not mention transfer of the registration of truck alongwith Gatta. Defendant No.2 was not eligible to become member of defendant No.1, as he has settled in District Bilaspur, only in the year 1980 and is not a bonafide resident of District Bilaspur. The plaintiff orally requested defendant No.1 for allowing him to attach his truck on his membership No.569 on the ground that the plaintiff is in a position to purchase and ply the truck and defendant No.1 assured the plaintiff in the month of December, 2007 that letter will be issued to plaintiff in the first week of January, 2008, but no letter was received. Notice dated 20.4.2009, was received by the plaintiff from defendant No.1, in which, it is mentioned that the truck is not in the list of 2032 and the plaintiff is not eligible to be member of B.D.T.S. The plaintiff had replied the notice that defendant No.2, is not legally entitled to ply the truck against the plaintiff membership No.569 and is misusing the authority, which is detrimental to the rights of the plaintiff.

(3.) Defendant No.1 contested the suit by raising preliminary objections qua maintainability, jurisdiction, non-joinder and mis-joinder of necessary parties, valuation and locus standi. On merits, it is pleaded that as per affidavit of the plaintiff filed by defendant No.2, for attachment of the vehicle clearly depicts that the plaintiff has sold his vehicle alongwith Gatta number of the vehicle. As per affidavit, dated 15.3.2005, clearly depicts that the plaintiff has sold his truck bearing No.HP-07-5586 to defendant No.2 "alongwith Gatta number of B.D.T.C; Barmana" and as such, defendant No.2, plying the truck with defendant No.1 since 2005. The plaintiff never objected about the attachment of such vehicle upto 2008. Separate written statement was filed by defendant No.2, on the grounds of maintainability, limitation, valuation, jurisdiction and estoppel. It is pleaded that the plaintiff has sold vehicle bearing No.HP-07-5586 in favour of him on 15.3.2005 alongwith Gatta. Defendant No.2 is the member of society since 1998 and paid the membership prescription on 31.3.1998, vide receipt No.55917. After purchase of vehicle alongwith Gatta, defendant No.2, applied with defendant No.1, for attachment of the truck alongwith affidavit.