RADHA KRISHNA JAISWAL Vs. SHEELA KANCHAN

JUDGEMENT

(1.) DEFENDANT No. 3/petitioner is aggrieved by order dated 8.2.2002 passed in Title Suit No. 11 of 1998 by the Execution Munsif, Patna rejecting the objection with regard to maintainability of the suit raised by him and holding that the dispute in the suit is not within the purview of Section 48 of the Co -operative Societies Act, 1935 (hereinafter referred to as the Act) and as such the same is not barred under Section 57. of the Act.

(2.) ADMITTED fact is that defendant No. 1 Lalit Niketan Sahkari Grih Nirman Samiti Ltd. who is opposite party No. 2 in this civil revision application is a society registered under the Act and opposite party No. 3 Kameshwar Prasad Singh arrayed as defendant No. 2 in the suit is the Secretary of the said Committee. According to bye laws of the Society its business is to acquire lands in its name and then by sub -dividing into smaller plots sell them to its members. The said Society acquired survey plot Nos. 2911 and 2915 in the town of Patna and divided into sub -plots and sold to its members including plaintiff/ opposite party No. 1 and defendant No. 3/ petitioner. The Plot No. B -26 was sold to the plaintiff/ opposite party No. 1 and plot No. B -29 was sold to defendant No. 3/ petitioner.

(3.) THE plaintiff/ opposite party No. 1 filed the aforesaid suit out of which the present matter arises on 11.2.1998 for declaration of title and other consequential reliefs over the said land. The defendant No. 3/ petitioner appeared and filed an application under Section 9 under Order XIV Rule 2(2) of the Code of Civil Procedure challenging the maintainability of the suit on the ground of a legal bar created by Section 57. of the Act.as the dispute was entertainable by the Registrar in view of the provision contained under Section 48 of the Act. The said prayer was rejected by the Court below on 1.7.1998. Against the said order the petitioner filed Civil Revision No. 2016 of 1998 before this Court and the same was allowed on 24.12.1998 by which the order of the court below was set aside and the court below was directed to frame separate issue with regard to maintainability and decide the same. Thereafter the Court below framed a issue as to whether the suit as framed is maintainable or is barred under Section 57. of the Act. The Court below decided the aforesaid issue as a preliminary issue and has rejected the same by the impugned order.