GOPILAL GARG Vs. ADRASHNAGAR CO-OPERATIVE

JUDGEMENT

(1.) THE facts and event leading to This second appeal by the plaintiffs of course long but the point involved is short.

(2.) IT appears that the respondent Cooperative Housing Society, Ajmer (which will hereinafter be referred to as 'the Society') sold plot No. 92, situated in Ajmer to the appellant Dr. Gopilal by a sale deed dated 15 -5 -1936, A dispute having arisen between Dr. Gopilal and the Society the matter was referred to arbitration, and while it was pending before the Arbitrator Dr. Gopilal transferred by sale the plot in question to one Phoolchand, who is plaintiff No. 2 in the present suit by a sale deed dated 6 -4 -1956. The Arbitrator gave the awrad on 8 -4 -1956, marked Ex. 1 and held that the sale by Dr. Gopilal to Phoolchand was unauthorized and could not be recognised. He further held that the sale by Society of plot No. 92 in favour of Dr. Gopilal be also annulled, and the plot would revert to the Society which shall refund to Dr. Gopilal the price of Rs. 390/ - recovered from him Dr. Gopilal filed appeal to the Registrar but was unsuccessful and the revision filed by him from the order of the Registrar also failed. The Society thereafter agreed to sell plot to Ramprasad on 15 -12 -1956, and Ramprasad took possession of the same. Thereafter Phoolchand filed a suit for injunction against the Society as well as Ramparsad restraining them from interfering with his possession. This suit was dismissed by the Additional Munsiff, Ajmer City, Ajmer on 22 -12 -1959 (vide judgment Ex. A -7). Thereafter Dr. Gopilal and Phoolchand filed the present suit in the Court of Munsiff, Ajmer (East), Ajmer against the Society as well as the legal representatives of Ram Prasad, who had meanwhile died praying for a decree for possession of the suit plot No. 92 and also for damages to the tune of Rs. 570/ -. The suit was resisted by all the defendants, who filed joint written statements and pleaded inter alia that the plaintiff No. 1 had no locus standi to maintain the suit and so far as the plaintiff No. 2 is concerned the suit was barred by the principle of res judicata on account of the judgments Ex. A. 6 and Ex. A. 7. Bar of limitation was also pleaded. The trial court dismissed the suit and the appeal filed by the plaintiffs was dismissed by the Additional Civil Judge, Ajmer. Hence this second appeal.

(3.) IN Yeshwant Singh v. Jagdish Singh AIR 1968 SC 620 relied upon by the learned Counsel for the appellants it was held that Under Section 82(3) Kanoon Ryotwari, the right of a Khatedar is extinguished if the Rhatedar keeps in arrears the land revenue of his khata but there is no automatic extinguishment of his right because Section 137 of Kanoon Ryotwari enables the Collector to accept arrears if the Khatedar is a good payer, and there are special reasons beyond his control for not paying the land revenue. It was further observed that landlord cannot take possession forcibly but has to take action for dispossession Under Section 137 This authority, in my opinion, is distinguishable and has no application to the present case. In the case on hand the sale in favour of Dr. Gopilal was annulled by the award and it was further directed that the land would revert to the Society which shall refund the amount of Rs. 390/ - received by it from Dr. Gopilal. There is, therefore, no denying the fact that Dr. Gopilal had no right or title to the land in dispute. He had admittedly transferred the possession of the suit plot to Phool Chand plaintiff No. 2 on 6 -4 -1956, and there was therefore no question of dispossessing him. Besides that if he relied upon forcible dispossession and wanted to take back possession on the ground of forcible dispossession then he ought to have filed the suit for restoration of possession under Specific Relief Act but he cannot maintain the present suit instituted after about 10 years of the alleged dispossession by Ram Prasad. Thus there is no escape from the conclusion that the suit by him for possession is not maintainable.