Case Note & Summary
The appellant, Bhuwaneshwar Rajkishore Tripathi, filed First Appeal No.1454 of 2003 against the judgment and order dated 15-07-2002 passed by the City Civil Court, Greater Mumbai, dismissing his suit (Short Cause Suit No.5813 of 1996). The appellant had sought a declaration that the respondent, Nilkanth Nagar Cooperative Housing Society, had no right, title or interest over the suit property, being Room No.8 admeasuring 37.5 ft x 10 ft in a chawl. The appellant claimed to be in possession of the room since 1975 and alleged that the society had no claim. The society, on the other hand, contended that it was the owner of the property by virtue of a registered conveyance and that the appellant was not a member. The trial court dismissed the suit on the ground of limitation and on merits. The appellant also filed Writ Petition No.2992 of 2011 challenging an order dated 01-03-2011 passed by the Minister of Cooperation, Government of Maharashtra, which had rejected his revision application. Both matters were heard together. The High Court held that the suit was barred by limitation under Article 58 of the Limitation Act, 1963, as the cause of action arose in 1988 when the society was registered and the appellant was aware of the society's claim. The court also found that the appellant failed to prove his title, while the society had established its title through a registered conveyance and prior proceedings. The appeal and writ petition were dismissed with costs.
Headnote
A) Limitation Act - Suit for Declaration - Article 58 - Limitation for filing a suit for declaration is three years from the date when the right to sue first accrues - The appellant's suit was filed beyond the prescribed period as the cause of action arose in 1988 when the society was registered and the appellant was aware of the society's claim - Held that the suit was barred by limitation (Paras 5-7). B) Specific Relief Act - Declaration of Title - Section 34 - A suit for declaration of title without seeking consequential relief of possession is maintainable only if the plaintiff is in possession - The appellant was in possession but failed to prove his title - Held that the burden to prove title lies on the plaintiff and the appellant failed to discharge it (Paras 8-10). C) Cooperative Societies Act - Bye-laws - Membership - The appellant was not a member of the respondent society and had no right to challenge the society's title - The society's title was based on a registered conveyance and prior proceedings - Held that the society had valid title over the suit property (Paras 11-13).
Issue of Consideration
Whether the suit for declaration of title and injunction was barred by limitation and whether the appellant had any right, title or interest over the suit property.
Final Decision
Both the First Appeal and the Writ Petition are dismissed with costs.
Law Points
- Limitation Act
- 1963
- Article 58
- Article 65
- Section 34 Specific Relief Act
- Section 9 CPC
- Order 7 Rule 11 CPC
- Res Judicata
- Adverse Possession
- Cooperative Society Bye-laws
