Case Note & Summary
The case involves a second appeal by original defendant nos. 7 and 8 (appellants) against the judgment and decree of the District Court, Pune, which confirmed the trial court's decree in favor of the plaintiffs (respondents). The plaintiffs had filed Special Civil Suit No. 130 of 1979 seeking possession of Flat No. A5 in Paramount Apartments, Pune, and a declaration that they were entitled to membership of the cooperative society. The plaintiffs claimed that they were allotted the flat by the builder (defendant nos. 3 and 4) on 31.12.1973 for a consideration of Rs. 53,975/-, out of which they paid Rs. 34,245/-. They alleged that they took possession through the brother of plaintiff no. 2 on 18.3.1978, but were forcibly dispossessed on 18.9.1979 by defendant no. 5 with the help of others. The flat was later allotted to defendant no. 6 (since deceased, represented by appellants). The trial court decreed the suit in favor of the plaintiffs, holding that they had proved their title and possession, and that the defendants had failed to prove their title. The first appeal by the defendants was dismissed. In the second appeal, the appellants raised substantial questions of law regarding limitation, jurisdiction under the Maharashtra Cooperative Societies Act, and the validity of the notice under Section 164. The High Court held that the suit for possession based on title is governed by Article 65 of the Limitation Act, 1963, which provides a 12-year period from the date of dispossession, and the suit was filed within that period. The court also held that the civil court had jurisdiction as the dispute involved title and possession, not a cooperative dispute under Section 91 of the Act. The notice under Section 164 was not mandatory for such a suit. On merits, the court found that the appellants failed to prove their title or possession, and the concurrent findings of the courts below were based on evidence. The appeal was dismissed with no order as to costs.
Headnote
A) Limitation Act, 1963 - Article 65 - Suit for Possession Based on Title - Limitation period of 12 years applies when plaintiff sues for possession based on title, not 3 years under Article 58 for declaration. The suit was filed within 12 years from the date of dispossession, hence not barred by limitation. (Paras 14-16)
B) Maharashtra Cooperative Societies Act, 1960 - Section 164 - Notice under Section 164 is not mandatory before filing a civil suit for possession and title. The provision only requires notice for suits against a society or its officers in respect of acts done in their official capacity, but the suit here was for possession and title, not for challenging acts of the society. (Paras 17-18)
C) Maharashtra Cooperative Societies Act, 1960 - Section 91 - Bar of Jurisdiction - Civil court jurisdiction is not barred for disputes relating to title and possession of immovable property. The dispute in the suit was not a 'dispute' under Section 91 as it involved title and possession, which are outside the purview of the cooperative court. (Paras 19-20)
D) Evidence Act, 1872 - Section 101 - Burden of Proof - The appellants, as defendants claiming title, failed to discharge the burden of proving their title and possession over the suit flat. The plaintiffs' evidence of allotment and possession was not effectively rebutted. (Paras 21-23)
Issue of Consideration
Whether the suit was barred by limitation; whether the civil court had jurisdiction in view of the Maharashtra Cooperative Societies Act; whether the appellants had proved their title and possession over the suit flat.
Final Decision
The High Court dismissed the second appeal with no order as to costs, confirming the concurrent findings of the courts below that the plaintiffs were entitled to possession of the suit flat and that the appellants failed to prove their title.
Law Points
- Limitation for suit for possession based on title is 12 years
- not 3 years
- Section 164 notice under Maharashtra Cooperative Societies Act is not mandatory for civil suit
- Civil court jurisdiction not barred by Cooperative Societies Act for disputes relating to title and possession
Case Details
2018 LawText (BOM) (10) 128
Second Appeal No. 963 of 2007
Mr. Rajiv Narula with Mr. Atharv Sanghavi and Mr. Ryan Menezes for Appellants; Mr. Nitin P. Deshpande for Respondent nos. 5 & 6; Mr. S.S. Patwardhan with Ms. S.M. Dandekar for Respondent nos. 1A to 1C and Respondent no. 2
Mrs. Sugrabi Gulam Shaikh (since deceased, through LRs Masrur Ahmed Shaikh) and Mrs. Nadira wife of Ross Masud Shaikh
Mr. A.S. D'Silva (since deceased, through LRs Mrs. Luella Dias, Mrs. Lola Sequeria, Mrs. Viola Mederia), Mrs. Grace D'Silva, Paramount Apartments Coop Hsg. Society, Managing Committee of Paramount Apts Coop Hsg. Society, Poonawalla Promoters Pv. Ltd., Mr. Rusi Poonawalla, Mr. Rajgandhi K. Sayani
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Nature of Litigation
Second appeal against concurrent decrees in a suit for possession and declaration of title and membership in a cooperative housing society.
Remedy Sought
Appellants sought to set aside the trial court and first appellate court decrees which granted possession of Flat No. A5 to the plaintiffs and declared their entitlement to membership.
Filing Reason
Appellants claimed that the suit was barred by limitation, that the civil court had no jurisdiction, and that the notice under Section 164 of the Maharashtra Cooperative Societies Act was not given.
Previous Decisions
Trial court decreed the suit in favor of plaintiffs; first appeal by defendants was dismissed.
Issues
Whether the suit was barred by limitation under Article 58 or Article 65 of the Limitation Act, 1963?
Whether the civil court had jurisdiction in view of Section 91 of the Maharashtra Cooperative Societies Act, 1960?
Whether the notice under Section 164 of the Maharashtra Cooperative Societies Act, 1960 was mandatory and its absence fatal to the suit?
Whether the appellants proved their title and possession over the suit flat?
Submissions/Arguments
Appellants argued that the suit for declaration and possession was governed by Article 58 (3 years) and was filed beyond limitation; that the civil court had no jurisdiction as the dispute was covered under Section 91 of the MCS Act; and that no notice under Section 164 was given.
Respondents argued that the suit was for possession based on title, governed by Article 65 (12 years), and was within limitation; that the civil court had jurisdiction as the dispute involved title and possession; and that Section 164 notice was not mandatory for such a suit.
Ratio Decidendi
A suit for possession based on title is governed by Article 65 of the Limitation Act, 1963, which provides a 12-year limitation period from the date of dispossession. The civil court has jurisdiction to entertain a suit for possession and title of immovable property even if it involves a cooperative society, as such disputes are not covered under Section 91 of the Maharashtra Cooperative Societies Act, 1960. Notice under Section 164 of the said Act is not mandatory for a suit for possession and title. The burden of proof lies on the party claiming title, and the appellants failed to discharge that burden.
Judgment Excerpts
The suit for possession based on title is governed by Article 65 of the Limitation Act, 1963, which provides a period of 12 years from the date of dispossession.
The civil court has jurisdiction to entertain the suit for possession and title, as the dispute is not a 'dispute' under Section 91 of the Maharashtra Cooperative Societies Act.
Notice under Section 164 of the Maharashtra Cooperative Societies Act is not mandatory before filing a suit for possession and title.
Procedural History
The plaintiffs filed Special Civil Suit No. 130 of 1979 in the Court of Civil Judge, Senior Division, Pune, seeking possession and declaration. The trial court decreed the suit on merits. The defendants (including the appellants) filed first appeal which was dismissed by the District Court, Pune. The appellants then filed the present second appeal under Section 100 of the Code of Civil Procedure, 1908.
Acts & Sections
- Limitation Act, 1963: Article 65, Article 58
- Maharashtra Cooperative Societies Act, 1960: Section 164, Section 91
- Evidence Act, 1872: Section 101
