g m shaikh order

1 Civil Appeal no. 923/00

Presented on :07.09.1988 Registered on :07.09.1988 Decided on :08.01.2007 Duration :18 Ys.04Ms.01Ds.

BEFORE THE DISTRICT COURT PUNE AT : PUNE. [Present : S. G. Deshpande,]

[Ad-hoc District Judge -12, Pune ]

CIVIL APEPAL No.923/2000 EXH.NO. (Old Civil Appeal No.485/89)

1] Mr. A. S. J. D'silva, DECEASED through legal heirs1a] Mrs. Luella Dias Age : 42 years. Occ : housewife, R/at : Memas P.O.Box 1102, Maham Baharain

1b]Mrs. Iola Sequeria Age : 39 years, Occ : Housewife R/at : JN4/Bldg.8, Ganga, Flat No.5, 1st floor, Sector 9, Vashi, New Mumbai.

1C]Mrs. Viola Mederia Age : 35 years, Occ : Housewife R/at : 34, Voltri Street, Mentos, Victoria, 3194, Australia.

2] Mrs. Grace D'silva, Age : 40 years, Occ : household work Both residing at L-63, Reserve Bank Quarters, Maratha Mandir Marg, Bombay. ..... Appellants

-V E R S U S -

1] Paramount Apartments, Co-operative Housing Society Ltd., 1981, Convent Street, Pune (registered under Maharashtra


Co-operative Societies Act, 1960)

2]The Managing Committee, Paramount Apartments Co-operative Housing Society Ltd.,1981, Convent Street, Pune

3]Poonawalla Promoters Pvt. Ltd., a Private Limited Company incorporated under the Companies Act, 1956, having registered office at No. 2409, East Street, Pune

4]Mr. Rusi S. Poonawalla, Adult, Occ : Busienss, R/at 1-B, Dr.Voyaji Marg, Elphinstone Road,pune

5]Mr. Rajgandhi K. Sayani, Adult, C/o Oriental Scientific Instrument Corporation 277, Narayan Peth, Pune

6]G. M. Shaikh, Adult, Major Retired Teacher R/at A/5, Third Floor, Paramount Apartment, Convent Streeth, Pune – deceased his legal heirs are

7] Mrs. Sugrabi Gulam Shaikh, Age : 63 years, Occ : Housewife R/at : Flat No. A-5, 3 rd floor, Paramount Apartments, Co-operative Housing Soceity Limited, Convent Street, Pune

8]Mrs. Nadira wife of Ross Masud Gulam Shaikh, R/at : Flat No. A-5, 3rd floor, Paramount Aprtments, Covent Street, Pune. ..... Respondents Adv. Shri. Khandgoankar for applicants. Adv. Shri. Kanitkar and Shri Swaminathan for respondents


J U D G M E N T [Delivered on this 8 th day of January , 2007 ]

The appellants filed Spl. CS no. 136/80 for declaration and

possession of suit flat, in the alternative, for refund of the amount of Rs.

38,245/- with interest and a direction to the defendants 1 & 2 to provide

another flat with identical area and amenities to them. The facts in brief are

as follows.

2] The respondent no.1 is a registered co-operative housing society,

the defendant no.2 its managing committee . The defendant no.4 was

managing director of the defendant no.3, a private limited company and

together they were promoters and builders of a housing complex,

“Paramount Apartments”. The defendant no. 5 was secretary of the society

and defendants 7 and 8 , heirs of the deceased G. M Shaikh were stated to

have taken forcible possession of the suit flat.

3] The defendant no.4 issued advertisement for sale of residential

apartment in a building called as “Paramount Apartments” to be constructed

on 1981, Convent Street, Cantonment, Pune. Pursuant to that, the appellant

no.2 approached and advanced him a total sum of Rs. 38,245/- for one flat .

An agreement was entered into on 3/12/1973 and flat no. A-5 (herein called

as suit flat) on the third floor was allotted to the appellant. Possession was

delivered to the appellants. The deceased appellant no.1 had executed a

power of attorney in favour of appellant no.2. On her behalf, her brother

Francis Pinto looked after the suit flat and was in possession thereof from

18/3/1978 openly.

4] The defendants no.3 and 4 committed irregularities in

management of the society. The secretary of the society, respondent no.5

forcibly dispossessed the appellants from the suit flat. Their belongings were

thrown away and Francis Pinto was removed . They manipulated records

and unlawfully allotted the suit flat to the former Joint Secretary of the


society, the defendant no.6 (deceased G.M. Shaikh) delivering it in his

possession. The defendants 7 to 8 his LRs were in unlawful possession of

the suit flat.

5] The appellants claimed a declaration confirming allotment of

the suit flat to them. A further declaration that the respondent no. 3 had

unlawfully withheld notifying allotment of the flat, another declaration that

the appellants were valid members of the society and that allotment of the

suit flat to the respondent no.6 was illegal. The appellants also claimed

actual possession of the suit flat and in the alternative, allotment of another

flat with identical area or refund of the sum of Rs. 38,245/- with interest at

18% along with mesne profits at the rate of Rs. 500/- per month from

18/9/1979 the date of dispossession. .

6] The respondent nos. 1, 2 and 5 in their written statement (Exh.

36) admitted constitution of the society and that respondents 3 & 4 were

builders and promoters of Paramount Apartments. The execution of the

agreement is denied for want of knowledge and therefore admitted. It is

admitted that the respondent no.5 was a secretary of the society. It is

admitted that the suit flat was allotted to the respondent no.6 and that he

was in possession of the same. It is admitted that the appellant no.1 had

sought admission to the membership of the society but that was rejected. It

is denied that the suit flat was alloted to the appellants and they were placed

in possession thereof. It is denied that Francis Pinto was forcibly evicted. It

is denied that the society record was manipulated.

7] It is submitted that though the agreement was held as executed,

it was forfeited by default . The appellants did not make payments of

installments after 3/7/75. It was learnt that they had withdrawn Rs. 10,000/-

from the payment made by them and canceled the allotment. There was no

existing agreement. They were estopped from claiming the suit flat. The suit

was barred by limitation not maintainable and the Court had no jurisdiction.


8] The respondents 3 & 4 admitted that they were builders and

promoters and Paramount Apartments. It is admitted that the appellants

had approached them. Execution of the agreement is not disputed. It is

however denied that the appellants were placed in possession of the suit flat.

It is denied that Francis Pinto was dispossessed . It is denied that there was

mis-management of the society. It is submitted that the agreement was

forfeited by default of the appellants . They had not paid installment after

3/7/75. On the other hand they had withdrawn Rs. 10,000/- from out of the

deposits and given up their rights in the suit flat. The suit was sought to be

dismissed with cost.

9] The respondent no.7 and 8 in their written statement admitted

that the suit flat was alloted to her husband G. M. Sheikh. It is admitted

that it was in her possession. It is denied that the appellants had paid the

sum of Rs. 38,245/-. it is denied that agreement was executed. It is denied

that they were ready to fulfill the agreement. It is denied that the suit flat

was given to them and they were in possession at any time. It is submitted

that the alleged agreement dated 3/12/73 was anti-dated . It was invalid and

not enforceable. It was not stamped or registered. It is submitted that the

suit was grossly under valued. It was sought to be dismissed. It is submitted

that the defendant no.6 was a school teacher. From his savings, he had

agreed to purchase the suit flat and in part performance of the same, he was

inducted in possession. After his death, on 14/3/83, the respondent no. 7 and

other heirs were residing in the suit flat. It is submitted that the court had

no jurisdiction to try the suit and it was bad for non-joinder of necessary

parties.

10] The trial Court framed as many as 23 issues. The appellants

examined Mrs. D'silva and P. W. 2 Francis Pinto. The respondents 1 & 2

examined Anthony Britto, Chairman of the respondent no. 1 society from

1983. Respondent nos. 7 & 8 examined Ross Sheikh, son of the deceased


defendant no.6. The trial Court held that the appellants had failed to prove

that the suit flat was alloted to them or that they were placed in its

possession. It was further held that the suit was barred by limitation and the

Court had no jurisdiction to try it. It was further held that the agreement in

favour of the plaintiffs was terminated and they had no right thereunder.

The suit came to be decreed partly on 8/12/87 for refund of earnest money

and the respondents 3 & 4 were directed to pay Rs. 29,015/- along with

interest at the rate of 9% per annum to the appellants.

11] Being aggrieved by the judgment , the appellants preferred this

appeal. It was initially presented before the Honorable High Court Bombay

and registered as Appeal No. 485/89. By virtue of change in the jurisdiction

the appeal was returned to the District Court.

12] The learned advocate for the appellants and respondents 3 & 4

submitted written notes of arguments. No one else appeared, in spite of

repeated calls made. It was necessary for this Court to decide the appeal at

the earliest in view of the directions of the Honorable High Court for

expeditious disposal . Finding that the other parties were not taking active

part in hearing of the appeal it was required to be posted for judgment.

Because of some administrative assignments entrusted, delivery of the

judgment is slightly delayed.

13] I have gone through the written notes of the argument and the

record and proceedings of the trial Court. Following points fell for

determination. The findings thereon and reasons therefor are given

hereinafter.

POINTS FINDINGS

1]Whether the trial Court was justified in holding lack of jurisdiction of the Civil Court? : No

2]Whether the trial Court was justified in holding that the suit was barred by limitation? : No


3]Whether the trial Court erred in holding that the agreement Exh. 96 was not binding on the defendant? : Yes 4]Whether the trial Court was justified in rejecting that the plaintiffs were dispossessed from the suit flat? : No

5] Are the appellants entitled to the relief?

: Yes.

6] What order ? : Appeal allowed partly.

14] Before proceeding to reasons, certain things need mention at the

outset. Though disputing parties, the defendants were clearly identified, the

trial Court gave them liberty to cross examine without any sequence. After

the PW 1 Mrs. D'silva was cross examined, an application was moved at

Exh.128 on her behalf for leave to additional evidence in view of certain

documents. The application was allowed. Additional examination – in – chief

was recorded and she was again cross examined. However, the Trial Court

did not control the cross examination to the newly stated facts and if

wondered even beyond the additional chief examination.

15] It is a usual practice that a defendant who is not at issue with

another defendant is asked first to cross examine witness of such other

defendant. It is only thereafter that the plaintiff is called upon to cross

examine. It is not the other way around. The main object is that such a

'friendly' defendant should not get a chance to undo the effect of cross

examination of the witness by the plaintiff. However, the Trial Court seems

to have sacrificed this golden rule. For instance, the counsel appearing for

the defendant no.6 initially declined to cross examine the DW Anthony

Britto. However, after the plaintiff's cross examination, again the defendant

no.6 was permitted to cross examine the same witness of length. In that

cross examination, the witness seems to have assented to the question put to

him. Similar instance was repeated when evidence of the DW Ross Sheikh


was recorded. The defendant nos.1 & 2 were permitted to cross examine him

after the cross examination by the plaintiff. This approach ought to have

been avoided. It appears that the Trial Court was casual in that. This

requires the Court to approach evidence of these witnesses with additional

caution.

16] Another thing worth mentioning in the beginning is that a clear

picture having distinct bearing to the dispute has emerged from the

evidence. The testimony of the witnesses yielded that picture and therefore

it is far more important. It seems that sometime in 1978 – 79, disputes about

management of the housing scheme arose. It is alleged and also held by the

trial Court that the defendant no.4 had sold same flat to several persons.

Accusations were hurled at him and the secretary, defendant no.5 as well.

Police had also initiated action against the defendant no.4 and he had gone

underground. It is further brought on record that purchasers of the flat,

having grown scary and panicked had taken possession of flats still very

much under construction. Many of such flats were not having even basic

amenities like doors, window pains, toilets, plastering of walls and so on.

Even then the purchasers, out of fear of loosing everything had rushed, fitted

their own doors and locked them in an attempt of securing and ensuring

their respective possession. It was only subsequently, after 1981 – 82 that

the purchasers had gathered, formed a group, taken additional contribution

@ Rs. 30 – 40/- per sft from the purchasers and completed construction and

provided amenities. Formation of co-operative housing society was thus a

subsequent development. It is in this backdrop that the evidence deserves

appreciation.

REASONS

AS TO THE POINT NO.1 : (jurisdiction of Court)


17] The learned trial Court held that the Court had no jurisdiction to

try the suit. That goes to the root of the case and deserves initial attention.

18] There can not be two opinions about the fact that civil Court has

no jurisdiction to declare a party a valid member of co-operative society.

That is the exclusive jurisdiction of Co-operative Courts. The plaintiffs'

counsel had conceded this aspect before the Trial Court and he accepted it in

para no. 30 of the judgment.

19] The Trial Court further observed that the Civil Court had no

jurisdiction to grant a declaration confirming allotment of the suit flat. The

reasons given in support of that are not sustainable. Presuming that the

plaintiffs did not pay the purchase money, or that they were defaulters, or

that the defendant no.4 had informed that the allotment of the flat was

canceled, it does not mean that the Civil Court was not capable of declaring

whether the suit flat was allotted to him. It is a settled law that the

pleadings define jurisdiction. As per the plaintiffs, they had booked the suit

flat in 1973 with the defendants 3 and 4. There was no co-operative society

at that time. The allotment of the suit flat was confirmed by the defendants 3

and 4 and latter all the defendants had challenged their legal right as to the

suit flat. In such circumstances, the plaintiffs could rush only to the Civil

Court and seek a declaration. The reasons and conclusion of the Trial Court

in this respect need to be and is rejected. It is held that the Civil Court had

the jurisdiction to decide the suit barring of course the plaintiff's entitlement

to be accepted as a member of the respondent no.1 Co-Op. Society. The

point is therefore answered in affirmative.

AS TO THE POINT NO.2 : (question of limitation)

20] The trial Court proceeded on a wrong assumption that the suit


ought to be for specific performance of contract. The reasons given for

holding that the suit was barred by limitation are absurd. It may have been

agreed in Exh.96 that possession was to be given in 1975. The fact remains

that the construction work was not completed till 1979-80. Besides, by their

acts, the defendants had denied the legal character of the plaintiffs as

regards the suit flat in 1979-80. The suit filed in 1980 is therefore absolutely

within time. The finding of the trial Court cannot be sustained. The point

under consideration is therefore answered accordingly.

AS TO POINT NO.3 : (binding nature of agreement)

21] The plaintiffs proved at Exh.96 the agreement dated 3/12/1973. It

was introduced in evidence without any objection (though subsequently

question of it's validity for want of registration was raised. That is addressed

separately). That was executed by the defendant no.4 as a proprietor of the

defendant no.3. Together, they were promoter and builder of the building.

22] Exh.96 states (para 9) that the plaintiff had booked a two

bedroom flat no. A -5 on the third floor with an area of 790 sft. The

consideration of Rs. 47,000/- (page 5) was to be paid in installments

depending on the stage of construction. The last but one installment of Rs.

4000/- was to be paid within 10 days of completion of work of tiling and

internal plastering. The last of the ten installments was to be paid at the

time of delivery of possession of the flat. Clause (vi) provided that if within

one month of demand payment due, was not made, the defendant no.3 and

4 were entitled to terminate the agreement and forfeit the earlier payments

made. Para (ix) provided that a notice was to be given by the promoter to the

purchaser that the flat was ready for use and occupation and thereafter the

purchaser was to bear taxes and charges for electricity and so on.

23] Absence of registration of the agreement Exh.96, in this


particular case would not come in the way of asserting effect of the terms

thereof. The first reason is that parties are not at issue about that. That is

held by the Trial Court in para 16 of the judgment. The trial Court also

discussed contents of the agreement (Exh.96) at various places in the

judgment. The agreement was referred to the witnesses during cross

examination. Moreover issue no.3 pertaining to the binding nature of the

agreement is answered against the plaintiff but not for want of registration.

The trial Court came to that conclusion because of some admissions of the

plaintiff which went contradictory to the terms of the agreement Exh.96.

There is no cross objection on all these. There is therefore no hindrance nay,

it is all the more essential to consider the agreement though not registered.

24] It would be beneficial here to consider the receipts Exh.97 to

Exh.105. They span from 8/6/1972 to 3/7/1975. They prove that the

plaintiffs had paid installments to the defendant nos. 3 & 4 for the suit flat

no. A – 5 on third floor. The installments were in consonance with the

repayment Schedule stated in para 9(i) of the agreement. In fact, amount in

excess was paid by the plaintiffs till 3/7/75. The last few installments were

for Rs. 4775/- when the scheduled installments were for Rs. 4000/-.

Secondly, the installment paid under Exh.105 was for the stage of laying

fifth slab. As per the schedule, the plaintiff was required to pay only Rs.

32,000/- till that stage. But the plaintiffs had paid Rs. 38,245/- till then. A

small amount of Rs. 8755/- out of the consideration of Rs. 47,000/- remained

to be paid.

25] As per the schedule of payment in the agreement, the next two

installments were payable within 10 days of demand after laying sixth and

seventh slab. The last two installments were payable after completion of

plastering and at the time of taking possession respectively.

26] As stated earlier, the agreement provided specific conditions in

which it could be terminated. The promoter could not terminate the


agreement nor forfeit the money received (as per Cl. iv) unless the purchaser

had failed to pay money within a month of the same being demanded.

27] The defendant no.4 did not step in the witness box and led no

evidence that such a thing which entitled him to terminate the agreement

had occurred. The PW 1 Mrs. D'silva admitted that money was demanded

through the notice of Adv. Oswal (notice dated 21/3/79). She explained that

payment could not be made because there was news reporting (Exh.107)

about credibility of the defendant nos. 3 & 4.

28] The back drop of the chain of events is discussed earlier. The

promoter was reported to have sold flat to more persons than one and the

police were after him. Moreover those who had paid to the defendant no.3 &

4 were rushing and occupying flats at whatever state they were in. In these

circumstances, it was absolutely normal for the plaintiffs not to make further

payment of a small sum outstanding. It is stated that they had paid over Rs.

38,000/- out of the consideration of Rs. 47,000/-. Whatever remained due was

not a big amount. A bank pass book is filed by the plaintiffs to show that

they had enough money. That can not be of much use in absence of evidence

of the banker maintaining that. Even then, the non payment of the balance

amount by the plaintiffs was not a matter of great concern. In the

circumstances of the case, the defendants 3 and 4 could not invoke the clause

of forfeiture against the plaintiffs.

29] The learned trial Court heavily relied upon the plaintiffs

admission that she had taken Rs. 10,000/- from the defendant no.4 for the

treatment of her ailing husband and had not returned it. He overlooked her

explanation that it was a different transaction. It cannot be understood as to

why the two transactions cannot be regarded separate and distinct. The

defendant no.3 is a Private Limited Company. The agreement Exh.96 did not

provide that the purchaser could withdraw from the purchase money;

definitely no partial withdrawal was permitted. The agreement stipulated


only one contingency in which the purchase money could be refunded. That

was in the event of the contract getting frustrated. For any other breach, the

money paid was liable to be forfeited. Therefore, under the agreement,

nothing entitled the plaintiff to withdraw partly from the defendants 3 and 4

nor was there any obligation upon them to allow that. The defendant nos. 3

& 4 did not adduce any evidence in support of their contentions.

30] The probabilities incline against holding that the plaintiffs had

withdrawn Rs. 10,000/- from the purchase money. The defendant no. 3 as a

private company was not constituted for that. In spite of that, if Rs. 10,000/-

was paid out of the purchase money, that could have reflected some where in

the accounts of the company. But as stated, no evidence was led and the trial

Court came to a wrong conclusion totally discarding the explanation offered

about taking a hand loan from the defendant no.4. That was a different

transaction and should have been held as such. Considering the relations it

is probable that the defendant no.4 may have lent Rs. 10,000/- to help the

plaintiff in attending her husband. That was a different transaction and the

payment of Rs. 38,245/- was not affected by that .

31] Admittedly, the plaintiffs did not return Rs. 10,000/- to the

defendant no.4. However, for the above reasons, that fact shall not come in

the binding nature of the agreement at Exh.96. The learned trial Court gave

undue importance to some part of oral evidence of the plaintiff. In fact, he

was so moved by that, that he felt it unnecessary to consider the

documentary evidence (para 19 of the judgment). He held that the agreement

is not binding because, the entire consideration was not paid. That was an

undisputed fact but as a Court, the attending circumstances, the facts and

the entire evidence should have been considered. By not following these basic

requirements, the trial Court demonstrated undue haste in arriving at his

conclusions.

32] The agreement (Exh.96) was executed on 3/12/73. The plaintiffs


paid more than 3/4th of the consideration. There is nothing on record to show

that the deceased G. M. Sheikh or the present occupant of the flat had

entered into agreement prior to that. In the evidence not supported by

pleadings his son, DW Ross testified that the agreement was entered into on

or about 1/6/77. That agreement is no where placed on record though the

trial Court, vide order below Exh.126 had directed the defendants 7 and 8 to

produce it. Presuming that any such agreement was entered into, that was

about four years after Exh.96.

33] Now to the question as to whether the agreement was

terminated. On this crucial aspect also, the trial Court has not considered

the evidence in its proper perspective. In fact, it did not consider the evidence

led and not led by the defendants.

34] As stated above, the agreement clearly stipulated that on failure

to pay the installment within one month of the demand made after the stage

of construction was over, that the agreement could be terminated. The

plaintiffs had made payment of surplus amount at the 6th stage of

construction. The last installment was paid on 3/7/75 vide the receipt at

Exh.105. It says that the 5th slab was laid and the installment paid there

under was sixth installment.

35] The plaintiffs did not pay further installments after 3/7/75. It

would be interesting in this respect to note how they and the defendant nos 3

& 4 were reacting to the situation thereafter.

36] As stated above, the agreement stipulated payment of Rs.

32,000/- till the sixth installment but the plaintiffs had paid Rs. 38,245/- till

then. On 26/5/1977, the defendant nos. 3 & 4 issued Exh.106 to the PW 2

Francis Pinto. That is styled as a “pass” and permitted Pinto to see the suit

flat. In his letter Exh.117 dated 4/8/1977, Pinto assured the defendant no.3

payment of the remaining amount. The last but one para of that letter is

important. It shows how Pinto wanted the defendant nos. 3 & 4 to effect


some changes in the construction of the toilet. Not just that, in his letter

dated 13/1/1978 (Exh.108) the defendant nos. 3 & 4 had issued a blanket

certificate that the plaintiff no.1 was allotted the suit flat.

37] The evidence thus shows that in spite of non payment of further

installment, the defendants 3 & 4 till January 1978 had not canceled the

agreement.

38] The PW 1 Mrs. D'silva admitted to have received notices from

Adv. Oswal on behalf of the defendants 3 & 4 demanding balance payments.

According to her, that notice was dated 21/3/1979. the defendant did not care

to prove that notice and therefore its contents beyond what is admitted by

the plaintiff cannot be presumed.

39] The question is whether failure of the plaintiffs to abide on the

notice of Adv. Oswal would entail termination of the agreement? Mere non

payment could not result in that. For payment of installment, the condition

precedent was completion of a particular stage of construction. Without that,

the defendants 3 & 4 could not demand the installment let alone terminate

the contract. The evidence does not indicate in any manner that the

construction was completed before the notice was issued through Adv.

Oswal. There is no proof that the defendant nos. 3 & 4, exercising options

under the agreement Exh.96 had terminated it. It was a simple thing which

the defendants alone could prove and were bound to prove. They led no such

evidence.

40] Adv. Mr. Oswal may have issued a notice as admitted by PW Mrs.

D'silva on 21/3/1979. But it is also established that the construction was not

completed at that time. It was brought out in the cross examination of PW 2

Pinto that there were no doors or window panes or toilet fittings in the suit

flat in 1979. The DW 1 Britto stated that the defendants 3 and 4 had left the

work incomplete and that was subsequently done by the defendant no.1

society. Even DW Ross Sheikh testified the same thing.


41] It is therefore established that the construction work was not

completed before 1980-81. It was certainly not complete in March,1979 when

the defendants 3 and 4 issued notice through Adv. Oswal. The notice (not

produced) was therefore not in consonance with the agreement Exh.96.

Moreover, at that time, there was a confusing atmosphere prevailing with

flat allottees rushing to the site and asserting their right against another.

42] The plaintiffs did not pay anything to the defendants 3 and 4

after 1975. Even then, the evidence shows that till 13/1/78 (Exh.108) the

defendants recognized them as the allottee of the suit flat. Rest as stated

above, establishes that no stage wise construction was completed as could

enable the defendants 3 and 4 to terminate the agreement by the notice

through Adv. Oswal. There was no valid termination of the agreement. In

the background narrated in the beginning and in view of the evidence

discussed, it must be held that the agreement was not determined by the

defendants 3 and 4 and it did not stood terminated because the plaintiff did

not pay the balance of consideration of Rs. 47,000/-.

43] The plaintiffs had entered into the agreement Exh.96 in 1972-73.

That was acted upon for a long period. The plaintiffs paid more than 3 / 4 the

consideration and the agreement was not terminated. There was no reason

why the agreement could not be binding upon others.

44] One more aspect remains to be considered namely the allotment

of the suit flat to the deceased defendant no.6 G. M. Sheikh. DW Ross

Sheikh, his son took stand in the witness box on behalf of the defendants 7

and 8 . It is plain that his evidence was a substantial advancement over the

written statement. The evidence was very much beyond pleadings.

45] The defendants 7/8 did not plead that they were bonafide

purchasers for value without notice. The DW Ross deposed that. There is no

whisper in the written statement that his father had booked the suit flat in

1977 and had paid Rs. 40,000/-. It was no where pleaded that an agreement


was entered into and that as well as receipts of payment of installments were

lost. The written statement is absolutely silent about the major particulars of

the agreement, the consideration agreed, and paid and so on. Even then,

minute particulars are testified in evidence by DW 1 Ross Sheikh. The

evidence is therefore wholly beyond pleadings and can not be acted upon.

46] It is observed in the earlier paras that a Bank pass book, without

supporting evidence of the banker is of no use. On that count alone, the pass

books Exh.156 to 158 filed by the plaintiff are kept out of consideration. For

similar reasons, the pass book Exh.199 filed by the defendants 7 and 8 can

not be accepted in evidence. Admittedly, the entries therein are not in the

handwriting of the witness. Instead of relying on the pass book, the

defendants could have produced a certified extract of the saving account as

per Bankers Book Evidence Act.

47] It is pertinent to note that the loss of the alleged original

agreement was not pleaded and the defendants did lay foundation for

adducing secondary evidence. In fact, the trial Court had directed them to

produce the agreement. They did not abide by that.

48] The defendants relied upon Exh.200/Exh.216 to show that the

suit flat was allotted to them. These are two copies of the same letter dated

29/11/78 issued by the defendant no.4 to the defendant no.1. It says that the

deceased G. M. Sheikh had booked a flat for Rs. 65,000/- and out of which Rs.

60,000/- was received by him. By the said letter, the defendant no.4 allotted

the suit flat to Shri. Sheikh and that the flat was canceled by its previous

allottee.

49] It is clear from the above letter Exh.200 that the suit flat was

allotted to Sheikh by virtue of that letter on the day on which it was

written namely 29/11/78. That falsifies the defence contentions that the

suit flat was allotted to them before the date on the letter. One important

aspect connected to the letters Exh.200 and 216 need mention here.


Exh.200 was addressed to the defendant no.1. It was a carbon copy

forwarded to G. M. Sheikh and therefore, address of defendant no.1 at the

top was scratched. However, in its xerox copy Exh.216, the scratching does

not appear. There was no way in which both these letters could could reach

the defendants 7 and 8 or the deceased G. M. Sheikh. Exh.201 is the original

nomination form states to whom the flat was to be transferred in the event of

death of G. M. Sheikh. The said document should normally have been with

the society and not with the defendants. That raises suspicion.

50] Exh.174 to Exh.180 are receipts issued to G. M. Sheikh from

15/7/79 to 17/8/80 by the defendant no.1 society. They are not much useful to

the defendants. There is no resolution of the society allotting the suit flat to

the deceased G.K. Sheikh. In fact the D. W. Ross Sheikh admitted that the

documents at Exh.138 filed by the defendants 3 and 4 were copies of the

society (def.1) record issued by Deputy Registrar. In that document it is

shown that the deceased G. M. Sheikh was allotted not the suit flat but flat

no. R. A. 8 on 3rd floor . The said fact speaks a lot and the evidence through

Exh.174 to 180 ( like most other) being beyond pleadings, in the peculiar

circumstances for from corroborate the defence.

51] There is therefore absolutely no reason not to accept that the

agreement Exh.96, in favour of the plaintiff was binding on all. The learned

trial Court failed to understand the entire evidence. He appears to have

discussed nothing but the evidence of the plaintiffs. In the process, he

reached wrong conclusions. They cannot be sustained. For the present, the

point under consideration needs to be and is held in affirmative.

As to point no.4 : (on the question of dispossession)

52] The trial Court held that the plaintiffs could not show in the first

place that they were in actual possession and the question of dispossession


did not survive. In my opinion, the trial Court considered this entire aspect

from a wrong perspective. It was a multi storied building. The apartments

were allotted to buyers since prior to starting of construction or during

construction. The plaintiffs were one of the buyers. They had booked the suit

flat. It can not be imagined that unless the construction was completed they

could be placed in its possession. Till that time their possession was

constructive. That is demonstrated in this case by two factors. The first one

is the “pass” Exh.106 . Thereby PW 2 Pinto could visit 'his' (suit) flat during

construction. The second one is his letter (Exh.117) to the defendant no.4.

He stated therein that he wanted certain alterations to be made in the toilet

in the suit flat. The third important factor defining constructive possession

was that during subsistence of the agreement, the plaintiffs (with the

builder) could prevent trespass in the flat. From these points of view, they

could be held in constructive possession of the suit flat.

53] There is yet another angle to this case. It is described earlier how

a state of confusion and chaos prevailed in 1978 – 79 when the defendant

nos. 3 & 4 were accused of selling the same flat to more than one person. The

purchasers were rushing to the flats booked by them, fixing their own doors

and bolting and locking them, with a view to ensure possession. It is evident

from the evidence led by the plaintiffs that PW 2 Francis Pinto was also one

of such persons. He too had entered the suit flat, put his lock and ensured

possession of the suit flat on behalf of the plaintiffs. It also appears that he

was thrown out and the matter was reported.

54] The act of PW 2 Pinto ( like others alike him) in locking the suit

flat was illegal. Though the plaintiffs had booked the flat and the agreement

was subsisting, they nor Pinto had authority to take possession of the flat

unless the construction was completed. The defendants 3 and 4 alone could

deliver them that. That was not done. In spite of their booking, their act of

taking possession of th suit flat was not lawful.


55] That apart, the evidence suggests that by visiting the flat and

suggesting structural changes in the flat, the plaintiffs had demonstrated

their constructive possession over the suit flat. They were not in actual

lawful possession. Nevertheless, the foregoing discussion establishes that the

suit flat was subsequently delivered in actual possession of the deceased G.

M. Sheikh and the defendants 7 and 8 though the agreement Exh.96 with

the plaintiff was subsisting. From this angle must be held that the plaintiffs

were dispossessed from their initial constructive possession over the suit flat.

The point under consideration is therefore answered in affirmative.

As to point no. 5 : (as to the entitlement)

56] From the above discussions, it becomes clear that plaintiffs had

booked the suit flat way back in the year 1973. They paid more than Rs.

38,000/- out of the consideration of Rs. 47,000/-. The defendant nos. 3 & 4

regarded them as allottees of the suit flat even in 1978. The construction of

the building as well as the suit flat was never completed by the defendant

nos. 3 & 4. The defendant no.4 was charged for selling same flat in the

building to several persons . Finally , the purchasers had come together.

They had formed an association and ultimately the defendant no.1 society

which, under the apartments Ownership Act the defendant no.3 & 4 were

bound to constitute was formed. The agreement with the plaintiffs was not

terminated in the manner in which it was stipulated therein and the notice

issued through Adv. Oswal (not proved) could not determine the agreement

with the plaintiff. In fact, the defendant nos.3 & 4 were under legal

obligation to honour their commitment to the plaintiff and should have

effected necessary conveyance, inducting the plaintiff in possession of the

suit fat, of course on receipt of the balance consideration. Instead by their

mis-management, a chaotic situation arose and every purchaser tried to force


and establish his possession over the flat.

57] It cannot be said that the plaintiffs were entitled to the suit flat

at a price less than the agreed consideration of Rs. 47,000/-. There were

sufficient reasons which explained how the plaintiffs were justified in not

paying the balance consideration to the defendants 3 and 4. That apart, they

cannot be freed from that liability for ever. As stated above, the Co-operative

Court is competent to decide whether the plaintiffs should be made member

of the society and after that decision in their favour, the plaintiffs will have

to pay the balance consideration to the society.

58] It is established in the evidence that when the defendant nos.3 &

4 left the work undone , the defendant no.1 Society had collected a further

contribution @ Rs. 30/- per sft. from the purchasers to complete the work .

That would be another amount which the plaintiffs shall have to pay if their

claim of membership is allowed by the Co-operative Court, Pune.

59] For the reasons stated, the judgment and decree of the learned

trial Court cannot be sustained. The Court below committed a grave error in

dismissing the suit. No doubt , the Co- operative Court would alone be

competent to decide whether the plaintiff should be admitted as a member of

the society. However, I find no hesitation in holding that the plaintiffs were

allotted the suit flat by the builder and promoter in the year 1973. It is also

established that the agreement was executed in respect of the suit flat. The

plaintiffs had made payments of installments and were entitled to be

inducted possession. The action on the part of the defendants in placing the

deceased G. M. Sheikh in possession of the suit flat and in permitting the

defendants 7 and 8 and heirs of deceased to occupy the suit flat is illegal,

high handed and unlawful. This is more so because they failed to prove that

the suit flat was either booked by or allotted to them.

60] It would be necessary to make certain observations in order that


the reliefs granted are made effective. After the Co-operative Court decides

the claim of membership in favour of the plaintiffs, it would be necessary for

them to pay the balance consideration (Rs. 47000/- – 38245/-) either to the

defendants 3 and 4 or the Society. It would also be necessary for the

plaintiffs to pay improvement charges @ of Rs. 30 per sft. to the defendant

no.1 in view of the evidence that the society had effected the improvements

after the defendants 3 and 4 had left the work incomplete. It is needless to

state that the society would execute necessary conveyance. Therefore

answering the point under consideration accordingly, the order below is

passed .

ORDER

1] Appeal is allowed partly with proportionate costs.

2] The judgment and decree of the 6th Jt. CJSD, Pune in Spl CSno. 136/80 is set aside and the suit is decreed as follows.

a] The suit is decreed partly with costs.

b] It is hereby declared that the suit flat being flat no. V-A onthe third floor in Paramount Apartments Co-operative HousingSociety Limited, 1981, Convent Street, Pune, measuringapproximately790 Sft was and stood allotted to the plaintiff andthat, its subsequent allotment to and possession of deceased G.M.Sheikh (defendant no.6) and his heirs was illegal and not bindingon the plaintiffs.

c] The plaintiffs to approach the Co-operative Court Pune foradjudication of her claim of membership in continuation withthe earlier proceedings in that Court.

4] Decree be drawn up accordingly.

5] Informed accordingly.

Date : 8/1/2007 [S. G. Deshpande] [Ad hoc District Judge-12,Pune]


I affirm that the contents of this P. D. F. file Judgment are same wordfor word as per original Judgment.

Name of Steno : Smt. S. K. DoiphodeCourt Name : S. G. Deshpande, Ad-hoc District Judge-12,PuneDate : 9/1/2007

g m shaikh order

Documents

suit flat

possession of suit

housing society

pune civil apepal

shaikh possession

housewife rat

district court pune

paramount aprtments