Dismissed

Dhananjay @ Nilkhanth Mainal v. the Madhavpur Vadgaon Vinakar

Karnataka HC6 Sept 2012RSA/6163/2011

Case brief

AI extract

What is this about?

The High Court of Karnataka dismissed second appeals filed by members of a cooperative society challenging a possession decree granted to respondents. The court rejected the claim that Section 116 of the Evidence Act created an estoppel since the respondents had valid resolution authorization to sue. No substantial question of law was found.

What did the court decide?

All second appeals dismissed with observation that Society may lease property at enhanced rent or offer first preference to appellants upon sale. One year time granted for vacating.

Dhananjay @ Nilkhanth Mainal Vs the Madhavpur Vadgaon… — Property and Title | Karnataka HC (2012)

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IN THE HIGH COURT OF KARNATAKA

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CIRCUIT BENCH AT DHARWAD

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Dated this the 6^th day of September, 2012

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Before

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THE HON’BLE MR JUSTICE HULUVADI G RAMESH

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Regular Second Appeals 6162 c/w 6163 c/w 6164 c/w 6165 / 2011

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Between:

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In RSA 6162/2011

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1 Smt Kasturi Laxman Upari 55 yrs, R/o # 539, Mahatma Pule Galli Vadagaon, Belgaum

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2 Sri Raghavendra Laxman Upari 25 yrs, R/o # 539, Mahatma Pule Galli Vadagon, Belgaum

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In RSA 6163/2011

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Sri Dhananjay @ Nilkhanth Mainal 45 yrs, R/o # 539, Mahatma Phule Galli Vadagaon, Belgaum

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Appellants

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(By Sri J S Shetty, Adv.)

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And :

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Madhavpur Vadgaon Vinakar Sahakari Utpadaka Sangha Limited, Vadagaon, Belgaum By its alleged Secretary –Vinayak Yallappa

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Kamkar,R/o # 539, Mahatma Pule Galli common Vadagaon, Belgaum Respondents

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(By Sri Shreevatsa Suresh Hegde, Adv.)

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In RSA 6164/2011

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1 Smt Kasturi Laxman Upari R/o # 539, Mahatma Pule Galli Vadagaon, Belgaum

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2 Sri Raghavendra Laxman Upari R/o # 539, Mahatma Pule Galli Vadagaon, Belgaum

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In RSA 6165/2011

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Sri Dhananjay @ Nilkhanth Mainal 45 yrs, R/o # 539, Mahatma Phule Galli Vadagaon, Belgaum Appellants

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(By Sri J S Shetty, Adv.)

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And:

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1 Sri Bhankar Yallapa Kamkar

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2 Sri Vinayak Yallappa Kamkar

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Both are r/o # 539, Mahatma Pule Galli common Vadagaon, Belgaum Respondents

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(By Sri Shreevatsa Suresh Hegde, Adv.)

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These Second Appeals are filed under S.100, CPC praying to set aside the order dated 29.02.2008 in RA 109/2008 (OS 98/2007); RA 104/2008 (OS 96/2007); RA 108/2008 (OS

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727/2006) and RA 105/2008 (OS 728/2006) by the III Addl. Senior Civil Judge, Belgaum.

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These Appeals coming on for Admission this day, the Court delivered the following:

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JUDGMENT

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These appeals arise out of the order passed by the III Addl. Civil Judge (Sr.Dvn.), Belgaum in RA 108/2008 & 109/2008 and 104/2008 & 105/2008 respectively.

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One set of original suits was filed by the appellants for permanent injunction whereas respondents filed another set of original suits for recovery of possession. Two suits were tried together and common judgment is rendered in OS 727/2006 and 98/2007. Similarly, while clubbing other two suits i.e., OS 96/2007 and 728/2006, other set of judgment has been passed.

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The suits filed by the respondents were dismissed and the suits filed by the appellants herein for injunction was decreed at the first instance. Thereafter, in appeal, order of the

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trial court has been reversed and there is a decree in favour of the plaintiffs who have filed the suit for recovery of possession of the suit premises.

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It appears, property belongs to the Society viz., Madhavapur Vadgaon Vinakar Sahakari Sangha Ltd, Vadgaon. Aggrieved by the order of the lower appellate court allowing the suit filed by the respondents for recovery of possession, these second appeals are filed.

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In the grounds raised by the appellants herein, it is stated, respondents had no right or locus standi to question possession and maintain the suit. The property belongs to the Sangha. The respondents have no right to represent the Society and S.116 of the Evidence Act acts as estoppel.

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According to the appellants, the 1^st respondent representing the Society is also one of the tenant and he has no locus standi to maintain these suits on behalf of the Society and

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it also operates as estoppel on him as per S.116 of the Evidence Act and accordingly submitted, there arises substantial question of law for consideration.

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Per contra, counsel for the respondent submitted, he represents the Secretary of the Society on the resolution/authorisation passed by the Director/Secretary who are all nine in number and after notice of termination, lease has been determined and he is not holding any tenancy under the Society and accordingly, sought for dismissal of the appeals.

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In reply, counsel representing the appellants submitted that in order to knock of valuable property respondent has already entered into agreement with some person for unlawful gain and also for his own use. The said suit filed is a sham and fraudulent and suit is not maintainable. The society has already become defunct and it has no authority.

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What is being seen in the order of the lower appellate court is, due notice has been issued under S.106 of the Transfer

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of Property Act. Further, there is also authorisation and authorisation is issued in favour of the respondent to fight out the litigation and to maintain the suit. Further, the lower appellate court noted that aspect of the contention that respondent has no locus standi to maintain the suit cannot be accepted in view of the resolution passed and even admitting the fact that the 1^st respondent who maintained the suit on behalf of the Secretary, is also one of the lessee under the Society, though the contention of the appellants is that it acts as an estoppel on the respondent and rather he has filed a suit for unlawful gain.

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In this regard, it is noticed, if the Society intends to take any action by a resolution or the appellants intend to challenge the possession of respondent if any, by way of lease of the property belonging to the Society, the appellant can file a representative suit or else the society itself can very well move for eviction of the respondents who is said to have occupied another portion of the property. However, after eviction, in

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the event it is to be further let out to other persons for higher rental, option shall be given and kept open to the appellants for further lease at enhanced rent to be fixed by the respondent society. However, in the event of alienation by way of sale, first preference shall be given to the appellants herein to purchase the property of which they are in possession. However, there is no question of estoppel operating on the respondents in maintaining the suit.

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In the circumstances, while dismissing all the appeals filed as no substantial question of law arises for consideration, the observation made by this Court holds good on the respondent, as indicated above. Further, one year time is granted to vacate and hand over possession and if the respondent further intends to let out, a decision may be taken as noted above either for lease or sale.

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Sd/- Judge

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Dhananjay @ Nilkhanth Mainal v. the Madhavpur Vadgaon Vinakar

Case brief

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Dhananjay @ Nilkhanth Mainal v. the Madhavpur Vadgaon Vinakar

Case brief

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