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IN THE HIGH COURT OF JUDICATURE AT BOMBAY

CIVIL APPELLATE JURISDICTION

WRIT PETITION NO.5347 OF 2024

1. M/s. Natekar Construction LLP

2. Shri Amit Anil Natekar ....Petitioners

V/S

1. Mrs. Manjusha Dattatray Ogale

2. The Deccan Gymkhana Co-operative

Housing Society Ltd.

3. Shri Dattatray Ramchandra Ogale ....Respondents

WITH

WRIT PETITION NO.5354 OF 2024

1. M/s. Natekar Construction LLP

2. Shri Amit Anil Natekar ....Petitioners

V/S

1. Mr. Dattatray Ramchandra Ogale

2. The Deccan Gymkhana Co-operative

Housing Society Ltd.

3. Mrs. Manuja D. Ogale ....Respondents

WITH

WRIT PETITION (STAMP) NO.9683 OF 2026

1. Manjusha Dattatray Ogale

2. Dattatray Ramchandra Ogale ....Petitioners

V/S

1. M/s. Natekar Construction LLP

2. Shri Amit Anil Natekar

3. The Deccan Gymkhana Co-operative

Housing Society Ltd. ....Respondents

_________

Mr. Vishwajit P. Sawant, Senior Advocate with Mr. Prabhakar M.

Jadhav for the Petitioners in WP Nos.5347 of 2024 and 5354 of 2024, and

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for Respondent Nos.1 and 2 in WP (Stamp) No.9683 of 2026.

Mr. S.S. Panchpor with Mr. Parmeshwar Andil for Petitioner in WP

(Stamp) No.9683 of 2026 and for Respondent Nos.1 and 3 in WP 5347 of

2024 and WP 5354 of 2024.

Mr. Shekhar V. Mane for Respondent No.2 in WP Nos.5347 of 2024 and

WP 5354 of 2024 and for Respondent No.3 in WP (Stamp) No.9683 of 2026.

__________

CORAM : SANDEEP V. MARNE, J.

RESERVED ON : 04 AUGUST 2026.

PRONOUNCED ON : 11 AUGUST 2026.

J U D G M E N T :

THE CHALLENGE

1.These are cross Petitions filed by Disputants as well as by the

Opponents in Dispute No.47 of 2004 filed before the Cooperative Court

No.1, Pune, challenging the Judgment and Order dated 19 March 2022

passed by the learned Member, Co-operative Appellate Court in Appeal

Nos. 108 of 2019 and 120 of 2019. The Co-operative Appellate Court has

partly allowed both the Appeals filed by the Disputants and has set aside

the judgment and Award dated 26 April 2019 passed by the Co-operative

Court in Dispute No.47 of 2004 and has partly allowed the Dispute

declaring that Disputant No.1 alone is the lessee in respect of the

concerned plot and restraining the Opponents from dealing with the said

plot without the consent of the Disputant No.1 and of the Society.

2. The Opponents in the Dispute have accordingly filed Writ Petition

No.5347 of 2024 challenging the order of the Appellate Court to the

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extent it partly allows Appeal No.108 of 2019 filed by Disputant No.1-

Smt. Manjusha Dattatray Ogale. The Opponents have filed Writ Petition

No.5354 of 2024 challenging the order of the Appellate Court to the

extent it partly allows Appeal No.120 of 2019 preferred by Disputant

No.3-Shri Dattatray Ramchandra Ogale.

3.The Disputants are also aggrieved by the Order of the Co-

operative Appellate Court to the extent of rejection of prayer for

possession of portion of the plot from the Opponents and have

accordingly filed Writ Petition (Stamp) No.9683 of 2026. Since all the

three Petitions arise out of challenge to the same order passed by the

Cooperative Appellate Court, the same have been heard analogously and

are taken up for decision by this common judgment.

FACTS

4.The Deccan Gymkhana Co-operative Housing Society Limited

(Society) is the owner of the land bearing final Plot Nos.31 and 32, City

Survey No. 33/23 at Erandawane, Pune. The Society got a layout

sanctioned for leasing out various plots for allotment to its members.

The Society is registered as Tenant Ownership Housing Society. There

are total 42 plots created by the Society on its land. Sub-plot No.23

admeasuring 10,302 sq. ft. was originally leased out to Shri Shivram

Datar by the Society, and accordingly a Lease Deed was executed on 30

December 1947. The Lessee-Shri Shivram Vishwanath Datar constructed

a house on plot No.23 and thereafter transferred the leasehold rights in

respect of the plot alongwith ownership of the house in favour of Shri

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Chintaman Laxman Barve vide Deed of Transfer/Assignment dated 4

December 1951. The Assignee Shri Chintaman Laxman Barve executed

Sale Deed dated 29 October 1959 in favour of Shri Narayan Pandurang

Kale and Smt. Sushila @ Kusum Narayan Kale (Kales) in respect of the

plot alongwith the constructed house.

5.Kales were desirous of selling the southern portion of the plot

admeasuring 4,300 sq. ft. alongwith structure standing thereon,

Accordingly, vide Sale Deed dated 20 August 1973, Kales sold the

southern portion of the plot admeasuring 4,300 sq.ft. alongwith the

structure admeasuring 2,300 sq. ft. to Mr. Shriniwas Ramchandra Bagal

and Smt. Indira Shriniwas Bagal (Bagals). Intimation of Sale was given

by Kales to the Society. However, on 1 October 1973, Society

communicated to Kales that the transaction in favour of Bagals was

concluded without the permission of the Society and that the same was

not binding on the Society. On 7 July 1975, Society issued notice to Kales

for termination of their Lease in respect of Plot No.23. On 5 September

1975, Society filed Dispute No.544 of 1975 before Co-operative Court,

Pune against Kales and Bagals challenging transaction of Sale Deed

dated 20 August 1973. During pendency of the Dispute, parties amicably

resolved the controversy. Bagals decided to reconvey the leasehold rights

in the portion of land admeasuring 4300 sq.ft., while retaining the

ownership of the constructed portion admeasuring 2300 sq.ft.

Accordingly on 17 September 1975, Kales issued letter to the Society

forwarding draft copy of re-conveyance to be executed between them

and Bagals. By letter dated 30 September 1975, the Society approved the

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draft of re-conveyance. Accordingly, on 3 July 1976 Bagals executed Re-

conveyance Deed in respect of the leasehold rights of southern portion

of plot in favour of Kales, while retaining the ownership in respect of the

two storied structure as well as possession of the entire southern portion

of land admeasuring 4,300 sq.ft. A separate Agreement for mutual

beneficial enjoyment of respective portions was executed on 10 January

1976. Accordingly, on 27 April 1977, the Cooperative Court disposed of

Dispute No.544 of 1975 as the Society no longer desired to prosecute the

same.

6.On 24 January 1978, Smt. Manjusha Dattatray Ogale and Shri

Dattatray Ramchandra Ogale entered into Agreement for Sale in respect

of leasehold rights of Plot No.23 as well as Building standing on

northern side of the plot (excluding building of Bagals). However,

contrary to the Agreement for Sale, on 26 December 1980 only a lease

was executed in respect of the first floor premises at the northern

portion of the building with Kales. Since Agreement for Sale was not

fulfilled, Smt. Manjusha Ogale filed Special Civil Suit No.598 of 1982

before Civil Judge Senior Division, Pune against Kales for specific

performance of Agreement for Sale dated 24 January 1978. On 9

November 1984, compromise pursis was filed in Special Civil Suit No.598

of 1982. As per the compromise, Smt. Manjusha Ogale purchased the

leasehold rights in Plot No. 23 alongwith structure standing towards

northern side from Kales vide Sale Deed dated 24 January 1985. On 4

April 1985, a Lease Deed was executed between the Society and Smt.

Manjusha Ogale in respect of Plot No.23.

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7.After acquiring leasehold rights in the Plot, Smt. Manjusha Ogale

filed Regular Civil Suit No.1449 of 1990 against Bagals on 30 July 1990

seeking a declaration that Bagals are entitled to hold part of the

structure merely as ‘occupiers’ and that they had no right to deal with

the same without prior permission of the Society. On 1 February 1991,

Bagals sold structure admeasuring 2,300 sq.ft. constructed on the

southern side of the plot admeasuring 4,300 sq.ft. together with right to

use land admeasuring 4,300 sq.ft. as Vahiwat in favour of M/s. Natekar

Construction LLP. On 6 February 1992, Smt. Manjusha Ogale executed

Agreement for Sale in respect of first floor in favour of Shri Amit Anil

Natekar. In the meantime, Regular Civil Suit No.1449 of 1990 stood

abated.

8.It appears that M/s. Natekar Construction LLP wanted to carry out

further construction in the Plot and hence filed Civil Suit No.1920 of

2000 before Civil Judge Junior Division, Pune for seeking a direction

against Shri. Dattatray Ogale for signing of plans and drawings for

carrying out repairs and additional construction over southern portion

of the plot. The Suit was dismissed on 20 December 2003. M/s. Natekar

Constructions LLP filed Appeal No.99 of 2004, which was also dismissed

on 1 December 2008, against which Second Appeal is pending before this

Court.

9.On 3 August 2001, Smt. Manjusha Ogale issued notice to M/s.

Natekar Construction LLP, calling it upon not to enter, use or occupy the

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land admeasuring 4,300 sq. ft. She also issued notice to the Society for

taking action against M/s. Natekar Construction. On 14 February 2003,

Smt. Manjusha Ogale filed Special Civil Suit No.136 of 2003 before Civil

Judge Senior Division, Pune against Natekars as well as against the

Society for declaration and injunction. The Suit has been dismissed on

30 April 2016, against which Civil Appeal No.738 of 2016 was filed by

Smt. Manjusha Ogale, which is also dismissed by the District Court on 11

January 2022. It appears that Second Appeal preferred by Smt. Manjusha

Ogale is pending before this Court.

10.In the meantime, Smt. Manjusha Ogale filed Dispute No.47 of

2004 before Cooperative Court, Pune under Section 91 of the

Maharashtra Co-operative Societies Act, 1960 (MCS Act) seeking a

declaration that she is the sole leaseholder in respect of plot No.23 and

seeking possession of the portion of plot from Natekars. In the Dispute,

the Society was impleaded as Opponent in addition to Natekars. On 12

February 2004, Smt. Manjusha Ogale filed Application under Section 94

of the MCS Act for transposing the Society as a Disputant, which

Application was allowed on 24 January 2005, and the Society was

transposed as Disputant No.2. In the year 2012, Shri. Dattatray Ogale

filed Application for joining him as Disputant No.3. His Application was

allowed and he was impleaded as Disputant No.3.

11.By Judgment and Award dated 26 April 2019, the Co-operative

Court dismissed Dispute No.47 of 2004. Smt. Manjusha Ogale filed

Appeal No.108 of 2019 and Mr. Dattatray Ogale filed Appeal No.120 of

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2019, challenging the judgment and Award of the Cooperative Court. By

common Judgment and Order dated 26 April 2019 the Co-operative

Appellate Court has partly allowed both the Appeals preferred by Ogales.

The Appellant Court has partly allowed the Dispute by holding that Smt.

Manjusha Ogale alone is the lessee in respect of plot No.33/23. The

Cooperative Appellate Court has also permanently restrained Natekars

from dealing with the suit property or leasehold rights of Ogales without

the consent of Smt. Manjusha Ogale and of the Society. Natekars are

further restrained from obstructing Manjusha Ogale or any other person

on her behalf or the representative in title in respect of the plot in

question.

12.Aggrieved by the common Judgment and Order dated 19 March

2022 passed by the Co-operative Appellate Court, Natekars have filed

Writ Petition Nos.5347 of 2024 and 5354 of 2024. Smt. Manjusha Ogale

and Shri Dattatray Ogale have also challenged the Order of the

Cooperative Appellate Court to the limited extent that it rejects the

prayers in the Dispute for handing over possession of the entire plot to

them and have accordingly filed Writ Petition (Stamp) No.9683 of 2026.

SUBMISSIONS

13.Mr. Sawant, the learned Senior Advocate appearing for Natekars

would submit that the Cooperative Appellate Court has erred in partly

allowing the Appeals preferred by Ogales. At the outset, he submits that

Appeals filed by Shri Dattatray Ogale ought to have been dismissed as

not maintainable as he is not a member of the Society nor claiming

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under the member of the Society and no right could have been asserted

by him in a Dispute filed by Smt. Manjusha Ogale under MCS Act. That

the Cooperative Court had rightly held that Shri Dattatray Ogale does

not fit in any of the enumerated categories in clauses (a) to (d) of sub-

Section (1) of Section 91 of MCS Act and that therefore he cannot be a

party to the Dispute. That the Cooperative Appellate Court has also held

that there is no substance in the contention of Shri Dattatray Ogale that

he is a lessee in any of the sides of the structure. However, Cooperative

Appellate Court has still partly allowed the Appeal filed by Shri.

Dattatray Ogale. That the reasons recorded by the Appellate Court in

paragraph 93 of the impugned judgment are grossly illegal and deserve

to be set aside. He therefore submits that Writ Petition No.5354 of 2024

deserves to be allowed by setting aside the impugned Order of the

Appellate Court dated 19 March 2022 in Appeal No.120 of 2019 filed by

Shri Dattatray Ogale.

14.Mr. Sawant further submits that the Cooperative Court did not

have jurisdiction to entertain the Dispute filed by Smt. Manjusha Ogale.

He submits that the Society in the present case is a tenant ownership

society and that therefore Society has no concern with the structures

constructed by the members. That no services rendered by the Society

fall within the business of the Society. He relies on judgment of Division

Bench of this Court in Sanjaykumar Amrutlal Shah and Ors. vs.

Uttamlal Ratilal Shah and Anr

1

.

1

2008 (1) MhLJ 205

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15.Mr. Sawant further submits that the Society has already accepted

Agreement between Kales and Bagals. That Bagals are not the members

of the Society and are absolute owners of the suit structure. That the

Society has allowed the arrangement where Bagals are not members but

own the structure on the land. That this position is accepted by the

Society as well as by Ogales. That therefore there is no question of any

consent being required either from the Society or from Ogales for

dealing with the structure owned by Natekars. That the final order of the

Cooperative Appellate Court travels beyond the Agreements accepted by

Smt. Manjusha Ogale as well as by the Society. That there is erroneous

exercise of jurisdiction over dispute between a member and non-

member.

16.Mr. Sawant further submits that the Society has not raised any

dispute nor prosecuted the Dispute as a Disputant. In Special Civil Suit

No.136 of 2003 filed by Smt. Manjusha Ogale, the Society was joined as a

Defendant and it filed a Written Statement stating that it is not

concerned with the dispute between Ogales and Natekars. That in the

present dispute as well, even after transposition of the Society as a

Disputant (on the basis of application of Smt. Manjusha Ogale) the Society

did not prosecute the Dispute as a Disputant.

17.Mr. Sawant further submits that the order of the Cooperative

Appellate Court allowing the Appeal preferred by Smt. Manjusha Ogale

interferes with the rights of Natekars and is contrary to the terms of

Agreement between Kales and Ogales, in which they have specifically

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consented to and accepted the rights of Bagals and have waived all

objections in respect of exercise of such rights. That the Appellate Court

has erroneously restrained Natekars from dealing with the suit plot

without the consent of Smt. Manjusha Ogale and Society. That such

direction is contrary to the terms of Agreements dated 3 July 1976 and

24 January 1985 as well as of the Consent Letter of the Society dated 30

September 1975.

18.Mr. Sawant accordingly prays for allowing the two Petitions filed

by Natekars by setting aside the Judgment and Order dated 19 March

2022 passed by the Cooperative Appellate Court.

19.So far as Writ Petition (Stamp) No.9683 of 2026 filed by Ogales is

concerned, Mr. Sawant submits that the same deserves to be dismissed

on the ground of gross delay and laches. That the Petition is filed in

March 2026 challenging the order of the Cooperative Appellate Court

passed on 19 March 2022. That there is no justification for such delay

and laches. That Ogales otherwise cannot seek recovery of possession of

land admeasuring 4,300 sq.ft. and of constructed portion on the

northern side from Natekars from Cooperative Court. That the Civil Suit

filed by Ogales has already been dismissed and the decree has been

confirmed by the District Court. He therefore prays for dismissal of Writ

Petition (Stamp) No. 9683 of 2026.

20.Mr. Panchpor, the learned counsel appearing for Ogales opposes

the two Petitions filed by Natekars. He submits that the Dispute filed by

Ogales was perfectly maintainable with the Cooperative Court. Since

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both the conditions under Section 91(1) of the MCS Act are satisfied in

the present case. That Natekars claim through Bagals who in turn claim

through Kales who were erstwhile members of the Society. That

therefore Natekars are persons claiming through past members within

the meaning of Section 91(1)(b) of the MCS Act. So far as subject matter

is concerned, the Dispute is for enforcement of Section 29(2) of the MCS

Act i.e., for enforcement of covenants of Lease Deed as well as for

enforcement of byelaw No.61(i) which squarely touches upon the

business and management of the Society. That the case is covered by

judgment of this Court in N. Jethani vs. Shri Shivaji Co-operative

Housing Society Limited, Pune

2

.

21.Mr. Panchpor further submits that Natekars never challenged

transposition of the Society as Disputant. That since Society became the

Disputant, the Dispute clearly become maintainable against Natekars.

He submits that the Society in its Written Statement had clearly

admitted that Smt. Manjusha Ogale is the sole lessee in respect of the

entire plot, that the plot is indivisible and that the transaction between

Kales and Bagals and between Bagals and Natekars is without the

knowledge and consent of the Society.

22.Mr. Panchpor further submits that provisions of Section 29(2) of

the MCS Act are mandatory and that the consequence of infraction

would render Sale Deed dated 20 August 1973 as well as reservation

made in Deed dated 3 July 1976 ab initio void. That void transaction

confers no title and requires no formal avoidance. He relies on judgment

2

2015 (2) Mh.L.J. 589

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of the Apex Court in Anita Enterprises and Another vs. Belfer Co-

operative Housing Society Limited and Ors

3

. That therefore prayer

clause (b) in the Dispute about non-acquisition of any rights by Natekars

as well as prayer for possession were clearly maintainable before the

Cooperative Court.

23.Mr. Panchpor further submits that Director of M/s. Natekar

Constructions LLP gave an admission during cross-examination that

Bagals were licensees of Kales for land admeasuring 4,300 sq.ft. That

under Section 22 of the MCS Act, the Company could not have acquired

rights in Society’s land except from the Society. He relies on judgment of

the Apex Court in O.N. Bhatnagar vs. Smt. Rukibai Narsindas and Ors.

4

in support of his contention that person claiming possession through

member is a mere licensee liable to be evicted under Section 91 of the

MCS Act. That Bagals were only occupants/licensees and that therefore

Natekars did not secure any better title than that of Bagals. That upon

death of Bagals, the permissive possession/license came to an end and by

the time the sale deed was presented for registration on 17 February

2000, both the Bagals had already expired.

24.Mr. Panchpor further submits that membership of a Tenant

Ownership Society and leasehold interest in the plot are inseparable.

That under Rule 10(1)(5)(a) of the Maharashtra Co-operative Societies

Rules, 1961 (MCS Rules), a plot is allotted on lease only to a member

and structure raised upon it is held only in accordance with the terms of

3

(2008) 1 SCC 285

4

AIR 1982 SC 1097

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Lease Deed and byelaws. This follows that a person who holds no right,

title or interest in the plot cannot be admitted as a member and cannot

be entered into or occupy the premises without the consent of the

Society. He relies on judgment of this Court in The Atomica Co-

operative Housing Society Ltd. vs. Shri. B.R. Ballel and others

5

. He

submits that even though the Society may have consented for permissive

use of the structure by Bagals, there was no consent to the transaction

dated 1 February 1991 between Bagals and Natekars. That therefore the

transaction is in breach of provisions of Section 29(2) of the MCS Act,

covenants of Lease Deed and the byelaws. That therefore Natekars

cannot continue in possession of even the structure and ought to have

been evicted by the Cooperative Court. That in any case, letter dated 30

September 1975 merely records that upon re-conveyance of land to Kales

and deletion of names of Bagals, the Dispute would be withdrawn. That

Bagals thereafter played a mischief by unilateral execution of Deed dated

3 July 1976 conveying only the leasehold rights in the land while

purportedly retaining rights in the construction and in the open space

on the southern side. That this retention was never disclosed to the

Society. That in any case, what was retained was mere possessory right

(vahiwat) and not leasehold rights or ownership interest in the land. He

relies on Section 6(d) and 6(h) of the Transfer of Property Act, 1882 (TP

Act) in support of his contention that such right is a personal interest

restricted in its enjoyment to the owner and hence, not transferable.

25.Mr. Panchpor further submits that Sale Deed dated 24 January

1985 transferred the leasehold rights in respect of entire plot

5

1988 (2) Bom CR 104

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admeasuring 10,302 sq.ft in favour of Ogales. He submits that Society

also executed Lease Deed in respect of the entire land in favour of Smt.

Manjusha Ogale on 4 April 1985. That the recital in the Deed dated 24

January 1985 preserving arrangement of documents of 1973 and 1976 do

not take the case of Natekars any further. That such clauses are against

public policy and forbidden by Section 29(2) of the MCS Act and

therefore, not binding. He relies on judgment in B.L. Sreedhar vs. K.M.

Muni Reddy (Dead) and Ors.

6

in support of the contention that an

estoppel cannot have the effect of conferring upon a person a legal

status expressly denied to him by a statute. That withdrawal of Dispute

No.544 of 1975 cannot be read as an acceptance of reservation. That

dismissal of Special Civil Suit No.136 of 2003 and of Regular Civil Appeal

No.738 of 2016 is inconsequential as enforcement of byelaws and of

Section 29(2) of MCS Act lies exclusively before Cooperative Court and

result of the proceedings on civil side cannot deprive Ogales of

consequential relief. Mr. Panchpor accordingly prays for dismissal of the

Petitions filed by Natekars and for handing over possession of

constructed portion from Natekars to Ogales by allowing the Petition

filed by Ogales.

REASONS AND ANALYSIS

26.The case involves a maze of litigations initiated between different

entities relating to Plot No.23 situated inside the premises of the

Society. The Society owns the land at a very prominent and affluent

6

AIR 2003 SC 578

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location in Pune. The Society's classification is as “Tenant Ownership

Housing Society” within the meaning of Rule 10(1)(5)(a) of the MCS

Rules. Being a tenant ownership housing society, the land is owned by

the Society and houses constructed thereon are owned by the members.

The Society has subdivided the land owned by it into 42 plots, which are

leased out to various members. Plot No.23 admeasuring 10,302 sq.ft. was

originally let out by the Society to Shri. Shivram Datar by execution of

Lease Deed dated 30 December 1947. The member, Shri. Shivram Datar

constructed a house on plot No.23. He thus became lessee of the plot

and owner of the house structure. The original member, Shri. Shivram

Datar assigned leasehold rights in respect of the plot as well as

ownership of the house to Shri. Chintamani Laxman Barve by Deed of

Transfer/Assignment dated 4 December 1951 with due consent of the

Society. Thereafter, Shri. Chintamani Laxman Barve executed Transfer

Deed dated 29 October 1959 thereby assigning leasehold rights in the

land and ownership of the house in favour of Narayan Pandurang Kale

and Smt. Sushila @Kusum Kale. This is how Kales became members of

the Society.

27.Kales are the originator of problem in the present case, where they

decided to sell southern portion of the plot admeasuring 4300 sq.ft.

alongwith structure admeasuring 2300 sq.ft. to an outsider. On 20

August 1973, they sold and conveyed southern portion of the plot

admeasuring 4300 sq.ft. alongwith structure admeasuring 2300 sq.ft. to

Bagals. It appears that this arrangement between Kales and Bagals did

not have the approval of the Society, which led to filing of Dispute

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No.544 of 1975 by the Society against Kales and Bagals challenging the

transaction. The parties decided to amicably settle the Dispute. As the

Society was opposed to partial assignment of leasehold rights in the land

to Bagals, it appears that Bagals finally accepted the position that their

leasehold rights in part of the plot may never be recognised by the

Society and they would never be admitted as members of the Society.

Bagals accordingly decided to convey back the leasehold rights in respect

of the land admeasuring 4300 sq.ft. to Kales. Ideally Bagals ought to

have cancelled the whole transaction and walked out of the Society by

seeking refund of amount paid to Kales. However, Kales and Bagals

decided to outsmart the Society where they engineered a unique

arrangement whereby the leasehold rights in land admeasuring 4300

sq.ft. would stand reverted to Kales but the ownership in structure

admeasuring 2300 sq.ft. would continue with Bagals.

28.According to Natekars, the Society was forwarded a draft of the

arrangement between Kales and Bagals, under which Bagals were to

retain ownership in respect of the constructed portion admeasuring

2300 sq.ft. as well as possessory rights in respect of the land

admeasuring 4,300 sq.ft. Natekars rely on Society’s letter dated 30

September 1975 whereby the Society granted approval for the

transaction. It would be apposite to take note of contents of letter dated

30 September 1975:

श्री. नारायण पांड

ुरंग काळे

,

प्रभातरोड, गल्ली नंबर ४, पुणे ४.

नमस्कार

वि

. वि.

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आपणाकड

ून ता

.१७/९/७५ चे पत्र

व आपण श्री

. बागल यांचेकड

ून घेत असलेल्या ४३०० चौ

. फ

ुट

जागेच्या खरेदीपत्राचा मसूदा या स

र्वांचा विचार कार्यकारी मंडळात करण्यास आला

. त्याप्रमाणे

खरेदीपत्र करण्यास खालील श

र्तीवर आपणांस मान्यता देण्यात आलेली आहे

.

१) सोसायटीला या कामी नोटीसख

र्च

, को

र्टाचा स्टांप वगैरे खर्च

, व

कीलांची फी व टायपींग वगैरेचा

ख

र्च मिळून एकूण रुपये १३००

/- ख

र्च आलेला आहे

. ती रक्कम श्री. काळे यांनी सोसायटीला

दिली

पा

हिजे

.

२) सि

टीसर्व्हेकडे प्रापर्टी कार्डावर लेसी म्हणून फक्त तुमचेच नांव ठेवण्यांत यावे

. आज त्या

वर श्री

. व

सौ. बागल यांची ना

वे आहेत ती रद्द करणे बद्दल तुम्हीं व श्री

. बागल यांनी जबाब देउन तज

वीज

करा

वी

.

३) श्री. व

सौ

. बागल यांची नां

वे कोणत्याही कारणास्तव प्रापर्टी कार्डावर धारण करणार अगर इतर

हक्कदार म्हण

ून ठेवण्यात येउ नयेत

.

४) खरेदीपत्र र

जिष्टर झाल्यानंतर त्याची एक अधिकृत नक्कल सोसायटीचे दप्तरी राहण्यांस देण्यात

या

वी

. तसेच आपण

व श्री

. बागल यांचे दरम्यान जो करार होईल त्याची एक प्रत उभयतांच्या सहीने

सोसायटीच्या रेकॉ

र्डसाठी दिली पाहिजे

.

याप्रमाणे श

र्तीची पूर्तता झाल्यानंतर आपणा विरुध्द दाखल के लेला लवाद दावा काढून घेण्याची

सोसायटी तज

वीज करील

.

कळा

वे ही विनंति

,

आपला

विश्वासू

,

चि

टणीस

29. In terms of compromise between the Society, Kales and Bagals,

Sale Deed (Reconveyance) dated 3 July 1976 was executed between Kales

and Bagals, under which Bagals reconveyed the land admeasuring 4300

sq.ft. to Kales to retain ownership in respect of the constructed house

admeasuring 2300 sq.ft. and possessory rights in respect of land

admeasuring 4300 sq.ft. The Sale Deed dated 3 July 1996 is an complex

document and reference to the covenants of the same is made in latter

part of the judgment.

30.However, according to Ogales, the Society had not consented to

the arrangement of Bagals retaining possessory rights in the land and

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ownership of the structure. According to Ogales, Bagals have played a

mischief by unilateral execution of Deed dated 3 July 1976 conveying

only the leasehold rights in the land while purportedly retaining rights

in the construction and in the open space on the southern side and that

this retention was never disclosed to the Society. However, there are

several factors to disbelieve this claim of Ogales. Firstly, the letter dated

30 September 1975 clearly mentions that the Society had gone through

the draft of the Re-Conveyance Deed. Secondly there is nothing on record

to indicate that the Deed finally executed is different than the one of

which the draft was submitted to the Society. The Society has never

complained about the same. Thirdly, Ogales were yet to appear on the

scene and cannot claim knowledge about what transpired in 1975.

Fourthly considering the fact that the Society had immediately filed a

Dispute before Cooperative Court after the first transaction between

Kales and Bagals, it would have challenged the Reconveyance Deed if it

had any reservation about the same. It did not do so, possibly because it

had no issues about the arrangement. It is therefore difficult to believe

that Kales and Bagals hoodwinked the Society while executing the

Reconveyance Deed, as sought to be suggested by Ogales.

31.This is how Kales continued to remain lessees in respect of entire

land admeasuring 10,302 sq.ft. However, Bagals claimed ownership in

respect of the house admeasuring 2,300 sq.ft. as well as possessory

rights in respect of portion of land admeasuring 4,300 sq.ft. Thus, Bagals

had no semblance of right in the lease of the land but had ownership

right in the superstructure. On the strength of ownership of the

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superstructure, Bagals did not have any right to claim membership with

the Society. Thus, a person having no connection with the Society owned

part of the bungalow in Society’s land. Whether this kind of arrangement

is permissible in a cooperative housing society is the issue? In my view,

ordinarily, this kind of arrangement should be avoided even in a tenant

ownership society. In a tenant co-partnership society, the society owns

the land as well as the structure and therefore would not permit

ownership of flat/unit/bungalow by a non-member. Though in a tenant

ownership society, the member is the structure owner, but his ownership

of the structure flows through his connection with the society. His right

to construct and own the structure stems out of leasehold rights in the

land and membership with the society. The concept of tenant ownership

society is that the society does not have to look after the structure.

Maintaining and repairing the structure is the headache of the member

and the society only looks after the common amenities and land. On the

other hand, in a tenant co-partnership society, the society is the owner

of the structure and is responsible for its upkeep. The disconnect

between the society and the structure in a tenant ownership society is

maintained mainly for the purpose of giving freedom to the member to

construct and look after the structure as per his/her choice. This however

does not mean that the member can separate the structure from the land

and sell the structure to an outsider while retaining the leasehold rights

in the land. To paraphrase, the structure in a tenant ownership society

ordinarily cannot be owned by someone who can never become member

of the society.

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32.The concept of dual ownership envisages that the land is owned by

one person and the superstructure is owned by another person. However,

whether this concept of dual ownership can be permitted in a

cooperative housing society? The issue is broader and need not be

answered in the facts of the present case. This is particularly because of

the history of litigations fought between the parties. Suffice it to observe

that lease of land in favour of a member and ownership of structure by a

non-member results in myriad of difficulties in managing the property

by the society. This is a reason why this Court made observations about

avoidability of dual ownership in a cooperative housing society.

33.In ordinary circumstances therefore, the arrangement agreed

between Kales and Bagals of Kales retaining the leasehold rights in the

land and membership with the Society qua the whole plot and Bagals

owning the part of the superstructure ought to have been avoided. It has

resulted in an incongruous situation where the structure owner has

absolutely no connect with the Society but his presence in the land is

required to be tolerated by the Society.

34.Be that as it may. With full knowledge of the unique position

where Kales were leases of the land and owners of only part structure

and Bagals being owners of the remaining structure, Ogales have bought

the rights of Kales. The purchase of leasehold rights of Kales in the plot

by Ogales is with the encumbrance of Bagals’ ownership of part of the

structure.

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35.There is small history to the purchase made by Ogales from Kales,

which is not much relevance to the issue involved in the Petitions.

Though the initial Agreement for Sale dated 24 January 1978 was

executed by Kales in favour of Ogales in repsect of the entire plot as well

as building standing thereon, it appears that on 26 December 1980, only

a lease in respect of the first floor of premises on the northern portion of

the building was executed by Kales in favour of Dattatray Ogale.

Unsatisfied by non-execution of assignment in respect of the whole plot,

Manjusha Ogale filed a Suit on 30 December 1982 for specific

performance of Agreement for Sale dated 24 January 1978, which was

compromised and this is how Sale Deed dated 24 January 1985 was

executed between Kales and Manjusha Ogale. The Sale Deed appears to

be in respect of entire plot No.23 admeasuring 10,302 sq.ft. comprising

land admeasuring 6,002 sq.ft. in possession of Kales and constructed

portion on the northern side as well as the land in possession of Bagals

admeasuring 4,300 sq.ft., and ownership of structure on the southern

side by Bagals. Thus, Manjusha Ogale purchased the leasehold rights in

plot No.23 with full knowledge of Bagals being in possession of portion

of land admeasuring 4,300 sq.ft. and ownership of structure on southern

side admeasuring 2300 sq.ft.

36.After purchase of plot No.23 by Sale Deed dated 24 January 1985,

the Society executed the lease in respect of the entire plot in favour of

Manjusha Ogale. It appears that Ogales lived with the reality of Bagals

claiming ownership of Southern portion of house and was possessing

land around it. After 5 years however, Ogales changed their mind and

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decided to question the transaction between Kales and Bagals. Manjusha

Ogale filed Regular Civil Suit No. 1449 of 1990 against Bagals seeking a

declaration that Bagals are mere occupiers of part of the structure not

having any right to deal with the same without permission of the

Society. During pendency of the Suit, Bagals have sold and transferred

the constructed portion admeasuring 2300 sq.ft. as well as alleged

possessory rights in respect of the land admeasuring 4,300 sq.ft. in

favour of Natekars. Though the Sale Deed was executed on 1 February

1991, the same appears to have been lodged for registration on 17

February 2020 and came to be registered accordingly. In the meantime,

Regular Civil Suit No. 1449 of 1990 filed by Ogales stood abated.

37.After having purchased the constructed portion on southern side,

Natekar Constructions LLP wanted to effect repairs and further

construction for which NOC was not being issued by Ogales. Accordingly,

Natekar Construction LLP filed Civil Suit No. 1920 of 2000 seeking

directions against Mr. Dattatray Ogale for signing plans and drafts for

repairs and further construction. The Suit was dismissed on 20

December 2003 and the Appeal preferred by Natekars was also dismissed

by the District Judge. It appears that Second Appeal is also pending

before this Court. This is how Natekars have lost on the claim for

carrying out further construction in portion in which they claim

ownership.

38.While defending Natekar’s action for carrying out further

construction, Ogales decided to initiate their second action against

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Natekars and filed Special Civil Suit No. 136 of 2003 before the Civil

Judge Senior Division, Pune seeking declaration that they are the

leasehold owners of the entire plot No.23, challenging Sale Deed

between Bagals and Natekars dated 1 February 1991 as well as

Agreement for Sale dated 6 February 1992. They also sought injunction

against Natekars from creating any third-party rights in the suit

property. They also sought a direction against Natekars for removal of

structure in the suit land. The Suit filed by Ogales has been dismissed on

30 April 2016 and even Appeal is dismissed on 11 January 2022. Mr.

Panchpor submits that a Second Appeal is pending before this Court.

39.This is how both Natekars as well as Ogales have lost in their

respective actions initiated against each other before Civil Courts.

40.Manjusha Ogale thereafter decided to approach Cooperative Court

and filed Dispute No.47 of 2004. The Dispute was filed seeking a

declaration that she is the sole leasehold owner of entire plot No.23,

possessor thereof, as well as owner of the entire structure thereon. She

also sought a declaration that Natekars have not acquired any right, title

or interest in the disputed property. She also sought possession of part

of the disputed property from Natekars. The prayers in Dispute No.47 of

2004 read thus:

The Disputant, therefore, prays that: -

20.1 The Hon’ble Court be please to declare that the Disputant No.1 is a

leasehold owner of the entire plot 33/23, Erandawane and has possession of

the entire Leasehold Plot and is owner of the structures thereon.

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20.2 The Hon’ble Court be pleased to declare that the Opponents No. 1 and 2

have not acquired any right, title and interest in the Disputed Property.

20.3 The Hon'ble Court be pleased to direct the Opponents No. 1 and 2 to vacat

and hand over possession of the Disputed Property to the Disputant.

20.4 The Hon'ble Court be pleased to direct the Opponents No. 1 and 2 to pay

the Disputant, jointly or severally, occupation charges of Rs.6,60,000/-as

stated in particulars of claim plus proportionate additional amount for

occupation charges till the date of repossession and be directed to pay

occupation charges on ordering an enquiry into mesne profits

20.5 The Hon'ble Court be' pleased to transpose the Deccan Gymkhana Co-

operative Housing Society Ltd., Opponent No 3, as Co-Disputant.

20.6 The Hon'ble Court be pleased to restrain the Opponents No 1 and 2

permanently from obstructing the Disputant or any other person on her behalf

or her representative in title in the Disputed Land.

20.7 The Hon'ble Court be pleased to restrain the Opponents No. 1 and 2

permanently from dealing with or disposing off the Disputed Property

mentioned in the Dispute in any manner and creating third party interest in

any manner whatsoever.

20.8 The Hon'ble Court be pleased to issue an interim and ad interim order in

restoration in title in terms of above prayers.

20.9 The Hon'ble Court be pleased to allow the Dispute with costs.

20.10 The Hon'ble Court be pleased to issue any other order in the interest of

justice in favour of the Disputant.

41.Though the Dispute was filed by Manjusha Ogale, she sought

prayer for transposition of the Society as a co-disputant. Her prayer was

granted by the Cooperative Court, and the Society came to be impleaded

as Disputant No.2 by order dated 24 January 2005. Dattatray Ogale also

got himself impleaded to the Dispute vide order dated 1 October 2012.

This is how the alignment in the Dispute before the Cooperative Court

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became such that Ogales and the Society became the Disputants, which

was directed solely against Natekars.

42.The Cooperative Court however, dismissed the Dispute mainly by

holding that the same was outside its jurisdiction. The Cooperative

Court held that Natekars are not the members of the Society, nor do they

claim through any member and therefore they do not fit into any of the

enumerated categories under Section 91(1) of the MCS Act. Though the

Cooperative Court held that it did not have jurisdiction to try and

entertain the Dispute, it unnecessarily went into other issues on merits

and answered the same. Despite holding that it had no jurisdiction, the

Cooperative Court held that Natekars are lawfully holding rights in the

disputed property for area admeasuring 4,300 sq.ft. and that Manjusha

Ogale does not have the leasehold rights in the entire suit plot nor is she

the owner of the entire structure. The Cooperative Court also held that

Disputants are not entitled to possession of the suit property from

Natekars.

43.The Cooperative Appellate Court has partially reversed the

Judgment and Award passed by the Cooperative Court by holding that

the Dispute was well within the jurisdiction of Cooperative Court under

Section 91 of the MCS Act. The Cooperative Appellate Court has held

that Manjusha Ogale alone has the leasehold rights in respect of the

entire plot and has accordingly restrained the Natekars from dealing

with the suit property without the consent of Manjusha Ogale and the

Society or from dealing with leasehold rights of Manjusha Ogale or from

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obstructing her in respect of plot No.23. However, rest of the prayers

sought for by the Ogales in the Dispute, including the prayer for recovery

of possession from Natekars, have been rejected by the Cooperative

Appellate Court.

44.As observed above, both Natekars as well as Ogales are aggrieved

by the Judgment and Order of the Cooperative Appellate Court. Natekars

are aggrieved by decision of the Cooperative Appellate Court upholding

jurisdiction of the Cooperative Court under Section 91 of the MCS Act to

decide the dispute. Natekars are also aggrieved by declaration that

Manjusha Ogale alone is the lessee of entire plot admeasuring 10,302

sq.ft. Natekars are also aggrieved by injunction granted against them

from dealing with the entire plot without the consent of Ogales and the

Society. On the other hand, Ogales are aggrieved by the order of the

Appellate Court to the limited extent it does not grant prayer for

possession of portion of the structure on the land from Natekars.

45.I accordingly proceed to decide the challenges raised to the order

of the Appellate Court, both by Natekars as well as by Ogales.

JURISDICTION OF COOPERATIVE COURT

46.The main issue for consideration before the Cooperative Court was

about its jurisdiction to try and entertain the Dispute filed by Manjusha

Ogale (in which later Society and Dattatray Ogale were also taken on board

as Disputants) against Natekars in relation to plot No.23. In the present

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case, Manjusha Ogale is a member of the Society in whose favour, lease-

deed has been executed by the Society in respect of entire plot No.23.

Natekars are not members of the Society. However, they claim ownership

rights in respect of the constructed portion on southern side as well as

possessory rights in respect of part of the land in plot No.23. Their claim

in respect of ownership of part structure and possession of part of the

leasehold land is premised on Sale Deed dated 1 February 1991, which is

registered on 17 February 2000 executed by Bagals in their favour.

Bagals were also not members of the Society. As observed above, Bagals

had initially purchased leasehold rights in respect of the land

admeasuring 4300 sq.ft. as well as construction on southern side

admeasuring 2300 sq.ft. from Kales. On account of Society's objections,

Bagals conveyed back leasehold rights in respect of the land

admeasuring 4300 sq.ft. and this is how Kales became the lessees of the

entire plot. However, Bagals retained ownership in respect of the

constructed portion admeasuring 2300 sq.ft. as well as Kales admitted

possession of Bagals in respect of land admeasuring 4,300 sq.ft. This is

how the Society’s objection was circumvented cleverly by Kales and

Bagals by creating a picture as if Bagals would never claim any leasehold

rights in the land and that leasehold rights would remain solely with

Kales. The Society accordingly continued membership of Kales in respect

of whole of the land admeasuring 10,302 sq.ft. Thus, there is a

connection between member-Kales and Bagals qua plot no.23. Bagals

can never claim independent rights in respect of the constructed portion

or even in respect of the land admeasuring 4300 sq.ft. dehors rights of

Kales. The structure is situated on the leasehold land and possession in

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respect of part of the leasehold land was claimed by Bagals. The

leasehold rights were with Kales. In that sense, Bagals clearly claimed

rights through Kales. Ogales have purchased what belonged to Kales and

Natekars have purchased what belonged to Bagals. If Bagals claimed

through the member-Kales, Natekars will also have to claim rights in

respect of the Society's property through its member. Since Kales’ rights

are purchased by Ogales, there has to be some connection between

Ogales and Natekars for the purpose of claiming ownership rights in the

structure and possessory rights in the land and the claim can never be

independent of rights of the member.

47.Section 91 of the MCS Act confers jurisdiction on Cooperative

Courts for adjudication of disputes. Section 91 is in two parts. The

former part deals with the subject matter over which the Cooperative

Court can exercise jurisdiction. The latter part enumerates the list of

persons in respect of which Cooperative Court can exercise jurisdiction.

A Dispute must answer both the requirements, in former part (subject

matter) as well as latter part (enumerated persons) for attracting

jurisdiction of Cooperative Court. Section 91 (1) of the MCS Act provides

thus:

91. Disputes.—

(1) Notwithstanding anything contained in any other law for the time being in

force, any dispute touching the constitution, election of the committee or its

officers conduct of general meetings, management or business of a society

shall be referred by any of the parties to the dispute, or by a federal society to

which the society is affiliated, or by a creditor of the society, to a Co-operative

Court, if both the parties thereto are one or other of the following:—

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(a) a society, its committee, any past committee, any past or present officer,

any past or present agent, any past or present servant or nominee, heir or legal

representative of any deceased officer, deceased agent or deceased servant of

the society, or the Liquidator of the society or the Official Assignee of a de-

registered society;

(b) a member, past member or a person claiming through a member, past

member or a deceased member of a society, or a society which is a member of

the society or person who claims to be a member of the society;

(c) a person other than a member of the society, with whom the society has

any transactions in respect of which any restrictions or regulations have been

imposed, made or prescribed under section 43, 44 or 45, and any person claim-

ing through such person;

(d) a surety of a member, past member or deceased member, or surety of a per-

son other than a member with whom the society has any transactions in re-

spect of which restriction have been prescribed under section 45, whether

such surety or person is or is not a member of the society;

(e) any other society, or the Liquidator of such a society or deregistered society

or the Official Assignee of such a de-registered society:

Provided that, an industrial dispute as defined in clause (k) of section 2 of the

Industrial Disputes Act, 1947 (14 of 1947), or rejection of nomination paper at

the election to a committee of any society or refusal of admission to member-

ship by a society to any person qualified therefor, or any proceeding for the re-

covery of the amount as arrear of land revenue on a certificate granted by the

Registrar under sub-section (1) or (2) of section 101 or sub-section (1) of sec-

tion 137 or the recovery proceeding of the Registrar or any officer subordinate

to him or an officer of society notified by the State Government, who is em-

powered by the Registrar under sub-section (1) of section 156, or any orders,

decisions, awards and actions of the Registrar against which an appeal under

section 152 or 152A and revision under section 154 of the Act have been pro-

vided, shall not be deemed to be a dispute for the purposes of this section

48. Recently, in Shreesh Kumar and Others vs. Bramha Suncity Co-

operative Housing Society Ltd. And Others

7

, this Court has dealt with

the requirements under Section 91(1) of the MCS Act for maintainability

of dispute before the Co-operative Court. This Court held in paras-17 to

19 as under:

7

Writ Petition No. 15261 of 2023 decided on 8 July 2026

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17) Section 91 of the M.C.S. Act opens with a non-obtstante clause and

confers jurisdiction on Co-operative Courts in respect of the enumerated

disputes. Sub-section (1) of Section 91 is in two parts. The first part of the sub-

section enumerates the subject matter of disputes over which Co-operative

Court can exercise jurisdiction. The second part of sub-section (1) enumerates

the parties who can be impleaded to the Dispute. Thus, a Dispute would lie

before a Co-operative Court only if the subject matter falls in the list

enumerated in the first part and if both the parties fall in any of the categories

enumerated in the second part. So far as Dispute filed by the Petitioners is

concerned, the same answers both the requirements and the debate between

the parties is not about maintainability of the Dispute. The issue here is

whether Respondent No.4 can be impleaded to that Dispute as a party

Opponent.

18) As observed above, though Co-operative Court is vested with

jurisdiction to decide the enumerated subject matters in first part of

subsection (1) of Section 91, it cannot exercise jurisdiction over every person

even qua those subject matters. Exercise of jurisdiction by Co-operative Court

over subject matters enumerated in the first part of Section 91(1) is further

circumscribed by providing that exercise of jurisdiction cannot exceed the

category of persons enumerated in Clauses (a) to (e) of Section 91(1). The

provision is thus peculiar and controls both the 'subject matter' of dispute as

well as 'persons' over whom jurisdiction can be exercised. If any of the two

requirements in the first and second part of Section 91(1) are not satisfied, the

Co-operative Court would lose its jurisdiction. To paraphrase, even if a subject

matter falling in the list enumerated in the first part of Section 91(1) is

brought before the Cooperative Court but one of the parties does not answer

the description under clauses (a) to (e) of Section 91(1), the Co-operative

Court would not have jurisdiction to decide even that subject matter.

19) It is on account of these peculiar provisions of Section 91(1) that Mr.

Sharma has strenuously contended that impleadment of Respondent No.4 to

the Dispute would take the Dispute out of jurisdiction of the Co-operative

Court. He has contended that Respondent No.4 admittedly does not fall in the

list enumerated in clauses (a) to (e) of Section 91(1) of the MCS Act. This

position is also not seriously disputed by Mr. Kanetkar. Thus, parties are ad-

idem that Respondent No.4 does not fall in clauses (a) to (e) of Section 91(1) of

the MCS Act.

49.So far as the former requirement of subject matter is concerned,

the Dispute undoubtedly meets the requirement of dispute touching

business of the Society. The Society has granted leasehold rights in

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favour of Manjusha Ogale and when she seeks a declaration that she

alone has the leasehold rights in respect of the land. The Dispute

undoubtedly concerns business of the Society as one of the businesses of

the Society is to grant lease in respect of the land owned by it. Who is

the real lessee is a dispute pertaining to the business of the Society.

50.The real difficulty is about the second part of Section 91(1) as it is

the contention of Natekars that they do not answer the description of

any of the five enumerated categories in Clauses (a) to (e) of Section

91(1). Under Section 91(1)(b), the dispute between the member and a

person claiming through a member can be tried and entertained by the

Cooperative Court. The question here is whether Natekars would fit into

the expression ‘a person claiming through a member’. As observed above,

Natekars have not come over the plot independently. They are not

trespassers on the plot for whose eviction the Dispute is filed. They

claim ownership of the structure constructed on the plot. Their

predecessor-in-title (Bagals) had executed a document with a member

(Kales) by virtue of which they claim ownership in respect of the

constructed portion admeasuring 2300 sq.ft. and possession of land in

respect of 4,300 sq. ft. Thus, Bagal’s ownership of the structure came

through the member. Therefore Bagals definitely answer the description

of the expression ‘a person claiming through a member’.

51.Since Natekars have purchased ownership rights in respect of part

of the structure and alleged possessory rights in respect of land

admeasuring 4300 sq.ft. from Bagals, they have stepped into the shoes of

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Bagals. Therefore, if Bagals answer the description of expression ‘a

person claiming through a member’, Natekars would also fit into the said

expression. In my view therefore, the Dispute filed by Manjusha Ogale

before the Cooperative Court against Natekars was clearly maintainable

under Section 91(1) of the MCS Act.

52.There is another facet to the aspect of jurisdiction of Cooperative

Court. Upon application made by Manjusha Ogale, the Society was

transposed as a Disputant. This would essentially mean that Society also

prayed for reliefs against Natekars as claimed in the Dispute. One of the

contentions in the Dispute Application is about violation of provisions

of Section 29(2) of the MCS Act with regard to the transaction of

Natekars. Under Section 29(2) of the MCS Act, there is a prohibition on

member to transfer any share held by him/her or an interest in the

property of the society unless the society has accepted the application

for membership of such person. Section 29(2) of the MCS Act provides

thus:

29. Restrictions on transfer or charge of share or interest.—

xxx

(2) A member shall not transfer any share held by him or his interest in the

capital or property of any society, or any part thereof, unless—

(a) he has held such share or interest for not less than one year ;

(b) the transfer is made to a member of the society or to a person whose

application for membership has been accepted by the society, or to a

person whose appeal under section 23 of the Act has been allowed by

the Registrar ; or to a person who is deemed to be a member under sub-

section (1A) of section 23.

53.In the present case, Natekars did not secure permission of the

Society while entering into transaction with Bagals. The transactions

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between Bagals and Natekars envisaged transfer of interest in the

property. In that sense, the Society also prosecuted the Dispute on the

ground of violation of provisions of Section 29(2) of the MCS Act. This

would further bolster the jurisdiction of the Cooperative Court to try and

entertain the Dispute under Section 91 of the MCS Act.

54.Natekars have attempted to suggest that Society’s presence in the

Dispute as Disputant was formal and inconsequential. They contend that

the Society did not prosecute the Dispute against them and in fact, the

Society had filed written statement stating that they are not concerned

with Dispute between Ogales and Natekars. In my view however,

Society’s presence as Disputant in the Dispute is a vital factor for

deciding the issue of jurisdiction. Neither Society nor Natekars

challenged the order of transposition of the Society as Disputant. Both

have acquiesced in the order. Therefore upon transposition of the

Society as a Disputant, the point raised in the Dispute about violation of

provisions of Section 29(2) of MCS Act for the transaction between

Bagals and Natekars becomes a dispute between the Society and

Natekars, thereby conferring the jurisdiction on the Cooperative Court.

55.Mr. Sawant has contended that this being a Tenant Ownership

Housing Society, the construction is owned by the member, with which

the Society has no concern. He therefore submits that with the

construction owned and occupied by Natekars, the Society cannot have

any concern. He has relied on judgment of Division Bench of this Court

in Sanjaykumar Amrutlal Shah (supra). After taking into consideration

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the judgment of the Apex Court in O.N. Bhatnagar (supra), the Division

Bench of this Court held that since the society was a tenant ownership

society, it had no concern with the bungalow constructed on the plot

allotted to it by the members. The bungalow in that place was

exclusively owned by the Disputant No.2 with society having no right in

respect thereof, except right to recover taxes. Disputant No.2 had let out

the bungalow to his brother. In the facts and circumstances of that case,

the Division Bench held that since there was a jural relationship of

landlord and tenant between the Disputant No.2 and the occupant, and

since the society had no existing right in the bungalow, the Dispute

could not be said to be the one covered under Section 91 of the MCS Act.

The Division Bench held that the Dispute would need adjudication under

the Rent Act. The Division Bench held in para 18-B of the judgment as

under:

18-B. Both the parties placed reliance on the decision of the Apex Court in the

case of O.N. Bhatnagar (supra), in support of their respective contentions.

According to the respondents, in view of the ratio laid down in O.N.

Bhatnagar's case, dispute to recover possession from the licensee of a flat

squarely falls under section 91(1) of the MCS Act. On behalf of the appellants,

submission is advanced that the Society in O.N. Bhatnagar's case was a Tenant

Co-partnership Society and the Society in the present case being a Tenant-

Ownership Society, the ratio in O.N. Bhatnagar's case is not applicable and

placing reliance on the observations of Their Lordships in paragraph No. 21,

submission is advanced that the present case is distinguishable from the ratio

in O.N. Bhatnagar's case. In view of these submissions, it has to be seen as to

whether the ratio in O.N. Bhatnagar's case laid down by the Apex Court is

applicable in the present matter.

It is not disputed that the Society in the case of O.N. Bhatnagar was a

Tenant Co-partnership Society. The member of said Society inducted third

party, a nominal member under an agreement of leave and licence. The

licensee in that case had filed a suit for declaration of his tenancy rights and

said suit was dismissed. Thereafter, a dispute came to be filed jointly by the

Society and the member. Their Lordships held that in view of the above facts,

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as the agreement of leave and licence stood terminated, the licensee was

nothing but a rank trespasser and was not entitled to the protection of section

15A of the Rent Act. It has also been held that as the parties did not stand in

the jural relationship of landlord and tenant, the dispute would be governed by

section 91(1) of the MCS Act and the proceedings under section 91(1) were not

barred by section 28 of the Rent Act.

No doubt, in the present case, the disputants alleged the status of

present appellants as licensees, but the appellants claimed to be the owners.

Before filing the suit, the member - disputant No. 2 had served a notice dated

7-2-1989 wherein he has specifically alleged that the appellants are the

tenants in the suit bungalow with monthly rent of Rs. 500/- and by the said

notice, the alleged tenancy came to be terminated and the tenant was called

upon to vacate the premises and pay rent arrears. Notice was replied by

appellants and the alleged tenancy was denied. Even in the witness box,

Uttamlal, the member admitted service of this notice. As such, there is no

decision about the status of the parties as to whether the appellants are

tenants as claimed in the notice or the owners. The Co-operative Court was

not expected to record finding on these issues. The issue of title as raised by

the appellants may be a point for adjudication by a Civil Court and the issue of

tenancy will be a matter of adjudication by the Rent Court.

In the matter of O.N. Bhatnagar, a contention was raised that the

Society in that matter was not a disputant. The Tribunal during pendency of

the proceedings allowed transposition of the Society as co-disputant. That

order not being challenged, the Apex Court held that the appellants cannot be

permitted to challenge the transposition. A submission was advanced before

the Apex Court that the dispute between licensor and licensee was not a

dispute falling with purview of section 91. It was also contended that the

dispute between the flat owner and the occupants thereof as regards tenancy

cannot be taken cognizance by the Registrar under section 91 of the MCS Act.

On behalf of the respondents, a submission was advanced that the dispute is a

dispute touching the business of the Society. Their Lordships considered the

scope of phrase “touching the business of the society”. The society in the said

case being a Tenant Co-partnership Housing Society, its object was to provide

residential occupancy to its co-partner tenant members. Their Lordships

observed that the nature of the business which a society carries on, has

necessarily to be ascertained from the object for which the Society is

constituted, and it logically follows that whatever the society does in the

normal course of its activities such as by initiating proceedings for removing

an act of trespass by a stranger, from a flat allotted to one of its members,

cannot but be part of its business.

Before Their Lordships, reliance was also placed on the ratio laid down

in Sabharwal Brother's case. Their Lordships observed that the authority

decided only one point albeit a point of great importance namely, that the

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society having sold the flat, like any other vendor of immovable property, the

letting out of the flat by the flat-owner was no concern of the society. It was

further observed that there was nothing to show that such letting would affect

the business of the society once it has sold the flat. In paragraph No. 21 of the

judgment in case of O.N. Bhatnagar, certain observations are made on which

learned advocate Shri Mantri for the present appellants placed reliance and

according to him, those observations are squarely applicable in the present

case. The said observations in paragraph No. 21 of Their Lordships in the

judgment in O.N. Bhatnagar's case run thus:—

“It logically follows, as a necessary corollary, that if the transaction

between the society and the holder of the flat were governed by

Regulations in Form A, as here, that is to say, if the society had let out

the flat to her, the decision of the Court would have been otherwise.”

In paragraph No. 22 of the said judgment, Their Lordships held that the

decision in Sabharwal's case is distinguishable on two grounds i.e.

(i) There was an outright sale of the flat by the society and not that it had

been let out to her under Regulations in Form A, and;

(ii) The Society having sold the flat, the letting of the flat by the flat owner

did not in any way affect the business of the society in the matter of its

letting out the flat.

From these observations, it is clear that if the bungalow or flat is owned

by a member and the member not being a tenant, letting of flat by him to third

person cannot be said to be a business which affects the business of the

society.

In the present case, the Society is a Tenant-Ownership Society. As

discussed to above, the Society had no concern with the bungalow

constructed on the plot allotted by it to its member. As contended by the

disputants themselves in the dispute, bungalow is exclusively owned by

the disputant No. 2. The Society had no existing right over the bungalow

as admitted, except to recover the taxes. Disputant No. 2 himself by

issuing a notice alleged that he has let out the bungalow to his brother

Amrutlal and also claimed possession of the bungalow and arrears of

rent by terminating the tenancy. Thus, the jural relations as landlord

and tenant being admitted by disputant and the society having no

existing right, the dispute cannot be said to be a dispute covered by

section 91(1) of the MCS Act. This is a dispute which may need

adjudication under the Rent Act. The alleged tenant denied the relations as

landlord and tenant and set up a title in themselves. In that case, the remedy

available to the disputant No. 2 was to file a suit for possession on the basis of

title in a Civil Court and in any case the dispute cannot be said to be a dispute

falling within the ambit of section 91(1) of the MCS Act.

(emphasis supplied)

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56.Thus, in Sanjaykumar Amrutlal Shah , this Court has

distinguished the judgment of the Apex Court in O.N. Bhatnagar

holding that the ratio of judgment in O.N. Bhatnagar does not apply to

a tenant ownership society. It is held by this Court that in a tenant

ownership society, the society has no concern with the bungalow

constructed by the member. However, in the case before this Court, there

was dispute about landlord-tenant relationship between the member

and occupant and it is held that the dispute relating to existence of

landlord-tenant relationship can be adjudicated only by a Rent Court. In

my view, ratio of Division Bench judgment in Sanjaykumar Amrutlal

Shah has no application to the facts of the present case. The present

case does not involve induction of Natekars by Ogales in capacity as

tenants. In the present case, the Dispute involved the issue as to who

exactly is the lessee in respect of the entire plot. The dispute arose on

account of claiming of certain rights by Natekars even in the land. Since

Natekars claim that the leasehold rights of Ogales are restricted only in

respect of balance portion of land (excluding area of 4300 sq.ft.), the

Dispute was raised before the Cooperative Court. The case involves

raising of the claim by a person claiming through the member, not just

in respect of the constructed portion but also in respect of the land. The

present case also involves the issue of transfer being effected in

violation of provisions of Section 29(2) of the MCS Act. In my view

therefore, the ratio of the Division Bench judgment in Sanjaykumar

Amrutlal Shah has no application to the facts of the present case.

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57.On the other hand, Mr. Panchpor has relied on judgment of the

Apex Court in O.N. Bhatnagar, which case involved a tenant co-

partnership society. The copartner tenant member of the society had

obtained permission for creation of a license and the licensee had

become nominal member of the society in terms of byelaws thereof.

After the license was terminated, the licensee failed to vacate the

premises and the co-partner member filed a Dispute before the Co-

operative Court for eviction of the licensee/nominal member. In that

Dispute, society was transposed as a Disputant. In the facts and

circumstances of that case, the Apex Court held that the Dispute was

covered by Section 91(1) of the MCS Act and hence co-partner's claim for

ejectment of an occupant constituted a Dispute touching the business of

the society. The present case involves tenant ownership society, in

which the Society is not the owner of the structure and cannot seek

eviction of occupant thereof. Thus, the facts in the two cases are

different. Though the ratio of the judgment in O. N. Bhatnagar may not

apply for seeking eviction of Natekars by the Society on merits, the

judgment is of some relevance on the issue of transposition of the

Society. In case before the Apex Court, the society was transposed as a

Disputant and that order had attained finality. In the present case also,

Natekars cannot now question correctness of order transposing the

Society as Disputant. Therefore, jurisdiction of Cooperative Court can be

upheld since Society as a Disputant is entitled to question presence of

Natekars on the plot on the strength of a transaction which is executed

without its consent.

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58.Mr. Panchpor has relied on judgment of the Apex Court in Anita

Enterprises (supra) in support of his contention that provisions of

Section 29(2) of the MCS Act are mandatory. The Apex Court has held in

paras-44 and 50 of the judgment as under:

44. Undisputedly, in the present case, there is infraction of the provisions

of Section 29(2) of the Societies Act. Now it has to be seen whether sub-

section (2) of Section 29 is mandatory or directory. From the scheme of the

Societies Act, the Rules, Bye-laws and Regulations it would be clear that in a

case of tenant co-partnership society the ownership of the land and the

building both vest in the society and the premises is allotted to the member

for his occupation only and not for the purpose of occupation of anybody else.

That is the object of the Societies Act as would appear from Bye-law 2 i.e. “for

use of the member”, meaning thereby his own use. According to Bye-law 64,

the flat is allotted to a member for occupying it himself. Regulation 4 is also in

line with Bye-law 64 which says that no tenant shall part with possession of

the premises without the previous consent in writing of the Society. Under

Bye-law 64(a) also a member is restrained from parting with possession of the

flat without permission of the society which shall be granted upon filing

application, by an intending transferee, for grant of membership by admitting

him as a nominal member. Keeping in mind the language of Section 29(2),

which is in the nature of injunction upon the right of a member to transfer

unless the twin conditions are fulfilled, and the purpose for which the house is

allotted to a member i.e. for his self-occupation, it cannot be said in any

manner that the said provision is directory as giving such an interpretation

would frustrate object of the Societies Act whereunder a flat is allotted to a

member for his self-occupation as would appear from the Societies Act, Rules,

Bye-laws and Regulations. As such, we have no option but to hold that the

provisions of Section 29(2) are mandatory.

50. In the present case the factum of creation of tenancy has not been

disputed, but what has been disputed is its legality. As the creation of tenancy

was in infraction of mandatory provisions of Section 29(2), it was voidable and

invalid in law although not void and the Small Cause Court was not only

competent to decide the same but obliged under law to go into the same

before granting or refusing relief to the plaintiff as the same was a point in

issue in those suits. This being the position, we are of the view that the High

Court was justified in setting aside the decrees passed by the Appellate Bench

of the Small Cause Court and restoring those of the Small Cause Court

whereby suits for declaration were dismissed after recording a finding that

there was no relationship of landlord and tenant between the member and the

appellants who were consequently not entitled to claim protection under the

Rent Act and no interference by this Court is called for.

(emphasis supplied)

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59.However, in Anita Enterprises, the issue was again with regard to

validity of creation of tenancy and it was held that the Small Causes

Court had the jurisdiction to decide the issue of validity of tenancy

created in violation of provisions of Section 29(2) of the MCS Act. The

judgment is not of much relevance for deciding the issue of jurisdiction

of Co-operative Court. Mr. Panchpor has also relied on judgment of

Single Judge of this Court in N. Jethani (supra) in support of his

contention that dispute raised by the society regarding alienation or

attempted alienation of the property by a member without its

permission and in breach of by-laws falls within the ambit of Section

91(1) of the MCS Act. The ratio of the said case squarely applies to the

facts of the present case. Thus, as held by this Court in N. Jethani

(supra) where case involves alienation without securing permission of

the society and when there is violation of provisions of Section 29(2) of

the MCS Act, the Dispute would be squarely covered by jurisdiction of

Cooperative Court under Section 91 of the MCS Act.

60.In view of the above discussion, the Dispute was clearly within the

jurisdiction of Cooperative Court under Section 91 of the MCS Act. The

Cooperative Appellate Court has rightly corrected the error committed

by the Cooperative Court on the issue of jurisdiction. The provisions of

Section 29(2) apply both to tenant ownership society as well as tenant

co-partnership society. When the Dispute is for enforcement of

provisions of Section 29(2) of the MCS Act, the same would fall squarely

within the ambit of Cooperative Court. Additionally, the claim of

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Natekars is not restricted only to the constructed bungalow. They

claimed right to possess even land belonging to the Society. Natekars

also questioned the existence of leasehold rights of Ogales in the land

allegedly in their possession. It would therefore be too far-fetched to

contend that, when the dispute pertains to the land belonging to the

society, such dispute would still not be touching upon the business of

the society when the society is formed with the objective of leasing out

plots of lands to its members.

61.I am therefore not inclined to interfere in the findings recorded by

the Cooperative Appellate Court that the Dispute squarely fell within the

jurisdiction of Cooperative Court under Section 91(1) of the MCS Act.

CORRECTNESS OF FINDINGS ABOUT MANJUSHA OGALE BEING THE SOLE

LESSEE

62.I have already discussed in detail the chain of transactions

through which rights are claimed, both by Ogales and Natekars. It is not

necessary to repeat the same once again. Suffice it to observe that

duality of rights got created on account of Bagals’ entry on the scene.

Otherwise, Kales were members of the Society and lessees of plot No.23.

It was Kales who decided to bring on Plot no.23 Bagals in respect of land

admeasuring 4300 sq.ft. and construction admeasuring 2300 sq.ft.

Though transaction of assignment of leasehold rights in respect of the

land admeasuring 4300 sq.ft. was executed between Kales and Bagals

vide Sale Deed dated 20 August 1973, the said transaction was reversed

vide Reconveyance Deed dated 3 July 1976. The said Reconveyance Deed

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extinguished rights of Bagals to hold lease of land admeasuring 4300

sq.ft. The Deed of Reconveyance may have protected the right to own

structure admeasuring 2300 sq.ft. and also the right to occupy land

admeasuring 4300 sq.ft. However, the said Deed of Reconveyance clearly

abolished leasehold rights of Bagals and restored the same in favour of

Kales. Manjusha Ogale is the assignee in respect of the leasehold rights

in respect of plot No.23 by virtue of Sale Deed dated 24 January 1985.

The Society has also executed Lease Deed in favour of Manjusha Ogale

on 4 April 1985 in respect of entire plot No.23.

63.Perusal of the Sale Deed dated 24 January 1985 executed between

Kales and Manjusha Ogale would indicate that the entire leasehold

rights in respect of plot No.23 admeasuring 10302 sq.ft. are assigned in

favour of Manjusha Ogale. What is possibly excluded from the said Sale

Deed is only the constructed portion towards southern side admeasuring

2300 sq.ft. and mere occupancy rights in respect of land admeasuring

4300 sq.ft. Mere right to occupy any portion of leasehold land in the plot

would not mean that the said portion of land got cut off or excluded

from the ambit of the lease executed in favour of Manjusha Ogale.

64.The Cooperative Court had committed manifest error in holding

that Manjusha Ogale is not the sole lessee in respect of plot No.23. It

confused the concept of ownership in the structure and leasehold rights

in the land. What may have been acquired by Bagals and by Natekars is

only ownership in the construction admeasuring 2300 sq.ft. and possible

right to occupy land admeasuring 4300 sq.ft. The same would not mean

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that leasehold rights in respect of the land admeasuring 4300 sq.ft. were

acquired by Bagals or Natekars. In my view therefore, the Appellate

Court has rightly set aside the findings of the Trial Court on Issue Nos.2

and 3 and has correctly held Manjusha Ogale to be the sole lesseee in

respect of entire plot No.23.

INJUNCTION GRANTED AGAINST NATEKARS

65. The Appellate Court has injuncted Natekars from dealing with

plot No.23 without the consent of Manjusha Ogale and the Society. It

has also restrained Natekars from dealing with leasehold rights of

Manjusha Ogale or from obstructing her in respect of plot No.23. This, I

believe is the main grouse of the Natekars, who apparently are

developers by profession and possibly intend to either redevelop plot

No.23 or at least reconstruct portion of plot admeasuring 4300 sq.ft., in

which they claim occupancy rights. As observed above the plot is

situated at a prominent location in Pune City and Natekars may have

purchased rights of Bagals with a hope that someday they can redevelop

the entire plot No. 23 by offering flats to Ogales. Even if the entire plot is

not permitted to be redeveloped by Ogales, Natekars want to possibly

construct a building in land in their alleged possession of 4300 sq.ft.

However, the restraint order put by the Cooperative Appellate Court

restrains them from dealing with any portion of plot no. 23 without the

consent of Manjusha Ogale and the Society. This is the main reason why

Ogales have filed the present Petitions.

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66.Before proceeding further, it must be noted that Civil Suit filed by

Natekars for seeking direction against Ogales to sign the plans for

carrying out additional construction has been dismissed and the

dismissal is upheld by the Appellate Court. Thus an attempt made by

Natekars to put up additional construction in land allegedly in their

possession is already thwarted by the Civil Court.

67.It is the case of Natekars that what is acquired by them through

Bagals is ownership in respect of constructed structure towards southern

side admeasuring 2300 sq.ft. It is their contention that on the strength

of ownership of the structure, they also have right to put additional

construction on the land in their occupation admeasuring 4300 sq.ft.

68.Mr. Sawant has particularly relied on Conveyance Deed dated 3

July 1976 executed between Bagals and Kales and had laid stress on

following covenants in support of his contention of right to put

additional construction:

त्याप्रमाणे श्री. व

सौ

. बागल यांनी स

र्व्हेनंबर ३३

/२३ एरंड

वणा यापैकी दक्षिणेकडील ४३०० चौरस

फ

ूट जागा फक्त त्यावर असलेल्या इमारती व इतर बांधकाम आगर पुढे म्यू

. का

र्पोरेशनच्या परवानगीने

आणखी बांधकाम करण्याचा हक्क स्

वतःकडे राखून ठेवून श्री

. व

सौ

. काळे यांना खरेदी

दिलेली आहे

.

याप्रमाणे सादर प्लॉटपैकी द

क्षिणेकडील ४३०० चौ

.फ

ूट

. जागा श्री. व

सौ

. काळे यांना खरेदी

दि

ल्यानंतर सादर जागेत ज्या इमारती अगर अन्य बांधकाम व इतर हक्क आहेत ते आजच्या प्रमाणेच

श्री. व

सौ

. बागल यांचे ताब्यात

वहिवाटीस व उपभोगत राहण्याचे आहेत

, व

तसे ते राहण्याबद्दल श्री

. व

सौ. काळे यांनी मान्यता

व कबुली दिलेली आहे

.

xxx

व

र नमूद के लेल्या ४३०० चौ

.फ

ूट मिळकतीत बांधलेल्या इमल्याचा व इतर बांधलेल्या भागांचा श्री

. व

सौ. बागल यांनी पू

र्ण मालकीने उपभोग घेण्याचा असून त्यांत जरूर त्या अधिक सोई व बदल आगर

बांधकाम करा

वे त्यास श्री

. व

सौ

. काळे यांनी कोणत्याही प्रकारे हरकत करा

वयाची नाही असे मान्य

के ले आहे. सादर मा

र्गात जी मोकळी जागा राहील ती श्री

. व

सौ

. बागल यांचेच ताब्यात

व वहिवाटीस

राहण्याची आहे. श्री. व

सौ

. बागल यांना त्यांचेच भागातील कं पाऊं डमध्ये काही बदल करा

वयाचा

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झाल्यास त्यांना तो पू

र्ण हक्क आहे व ही गोष्ट श्री

. व

सौ

. काळे यांना मान्य आहे

व सदर कामी

कोणतीही हरकत न करण्याचे मान्य के ले आहे.

xxx

व

त्या हक्काने उपयोग करण्याचा व उपभोग घेण्याचा पूर्ण हक्क व अधिकार श्री

. व

सौ

. बागल यांना

आहे. व

र वर्णन के लेल्या जमिनीवरील सर्व बांधकाम इमला वगैरे त्यात अधिक दुरुस्त्या करून व बदल

करून अगर अ

धिक बांधकाम करून पूर्ण मालकी हक्काने वापरण्याचा व उपभोग घेण्याचा हक्क श्री

. व

सौ. बागल यांना

व त्यांचे वालीवारस यांना आहे

.

xxx

आता

वर वर्णन के लेल्या मिळकतीपैकी फक्त जमिनीचेच श्री

. व

सौ

. काळे हे

निरंतरचे लेसी हक्काचे

मालक झालेले आहेत. कारण त्यांनी

सि

.स.नंबर ३३/२३ हा पू

र्ण प्लॉट सोसायटीकडून सभासद या

नात्याने भाडेपट्ट्याने घेतलेला आहे. मात्र सादर प्लॉटपैकी द

क्षिणेकं दील ४३०० चौरसफूट

ज

मिनीवरील सर्व बांधकामाचा इमल्याचा व तदनुषंगिक मालकी हक्काने उपभोगास श्री

. व

सौ

. काळे हे

श्री. व

सौ

. बागल यांना कोणत्याहीप्रकारे हरकत करणार नाहीत. तसेच श्री. व

सौ

. काळे यांनी आपला

प्लॉट

व त्यावरील त्यांच्या मालकीचा इमला दुसरे कोणालाही तबदील करून दिल्यास श्री

. व

सौ

.

बागल यांचे

वहिवाटीस असलेला भाग व त्यावरील बांधकाम व त्यांचे इतर सर्व हक्क यास कोणत्याही

प्रकारे बाध येणार नाही.

69.I am unable to read the above covenants to mean an authorisation

to Bagals to redevelop the land admeasuring 4300 sq.ft. or to construct a

new structure in place of the existing structure. The above-quoted

covenants merely permitted Bagals to occupy the structure on ownership

basis and to carry out necessary alterations in the same. The expression

‘अधिक बांधकाम करून पूर्ण मालकी हक्काने वापरण्याचा व उपभोग घेण्याचा हक्क श्री व सौ.

बागल याना आहे.’ does not mean putting up altogether new structure. The

same would only mean carrying out necessary changes for better

enjoyment of the structure. Similar expression ‘त्यात अधिक दुरुस्ती व बदल

करून अगर बांधकाम करून ’ does not mean putting up an altogether different

construction. What was essentially granted was right to make necessary

alterations or to put some additional construction in the existing

structure for better enjoyment. To illustrate, if an additional bathroom is

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to be constructed, Bagals had the necessary authority. Similarly, if the

rooms were to be amalgamated or existing room was to be bifurcated,

Bagals had the authority. The above covenants cannot be read to mean

as if Bagals were given the authority to demolish the existing structures

or to reconstruct the same. If such authority is read into the

Reconveyance Deed dated 3 July 1976, the same would virtually mean

creation of right in the land in favour of Bagals. It must be appreciated

that the whole purpose of execution of Reconveyance Deed dated 3 July

1976 was to reconvey rights of Bagals in the land in favour of Kales.

Therefore, if it is interpreted that Bagals retained rights in the land

admeasuring 4300 sq.ft. for the purpose of construction of new building

thereon, the same would cause violence to Reconveyance Deed,

rendering the same otiose. The Reconveyance Deed was required to be

executed with a view to nullify creation of leasehold rights in favour of

Bagals and for the purpose of making the Kales the sole lessees in

respect of the entire plot of land. Only lessee is entitled to put up

construction in the land. Even if Bagals or Natekars are treated as

owners of the superstructure, the same would not grant them right to

put up any additional construction or to redevelop the existing structure

without the consent of Ogales or the Society. In my view therefore, the

Appellate Court has rightly granted injunction against Natekars from

dealing with any part of Plot No.23. All that they can do by virtue of

acquisition of ownership of the structure is to occupy the same. They do

not have semblance of right in the lease in respect of any part of the

land. If they desire to reconstruct the structure they would need

permission from the lessee and the Society.

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70.In my view therefore, there is no warrant for interference in the

impugned order of the Appellate Court at the instance of Natekars in

Writ Petition No.5347 of 2024 or Writ Petition (Stamp) No. 9683 of 2026.

PART ALLOWING OF APPEAL NO.120 OF 2019 FILED BY OGALES

71.The Appellate Court has partly allowed Appeal No.120 of 2019

filed by Dattatray Ogale. Dattatray Ogale had intervened in the Dispute

filed by his wife Manjusha Ogale and got himself impleaded as Disputant

No.3. However, the leasehold rights in Plot No.23 are not assigned to

Dattatray Ogale nor Society has executed Lease Deed in respect of the

Plot No.23 with Dattatray Ogale. What was executed in favour of

Dattatray Ogale was a mere lease in respect of first floor of northern

portion of building by Kales on 26 December 1980.

72.As observed above, initially Kales had agreed to assign the entire

plot No.23 alongwith the construction in favour of Ogales vide

Agreement for Sale dated 24 January 1978. However, instead of acting in

terms of Agreement for Sale dated 24 January 1978, Kales granted mere

lease in respect of the first floor premises on northern portion of the

structure located on the plot in favour of Dattatray Ogale. Later, Kales

executed Sale Deed dated 24 January 1985 in favour of Manjusha Ogale

in respect of Plot No.23 excluding structure on southern side

admeasuring 2300 sq.ft. and well-recognising occupation of land

admeasuring 4300 sq.ft. by Bagals. Thus, a unique situation got created

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where the wife became lessee in respect of entire plot and owner of

structure on northern side of the plot but her husband remained a lessee

in respect of the first floor of the said northern portion. Thus, the wife is

the lessor in respect of first floor on northern side of the structure and

her husband is a lessee. Beyond this, Dattatray Ogale does not have any

rights in the lease of the plots as such. In that sense, intervention of

Dattatray Ogale in the Dispute was quite unnecessary. Be that as it may.

Even after his entry into the Dispute, no separate prayers were made in

respect of alleged rights of Dattatray Ogale. Since the Dispute was

dismissed, Ogales filed separate Appeal No.120 of 2019 instead of

becoming an appellant in the Appeal preferred by his wife-Manjusha

being Appeal No.108 of 2019.

73.Though the Appellate Court has held that Appeal No.120 of 2019

filed by Dattatray Ogale is also partly allowed, it has not granted any

relief as such in favour of Dattatray Ogale. Manjusha alone is declared as

lessee in respect of plot No.23. Injunction mainly is granted in favour of

Manjusha. In my view therefore, mere part-allowing of Dattatray Ogale’s

Appeal No.120 of 2019 does not render judgment and order of the

Appellate Court erroneous. Part-allowing of Appeal preferred by

Dattatray Ogale is unexceptionable at least qua interest of Natekars.

Natekars claim ownership in respect of the structure on the southern

side, whereas Dattatray Ogale claims leasehold rights on structure of

first floor on northern side. The rights do not intermingle in any manner.

In my view therefore, Writ Petition No.5354 of 2024 filed by Natekars in

respect of Appeal No.120 of 2019 deserves to be dismissed.

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OGALES’ CHALLENGE TO APPELLATE COURT’S ORDER (WRIT PETITION

(STAMP) NO.9683 OF 2026

74.Despite partly succeeding before the Cooperative Appellate Court,

Ogales have still challenged Appellate Court’s order mainly to the extent

of rejection of prayer for recovery of possession of portion of the plot

and construction on southern side from Natekars.

75.It must be observed at the outset that there is gross and

unexplained delay in filing Writ Petition (St.) No.9683 of 2026. Order of

the Appellate Court is passed on 19 March 2022, whereas the Petition is

filed in March 2026, i.e., after delay of almost four long years. I am not

impressed by the justification pleaded for the delay in paragraph 14 of

the Petition, which reads thus:-

14. The Petitioner states that the Ld. Appellate Court passed an Order dated

19.03.2022 against which the Respondent no. 1 and 2 has already preferred a

Writ petition no. 5347 of 2024 and 5354 of 2024 in the month of August 2022.

The Petitioners state that both the Petitioners are Senior Citizens and their

only son is the resident of Canada. The Petitioners also has acquired the

Citizenship of Canada and are frequently travels to Canada for the purpose of

medications and due care to be taken by their son. It is submitted that earlier

the Petitioner has engaged another Advocate, including in Second Appeals and

all the papers and file were submitted to his Office, and recently the

Petitioners have engaged another Advocate and after taking legal advice from

him, the Petitioner decided to file the instant petition. In view of the same a

delay has been caused in preferring the present Writ Petition. The said delay is

neither deliberate nor intentional. The delay if any may kindly be condoned by

this Hon'ble Court in the interest of natural justice.

76.Ogales appear to be seasoned litigants, who have undertaken

series of litigations in the past, which is apparent from chronology of

events narrated above. They are otherwise vigilant litigants. It is

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therefore difficult to accept that their status as senior citizens and

residence of their son at Canada can come in the way of raising a

challenge to the order of Appellate Court for four long years. Ogales

made an appearance in two Petitions filed by Natekars for opposing the

same. Therefore, nothing could have prevented them from filing a

Petition challenging the order of the Appellate Court within reasonable

time. I am therefore of the view that Writ Petition (Stamp) No.9683 of

2026 deserves to be dismissed only on the ground of delay and laches.

77.Even if the aspect of delay and laches in filing Petition by Ogales is

to be momentarily ignored, I do not find any valid reason to interfere in

the decision of the Appellate Court rejecting balance prayers of Ogales.

In their Dispute, Ogales sought eviction of Natekars and possession of

the disputed property. Ogales have purchased leasehold rights in respect

of Plot No.23 vide Sale Deed dated 24 January 1985 with full knowledge

that ownership in respect of structure on the southern side admeasuring

2300 sq.ft. was retained by Bagals. They were also aware that Bagals were

granted possessory rights (Vahiwat) in respect of land admeasuring 4300

sq.ft. In their Sale Deed, Ogales specifically admitted rights of Bagals as

under:

(९)

वरनिर्दिष्ट के ल्याप्रमाणे तुम्हास खरेदीदिलेल्यामिळकतीपैकी एकूण प्लॉटचे जागेतील दक्षिण अंगे

असलेल्या भागात श्री

.

वसौ

.

बागल यांचा इमला आहे

.

त्या इमल्याच्या स्वामित्वाबाबतवरनिर्दिष्ट

के लेल्यादिनांक २०

-८-

७३व३

-७-

१९७६ अशा दोन खरेदीखतचे दस्तऐवजान्वये श्री

.

वसौ

. बागल

यांना प्लॉटच्या जागेचीवहिवाटववापर कारणेबद्दल जे हक्कहितसंबंध प्राप्त झालेले आहेत ते तुमच्यावर

बंधनकारक राहतील

.

78.Having purchased leasehold rights in Plot No.23 with full

knowledge of rights of Bagals in the structure on southern side and

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having paid consideration accordingly, it cannot lie in the mouth of

Ogales that Natekars must vacate possession of southern side structure.

79.It must also be borne in mind that Bagals were not merely

trespassers. They had initially purchased leasehold rights in respect of

land admeasuring 4300 sq.ft. vide Sale Deed dated 20 August 1973

alongwith ownership right in respect of southern side structure. They

had paid consideration of Rs.90,000/- to Kales on 20 August 1973.

However, since the Society objected to assignment of rights in respect of

portion of the Plot, Bagals were left with no option but to transfer back /

reconvey leasehold rights in respect of the land admeasuring 4300 sq.ft.

vide Sale Deed dated 3 July 1976 for surrender of the leasehold rights in

respect of the land admeasuring 4300 sq.ft. Kales paid amount of

Rs.30,000/- to Bagals while executing the Sale Deed dated 3 July 1976.

Thus, though the value of the leasehold rights of land admeasuring 4300

sq.ft and ownership of structure admeasuring 2300 sq.ft. was Rs.90,000/-

in the year 1973, Kales were ultimately paid Rs.60,000/- on account of

retention of ownership rights in respect of southern side structure. Thus,

Bagals are purchasers of southern side structures admeasuring 2300

sq.ft. upon payment of valuable consideration of Rs.60,000/- to Kales.

Natekars have also paid consideration to Bagals while purchasing

ownership rights in respect of Bagals side structures. Ogales were aware

of all these facts and still decided to secure leasehold rights in respect of

the plot possibly because of lesser consideration than market by

acknowledging presence of Bagals in southern side structure. Now they

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cannot turn around and insist that Natekars must be evicted from the

plot.

80.Co-operative Court may have jurisdiction to decide the Dispute

involving a transfer in violation of Section 29(2) of the MCS Act.

However, in the facts of the present case, the Society cannot seek ouster

of Natekars from the house admeasuring 2300 sq.ft. On account of

peculiar nature of the transaction between the parties. Also, the Society

is not before me seeking ouster of Natekars. The Society did not

challenge the order of the Co-operative Court before the Co-operative

Appellate Court, nor has it filed a Petition before this Court. Therefore,

though Section 29(2) of the MCS Act comes to the aid of Ogales for

deciding the issue of jurisdiction, the same is not enough for ordering

ouster of Natekars from the house owned by them.

81.There is yet another impediment for Ogales in securing possession

in respect of southern side structure from Natekars. They had filed

Special Civil Suit No.136 of 2003 before Civil Judge, Senior Division,

Pune, seeking following prayers:

20. The Plaintiff, therefore, prays that:-

20.1 The Hon'ble Court be pleased to declare that the Plaintiff is a leasehold

owner of the entire plot 33/23, Erandawane including the Suit land.

20.2 The Hon'ble Court be pleased to declare that the sale deed between

Bagals and Defendant No.1 bearing Serial No. 1180/2000, dated Feb. 17, 2000 is

illegal, null and void and the Defendant No.1 has not acquired any interest,

rights, title in respect of the Suit Property.

20.3 The Hon'ble Court be pleased to declare that the alleged agreement to sell

dated Feb. 6th, 1992 is illegal, null and void.

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20.4 The Hon'ble Court be pleased to declare that no rights, title or interest

has been created in respect of the Suit Property in favour of Defendant No.1

and Defendant No.2.

20.5 The Hon'ble Court be pleased to issue an order to restrain the Defendant

No.1 permanently from creating any kind of third party interest in the Suit

Property.

20.6 The Hon'ble Court be pleased to issue an order directing to the Defendant

No.1 and 2 to remove structure from the Suit land at its own cost and without

causing any damage to the structure on the northern side and upon its failure

to do so the Plaintiff be permitted to remove the same at the costs of the

Defendant No.1 and 2.

20.7 Deleted

20.8 The Hon'ble Court be pleased to issue an ad interim order in terms of

above prayers.

20.9The Hon'ble Court be pleased to issue any other order in the interest of

natural justice in favour of the Plaintiff.

20.10 Deleted

82.Thus, a specific prayer was sought in the Suit for removal of

structure on the southern side of the plot and for handing over vacant

portion to the Plaintiffs therein. However, the said suit was dismissed

and even appeal against the decree was dismissed by the District Court.

Thus, Ogales, while challenging transaction of sale in favour of Natekars,

omitted to seek prayer to recover of possession from Natekars. Their

Suit has been dismissed, meaning thereby challenge to the transaction

of sale has failed. This is yet another reason why Ogales cannot be

granted relief of possession of construction on southern side of the plot

admeasuring 2300 sq.ft. by the Co-operative Court. That relief can be

considered in the pending Second Appeal. Writ Petition (Stamp) No.9683

of 2026 filed by Ogales therefore deserves to be dismissed.

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CONCLUSIONS

83.The case thus presents a unique conundrum. Ogales are the

lessees in respect of the entire plot and taking disadvantage of the

position that the Society is tenant ownership society, part of the

constructed house is owned by a non-lessee who can never be admitted

as a member by the Society. After the Society objected to the transaction

between Kales and Bagals, ideally Bagals ought to have cancelled the

whole transaction. But they outsmarted the Society by remaining on the

portion of plot by surrendering the lease in respect of land admeasuring

4300 sq.ft. but retaining ownership in respect of constructed house

admeasuring 2300 sq.ft. Bagals may have their own difficulties in doing

so. They had already started residing in the house and possibly did not

want to give up their house. However, when Bagals decided to sell the

ownership of southern portion of house, ideally they ought to have sold

the same to Ogales to avoid complications. However, they brought in a

developer (Natekars), who has taken the risk of purchasing the

ownership of part structure without a semblance of right in the land.

Having taken such a risk, Natekars must live with the consequences.

Ogales have also taken the risk of purchasing the leasehold rights in the

land with full knowledge of presence of Bagals on part of the house. Now

they need to tolerate presence of Natekars (subject to decision of Second

Appeal).

84.Since the transaction of transfer between Bagals and Natekars did

not have the permission of the Society, the Society need not take

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cognizance of the same. However, provisions of Section 29(2) cannot be

relied upon to seek ouster of Natekars from the plot. Natekars are not

seeking membership of the Society. Ogales attempted to challenge the

transfer transaction between Bagals and Natekars but have failed before

the Civil Court and the Second Appeal is apparently pending. In that

Second Appeal, Ogales can press the necessary reliefs against Natekars.

85.Thus, the position that stands now is that Natekars would

continue to own and possess the house admeasuring 2300 sq.ft. (subject

to pendency of Second Appeal) and Ogales would be the lessees in respect

of the entire land. Natekar can only own and possess the house, and they

cannot redevelop the same. Their ownership of house admeasuring 2300

sq.ft. is with a fetter and they must live with this reality. To resolve the

complications, they can either sell the same to Ogales or to await

permission by Ogales for reconstruction.

86.The Cooperative Appellate Court has rightly reversed the

erroneous order of the Cooperative Court. In the light of the above

position, I do not find any valid reason to interfere in the judgment and

order passed by the Cooperative Appellate Court. Writ Petitions filed by

the Natekars as well as by Ogales are devoid of merits and deserve to be

dismissed.

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ORDER

87.Writ Petition Nos. 5347 of 2024 and 5354 of 2024 filed by Natekars

and Writ Petition (Stamp) No. 9683 of 2026 filed by Ogales are

accordingly dismissed. There shall be no order as to costs.

(SANDEEP V. MARNE, J.)

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