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Judgment
This appeal is by original defendant nos.7 and 8 from Special Civil Suit No.130 of 1979 filed by respondent nos.1 and 2.The respondent no.1 is dead
and he is represented in this matter through his legal heirs. The suit was filed against the coÂoperative housing society Paramount Apartments, and
its managing committee as defendant nos.1 and 2, builder promoter defendant nos.3 and 4,Secretary of defendant no.2, defendant no.5 and one
G.H.Shaikh (Defendant no.6) to whom the suit flat was allotted. He was found dead and his legal heirs defendant no.7 and 8 were added.Â
According to the plaintiffs,  by virtue of allotment dated 31.12.1973 defendant nos.3 and 4 agreed to allot to them Flat No.AÂ5 of 790 sq.ft area
in the proposed building to be constructed as 'Paramount Apartments.' The agreed price was Rs.53,975/Â. Out of the same a sum of Rs.34,245/Â‐
was given by the plaintiffs to defendant no.4 who received it on behalf of defendant no.3 and gave allotment letter. The plaintiffs claimed that they
through brother of the plaintiff no.2, occupied the suit flat no.AÂ5 since 18.3.1978. Thereafter, defendant nos.3 and 4 started committing
irregularities and/or fraud by allotment of flats to several persons. Then the flat holders formed a coÂoperative society which was in the hands of the
managing committee i.e. defendant no.1 of which defendant no.5 was the Secretary. It is the case of the plaintiffs that on 18.9.1979 defendant no.5
with the help of defendant nos.1 and 2 forcibly entered the flat and removed the articles of the plaintiffs and dispossessed the caretaker Mr.Francis
Pinto brother of plaintiff no.2. Thereafter, the defendant nos. 3 and 4 in collusion with defendant nos.1 and 2 created interest in respect of the flat in
favour of defendant no.6. Mr.Francis Pinto lodged a criminal complaint against these illegalities at the police station. The plaintiffs sought
membership of defendant no.1 which was declined by defendant nos.1 and 2. The plaintiffs approached the Joint Registrar, CoÂoperative Societies
who held that the plaintiffs should obtain necessary relief from Civil Court and thereafter membershio issue can be determined. Thereafter, the
plaintiff issued a notice under section 164 of the Maharashtra Cooperative Societies Act, 1961 and filed the suit for following reliefs :
(a) A declaration and confirmation of allotment of flat no.AÂ5 to theplaintiff no.1;
(b) A declaration that the defendant no.3 have unlawfully notified orwithheld notifying allotment of the flat;
(c) A declaration that the plaintiffs are valid members of defendant no.1 ;
(d) A declaration that the allotment of flat by defendant no.1 societywas illegal, malafide and unwarranted.
(e) Direct the defendant nos.1 to 2, 7 and 8 to put the plaintiffs inpossession of the suit flat.
(f) To pay full costs.
   Or in the alternative (a) if the defendant nos.1 and 3 were unable to give the suit flat, they should give     alternative flat of same
area and amenities to the plaintiffs in the said building.
(g) to return the amount of Rs.38,245/Â with interest at the rate of 18% p.a. from the date of credit.
2. Defendant nos.1,2 and 5 denied for want of knowledge, most of the rights claimed by the plaintiffs. They challenged the authority of defendant
no.4 to grant allotment to the plaintiffs. They further denied that the plaintiffs or their caretaker one Mr.Francis Pinto were in possession of the suit
flat. They denied that the plaintiffs were dispossessed by defendant no.5 as allotted. They claimed that the suit flat was allotted to defendant no.6
by defendant nos. 3 and 4 and he was in possession and occupation thereof. They denied the alleged collusion between them and defendant nos.3 and
They admitted that the plaintiff no.1's request for membership was declined by them but the said order was not challenged. They denied service
of notice under section 164 of the Maharashtra CoÂoperative Societies Act. They also challenged the valuation. According to their specific case,
the plaintiffs were bound to pay instalments up to 3.7.1975 but those were unpaid and therefore, the agreement in favour of the plaintiffs was
forfeited. Besides, it is claimed that the plaintiffs had taken away Rs.10,000/ from the defendant nos.3 and 4 and thereby accepted cancellation of
allotment in their favour. It is claimed that the suit was barred by limitation. Defendant nos. 3 and 4 admitted that they had entered into an agreement
with the plaintiffs but, denied that the plaintiffs were ready and willing to pay the same. They claimed that the plaintiffs were defaulters and declined
to make payment of instalments as agreed. The plaintiffs had taken away a sum of Rs.10,000/Â from defendant nos. 3 and 4. They denied that actual
possession was delivered to the plaintiffs or that Mr.Francis Pinto brother of plaintiff no.2 was occupying the premises from 18.3.1978 and on that day
the building construction was not even complete. With these pleadings they have refuted the claim of the plaintiffs.
Defendant no.7 by written statement Exhibit 72denied various contents of the plaint and claimed that the alleged agreement in favour of the plaintiff
was not registered and was therefore invalid and therefore, unenforceable. They denied that the plaintiffs were in possession of the suit flat at any
time. According to defendant no.7 application of the plaintiffs for membership was rejected and no appeal was preferred against the same in the Civil
Court. The suit was not maintainable in view of section 163 of the Maharashtra CoÂoperative Societies Act,1963. They claimed that market value of
the suit flat was above Rs.3,00,000/Â. The valuation was not proper.Â
According to defendant no.7, the deceased G.M.Shaikh was her husband working as a school teacher. He entered into agreement to sell and he
was put in possession of the suit flat in part performance of the agreement. He died on 14.3.1983. She was in possession of the suit flat along
with her deceased husband and she denied that the plaintiffs were in possession. She claimed that other legal heirs of defendant no.6 are not added as
parties.
On the basis of these pleadings, the learned trial Judgeframed issues and by a judgment dated 8,12,1987 dismissed the suit with regard to
possession and partly decreed the suit to the extent of refund of earnest money of Rs.29,011/Â with interest at the rate of 9% p.a.Â
The legal heirs of plaintiff no.1 filed First AppealNo.485 of 1989. The learned AdÂhoc District JudgeÂ9 Pune by its judgment dated 29.9.2017
allowed the appeal with costs, set aside the judgment and decree of the Joint Civil Judge, Senior Division and granted a declaration that the agreement
of sale in favour of the plaintiff that flat no.AÂ5 was subsisting and the appellants were entitled for allotment of the suit flat on becomingÂ
members of the society, subject to payment of balance consideration of the purchase price and payment of improvement charges. He held that
allotment of the suit flat to defendant no.6 was illegal and was liable to be cancelled and the plaintiffs were entitled for possession of the suit flat on
becoming a member, The original defendant no.7 (in First Appeal Mrs.Sugrabi) has preferred this Second Appeal.
Mr.Rajiv Narula learned Advocate for the appellants argued the following points :
(i) The learned Additional District Judge completely overlooked the pleadings of the parties. There was no suit for specific performance of the
agreement There was no pleading of readiness and willingness to perform the contract still he granted a decree for specific performance. The original
agreement between the plaintiffs and defendant no.3 and 4 was unregistered. Subsequently, there was a novation and a fresh agreement was entered
into. This second agreement was not pleaded nor was it duly stamped and registered and was not duly proved still it was acted upon. The First
Appellate Court ignored the material evidence of the plaintiff that they were not ready and willing to perform their part of the contract. There were no
necessary pleadings. On the contrary there was evidence that she had taken back Rs.10,000/Â from defendant no.4.
(ii) The learned First Appellate Court entered into conjectures and surmises and decreed the suit. The defendant no.7 was admitted as a member of
the society and the share certificates were on record. The entitlement of defendant no. 7 was not very much relevant It was for the plaintiffs to make
out a case for his entitlement which was not properly considered. The judgment is totally shocking and unconscionable. There are no justifiable
reasons to reverse the findings recorded by the trial Court in wellreasoned judgment. Hence, the appeal may allowed.
Mr.Rajiv Narula learned Advocate for the appellants has relied on the following judgments :
(a)Â Â Suraj Lamp & Industries Pvt.Ltd vs State of Haryana & anr (2012) 1 SCC 656 wherein it is held that a transfer of immovable property by
way of sale can only be by a deed of conveyance (sale deed) and in the absence of conveyance duly stamped and registered as required by law, no
right, title or interest in an immovable property can be transferred. A registration of conveyance of immovable property is necessary and its
advantages are stated in para 15 in above judgment.
Scope of power of attorney:
“A power of attorney is not an instrument of transfer in regard to any right, title or interest in an immovable property. The power of attorney is
creation of an agency whereby the grant or authorizes the grantee to do the acts specified therein on behalf of grantor which when executed will be
binding on the grantor as if done by him (see section 1ÂA and section 2 of the Powers of Attorney Act,1882) It is revocable or terminable at any time
unless it is made irrevocable in a manner known to law. Even an irrevocable attorney does not have the effect of transferring title to the grantee.â€
(b) Nair Service Society Ltd vs Rev.Father K.C.Al;exander & ors (1968) 3 SCR 163: AIR 1968 SC 1165.
“Now it is a fixed principle of law that a suit must be tried on the original cause of action and this principle governs not only the trial of suits but
also appeals. Indeed the appeal being a continuation of the suit new pleas are not considered. If circumstances change they can form the subject of
some other proceedings but need exceptions. Sometimes it happen that the original relief claimed becomes inappropriate or the law changes
affecting the rights of the parties. In such cases courts may allow an amendment pleading the changed circumstances. Sometimes also the change
circumstances, shorten litigation and then to avoid circuity of action the courts allow an amendment. The practice of the courts is very adequately
summarized. In Ram Ratan Sahu v Mohant Sahu Mookerjee and Holmwood, JJ have given the kind of changed circumstances which the courts
usually take notice with illustrations from decided cases. The judgment in that case been consistently followed in India. In Raicharan Mandal vs
Biswanath Mandal other cases are to be found in which subsequent events were noticed. The same view was taken by the Federal court in
Lachmeshwar Prasad Shukul vs Keshwar Lal Chaudhuri following the dictum of Hughes C.J. In Patterson vs State of Alabama. In Surinder Kukar vs
Gian Chand this court also took subsequent events into account and approved of the case of the Federal court. In view of these sections, it is hardly
necessary to cite further authorities. “
Duties of Ist appellate Court Â
(c)Â Madhukar & ors vs Sangram & ors (2001) 4 Supreme Court Cases 756. It is held in para 5 as under :
“We have carefully perused the judgment and decree of the High Court in the first appeal. We find that substantial documentary evidence had
been placed before the trial court including certified copies of certain public records besides copy of the judgment and decree of the earlier suit (OS)
No.93 of1971. Oral evidence had also been led by the parties before the trial court which was noticed and appreciated by the trial court. However, the
impugned judgment in the first appeal is singularly silent of any discussion either of documentary evidence or oral evidence. Not only that we find that
though the trial court had dismissed the suit on the ground of limitation as also on the ground that the decision in the earlier suit (OS) No.93 of 1971
operated as res judicata against defendant 1 only, the High Court has not even considered much less discussed the correctness of either of the two
grounds on which the trial court had dismissed the suit. Sitting as a court of first appeal it was the duty of the High Court to deal with all the issues and
the evidence led by the parties before recording its findings. It has failed to discharge the obligation placed on a first appellate court. The judgment
under appeal is so cryptic that none of the relevant aspects have even been noticed. The appeal has been decided in a very unsatisfactory manner.
First appeal is a valuable right and the parties have a right to be heard both on questions of law and on facts and the judgment in the first appeal must
address itself to all the issues of law and fact and decide it by giving reasons in support of the findings.â€
Law of limitation
(d) Bina Manohar Dudani & anr vs Major Charanjitlal Verma (Retd) & ors 2007 (5) Mh.L.J. 224. Para 6 and 7 reads as under :
“It is the case of the appellants that they pursued thetransaction on behalf of the respondents for many years thereafter and that much latter on
28th May 1998 a letter came to be addressed by the Army Welfare Organization to appellant no.1 informing her that the respondent no.1 continued in
the records of the Army Welfare Association as owner of the suit flat and that she may pursue her transfer application with the society since the flat
has been transferred to Salunkhe Vihar society. The respondents have contended that letter (not addressed to the respondent no.1) but, addressed to
appellant no.1 saved the bar of limitation and the suit having being filed on 3rd December 1998 could not be dismissed as having been barred by
limitation. The learned Judge has considered the issue of limitation on entirely different point. It has held that the suit will be governed by Article 65 of
the Limitation Act since it relates to recovery of possession of immovable property. The suit is essentially for declaration that the agreement dated
15th April 1988 executed between the parties is void. It is not for claiming recovery of possession of a property which has been lawfully in possession
of the parties sued. Article 65 relates to the right of presaiption that the defendant can legitimately claim if within the period of limitation mentioned in
the said Article (which is 12 years) the plaintiff does not sue. It therefore does not relate to suits based upon transfer of title. The applicable Article of
the Limitation Act in this case first accrued on 8th June 1990 when the first respondent was informed about the refusal of the permission for sale. The
suit should therefore should have been filed on or before 7th June 1993.
The period of limitation cannot be saved by anycorrespondence made to the defendants by the granting authority. Hence, reliance upon the letter
dated 28th May 1998 addressed to the appellants by the Army Welfare Housing Organization is entirely misplaced. The suit became distinctly barred
by the law of limitation. â€
(e) Agyarani Dua vs Vidyagauri Tripati 1998 (3)Mh.L.J. 797. It is held as under :
“Limitation Act (36 of 1963) Art 58 and S.14ÂPlaintiff obtaining exparte decree for possession on 18.3.1991ÂSuit for declaration that agreement
for sale dated 24.11.1984 stands abdicated or in the alternative is to be declared to be void/voidable for want of consideration and therefore illegal and
not binding on plaintiff filed on1.8.1988. Notice to quit issuedÂRight to sue accrued to plaintiff when terms of agreement dated 24.11.1984 were not
complied with and on expiry of fifteen days of notice dated 12.12.1984 when agreement stood revokedÂSuit filed on 9.6.1996 barred by Limitation
under Article 58 Limitation Act and liable to be rejected under Order 7 Rule 11 of Civil procedure CodeÂArticle 65 not attracted and no case for
exclusion of time under section 14, Limitation Act.â€
(f) Nagrao Narayan Diwane since deceased through L.Rs. Vs Narayan Awadutrao Dighe since deceased thr.LRs Smt Sulochana Narayan
Awadutrao Dighe &ors (2000 (2)Mh.L.J.273. It is held as under :
“(a) Specific Relief act (47 of 1963) S.34 Suit for declaration of titleÂPlea raised that suit was not maintainable for declaratory relief simpliciter
without claiming the relief of possessionÂAlthough plaintiff did not seek consequential relief of possession, he had asserted and claimed that he was in
possession of the suit propertyÂCourt had also found as a fact that the suit property was in possession of the plaintiffÂPlaintiff 's suit was therefore
maintainable for the relief of declaration simpliciter and was not barred by section 34 of the Specific Relief Act, AIR 1993 SC 957 AIR 1972 SC 2685
AIR 1993 SC 597 Ref.(Para 21).
(b) Civil Procedure Code S.100 and Limitation Act (36 of 1963) S.3ÂSecond appealÂPlea of limitation though not raised in the trial court can be
raised on the second appeal. It is the duty of the court to see and go into the question of limitation irrespective of the fact that the same was not raised
in the suit before the trial court AIR 1991 Bom 35 Rel. AIR 1991 Ker.83 (Paras 26 and 29).
Per contra, learned Advocate Mr.S.S.Patwardhan for the respondents supported the judgment stating that agreement to sell under the Maharashtra
Ownership Flats (Regulation of the Promotion of Construction, Sale Management and Transfer, Act 1963. (Hereinafter referred to as MOFA)Â
means a conveyance and no separate conveyance was required to be executed. In this regard, he relied on the judgment in State of Maharashtra
vs Mahavir Lalchand Rathod 1993 MLJ 1492. He argued that defendant nos.3 and 4 have committed fraud. There was no security to the money paid
to them and therefore, the plaintiffs had not paid balance amount to them. An amount of Rs.10,000/was refunded by the defendant no.4 to the
plaintiff in respect of different transactions and the same has been properly explained by the learned first appellate Court. He submitted that the
plaintiff was always ready and willing to perform his part of the contract. He could not have been deprived of his right to get the suit flat. The
defendant nos.7 and 8 had no documents and title of the plaintiffs was a better title. Hence, no interference is called for.
On 24.6.2008 following substantial questions of law were framed :
Whether the appellate court erred in passing a decree for possession of immovable property under section 3 of the Specific Relief Act, 1963
without the plaintiff establishing his title or legal entitlement to the suit property ?
Whether the appellate court ought to have considered that thesuit is barred by law of limitation as per Article 58 of the Limitation Act, 1963?
Whether the decree cannot be passed in favour of plaintiffs on the basis of unregistered document?
Whether findings in the judgment cannot be passed on the evidence given by witness purely in her capacity as constituted attorney of the plaintiffs
having no personal knowledge of the facts of the case?
Whether decree for possession of suit flat could not have beenpassed in the absence of all the heirs of deceased defendant no.6 ?
Whether the suit is not maintainable in view of section 164 of theM.C.S.Act and as such liable to be dismissed ?
Whether the appellate Court has committed serious errors ininterpreting several statutory provisions of law in case of specific performance of
alleged agreement dated 3rd December 1973 ?
On the basis of the evidence on record, and arguments advanced, I answer the above questions as follows :
Issue No.1 : In the affirmative
Issue No.2 : In the negative
Issue no.3: In the affirmative
Issue no.4: Evidence of the constituted attorney in the absence of personal knowledge was not admissible but the plaintiff no.2 has also examined
herself.Â
Issue No.5:Â Â Â In the negative
Issue No.6:Â In the negative
Issue No.7:Â Â Â In the affirmative
From the pleadings and evidence on record, following facts emerge as undisputed :
Defendant no.4 as Director of defendant no.3 floated ascheme for construction of Paramount Apartments CoÂoperative Housing society.Â
On 31.12.1973, the plaintiffs entered into agreement with defendant nos. 3 and 4 for purchase of one flat admeasuring 790 sq.feet for a consideration
of Rs.53,975/Â. The possession was to be delivered by July 1975. During the intermediate period, the plaintiffs inall paid Rs.34,245/Â. The building
was under construction and in May 1977Â defendant no.3 issued a note allowing the plaintiff no.1 to see his flat (Exh 106. There were complaints
that defendant nos.3 and 4 were selling the same flat to many persons. The aggrieved flat purchasers came together. It seems that defendant
nos.3 and 4 abandoned the project and the flat purchasers of the society formed a societydefendant no.1. The defendant no,.2 is the managing
committee and Defendant no.5 is the Secretary of the society. The plaintiffs had applied for membership of the society in 1980 but the said application
was rejected. The plaintiffs thereafter approached the police claiming that on 18.3.1978 they have taken possession of the flat  AÂ5 and it was
occupied by their agent plaintiff no.2 s brother Mr.Francis Pinto but he was forcefully dispossessed by the defendants.   The plaintiffs issued a
letter to the society showing willingness to make extra payment. Defendant no. 3 by a letter dated 21.3.1979 cancelled the agreement of the plaintiffs
on account of nonÂpayment of the balance amount. The plaintiffs disputed the said termination. Defendant no.3 communicated to the society about
the cancellation of the allotment. Defendant no.3 allotted the said flat to defendant no.6 who later expired and defendant nos.7 and 8 are his legal
heirs. This is the broad outline of the factual aspects.
It is apparent that the plaintiffs ' claim is based on theagreement Exhibit 96 dated 3.12.1973. By this agreement, the original builder andÂ
promoter (defendant nos.3 and 4) had agreed to sell the suit flat to the plaintiffs for.53,975/Â and a sum of Rs.12,000/Âwas paid on and or before the
date of the agreement. Besides, there are subsequent payments of Rs.4.775/Â each on four occasions, Rs.3000/Â on one occasion. Thus total,Â
Rs.34.245 was paid and balance payable was Rs.19,330/Â. The schedule of the agreement shows the balance amount was to be paid by way of 10
instalments.  Admittedly, the entire payment was not made and the agreement to sell was not registered under section 4 of the MOFA Act.Â
The facts indicate that the subsequent conduct of the defendant nos.3 and 4 was such that the plaintiffs were justified in not trusting them for
making further payments. However, when the behaviour of defendant nos.3 and 4Â indicated that rights of the plaintiffs to get the flat were in
jeopardy, the plaintiffs ought to have filed a suit for registration of the agreement and for a specific performance of the agreement and should have
also prayed for appointment of a receiver for completion of the scheme.  The plaintiffs have not filed such a suit. It is axiomatic that unless the
agreement is registered and a decree for specific performance of the said agreement is obtained, the plaintiffs cannot claim a right to become a
member and to claim allotment of the flat.
Reliance on the judgment of State of Maharashtra vs. Mahavir Rathod (supra) by the learned advocate for the respondents is misÂplaced.The
said ruling is in respect of the liability to pay stamp duty for the Deemed conveyance under Article 25 Explanation proviso (c) of the Bombay Stamp
Act. The now pointed the agreement to sell with delivery of possession is required to be stamped as a conveyance and the entire stamp duty is
required to be paid. However, this deeming fiction will not make such an agreement to sell a conveyance as claimed by Mr.Patwardhan learned
advocate for the respondents. It remains an agreement to sell only and the law requires that it must be registered and a decree for its specific
performance should have been obtained. Mere unregistered agreement did not create a right in favour of the plaintiff to get the suit flat allotted in their
name and a right to become a member of the society. Pertinently, the plaintiffs approached the Registrar of Cooperative Societies, for membership.
The Registrar passed an order directing the plaintiffs to approach the civil court. The order dated 15.6.1983 Exhibit 113 passed by the Joint
Registrar, CoÂoperative Societies  shows that the society's decision in rejecting the membership of the appellants' claim was found reasonable
and just at that stage. However, the society was directed to finally take a decision on the basis of the decision of the civil court in the suit filed by
the plaintiffs. During that time, the issue of membership was to be deferred. This does not mean that the registrar accepted that the issue of
membership is to be decided by the Civil court as contended by the learned advocate for the respondents/plaintiffs. It meant that the plaintiffs ought to
have obtained a decree of specific performance of the agreement which could have been done after getting the agreement registered. The provisions
of MOFA Act make it mandatory that such an agreement must be registered and the said reliefs can be given by the civil court if the suit for specific
performance would have been filed and the same would have been decreed, the plaintiffs could have claimed membership. The plaintiffs wrongly
interpreted the provisions and filed a suit for wrong reliefs and in a wrong format. The suit should have been for specific performance with
necessary pleadings of readiness and willingness. But, there is no prayer for specific performance of the contract and of readiness and willingness.
The learned appellate court ignored this material defect in the plaint pleadings. It is wellÂsettled that evidence without pleadings is of no use and
cannot be taken into consideration (A.A.Inamdar's case AIR 1996 SC 112). The declaration claimed by the plaintiffs could have been
consequential and could have been granted only subject to decree of specific performance. The plaintiff did not claim specific performance and
therefore, there was no specific pleading and readiness and willingness which is the statutory requirement.
It is also found that there was a novation of the contract anda new agreement was entered into. The plaintiffs had not pleaded about the same nor
the agreement was produced earlier, When it was produced, it was not duly proved. It was unregistered. It is certain that once there is a novation,
the earlier agreement dated 3.12.1973 Exhibit 96 could not have been specifically enforced even with a prayer for registration. The subsequent
agreement should have been pleaded and the claim for its registration and specific performance should have been made. Nothing of this sort was
done.
The learned first appellate court presumably had anxiety to do substantial justice to the plaintiffs. He noticed that defendant nos.3 and 4 were
mischievous and wanted to defeat the rights of the plaintiffs. He found that the plaintiff had bonafide claim for the suit flat and thereafter he went
beyond the provisions of law and the established principles of law. He ignored that there was requirement of essential pleadings and essentially
prayers and in the absence of prayers, he granted a decree for specific performance,. He should not have neglected the issue of readiness and
willingness. The evidence disclosed that the plaintiff had received Rs.10,000/Â from the defendant no.4 as refund which he ignored and entered into
conjectures and surmises and held that it might have been in respect of different transactions. There is no proper explanation by the plaintiffs for the
receipt of Rs.10,000/from defendant no.4. Â
In the circumstances, I find that considering the bleak chances of getting the suit flat allotted to them and the apprehension of loss of money,
the plaintiffs at some stage, changed their mind and received back Rs.10,000/Â.The contention of the plaintiff that they were in possession of the
suit flat is also not substantiated. If they were in possession, there is no explanation how they were dispossessed. Apart from the issue of possession, I
find that the above referred other facts were sufficient to dismiss the appeal and maintain the judgment and decree passed by the learned trial Judge
regarding refund of earnest money with interest. In the absence of specific pleadings, the learned first appellate court erred in granting a decree
which is like a decree of specific performance holding that the rights of the plaintiffs were subsisting and they were entitled to be member by
payment of balance consideration.
It is true that it is the duty of the court to do substantial justice to the parties but, it must be within the four corners of law and the court cannot
grant substantial justice unless the parties and its advocates take necessary precautions regarding pleadings and evidence.Â
In the light of the facts, I hold that the decree forspecific performance could not have been passed considering the conduct of the defendant nos.3
and 4 and the entire project of building construction being in doldrum, in the intermediate period and as the suit is filed in 1980, and aas tghere were
intermediate payments, I find that no issue of limitation could have been raised. Hence, I answer substantial; question no.2 in the negative,.
I hold that the plaintiffs should have specificallypleaded specific performance with a prayer that the defendant nos.3 and 4 should be directed to
register the agreements and thereafter, the same could have been specifically performed.Point no.3 is answered in the affirmative.
As far as evidence is concerned, most of the facts are admitted. The plaintiff has examined herself. Plaintiff no.2 Francis Pinto the constituted
attorney whose evidence was admissible restricted only to his personal knowledge and not with regard to other facts. Since the plaintiff no.2 was
examined, this was not material defect.     Hence, point no.4 is answered accordingly.
As far as issue no.5 is concerned, the defendant no.6was allotted the suit flat subsequently by the society. The rights of the plaintiffs were prior in
point of time and if the plaintiffs were entitled for reliefs, the defendant no.6 and after his death his legal heirs were bound by the decree passed in
favour of the plaintiffs. The defendant nos.7 and 8 were the two legal heirs of defendant no.6.They were already on record.There was sufficient
representation to the interest of defendant no.6 and therefore, nonÂjoinder of other heirs if any could have affected the rights of the plaintiff.Â
The maintainability of the suit under section 164 ofthe Maharashtra Cooperative Societies Act has been challenged. This issue is not between the
cooperative society and a member in true sense. The society was bound to admit all the flat purchases who were entitled for the flat. The
plaintiff was one of such flat purchasers. However, the plaintiffs were entitled to become member subject to obtaining a decree for specific
performance only. Since no such relief was claimed, I have held that the plaintiffs were not entitled for allotment of the flat. The right of specific
performance as between the plaintiff on the one hand and defendant nos.3 and 4 on the other hand, was the main issue which was not governed
under section 164 of the Maharashtra Cooperative Societies Act. However, the plaintiffs have claimed reliefs regarding membership and directions
against the society. Such claims were certainly not maintainable in suit. After obtaining a decree for specific performance the plaintiff could have
approached the society for admitting him as a member and allotment of the flat and such subsequent dispute could have been decided only before the
Registrar of coÂoperative societies or the Cooperative Court as the case may be. Bar under section 163 of the Maharashtra CoÂoperative
Societies Act, 1963 and services of notice under section 164 could have been necessary for such subsequent reliefs for which the cause of action
would have been obtaining a decree for specific performance. Hence, Issue no.6 is answered accordingly.
Point no.7: In view of the above discussion, I find that the learned first appellate court has committed a grave error in not considering the pleadings
and granting reliefs to the plaintiffs in absence thereof. The learned trial Judge has taken a proper and logical view. In the suit, the plaintiff had
claimed refund of earnest money and the trial court granted the same specific decree of specific performance with plea of readiness and willingness is
made in the pleadings and therefore, it was not granted. The Ist appellate Court was thus justified in reversing the said finding.
In the light of the above facts, I find the judgment and decree of the learned appellate court is not tenable and deserves to be set aside and the
decree of the trial court deserves to be restored.
Accordingly, the appeal is allowed. The judgment of the first appellate court is set aside. The judgment and decree passed by the learned trial
court is restored.
Considering the facts, the parties shall bear their owncosts of this Second appeal and the defendants shall bear costs of the plaintiffs in the trial
Court and in the first appellate court. The decree shall be drawn up accordingly.