(Per : HONOURABLE MR.JUSTICE A.J. DESAI) 1. By way of this appeal under clause 15 of Letters Patent, the original petitioner has challenged the order dated 25.7.2001 passed in Special Civil Application No.12215 of 2000 by which the learned Single Judge dismissed the petition, who had challenged the judgment and award dated 30.10.2010 passed the by Gujarat State Co-operative Tribunal in Appeal No.37 of 2000 by which the tribunal confirmed the judgment and award dated 13.6.2000 passed by the Board of Nominees in Arbitration Suit No.488 of 1998.
2. The brief facts arising from the case are as under.
2.1 Respondent no.1 herein filed the above numbered suit stating that he had purchased the flat in question from Kenyug Co.op. Housing Society (hereinafter referred to as the "Society") after paying full consideration of Rs.3,05,000/- between 1.7.96 and 10.10.96 (receipts at Ex.88 to 94). Respondent no.1 was handed over possession of the premises on 16.1.97 (Exh.95). It was also the case of respondent no.1 that as lawful occupant of the plant, the petitioner's name was included in the list of members forwarded by the Society while applying to the Ahmedabad Electricity Company for supply of electricity to the flats in the society. That application is at Exh.106. The Ahmedabad Electricity Co. issued receipt dated 7.6.97 (Exh.107) acknowledging receipt of Rs.3400/- from respondent no.1 for supplying electricity to the premises in question. Respondent no.1 also produced communication between respondent no.1 and the society regarding borewell and also regarding other circulars of the society.
Respondent no.1 stated that he had to file the above suit for a declaration and injunction to restrain the defendants from disturbing the possession of respondent no.1 herein in the suit premises. The said suit was filed on 7.4.98 because respondent no.4 herein had filed a suit in respect of the same premises and a news item was published regarding the said litigation on 27.8.88.
2.2 In the previous suit filed by the respondent no.4 (363/98) as well as in present suit filed by the first respondent (488/98), the Board of Nominees only issued notice and no ad-interim injunction was granted. According to respondent no.1, when the respondent no.1 had gone to 25.6.98 to his brother's house to attend a ceremony, the petitioner herein took advantage of the absence of respondent no.1 and on 27.6.98 broke open the lock of the flat and forcibly took possession of the said flat E-6. Respondent no.1 filed a police complaint pursuant to which the petitioner was taken into custody by the Police and ultimately was released on bail. That criminal case is still pending. On 7.7.98, the petitioner filed Lavad Suit No.787/98 without impleading respondent no.1 as a party and without disclosing the facts of the aforesaid criminal complaint and the previous suit and obtained an ex-parte injunction under which the petitioner has not only continued to hold physical possession of the flat in question but has also inducted other parties in the suit premises. Respondent No.1, therefore, applied for being joined as a party in the above suit (no.488/98). The petition filed against the interlocutory orders passed by the Board of Nominees and the Tribunal came up before this Court and in the said Special Civil Application filed by the present petitioner, this Court did not disturb the direction of the Tribunal to apply lock and seal in the suit premises. This Court directed the Board of Nominees to try and decide the suit expeditiously and during pendency of the suit directed status quo to be maintained.
2.3 The parties led their documentary and oral evidence and after considering the voluminous documentary evidence and oral evidence, the Board of Nominees rendered the aforesaid judgment and award dated 13.6.2000 holding that respondent no.1 was the lawful owner of the flat No.E-6 in the respondent society and that he was wrongly dispossessed by the petitioner. Accordingly, the petitioner herein was directed to hand over the possession of the premises to respondent no.1. The Tribunal confirmed the said judgment and award by its impugned judgment and award dated 30.10.2000 disposing of the petitioner's appeal as well as finally disposed of the revision applications which were directed against the interlocutory orders of the Board of Nominees. Learned Single Judge after hearing the parties, dismissed the petition.
3. We have heard learned advocate Mr.Deep D.Vyas for M/s.Vyas Associates for the appellant, learned advocate Mr.Ravindra Shah for the respondent No.1 and learned advocate Ms.J.R.Acharya for the respondent No.3/2/2. We have also gone through the annexures produced along with the petition as well as the order passed by the learned Single Judge.
The suit which was filed by the present respondent No.1 was decreed by the Board of Nominees as per the amended plaint, by judgment and award dated 13.6.2000 and came to the conclusion that the transaction which was executed between original defendants No.3 and 4 is illegal and void, and it was further held that the suit filed by the present respondent No.1 is required to be allowed and accordingly it was decreed by the Board of Nominees. It was further held that the original plaintiff - respondent No.1 was in possession of the land and the original defendants were further restrained from disturbing the possession of the disputed property.
4. It also appears from the record that during the pendency of the proceedings, the present appellant forcibly took the possession of the disputed property and therefore present respondent No.1 was constrained to file application before the Board of Nominees and several orders were passed thereon.
5. The said judgment and award passed by the Board of Nominees, was challenged by the present appellant before the Gujarat State Co-operative Tribunal and the Tribunal has confirmed the judgment and award passed by the Board of Nominees. Both these judgments and award passed by the Board of Nominees as well as the Cooperative Tribunal were challenged by the appellant by way of captioned petition.
6. The main arguments advanced before the learned Single Judge was with regard to the possession of the property. The learned Single Judge has accepted the findings recorded by the Board of Nominees and confirmed by the Tribunal, after perusing the documentary evidence produced along with the memo of petition as well as with affidavit-in-reply. We are of the opinion that the learned Single Judge was right in not interfering with the concurrent findings of fact recorded by the Board of Nominees and confirmed by the Co-operative Tribunal.
7. Having heard learned counsel for the parties and after going through the record, we are also of the opinion that no interference is called for. The appeal is devoid of any merits and deserves to be dismissed. However, at this stage, learned counsel appearing for the appellant has urged that the cost imposed on the appellant by the learned Single Judge be set aside. Learned counsel Mr.Ravindra Shah appearing for the respondent No.1 has very fairly stated that the cost imposed on the appellant may be set aside. In this view of the matter, the cost of Rs.10,000/- imposed on the appellant deserves to be set aside.
8. In the result, the appeal is partly allowed. The cost of Rs.10,000/- imposed on the appellant is set aside. The rest of the judgment of the learned Single Judge is confirmed. However, there shall be no order as to costs.
(V.M. SAHAI, J.) (A.J.DESAI, J.) syed/