Z.A. Haq, J. - (1.) THESE two writ petitions are disposed of by the common judgment as the orders challenged in both the writ petitions are same and the parties are also same.
(2.) THE petitioner in Writ Petition No. 1881/2011 is a Society registered under the provisions of the Maharashtra Co -operative Societies Act, 1960 (for short "Act of 1960"). The petitioners in Writ Petition No. 3395/2011 are purchasers of plot belonging to Society, having purchased it during the pendency of the proceedings. The respondents 2 to 8 in Writ Petition No. 1881/2011 are the legal heirs of original allottee of the plot. The respondent no.9 in Writ Petition No. 1881/2011 is the subsequent allottee in whose favour the suit plot came to be allotted after its allotment in favour of the respondents 2 to 8 was cancelled. The respondent no.10 had purchased the suit plot from the respondent no.9 during the pendency of the proceedings. The respondents 11 and 12 in Writ Petition No. 1881/2011 have purchased the suit plot from the respondent no.9 during the pendency of the proceedings and they are in possession of the suit plot, at present. In this judgment the parties are referred according to their status in Writ Petition No. 1881/2011. It is undisputed that the suit plot belonged to the petitioner/Society. It is undisputed that Shri Jagannath Ramlalji Jugele/predecessor of the respondents 2 to 8 was the Member of the Society. It is undisputed that plot no.1 i.e. suit plot was allotted to Shri Jagannath. The case of the petitioner/Society is that Shri Jagannath had deposited Rs. 5,000/ - with the petitioner/Society towards part payment of plot no.1. Shri Ravindra s/o Jagannath Jugele/the respondent no.3 was also allotted plot no.29 by the Society and an amount of Rs. 5,000/ - was also deposited by Shri Jagannath for this plot. The case of the petitioner/Society is that the development charges payable to the Nagpur Improvement Trust were to be paid in three instalments by the Members of the Society in whose favour allotment of plots were made, however, the Nagpur Improvement Trust demanded the development charges in lump -sum and, therefore, demand was made by the petitioner/Society from the allottees of the plots accordingly, requiring them to deposit the development charges in lump -sum. According to the petitioner/Society, Shri Jagannath had not deposited the balance amount towards costs of the plot and had not deposited the development charges in lump -sum in spite of notices and, therefore, the allotment of plot no.1 in favour of Shri Jagannath came to be cancelled on 20th September, 1981. Shri Jagannath filed the dispute before the Co -operative Court on or about 7th July, 1983. During the pendency of the dispute, the Society allotted plot no.1 to Smt. Vijaya/the respondent no.9 and executed the sale -deed in respect of plot no.1 in her favour on 25th October, 1985. Smt. Vijaya/the respondent no.9 sold the plot no.1 to Smt. Taradevi/wife of respondent no.10 by the sale -deed dated 30th January, 1986. Smt. Taradevi constructed the house on plot no.1 after obtaining sanction to the plan of construction on 20th December, 1990. The construction of the house was undertaken by Smt. Taradevi in 1991 -1992. According to the respondents 11 and 12, Smt. Taradevi had mortgaged the suit property with the State Bank of India, Industrial Finance Branch in 1992 -1993 while furnishing the guarantee for the amount of loan taken by M/s. SMS Wires Private Limited. Smt. Vijaya/the respondent no.9 was impleaded as party to the dispute on 4th November, 1989. The respondent no.10/Kishorekumar is impleaded as party to the dispute on 31st October, 2003. The respondents 11 and 12 purchased the suit plot from the legal heirs of Smt. Taradevi by the sale -deed registered on 20th March, 2006. According to the respondents 11 and 12, the suit property is purchased by them with knowledge of the State Bank of India and the amount of purchase price was directly deposited with the State Bank of India to clear the amount of loan for which the property was mortgaged with the State Bank of India. The case of the respondents 11 and 12 is that they were not aware about the pendency of the dispute filed by Shri Jagannath. The Co -operative Court allowed the dispute by the order dated 12th December, 2008. The appeal came to be filed by the Society before the Co -operative Appellate Court challenging the order passed by the Co -operative Court. The respondents 11 and 12 were not impleaded as party in the appeal. The appeal filed by the Society came to be dismissed on 30th June, 2010. The respondents 11 and 12 got knowledge about the order passed by the Co -operative Court and the dismissal of the appeal filed by the Society and as the above mentioned orders adversely affected the respondents 11 and 12, they filed Writ Petition No. 3395/2011. The Society has filed the Writ Petition No. 1181/2011 challenging the orders passed by the Co -operative Court and the Co -operative Appellate Court.
(3.) THE learned advocates appearing for the respective parties have made elaborate submissions. The respondents 11 and 12 have taken preliminary objection to the maintainability of Writ Petition No. 3395/2011. Shri Madkholkar, the learned advocate for the respondents 2 to 8 submitted that the Writ Petition No. 3395/2011 is not maintainable and the respondents 11 and 12 have no locus to maintain the petition as they have purchased the suit property during the pendency of the dispute. It is submitted that the respondents 11 and 12 are bound by the order passed by the Co -operative Court and they are not having independent right de hors their predecessor in title. The learned advocate for the respondents 2 to 8 relied on the following judgments : (i) Judgment given in the case of A. Nawab John and others V/s. V.N. Subramaniyam reported in : (2012) 7 SCC 738, (ii) Judgment given in the case of Jasbhai Motibhai Desai V/s. Roshan Kumar, Haji Bashir Ahmed and other reported in : AIR 1976 SC 578(1), (iii) Judgment given in the case of Thomson Press (India) Limited V/s. Nanak Builders and Investors Private Limited and others reported in : (2013) 5 SCC 397, (iv) Judgment given in the case of Ravi Yashwant Bhoir V/s. District Collector, Raigad and others reported in : 2012(4) SCC 407, (v) Judgment given in the case of Ayaaubkhan Noorkhan Pathan V/s. State of Maharashtra and others reported in : 2013(4) Mh.L.J. 561, (vi) Judgment given in the case of A -1 Co -operative Housing Society Ltd. V/s. M/s. R. Jaikishan and Co. and others reported in : 2005(1) Mh.L.J.118, and (vii) Judgment given in the case of Radhey Shyam and another V/s. Chhabi Nath and others reported in : 2015(5) SCC 423. Relying on the above referred judgments, it is submitted that the respondents 11 and 12 have no locus to maintain the Writ Petition No. 3395/2011 and the petition be dismissed. The respondents 3 to 5 had filed Civil Application No. 389/2014 in Writ Petition No. 3395/2011 praying for dismissal of Writ Petition No. 3395/2011. The respondents 3 to 5 had filed Civil Application No. 388/2014 in Writ Petition No. 1881/2011 praying that the Writ Petition No. 1881/2011 be dismissed as the Society had not impleaded the necessary parties before the Co -operative Appellate Court. This Court by the order dated 14th October, 2014 rejected the contentions of the respondents 3 to 5 that the respondents 11 and 12 cannot be said to be "persons aggrieved". This Court concluded that the Writ Petition No. 3395/2011 is maintainable and it will have to be decided on merits. This Court passed an order dated 14th October, 2014 concluding that the failure on the part of the Society to implead the respondents 11 and 12 as party to the appeal before the Co -operative Appellate Court would not affect the maintainability of the appeal and it cannot be said that the appeal was liable to be dismissed for non -joinder of the respondents 11 and 12. In view of the order passed by this Court on 14th October, 2014, the submissions made on behalf of the respondents 2 to 8 that the respondents 11 and 12 do not have locus to maintain the Writ Petition No. 3395/2011, cannot be considered again. The issue has been decided by this Court and it is established law that the decision on an issue during the pendency of the proceedings, operates as res judicata between the parties at the subsequent stages of the proceedings.;