D.L.MEHTA - (1.) THIS revision petition is directed against the order dated 21st Feb., 1984 passed by the Learned Additional District Judge No.2, Jaipur city Jaipur, in Civil Miscellaneous Appeal confirming the order of the Additional Munsif Magistrate No.8,Jaipur City, Jaipur, dated 15.10.82.
(2.) PLAINTIFF-non-petitioner instituted a suit against the defendant- petitioner for the grant of permanent injunction in the court of Munsif Magistrate No.2, Jaipur City. The suit was instituted on the ground that plot No.95 was allotted to him by Gulab Bari Bhawan Nirman Sahkari Samiti, Jaipur. It is alleged that defendants obstructed the construction and as such, the suit was instituted. In the suit application under Order- 39 Rule 1 and 2 was also submitted. Defendants have come with a case that this very pieces of land was allotted to them prior to the allotment which is said to have been made in favour of the plaintiff. Defendant has also produced photostat copy of the Patta or allotment letter issued in his favour. PLAINTIFF has also produced the original Patta/allotment letter in his favour. Learned Magistrate directed vide his order dated 15.10.82 that both the parties should not construct on the disputed piece of land and should maintain status-quo. This order of the learned Munsif was also upheld by the appellate court. One of the questions involved in this revision petition is about the jurisdiction of the Court. Mr. Bajrang Lal Sharma, appearing on behalf of the petitioner, invited my attention to Rule- 2 (m) of the Rajasthan Co-operative Societies Rules, 1966 and submitted that the Housing Co-operative Society means the society the object of which is providing members with dwelling houses or the construction of houses for its members and for financing the construction of houses by its members. He submitted that it is a inter se dispute between the parties, namely, the members of the Society and Section 75 of the Rajasthan Cooperative Societies Act, will come into play as any dispute touching the, Constitution, management or the business of the Cooperative Society arises among the members will have to be decided under the provisions of Sec. 75 of the Cooperative Societies Act. Under Rule 2 societies have been defined. In the definition clause of most of the Societies the word 'means' has been used to indicate that the definition of the Society so defined is exhaustive. Under Rule 9, the Societies are classified and sub-classified by the Registrar. Housing Society has been sub-classified as tenant, ownership Housing Society, tenant Co-partnership Housing Society and other Housing Societies. As far as tenant Ownership Housing Society or Tenant Co-partnership Society is concerned the land is held either on lease hold or on free-hold basis by the Societies, it excludes the land which is said to have been held or being held under the agreement of sale. It will not be out of place here to mention that from the perusal of rule 2(m) read with Rule-9 sub-clause (5) relating to the classification the land is not held independently by the allottee on lease-hold or free hold. It is only held by the society and its allottee for use and occupation with some other rights. From the record available it is not clear under which clause of Rule-9 the Society has been registered from the perusal of rule 9 it is also clear that allottee cannot be the lease holder. A society can only be lease holder. This Court in the case of Smt. Kusum Gupta v. State of Rajasthan (D.B.Civil Writ Petition No.2185/88) decided on 17.4.89, has held, though on different grounds, that the agreement to sell does not create any interest or title in the Society unless, decree for specific performance is obtained and the contract is specifically performed. The definition of Rule 2(m) read with Rule-9 of the Rules particularly, clauses (b) and (c). does not allow the tenant to be the lease holder or free holder of the land on which the houses are to be constructed. The tenant may have a right on the house or might to a limited extent with the permission of the Society, but the person cannot have a lease hold or free hold right on the land. Under role 9 of the Rules, the Housing Society must be lease- holder or the free holder in the land which is to for construction on of house may be owned or re-owned by the members. In the absence of the Society it is very difficult to determine the matter of inter se dispute between the parties. The second question which needs determination is whether the plot in dispute has been allotted to the plaintiff or the defendant and, if so, under what terms and conditions. The third question which needs determination is the right of the allottee and the meaning of the word "allotment". In ordinary parlance the word 'allotment' is understood as a distribution out of the lot to its members. The nature of the distribution, the character of the distribution, class of the distribution may differ in the circumstances of each case and may create in some cases, narrow interest of the allottees and in some cases, wider interest of the allottees.
(3.) IN the result, the revision petition is accepted. The court below and the authorities concerned are directed to produce the bye-laws of the Society, the Registration Certificate of the Society or the copy thereof for the proper determination of the dispute in question. Court below shall also be informed by the parties whether the land is a lease-hold land or a free-hold land by the Society or not. It not, in what capacity and in what manner the Society is holding the land and has distributed by way of allotment of the plots. The court below should also issue a notice to the Society of which the petitioners are members. The parties, if they so choose, may implead the Society, to show cause whether the land is held by it is a free-hold or a lease hold land and, if not, in what manner it has held the land and how the title or right has accrued in favour of the Society. Taking into consideration all the facts and circumstances the trial court should determine whether this case should be referred under section-75 of the Cooperative Societies Act or not and should pass necessary orders according to law. The trial court is further directed to dispose of this application within four months from today. Record of the trial court may be sent back immediately. Parties are directed to appear before the trial court on 2nd November 1989. However, it is observed that the status-quo as it exists today shall be maintained. The orders of the Trial court as well as the appellate court are set aside. Trial court shall pass necessary order afresh after hearing the Society and the parties concerned taking into consideration the Constitution, bye- laws of the Society and the rights of the parties. Revision petition is disposed of accordingly. No order as to costs. ;