DELHI DAYAL BAGH CO-OPERATIVE HOUSE BUILDING SOCIETY LTD. v. MAHENDRA KUMARI SISODIA

1. The appeal impugns the judgment and decree dated 25th July, 2013 of the Court of Additional District Judge (ADJ)-06, West District, Tis Hazari Courts, Delhi of dismissal of Civil Suit No.49/2012 filed by the appellant Society.

2. The said suit was filed by the appellant Society for permanent and mandatory injunction i.e. to restrain the respondent/defendant No.1 from raising construction on plot No.B-19 in the colony of Soami Nagar, New Delhi and for directing the respondent/defendant No.2 Municipal Corporation of Delhi (MCD) to stop all construction activities on the said 2013:DHC:5753 plot of land.

3. The appellant Society claimed the aforesaid reliefs on the premise that the appellant Society having developed the colony of Soami Nagar had having allotted the plots therein to its members, no transferee from such members could hold or enjoy the plot without becoming a member of the appellant Society and since the respondent/defendant No.1, though a transferee/purchaser of plot No.B-19 had not become a member of the appellant Society, was not eligible to become a member, he was not entitled to raise any construction thereon.

4. The learned ADJ has dismissed the suit holding that the appellant Society had no subsisting right in the said plot after the execution of deed of freehold rights in the land underneath said plot in the name of the predecessor in interest of the respondent/defendant No.1 and that there was no necessity for the respondent/defendant No.1 to become the member of the appellant Society to own the said plot of land. It was also found that the construction being raised by the respondent/defendant No.1 on the said plot of land was in accordance with the plans sanctioned by the respondent/defendant No.2 MCD.

5. The counsel for the appellant Society on enquiry, whether not the construction already stands completed, confirms the same but contends that the grievance of the appellant Society is qua the findings in the impugned judgment, of the appellant Society having no subsisting right in the said plot of land and of there being no need for transferees of plots of land in the said colony to become a member of the appellant Society.

6. It has however been enquired from the counsel for the appellant Society, whether not the said issue already stands settled in other cases which have come up before this Court with respect to the other plots in the said colony.

7. The counsel for the appellant Society confirms and has in this regard referred to Delhi Dayalbagh Cooperative House building Society Ltd. Vs. The Registrar Cooperative Societies 195 (2012) DLT 459 (DB).

8. On further enquiry, he confirms that the challenge to the said judgment to the Supreme Court already stands dismissed.

9. The counsel for the appellant Society however refers to the judgment of the Supreme Court in Civil Appeal No.1551/2000 titled Zoroastrian Cooperative Society Vs. District Registrar Cooperative Societies.

10. Even if that be so, the counsel confirms that the Division Bench of this Court considered the matter relating to the appellant Society and the colony developed by the appellant Society after the said judgment in Zoroastrian Cooperative Society (supra) and thus it cannot be said that any different view can be taken in this appeal.

11. I am of the view that the appellant Society cannot repeatedly raise the issue which has been raised in this appeal with respect to each and every plot of land in the colony developed by the appellant Society and once the legal question has been adjudicated with respect to the other plots in the colony, cannot be re-agitated.

12. In view of the aforesaid, the appeal is dismissed in limine with no order as to costs. Decree sheet be drawn up.

RAJIV SAHAI ENDLAW, J. NOVEMBER 11, 2013 bs