K.T. Mathew and Paul Sudhakaran v. Cochin Shipyard Staff Co-operative House Construction Society Ltd. and others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE SATHISH NINAN** **TUESDAY, THE 10TH DAY OF MARCH 2020 / 20TH PHALGUNA, 1941** ## **RSA.No.12 OF 2020** **AGAINST THE JUDGMENT AND DECREE PASSED BY THE I ADDITIONAL SUB COURT, ERNAKULAM IN AS NO.19/2017 DATED 21.03.2019 REVERSING THE JUDGMENT AND DECREE PASSED BY THE II ADDL. MUNSIFF'S COURT, ERNAKULAM IN OS NO.492/2014 DATED 28.02.2017** **-----** ## **APPELLANTS/RESPONDENTS 1 & 3/DEFENDANTS 1 & 3:** **1 K.T.MATHEW, AGED 68 YEARS, S/O.LATE K.N.THOMMAN, KIZHAVANA HOUSE, VII/583-A, VIKAS NAGAR, KUNDANNUR, MARADU P.O., KOCHI - 682 304. 2 PAUL SUDHAKAR, AGED 59 YEARS, S/O.LATE K.SUDHAKARAN, PAVITHRAM, X/543, VIKAS NAGAR, MARADU, ERNAKULAM - 682 304.** **BY ADVS. SRI.A.BALAGOPALAN SRI.M.N.MANMADAN SRI.M.S.IMTHIYAZ AHAMMED SMT.P.SEENA SRI.A.RAJAGOPALAN** ## **RESPONDENTS/APPELLANT & RESPONDENTS 4 TO 7/PLAINTIFF AND ADDL. DEFENDANTS 4 TO 7:** **1 COCHIN SHIPYARD STAFF CO-OPERATIVE HOUSE CONSTRUCTION SOCIETY LTD. NO.E-346, REP. BY THE SECRETARY A.V.SASI, AGED 55 YEARS, S/O.VELU, RESIDING AT DEEPAK NIVAS, PANAMPILLY NAGAR, ERNAKULAM - 682 036.** > * **2 B.MADHAVAN NAIR, (DELETED) AGED 74 YEARS, S/O.E.BHARGAVAN NAIR, VAIKUNTAM, VIKAS NAGAR, KUNDANNOOR, MARADU P.O., MARADU - 682 304.** **3 S.RATNAKARAN, AGED 76 YEARS, S/O.SHEKARAN, ASWATHY HOUSE, VIKAS NAGASR, MARADU, ERNAKULAM - 682 304.** **RSA.No.12 OF 2020 -2-** **4 M.K.DIVAKARAN, AGED 74 YEARS,S/O.VELAYUDHAN, HOUSE NO.XVI/201, OLIPPILAKKATTU HOUSE, VIKAS NAGAR, KUNDANNOOR, MARADU P.O., MARADU - 682 304.** **5 SUKUMARAN.S, AGED 73 YEARS, S/O.SEKHARAN, SREEVALSAM, VIKAS NAGAR, KUNDANNOOR, MARADU P.O., KOCHI - 682 304.** * **(RESPONDENT NO.2 IS DELETED FROM THE ARRAY OF PARTIES AT THE RISK OF APPELLANTS AS PER ORDER DATED 19.02.2020 IN IA.3/2020)** **R1 BY SRI.C.S.AJITH PRAKASH, SC, COCHIN SHIPYARD STAFF CO.OP SOCIETY R1 BY ADV. SRI.T.K.DEVARAJAN R1 BY ADV. SMT.T.N.SREEKALA R1 BY ADV. SRI.PAUL C THOMAS R1 BY ADV. SRI.FRANKLIN ARACKAL R1 BY ADV. SRI.M.B.SOORI R1 BY ADV. SHRI.BABU M. R1 BY ADV. SRI.K.V.SADANANDA PRABHU R3-5 BY ADV. SRI.PRAKASH P.GEORGE** **THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON 09-03-2020, THE COURT ON 10-03-2020 DELIVERED THE FOLLOWING:** ## **SATHISH NINAN, J.** ## **= = = = = = = = = = = = = = = = = = RSA No.12 of 2020** ## **= = = = = = = = = = = = = = = = = = Dated this the 10[th] day of March, 2020** ## **JUDGMENT** The suit for prohibitory injunction against trespass was dismissed by the trial court. The decree was reversed in appeal. Aggrieved, defendants 1 to 3 are in second appeal. 2. The plaint schedule property has an extent of 8 cents. A larger extent of 8 acres and 65 cents, of which the plaint schedule is a portion, was purchased by the plaintiff Society under Ext.A2 series sale deeds of the year 1982. The property was purchased for the purpose of house plots for its members. Out of the 8.65 acres of property an extent of 6.50 acres was divided into plots and was allotted to its members. The remaining 2 acres 15 cents was kept apart for inner roads and for 4 plots; out of the 4 plots, 2 were earmarked for construction of shops and the remaining two were open space. The dispute is regarding one of such plots which was kept as open space. The plaintiff RSA No.12 of 2020 :- 2 :- Society wants to utilize the said plot for some income generating purpose whereas the defendants contend that the same is to be left open for use as recreation area. 3. The trial court found that the allottees have contributed money towards the purchase of the vacant plots, that they are co-owners, and therefore, without their junction, the same cannot be used for any other purpose. The lower appellate court found that the title over the property vests with the society and accordingly granted a decree. 4. Heard learned counsel Sri.A.Balagopalan on behalf of the appellants-defendants 1 to 3, Sri.Sadananda Prabhu on behalf of the first respondent-plaintiff and Sri.Prakash.P.George on behalf of respondents 3 to 5-defendants 4 to 7 on the following substantial questions of law:- _(i) When the materials on record indicate contribution of_ _purchase price for the property including the plaint schedule by all the plot owners including the defendants, was the lower appellate court right in interfering with the_ RSA No.12 of 2020 :- 3 :- _finding of the trial court that the defendants are coowners of the property?_ _(ii)If the plaint schedule was described as an “open space” in_ _the housing scheme, is the plaintiff entitled to deviate from the scheme and use it for other purpose after selling out the other plots? Did not the trial court and the first appellate court err in not considering the same?_ 5. That title over the property vests with the plaintiff Society is beyond challenge. Ext.A2 series are the sale deeds in favour of the plaintiff Society whereunder the property was purchased. Though the defendants claimed that they have paid for the vacant lands including the plaint schedule property, no material in the said regard is before the court. The accounts are not produced or caused to be produced. Even assuming that they have contributed for the same, the title having been procured in the name of the Society, they cannot claim any manner of right over the property. The learned counsel for the appellants-defendants fairly concede that none of the sale deeds in RSA No.12 of 2020 :- 4 :- favour of the allottees refer to any common area or amenities and right over the same. A co-operative Society is a legal person, and is separate and distinct from its members. The property of the Society does not belong to the members, but to the Society, though such members have interest in the Society [See Regional Director, Employees State Insurance Corporation, Thichur v. Taj Textiles Industrial Co-operative Society Ltd, Calicut (1980 KLT 199) , Kunnathunad C.S.Co-operative Society v. Regional Director (1989 (1) KLT 506) ]. The grievance, if any, of defendants as members of the Society as against the Society, alleging violation of the bye-laws is a matter to be agitated before the appropriate forum under the Co-operative Societies Act. Suffice to hold that, title over the property vests with the Society and the defendants are not co-owners. Substantial question of law (i) is answered against the appellants. 6. The next question that crops up for determination is whether in the Scheme floated by the plaintiff the plaint schedule was earmarked as, RSA No.12 of 2020 :- 5 :- “vacant plot” and if so is the plaintiff entitled to change its user. In relation to the same, I find the following pleadings in the written statement to be of relevance:- _“Thereafter, a scheme plan [lay out] of the property was prepared by the plaintiff society and notified for the verification of the members. As per the layout, 105 plots were earmarked for allotment. That apart, two open spaces were provided for recreation purposes of the members and two plots were earmarked for constructing shops to facilitate marketing needs of the members who purchased plots. That apart, roads having a width ranging from 5.3 metres and 9 metres were also formed for the exclusive use of the members. The roads were formed in such a way that all the plots will get frontage of the roads. As per Circular No.CHS/220/85 dated 20.02.1985 notifying the scheme plan, the society requested the scheme members to exercise their option for allotment of plot considering the proximity of the common facilities. Different price per cent was also fixed for plot in four different zones. Plots were thereafter allotted by draw of_ RSA No.12 of 2020 :- 6 :- ## _lots on 09.03.1985._ _It is respectfully submitted that though the total extent of property purchased and developed by the plaintiff society with the funds of the members was 8.65 acres, 6.50 acres alone was used for allotment to the members. The remaining 2 acres and 15 cents was kept as common property of the members for forming roads, creating two parks for recreational purpose and two shop spaces to meet marketing needs of the members. The plaint schedule property is a portion of the area earmarked for the recreational purpose of the allottees. As the plaintiff society was formed for the betterment of its members and the common areas like the plaint schedule property were earmarked and kept for the benefit of the entire allottees, the plaintiff society was entrusted to look after the same._ _The project by name, “Vikas Nagar Housing Colony” was completed in the year 1985. It is respectfully submitted that the detailed scheme plan [layout] was prepared taking into consideration of the requirements projected by the members who got allotment in the project, particularly in respect of the common facilities_ RSA No.12 of 2020 :- 7 :- _such as roads, open spaces for recreation, shop spaces, etc. The aforesaid scheme plan [layout] was prepared and signed by all the 11 directors of the plaintiff society. The open spaces for park/recreation purpose were provided like the one provided in Krishna Vihar Housing Colony, the first project of the plaintiff society. The lay out of Krishna Vihar Housing Colony was treated as a guideline for formulating the scheme plan [layout] of Vikas Nagar Housing Colony (phase II project) also. The allottees had to incur additional expenditure per cent on account of the improved level of common facilities exclusively earmarked for the convenience, comfort and enjoyment of the allottees. In this connection, it is worthwhile to note that the plaintiff society has not incurred any amount either for purchasing the entire property or for its development and for providing the common facilities._ _There are common facilities such as two parks/open spaces and two spaces for constructing shop buildings and internal roads earmarked in the scheme plan which is part of the housing scheme notified by the society prior to plot allotment. The reservation of areas as_ RSA No.12 of 2020 :- 8 :- _recreational places/parks was made at the time of preparing the layout and done in consultation with the town planning authorities considering the requirement and need for preserving such open spaces for getting fresh air. The scheme plan specifically shows the existence of the open spaces marked with garden flowers. The maintenance of the roads and common amenities are being done by the association. The title deed in respect of the common area was retained with the plaintiff society in accordance with Clause 45 of the byelaws for the purpose of co-ordination. The said aspect was explained to the plot owners during allotment meeting by the then Board of Directors. The scheme plan was approved by all the Board of Directors of the plaintiff Society._ _As stated earlier, the plaint schedule property is a part of 14 cents of property earmarked for recreational purpose of the plot owners.”_ It has been specifically contented that the Scheme provides for “open space” and the attempt is to change its user. Though there is no specific plea of estoppel in so many words, that appears to be the tenor of the claim. Issue no.2 raised for trial RSA No.12 of 2020 :- 9 :- ## reads thus:- _“Whether the plaint schedule is earmarked_ _for the recreational purpose of the plot owners of the VIKAS Nagar Housing Project?”_ 7. The trial court considered the issue jointly along with issue no.1 regarding the exclusive title of the plaintiff over the plaint schedule. The exclusive title was held against the plaintiff and it was held that the plaint schedule is earmarked for recreational purpose in the Scheme. In my view, the issues are not connected and ought to be separately considered. The effect of such earmarking, if at all it was, is also to be considered. The first appellate court has not considered these aspects but decided the suit on the finding on title alone. In Ext.B4 complaint made by the plaintiff to the Registrar, reference is made to the “open space” in the Scheme. Ext.B14, the Scheme plan signed by the Board members of the Society contains the “open space”. Though the defendants claim that the title deeds of the defendants and the other allottees have Ext.B14 RSA No.12 of 2020 :- 10 :- Scheme plan appended thereto, they have not been produced before the Court. If the open spaces are part of the Scheme and even the conveyances have incorporated the plan, that could be of some relevance and its legal effect needs to be considered. As noticed above, both the trial court and the first appellate court has failed to consider these aspects. I consider it proper to remit the matter to the trial court for disposal de novo. Both parties could be afforded opportunity to amend their pleadings and adduce further evidence; this I feel is necessary for a proper disposal of the suit. The latter portion of the substantial question of law (ii) is thus answered in favour of the appellants. The first portion of the said question of law needs further probe and determination on facts and is left open for consideration by the trial court. 8. In the result, the decree and judgment of the courts below are set aside. The suit is remanded back to the trial court for disposal denovo in the light of the observations made in RSA No.12 of 2020 :- 11 :- this judgment. No costs. Parties to appear in the court below on 30.03.2020. Sd/- **SATHISH NINAN JUDGE** kns/- //True Copy// P.S. to Judge