Aarti Sathe, J.

1. This Letters Patent Appeal is directed against the judgment and order dated 13th June 2011 (hereinafter referred to as the impugned order) passed by Learned Single Judge in Writ Petition No. 1461 of 2011 disposing of the Petition filed by Appellant No. 1 on the ground that the order which was under challenge in the said Petition in no way prejudices Appellant No. 1, and hence the said Petition was not entertained with the findings made therein (which are reproduced later at the relevant paras). By the impugned order, Appellant No. 1 was directed to pursue his rights in respect of the flats in dispute, in the appropriate/competent forum and raise all contentions therein regarding his rights, title, and interest in the said flats.

2. This is a classic case where the rights of the legitimate/rightful owner of the flat/premises have been grabbed on account of the perpetration of illegalities on the part of Appellant No.1, which has caused extreme hardship and grave prejudice to Respondent No. 5. Respondent No. 5, who is a government employee and was rightfully entitled to Flat No. 702, and had spent his entire life savings to purchase the same has been dragged into this unfortunate litigation for the last several years only on account of the illegal and mischievous means adopted by Appellant No.1, who does not have any legal right insofar as the said flat is concerned. This to our mind is a very unfortunate situation and an abuse of the machinery of Courts which has been adopted by Appellant No.1.

3. Briefly the facts of the case are as follows:

                   i. Appellant No. 1 is a citizen of India and claims to be the owner of flats bearing numbers 701 and 702, (jointly admeasuring 1500 sq. ft.) on the seventh floor of the Respondent Society. Appellant No. 2 is a person of Indian origin holding British citizenship and PIO card and is a licensee of Flat No. 702, which Appellant No. 1 claims to be the owner of since 5th November 2009.

                   ii. Respondent No. 2 is the registered Society (hereinafter referred to as the “Respondent Society”), namely Suyog Darshan Co-operative Housing Society Limited, (registration number BOM/WK/W/HSG/TC 7028 of 1992-93), where the aforesaid flats bearing numbers 701 and 702 are situated. These flats have been allocated to the aforesaid Respondent Society by the Collector of Mumbai, Suburban District, Government of Maharashtra. Respondent No. 3 is the Honorary Secretary of the Respondent Society. Respondent No. 4 is the Court Receiver appointed by Respondent No.1 in Appeal No. 34/2009, vide order dated 30th November, 2010. Respondent No. 5 who was earlier allotted Flat No. 402 in the Respondent Society and to whom Flat No. 702 has been allocated is the person who claims to be entitled to the said flat. Respondent No. 6 is the previous owner of Flat No. 701 from whom Appellant No. 1 had purchased the aforesaid flat which Appellant No. 1 claims measured 1500 sq. ft.

                   iii. On 17th August 2001, Respondent No. 6, the previous owner i.e. Mrs. Snehalata Jaiswal was allotted Flat No. 701 in the Respondent Society. On 23rd August 2001, an NOC was issued in favour of Respondent No. 6 i.e. Mrs. Jaiswal, whereby she was allowed permission to obtain loan from the Corporation Bank, Mahim Branch by mortgaging Flat No. 701.

                   iv. On 2nd March 2004, the Respondent Society had issued a letter and two receipts confirming receipt of all the outstanding dues from Respondent No. 6 and directed the site in charge at the Society premises to hand over keys and possession of Flat No. 701 to Respondent No. 6.

                   v. It is Appellant No. 1's contention that on 3rd September 2001, Respondent No. 6 had misplaced the original letter of allotment and the share certificate. Therefore, a public notice was issued by Respondent Society on 3rd September 2001 and thereafter a duplicate share certificate and letters of allotment were issued to Respondent No. 6.

                   vi. On 17th December 2003, the office of the Collector, Mumbai Suburban District had recorded that the Respondent No. 6 is eligible to become a member of the Respondent Society and has approved her membership in the Respondent Society.

                   vii. On 31st December 2007, Appellant No. 1 obtained the approval from the office of the Collector, Mumbai Suburban District for the transfer of Flat No. 701 from Respondent No. 6 to Appellant No. 1 and for including Appellant No. 1 as a member of the Respondent Society.

                   viii. On 16th January 2008, Appellant No. 1 purchased Flat No. 701 from the Respondent No. 6 by an agreement of even date bearing registration No. BDR/15/437/2008 after clearing the pending dues owed to the Corporation Bank and after obtaining its NOC for the said sale and conveyance.

                   ix. On 5th June 2008 and 25th June 2008, Appellant No. 1 paid a total sum of Rs. 3 lakhs towards maintenance charges to the Respondent Society through two cheques, but the Respondent Society failed to issue due receipts in respect thereof is the contention of Appellant No. 1. Thereafter, sometime in July 2009 and November 2009, Appellant No. 1 issued two legal notices of even date to the Chairman and Secretary of the Respondent Society and to the Deputy Registrar of Cooperative Societies, K- West Ward, Bandra East, Mumbai – 400051 asking for the receipts and for certain other documents and all of these persons have acknowledged receipt of the said notices but have not sent a reply.

                   x. It is Appellant No. 1's contention that Appellant No. 1 undertook interiors and repair work of the entire Flat No. 701 admeasuring 1500 sq.ft and thereafter separated it into two flats which would become Flat Nos. 701 and 702. It is the contention of Appellant No. 1 that Appellant No. 1 retained the two- bedroom portion i.e. Flat No. 701 for his personal use and gave Flat No. 702 on leave and license basis.

                   xi. Further, it is the contention of Appellant No. 1 that on 15th May 2008, Appellant No. 1 gave Flat No. 702 under a Leave and License Agreement dated 15th May 2008 to one Hemant Arya for 11 months from 15th May 2008 to 14th April 2009. The said Hemant Arya was also granted permission for parking his vehicle in the premises of Respondent Society who had acknowledged receipt of the charges from the said licensee of Flat No. 702.

                   xii. Further, on 5th November 2009, Appellant No. 1 gave Flat No. 702 on leave and license basis under a registered Leave and License Agreement of even date for 11 months from 15th November 2009 to 14th October 2010, to one Mr. Kayur Shastri i.e. Appellant No. 2 which was extended for a further period of 11 months from 15th October 2010 to 14th September 2011. It is Appellant No. 1's contention that post purchase of the flat in 2008, which Appellant No. 1 claims is a composite flat comprising Flat Nos. 701 and 702 being the disputed flats, no dispute was raised by the office bearers of the Respondent Society in respect of the right or title of the Appellant No. 1 in respect of the said flats. It is only sometime later that the Respondent No. 3, i.e, the Secretary of the Respondent Society is stated to have raised illegal and untenable claims for payment of substantial sums of money in cash from Appellant No. 1 is the contention of the Appellant No. 1.

                   xiii. Respondent No. 3 also lodged false police complaints as contended by Appellant No. 1, against Appellant No. 1 at Versova police station which were not acted upon and/or not accepted. Appellant No. 1 has stated that he also was called upon to hand over a copy of his registered sale deed dated 16th January 2008 to Respondent No. 3 in the said police station, which Respondent No.3 has acknowledged as per Appellant No. 1.

                   xiv. Sometime in 2008-2010, Appellant No. 1 obtained electricity connection, gas connection, telephone connections, etc. for the said flats and the Respondent Society and Respondent No.3 were fully aware of the ownership of the said flats vesting with Appellant No. 1 and that Appellant No. 2 was occupying Flat No. 702 as a licensee of Appellant No. 1.

                   xv. It is also Appellant No. 1's contention that Appellant No. 1’s brother is the owner of Flat No. 705 in the Respondent Society and he has also paid the maintenance charges to the Respondent Society and that the Respondent Society and its office-bearers are fully aware of the ownership of Appellant No. 1’s brother of Flat No. 705.

                   xvi. Sometime in 2010, Appellant No. 1 was made aware by the security person of the Respondent Society that some people were allegedly trying to break the locks of the said flats. It is Appellant No. 1's contention that since he was traveling out of Mumbai, he requested his brother to verify the aforesaid situation. It is on Appellant No. 1’s brother reaching the premises that he found out that the said flats had been broken into by certain people and the Court Receiver had taken possession pursuant to the order dated 30th November 2010 passed in Appeal No. 34 of 2009 filed by one Smt. Madhuri Pal.

                   xvii. A copy of the order dated 30th November 2010 passed by the Co- operative Appellate Court was handed over to Appellant No. 1 whereby the Court Receiver was appointed to take forcible possession of Flat No. 702. It is Appellant No. 1's contention that it is only after this incident that Appellant No. 1 came to know about the pendency of some legal proceedings before the City Civil Court and the Maharashtra State Cooperative Appellate Court at Mumbai (hereinafter referred to as the “Appellate Court”) in Appeal No. 34 of 2009, wherein the order dated 30th November 2010 was passed appointing the Court Receiver.

                   xviii. Appellant No. 1 further came to know that sometime in 2004, the new office-bearers of the Respondent Society had filed Suit No. 5751 of 2004 before the Bombay City Civil Court at Greater Bombay against the original owner i.e. Respondent No. 6, her family members and their driver Mr. Liaqat Ali, questioning their ownership of Flat No. 701. In 2008, a notice of motion filed by the Respondent Society in the aforesaid suit was dismissed, which the advocates for the original owner, Respondent No. 6, had intimated to the Senior Inspector, Versova Police Station. Further, Suit No. 5751of 2004 was dismissed on 14th June 2010.

                   xix. On 21st January 2009, an order of even date was passed by the Learned Fourth Judge Cooperative Court at Mumbai in Case No. IV/ 294/2005 on the dispute raised by Respondent No. 5 i.e., Mohan R. Kubal in the aforesaid forum. By way of the said order dated 21st January 2009, the Respondent Society and one Smt. Madhuri Pal residing in Flat No. 402 were directed to handover the vacant and peaceful possession of Flat No. 402 or any other flat of the same area in the Respondent Society within 2 months from the date of the said order to Respondent No. 5.

                   xx. Being aggrieved by the aforesaid order dated 21st January 2009 Smt. Madhuri Pal filed an appeal bearing No. 34/2009 before the Appellate Court wherein the following order dated 11.06.2010 was passed-

                   “1) Appeal No.34 of 2009 shall stand disposed of in the following manner:

                   2) The respondent No.2 herein i.e. society Suyog Darshan Co-operative Housing Society Ltd., situated at. Building No.5, Survey No.83 of Yari Road, Varsova Andheri (W) Mumbai 400061 is directed to handover vacant and peaceful possession of Flat No.702 to the respondent No.7, Mir. Mohan R Kubal immediately on receipt of this order or in any case within a week from the date of communication of this order.

                   3) The Respondent No. 1 shall pay maintenance and other charges of the society w.e.f. the date on which vacant and peaceful possession is handed over to him of Flat No.702 to the society regularly.

                   4) In case, society fails to handover vacant and peaceful possession of Flat No.702 as per clause-2 hereinabove and within the time stipulated hereinabove, the Court Receiver, High Court, Bombay shall stand appointed as Receiver in respect of this Flat No.702 with all powers under Order XXXIX Rule 1 of Civil Procedure Code and the Court Receiver shall take possession from the society and hand it over to respondent No.1 within seven days of the date of taking over possession from the society: After the Receiver hands over the possession of the Flat No. 702 to the responent No.1,the Court Receiver shall, stand discharged without passing any accounts and subject to payment of the cost Receiver commission charges.

                   5) The Court Receiver shall make formal inventory of the articles and things lying and being in Flat No.702 at the time of taking the possession from the society, if any articles are lying there.”

                   (emphasis added)

                   xxi. It was further directed that in the event the Respondent Society failed to handover such possession, then a Court Receiver would be appointed to take possession of the said flats. It is Appellant No. 1's contention that he was not made a party to the said appeal and no notice was issued to him or any hearing given to him at the time of hearing the said appeal.

                   xxii. On 28th October 2010, Court Receiver was appointed pursuant to the order dated 11th June 2010. The Court Receiver made a report that the said flat was in the possession/ occupation of some unknown persons. It is Appellant No. 1's contention that the Appellate Court still did not issue any notice to Appellant No. 1 before ordering possession by forcible means under the order dated 11th June 2010.

                   xxiii. Further, on 30th November 2010, the Appellate Court passed further orders pursuant to the order dated 11th June 2010 referred to in para (xx) hereinabove, again appointing another Court Receiver (Respondent No. 4) for taking possession of the said flat i.e. Flat No. 702 through forcible means and if required, to take assistance of the Senior Inspector, Versova Police Station. It is Appellant No. 1's contention that even at such point of time, no notice was issued to the unknown persons reported to be in occupation of the said flat i.e. Flat No. 702.

                   xxiv. On 6th December 2010, pursuant to the order dated 30th November 2010, Respondent No. 4 submitted a further report setting out the inventory of articles of "other persons" lying in the said flat i.e. Flat No. 702.

                   xxv. Another order was passed dated 6th December 2010 directing Respondent No. 4 to move all articles in Flat No. 702 and also to seal the said premises.

                   xxvi. It is Appellant No. 1's contention that none of the above actions, notices, / orders which have been passed by the Appellate Court have been passed by giving any notice to Appellant No. 1.

                   xxvii. Sometime in December 2010, Appellant No. 1 obtained all the copies of the relevant documents and filed M.A. 151/2010 before the Appellate Court, for the relief prayed therein, including for recall, review and/or amendment of the orders and directions in the orders of the Appellate Court dated 11th June 2010, 28th October 2010, 30th November 2010, and 6th December 2010 praying that Appellant No. 1 be put in possession of Flat No. 702, i.e. the said flat.

                   xxviii. It is Appellant No. 1’s contention that the Appellate Court on 22nd December 2010 rejected M.A. 151of 2010 filed by Appellant No. 1 on untenable grounds and without affording a proper hearing and Appellant No. 1 was permitted to remove the articles kept under lock-in seal from Flat No. 702.

                   xxix. It is Appellant No. 1's contention that the order of the Appellate Court illegally dispossessing Appellant No. 1 from his own flat amounted to the Appellate Court deciding on issues of ownership, title and rights of possession in an appeal which did not pertain to the Flat Nos 701 and 702.

                   xxx. Being aggrieved by the order dated 22nd December 2010, Appellant No. 1 filed Writ Petition No. 1461 of 2011 which came to be disposed of by the impugned order dated 13th June 2011 which is challenged in the present Letters Patent Appeal.

                   xxxi. On 30th August, 2011, a Division Bench of this Court admitted the present Letters Patent Appeal. Further an ad-interim order was also granted pending the hearing of the present Letters Patent Appeal. Thereafter, this matter came up before this Court on several occasions and the Appeal was dismissed for non-prosecution on 14th February, 2024 by this Court. However, the Appeal was restored by order of this Court dated 6th September 2024.

4. It is in the backdrop of these facts, the issue which has fallen for consideration in the present appeal is whether the Learned Single Judge was in any error in passing the impugned order and disposing of the Petition with the findings that Appellant No. 1 could pursue appropriate remedies before the appropriate/competent forums.

5. We have heard Mr Mandar Soman for Appellant No. 1, Mrs M.P. Thakur, AGP for the State, i.e., Respondent No. 1 as well as Mr Vinod L. Desai for Respondent No. 5. We have perused the papers and proceedings and the impugned order passed by the Learned Single Judge.

6. Mr. Mandar Soman, Learned Counsel for Appellant No. 1 contends that the impugned order has to be quashed and set aside inasmuch as the said order has not taken into consideration that the entire trial before the Appellate Court was vitiated by fraud and orders were passed in violation of the principles of natural justice. The primary contentions of Learned Counsel, Mr. Soman can be summarised as below:-

                   i. Appellant No. 1 was not a party to the dispute before the Co- operative Court and Appellate Court and hence passing an order affecting the rights of Appellant No. 1 is in violation of the principles of natural justice and therefore the impugned order in the Writ Petition needs to be quashed and set aside.

                   ii. Further an unfair trial and a fair Appeal does not cure the defect of principles of natural justice being denied in the Trial Court.

                   iii. The order before the Appellate Court was obtained by the Respondent Society by fraud, as it supressed the dismissal of Suit No. 5751 of 2004, claiming ownership of Flat No. 701, and hence the orders before the Appellate Court was obtained by fraud.

7. On the other hand, Learned Counsel, Mr Vinod Desai on behalf of Respondent No. 5 contended that the impugned order passed by the learned Single Judge was a well-reasoned order and passed on an appreciation of the correct facts and legal position.

8. He has further submitted that disputed questions relating to the title of property cannot be gone into or adjudicated in Writ proceedings and therefore the impugned order has to be upheld. Learned Counsel, Mr Thakur on behalf of Respondent No. 1 State has supported the submissions made by Learned Counsel on behalf of Respondent No. 5. They also adopted submissions made by them in the respective affidavits filed by them in Writ Petition No. 1461 of 2011.

9. He further submitted that in the affidavit of rejoinder filed by Respondent No. 5 in Writ Petition No.1461 of 2011, a copy of approved plan of the Respondent Society had been produced, which shows the dimensions of the two flats as follows:-