SOMABHAI BHIMABHAI CHAVDA vs PRAMUKH SHRI RAPAR TALUKA SCHEDULE CAST SAMUDAYIK KHETI AGRICULTURE CO OPERATIVE SOCIETY LTD.
- Court
- Gujarat High Court
C/SA/680/2026 JUDGMENT DATED: 27/10/2026
(GJHC240097212020)
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SECOND APPEAL NO. 680 of 2026
With
CIVIL APPLICATION (FOR STAY) NO. 1 of 2020
In R/SECOND APPEAL NO. 680 of 2026
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE MAULIK J.SHELAT
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Approved for Reporting Yes No
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SOMABHAI BHIMABHAI CHAVDA
Versus
PRAMUKH SHRI RAPAR TALUKA SCHEDULE CAST SAMUDAYIK KHETI
AGRICULTURE CO OPERATIVE SOCIETY LTD. & ANR.
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Appearance:
MS.FALGUNI D.TRIVEDI(3912) for the Appellant(s) No. 1
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CORAM: HONOURABLE MR. JUSTICE MAULIK J.SHELAT
Date : 27/10/2026
JUDGMENT
1. Heard Ms. Falguni D. Trivedi, learned advocate for
the appellant.
2. This appeal is filed under Section 100 of the CPC
arising out of the judgment and decree dated 15.01.2020
th
passed by 10 Additional District Judge at Anjar in
Regular Civil Appeal No.24 of 2018, whereby it confirmed
the judgment and decree dated 04.07.2018 passed by the
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Principal Civil Judge, Rapar, District - Kutchh in Regular
Civil Suit No.40 of 2015.
3. The appellant here is the legal heir and
representative of the original plaintiff, whereas the
respondents herein are original defendants. For the sake
of convenience and brevity, the parties herein after will
be referred as plaintiff and defendants respectively.
SHORT FACTS:
4. The plaintiff claims to be a member of the defendant
– society which allotted the suit land to him for
agricultural activity in the year 1993. It was alleged in the
plaint that the defendant is trying to disturb the
possession of the plaintiff. Consequently, the plaintiff
instituted a suit seeking declaration and injunction that
the he is in possession of the suit land and defendant
No.2 has no right and interest in the suit property. The
defendants appeared and contested the suit. After
framing the necessary issues, ultimately the Trial Court
dismissed the suit. Such dismissal was challenged by
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legal heir of original plaintiff - appellant herein before the
Appellate Court, which after examining all the aspects
involved in the matter, dismissed the appeal vide its
impugned judgment and decree. Hence, this second
appeal.
5. Ms. Trivedi, learned advocate for the appellant has
tried to convince this Court that the Courts below have
committed a serious error in law by not examining the
aspect of possession of the plaintiff and as such
committed an error by dismissing the suit. It is submitted
that the aspect of delay and non-bringing of legal heirs of
the deceased-plaintiff was wrongly examined by the
Appellate Court, otherwise the plaintiff has successfully
proved his case before the Trial Court.
5.1. Ms. Trivedi, learned advocate, would further submit
that so far as the aspect of the jurisdiction of Civil Court
is concerned, the plaintiff is asking for declaration and
injunction as regards to his possession of suit land, it can
only be given by the Trial Court.
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5.2. Making the above submissions, Ms. Trivedi, learned
advocate, would request this Court to entertain this
appeal.
6. Having heard learned Counsel for the appellant at
length, it appears that this Second Appeal is filed against
the concurrent finding of facts recorded by the Courts
below against the plaintiff. Having gone through the
impugned judgment and decree passed by the Courts
below, I am of the considered view that no case is made
out by the appellant for interference of this Court under
Section 100 of the CPC for the following reasons:
(i) It is an undisputed fact that the original plaintiff died
during the pendency of the suit on 31.07.2017 and prior
thereto his affidavit in lieu of examination-in-chief was
filed on 12.01.2017. Nonetheless, the factum of death of
original plaintiff was never brought to the notice of the
Trial Court despite the plaintiff’s said affidavit filed and
due to the death, the plaintiff’s oral evidence could not be
brought on record, inasmuch as his legal heirs (present
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appellant) had not filed any fresh affidavit and made
himself available for cross-examination. Thus, there is no
evidentiary value of the plaintiff’s affidavit in the eyes of
law. (See - Section 3 of the Evidence Act, 1872, Smt.
Sudha Devi vs M.P. Narayanan & Ors reported in
(1988) 3 SCC 366). )
(ii) It is the case of the plaintiff in the suit that he is a
member of the cooperative society. If such would be the
case, as per Section 96 of the Gujarat Co-operative
Societies Act, 1961 (herein after referred to as “the Act,
1961”) read with Section 166 and 167, the suit in
question was not maintainable before the Civil Court. The
plaintiff ought to have approached the Registrar – the
Board of Nominees to resolve the dispute. For the sake of
convenience, I would like to quote the said provisions of
the Act, 1961, which read thus:
“ 96. Disputes.
(1) Notwithstanding anything contained in any other law for the time
being in force, any dispute touching the constitution, management or
business of a society shall be referred in the prescribed form either
by any of the parties to the dispute, or by a federal society to which
the society is affiliated, or by a creditor of the society, to the
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Registrar, if the parties thereto are from amongst the following:-
(a)a society, its committee, any past committee, any past
or present officer, any past or present agent, any past or
present servant or nominee, heir or legal representative
of any deceased officer, deceased agent or deceased
servant of the society, or the Liquidator of the society;
(b)a member, past member or a person claiming through
a member, past member or a deceased member of a
society, or a society which is a member of the society;
(c)a person, other than a member of the society, who
has been granted loan by the society, or with whom the
society has or had transaction under the provisions of
Section 46, and any person claiming through such a
person;
(d)a surety of a member, past member or a deceased
member, or a person other than a member who has
been granted a loan by the society under Section 46,
whether such a surety is or is not a member of the
society;
(e)any other society, or the Liquidator of such a
society.
(2) When any question arises whether for the purposes of
sub-section (1) a matter referred to for decision is a dispute
or not, the question shall be considered by the Registrar,
whose decision shall be final. Explanation I. - For the
purposes of this sub- section, a dispute shall include-
(i)a claim by a society for any debt or demand due to it
from a member, past member or the nominee, heir or
legal representative of a deceased member, whether
such a debt or demand be admitted or not;
(ii)a claim by a surety for any sum or demand due to
him from the principal borrower in respect of a loan by
a society and recovered from the surety owing to the
default of the principal borrower, whether such a sum
or demand be admitted or not;
(iii)a claim by a society for any loss caused to it by a
member, past member, or deceased member, by any
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officer, past officer or deceased officer, by any agent,
past agent or deceased agent, or by any servant, past
servant or deceased servant, or by its committee, past
or present whether such loss be admitted or not;
(iv)a refusal or failure by a member, a past member or
a nominee, heir or legal representative of a deceased
member, to deliver possession to a society of land or
any other asset resumed by it for breach of conditions
of the assignment. Explanation II. - For the purposes
of this section, the expression "agent" includes in the
case of a housing society, an architect, engineer or
contractor engaged by the society.
166. Bar of jurisdiction of Courts.
(1)Save as expressly provided in this Act, no Civil or Revenue Court
shall have any jurisdiction in respect of-(a)the registration of a
society or its bye-laws, or the amendment of its bye-laws, or the
dissolution of the committee of a society, or the management of the
society on dissolution thereof; or(b)any dispute required to be
referred to the Registrar, or his nominee, or board of nominees, for
decision;(c)any matter concerned with the winding up and
dissolution of a society.
(2)While a society is being wound up, no suit or other legal
proceeding relating to the business of such society shall be
proceeded with or instituted against the society or any member
thereof, or any matter touching the affairs of the society, except by
leave of the Registrar, and subject to such terms as he may impose.
(3)All orders, decisions or awards passed in accordance with this
Act or the rules, shall, subject to the provisions for appeal or
revision in this Act be final; and no such order, decision or award
shall be liable to be challenged, set aside, modified, revised or
declared void in any Court upon the merits, or upon any other
ground whatsoever except for want of jurisdiction.
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“167. Notice necessary in suits.
- Save as otherwise provided in this Act, no suit shall be
instituted against a society, or any of its officers in respect of
any act touching he business of the society, until the
expiration of two months next after notice in writing has been
delivered to the Registrar or left at his office, stating the
cause of action, the name description and place of residence
of the plaintiff and the relief which he claims, and the plaint
shall contain a statement that such notice has been so
delivered or left.”
(iii) It is also remained undisputed fact that no statutory
notice was served upon the defendant – society by the
plaintiff prior to institution of suit which is sine qua non
as per Section 167 of the Act, 1961.
(iv) It has been observed by the Appellate Court that
from the pleading which is germane that the plaintiff is
claimed to be a member of defendant- cooperative society
and the suit filed seeking declaration of his possession
and claimed relief against the society so far as the
protection of the possession of the suit land and further
direction the defendant No.2 has no right title and
interest in the suit land. Thus, in view of said provisions
of the Act, 1961, the suit itself was not maintainable.
(v) The regular civil appeal filed by the plaintiff’s legal
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representative (appellant herein) was also time barred
and there was no separate application seeking
condonation of delay filed therein.
7. Apart from the aforesaid, the witness who was
examined happens to be a relative of the plaintiff, but he
did not utter any word about the death of the plaintiff
despite being examined after the plaintiff’s death.
Furthermore, his evidence did not prove the claim of the
plaintiff, inasmuch as he is not having any personal
knowledge about the dispute. Thus, considering the
aforesaid facts and circumstances of the case at hand,
and having found that no oral evidence of the plaintiff
available on record to prove the contents of the plaint,
the Trial Court as well as the Appellate Court has
correctly observed that the plaintiff failed to prove his
case.
8. Having considered the aforesaid aspects of the case,
I am of the considered view that there is no substantial
question of law involved in this appeal. It is now well-
settled legal position of law that in absence substantial
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question of law, this Court cannot entertain the Second
Appeal. (See Jaichand (Dead) through Lrs and
Others v. Sahnulal and Anr. reported in 2024 SCC
OnLine SC 3864 and Russi Fisheries (P) Ltd. v.
Bhavna Seth reported in 2026 SCC OnLine SC 555).
9. In view of the foregoing discussions and reasons, I
do not find any merit in this appeal. Accordingly, it is
dismissed in limine . The impugned judgment and decree
passed by the Courts below are hereby confirmed. Civil
Application would not survive and hence, it is disposed of.
No order as to costs. The decree shall be drawn
accordingly.
(MAULIK J.SHELAT,J)
SHAHANAZ
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