Gujarat HC Upholds Dismissal Of Society Member’s Land-Possession Suit, Citing Untested Affidavit And Co-Op Act Bar

The plaintiff claimed that he was a member of the defendant cooperative society and that it had allotted him the suit land for cultivation in 1993.

He sued for a declaration concerning his possession and an injunction against interference. The Trial Court dismissed the suit, and the First Appellate Court affirmed that decision. The plaintiff’s legal representative brought the second appeal under Section 100 of the Code of Civil Procedure (CPC).

The original plaintiff died while the suit was pending; although he had filed an affidavit in lieu of examination-in-chief, his evidence was not tested by cross-examination, and his legal representative did not file a fresh affidavit or make himself available for cross-examination.

The High Court considered the appeal against the concurrent findings of the courts below.

Section 100 CPC permits a second appeal only where a substantial question of law arises; concurrent findings of fact do not, without such a question, justify interference.

Under Section 96 of the Gujarat Co-operative Societies Act, 1961, disputes touching a society’s constitution, management or business between specified parties—including a society and its member—are to be referred to the Registrar; Section 166 bars civil-court jurisdiction over disputes required to be so referred. Section 167 requires prior written notice to the Registrar before instituting a suit against a society concerning an act touching its business.

The Court relied on Smt. Sudha Devi v. M.P. Narayanan, (1988) 3 SCC 366, in holding that the plaintiff’s untested affidavit had no evidentiary value.

It also cited Jaichand (Dead) through Lrs. v. Sahnulal, 2024 SCC OnLine SC 3864, and Russi Fisheries (P) Ltd. v. Bhavna Seth, 2026 SCC OnLine SC 555, in support of the requirement of a substantial question of law in a second appeal.

The High Court found no admissible oral evidence from the plaintiff: his affidavit was not tested by cross-examination, and his legal representative supplied no replacement evidence. The other witness, a relative, had no personal knowledge of the dispute and did not prove the plaintiff’s claim.

The Court further accepted that the claim arose from the plaintiff’s asserted membership and concerned land allotted by the society, making the dispute one within the cooperative-law regime; it also found that the required notice under Section 167 had not been served.

Finally, the First Appeal was time-barred and no separate delay-condonation application had been filed.

In these circumstances, the concurrent findings disclosed no substantial question of law for determination under Section 100 CPC.

The civil application for stay was disposed of as having become unnecessary; there was no order as to costs.