SABRUDDIN HUSSAIN ALI SHAIKH @ SHABBUversusVIJAY VITTHAL SONAWANE AND ANR

 Neeta Sawant                                                           WP 7706 of 2026


                IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                        CIVIL APPELLATE JURISDICTION

                       WRIT PETITION NO.7706 OF 2026



Sabruddin Hussain Ali Shaikh                                         ...Petitioner


                            V/s.


1. Vijay Vitthal Sonawane
                                                                     ...Respondents
2. Malvani Sahajivan CHS Ltd.




Mr. Uzair Kazi with Ms. Dhanashree Hublikar i/b YMK Legal for the
Petitioner.
Mr. Vijay Vitthal Sonawane, Respondent No.1 in person.
Mr. S. Khan i/b Mr. Bilal Ahmed for Respondent No.2.



                                       CORAM : SANDEEP V. MARNE, J.
                                       JUDG. RESD. ON : 29 AUGUST 2026
                                       JUDG. PRON. ON : 16 SEPTEMBER 2026

JUDGMENT:


1)                By this petition, the Petitioner has assailed the judgment and
order dated 9 July 2025 passed by the Co-operative Appellate Court
dismissing Appeal No.4 of 2022 filed by him and confirming the judgment
and award made by the Co-operative Court on 22 November 2021 in
Dispute-CC/III/295/2014. By the Award dated 22 November 2021, the Co-

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operative Court has directed the Petitioner and Respondent No.2-Society
to hand over peaceful and vacant possession of the suit premises to
Respondent No.1/Disputant in addition to awarding costs of Rs.1 lakh to
the Disputant.


2)              Respondent No.1 was the Disputant before the Co-operative
Court. He is a member of Respondent No.2-Society. The Society is formed
for construction of houses on the plot allotted by MHADA. The Society
had apparently allotted D-5 premises in Plot No.141 at Malvani, Malad
admeasuring 40 sq.m. According to the Petitioner, after allotment of D-5
tenement, Respondent No.1 sold and transferred the same to one Mr.
Tahir Akhtar Qureshi for consideration of Rs.1,50,000/-. The Society in
the meantime started construction of individual tenements for its
members, who paid the costs of construction. According to the Petitioner,
Mr. Tahir Akhtar Qureshi paid a sum of Rs.1,80,000/- to Respondent
No.2-Society for construction of D-5 tenement. On 22 July 2005, Mr.
Tahir Akhtar Qureshi sold the tenement to Mr. Sayyed Irshad Mendhi for
consideration of Rs.5,60,000/-. According to the Petitioner, Mr. Sayyed
Irshad Mendhi was short of funds and he approached the Petitioner who
was his friend. Petitioner assisted Mr. Sayyed Irshad Mendhi, who was
unable to repay the loan. Accordingly, Mr. Sayyed Irshad Mendhi
transferred his right, title and interest in D-5 tenement to the Petitioner.
Petitioner accordingly claims lawful ownership of D-5 tenement which he
allegedly acquired through mutual agreement executed in the year 2005.


3)              Respondent No.1 filed Dispute CC-IV/101/2004 before the
Co-operative Court, Mumbai seeking possession of D-5 tenement from
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the Society. After acquiring knowledge that the tenement was transferred
to the Petitioner, Respondent No.1 amended the Dispute and impleaded
Petitioner as a party to the Dispute. The Dispute was renumbered as
CC/III/295/2014. By its judgment and award dated 22 November 2021, the
Co-operative Court has allowed the Dispute, directing the Petitioner and
Respondent No.2-Society to handover possession of the tenement to
Respondent No.1. Costs of Rs.1 lakh each on Petitioner and Respondent
No.2 are also imposed by the Co-operative Court. Aggrieved by the order
passed by the Co-operative Court, only Petitioner filed Appeal No.4 of
2022 before the Co-operative Appellate Court. Respondent No.2-Society
did not challenge the order of the Co-operative Court. By judgment and
order dated 9 July 2025, the Co-operative Appellate Court has dismissed
the Appeal. Petitioner has filed the present Petition challenging the
orders passed by the Co-operative Court and the Co-operative Appellate
Court.


4)              Mr. Kazi, the learned counsel for the Petitioner would submit
that the Co-operative Court did not have jurisdiction to entertain a
dispute or pass any order against the Petitioner, who is not a member of
Respondent No.2-Society. That the Dispute was barred by limitation qua
the Petitioner. That though Petitioner secured rights in respect of the
tenement in the year 2005, he was impleaded in the Dispute in the year
2018. That the entire construction costs in respect of the tenement is
paid by Mr. Tahir Akhtar Qureshi, who validly acquired rights in the
tenement on account of sale thereof by Respondent No.1. That Petitioner
has validly acquired title in respect of the tenement from Sayyed Irshad
Mendhi, who had acquired the tenement from Mr. Tahir Akhtar Qureshi.
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That all the transactions are documented. That Mr. Tahir Akhtar Qureshi
stepped into the witness box and led evidence of the transactions. That
Respondent No.1 is taking undue advantage by claiming the tenement
which is already sold by him for valuable consideration. He submits that
the conduct of the Petitioner is completely ignored by both the Courts.
That MHADA has taken note of the conduct of Respondent No.1. That
Respondent No.1 has already secured another tenement, which position is
suppressed by him. That Respondent No.1 is a habitual litigant, who has
initiated several proceedings against various persons and authorities.
That the Co-operative Court and the Co-operative Appellate Court have
erroneously turned blind eye to the conduct of Respondent No.1. Mr. Kazi
relies on judgment of Division bench of this Court in Sanjaykumar
Amrutlal Shah and Ors. vs. Uttamlal Ratilal Shah and Anr. 1 in support
of his contention that the Co-operative Court does not have the
jurisdiction against third party for making an order for handing over
possession of constructed unit.


5)                 Mr. Khan, the learned counsel appearing for Respondent
No.2 – Society submits that though Society is not taking side of either of
the parties, he highlights the conduct of Respondent No.1. He submits
that the construction charges are actually borne by Mr. Tahir Akhtar
Qureshi and not by Respondent No.1. That Respondent No.1 therefore
cannot claim any rights in respect of the tenement. That the Society has
discovered that Respondent No.1 has already secured allotment of
another tenement which position is suppressed by him. That Respondent
No.1 has cheated MHADA and therefore action has been initiated. That

1     2008 (1) MhLJ 205
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there is an FIR lodged against Respondent No.1. He therefore submits
that the Co-operative Court and Co-operative Appellate Court could not
have granted any relief in favour of Respondent No.1.


6)              Mr. Sonawane, Respondent No.1, appears in person and
opposes the petition. He submits that the Co-operative Court and Co-
operative Appellate Court have concurrently ruled in his favour. He
submits that he is kept under continuous process of litigation over
allotment of the tenement. That he has fought a long legal battle for
securing possession of the tenement. That the tenement is illegally
occupied by the Petitioner and that Respondent No.1 is actually entitled
for mesne profits for unauthorised occupation of the tenement by the
Petitioner. He prays for dismissal of the Petition.


7)              Rival contentions urged on behalf of the parties now fall for
my consideration.


8)              The first point sought to be urged on behalf of the Petitioner
is absence of jurisdiction of Co-operative Court to try and entertain the
dispute qua him. I however find the contention to be totally baseless.
Under Section 94(3)(a) of the Maharashtra Co-operative Societies Act,
1960 (MCS Act), if a third party acquires any interest in the property of a
person who is a party to a Dispute, such person can be impleaded as a
party to the dispute. Section 94(3)(a) of the MCS Act reads thus:




        (3) (a) If the Co-operative Court is satisfied that a person, whether he be a
        member of the society or not, has acquired any interest in the property of a
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           person who is a party to a dispute, it may order, that the person who has
           acquired the interest in the property may join as a party to the dispute ; and any
           decision that may be passed on the reference by the Co-operative Court shall be
           binding on the party so joined, in the same manner as if he were an original
           party to the dispute.


9)                 The Apex Court in Margret Almeida and Ors. vs. Bombay
Catholic CHSL and Ors.2 has interpreted the provisions of Section 94(3)
(a) of the MCS Act and has held that the Co-operative Court can implead a
person acquiring interest in the property from a party to the Dispute
during pendency thereof. In the present case, the Dispute was filed on 3
February 2004. In para-5(c) of the petition, Petitioner has admitted that
he secured rights in respect of D-5 tenement from Mr. Sayyed Irshad
Mendhi through mutual agreement in the year 2005. Para-5(c) of the
Petition reads thus:

           c. The Petitioner states that, on 22.07.2005 Mr. Tahir Akhtar Qureshi sold the
           said plot to one Mr. Sayyed Irshad Mendhi for the consideration of amount of R.
           5,60,000/-. The Applicant states that since Mr. Sayyed Irshad Mendhi was short
           of funds so he approached the Petitioner for the same. The Petitioner states
           that, he helped his friend Mr. Sayyed Irshad Mendhi, but Mr. Sayyed Mendhi
           was unable to repay the fund so he transferred the right, title, interest and hand
           over the possession of the said D-5 tenement area of 40 sq.mt. to the Petitioner.
           The Petitioner thus is lawful owner of said D-5 tenement area of 40 sq.mt as he
           has got all the rights, title and interest transferred in his name from Mr. Sayyed
           Irshad Mehadi through mutual agreement in the year 2005.


10)                Thus, acquisition of interest in the property of a party to the
Dispute (Respondent No.1) has undoubtedly occurred during pendency of
the Dispute. Petitioner is therefore rightly impleaded in the Dispute.


11)                Even otherwise, the Dispute was filed for the purpose of
seeking possession of D-5 tenement from the Society which was allotted

2     (2012) 5 SCC 642
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in the name of Respondent No.1. During pendency of the Dispute, it was
noticed that Petitioner was occupying the tenement. Therefore,
Petitioner is rightly impleaded as a party to the Dispute.                         The Co-
operative Court thus has full jurisdiction to make an order against the
Petitioner for handing over possession of the tenement to Respondent
No.1.


12)             So far as the objection of limitation is concerned, it is seen
that the alleged acquisition of rights in respect of the tenement by the
Petitioner is not through a registered instrument. Therefore, there was no
reason for Respondent No.1 to know acquisition of rights in respect of the
tenement by the Petitioner. Even otherwise, the Suit was filed before
acquisition of rights in the tenement by the Petitioner. In my view
therefore, the objection of limitation sought to be raised by the Petitioner
is totally baseless.


13)             The Trial and Appellate Courts have concurrently refused to
recognise acquisition of rights in the tenement by the Petitioner.
Tenement D-5 is allotted in the name of Respondent No.1. Though it is
sought to be contended that Mr. Tahir Akhtar Qureshi purchased the
tenement vide agreement dated 7 October 1998 from Respondent No.1,
the transaction has no legal basis as the same is not effected through a
registered instrument. It also appears that Mr. Tahir Akhtar Qureshi was
not made a member of the Respondent No.2-Society. Since acquisition of
rights by Mr. Tahir Akhtar Qureshi in respect of the tenement itself is
illegal and unauthorised, no interest in the tenement is transferred to Mr.
Sayyed Irshad Mendhi, who was incapable of vesting any rights in favour
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of the Petitioner. In my view therefore, the Trial and Appellate Courts
have rightly appreciated the position that the alleged Agreement dated 7
October 1998 did not create any interest in respect of the tenement in
favour of Mr. Tahir Akhtar Qureshi. Consequently, Petitioner cannot
claim any rights in respect of the tenement.


14)             Reliance by Mr. Kazi on judgment of Division Bench of this
Court in Sanjaykumar Amrutlal Shah (supra) is misplaced. In that case,
the issue before the Court was whether letting of a bungalow to a third
person by a tenant ownership society can be treated as business of the
society. In the present case, the issue is entirely different. The Dispute
was filed by Respondent No.1 initially only against the Society for
handing over possession of the tenement. It is the Petitioner who came
up with a story of sale of tenement by Respondent no.1 to Mr. Qureshi,
Mr. Qureshi to Mr. Mendhi and by Mr. Mendhi to the Petitioner. It is on
account of these defences taken by the Petitioner that the Co-operative
Court was required to consider the merits of the claim. Otherwise, the
Dispute was pure and simple. The Dispute was relating to non-handing
over of possession of the tenement by the society to its member, in whose
name the tenement was allotted. The judgment of the Division Bench in
Sanjaykumar Amrutlal Shah therefore has no application to the facts of
the present case.


15)             A lot is sought to be made both by the Petitioner as well as
Respondent No.2-Society about alleged allotment of another premises by
MHADA to Respondent No.1 and alleged suppression thereof by him. In
my view, the issue of alleged allotment of another premises by MHADA to
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Respondent No.1 is of no consequence for deciding the Dispute. In the
Dispute, the prayer was against the Society for handing over possession of
the tenement to Respondent No.1. Since the Petitioner claimed actual
and physical possession, direction is issued for handing over possession
even against the Petitioner. Thus, limited remit of enquiry before the Co-
operative Court was about right of the Disputant/Respondent No.1 to
secure possession of the tenement from the Society/Petitioner. The issue
as to whether Respondent No.1 can retain the allotment on account of
alleged allotment of another premises is outside the scope of enquiry
before the Co-operative Court. Petitioner claims rights in respect of the
tenement through Respondent No.1. Therefore, if allotment made in
favour of Respondent No.1 is cancelled, the same would automatically
result in cessation of alleged rights of the Petitioner in respect of the
tenement. In that sense, the allegation of allotment of another premises
in the name of Respondent No.1 by MHADA does not inure to the benefit
of the Petitioner. The Co-operative Court and the Co-operative Appellate
Court have rightly ignored this allegation. As of now, the direction is only
for handing over of possession of tenement to Respondent No.1. If
MHADA ultimately holds that Respondent No.1 is already an allottee in
respect of another premises and is not entitled to retain D-5 tenement,
MHADA can always pass appropriate orders. The decision of the Dispute
in favour of Respondent No.1 would not come in the way of MHADA
exercising its powers. That is a different scope of enquiry which is
irrelevant for the purpose of deciding the present Petition. Therefore, this
Court is not commenting upon the controversy relating to eligibility of
Respondent No.1 to retain the allotment in respect of D-5 tenement.

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                      16)             So far as conduct of Respondent No.1 repeatedly sought to be
                      highlighted by the Petitioner and Respondent No.2-Society is concerned,
                      the same is again totally irrelevant for the purpose of deciding the issue in
                      the present case. The right to secure possession of allotted tenement
                      cannot be determined by taking into consideration various litigations
                      filed and pending between the parties. Therefore, the issue of conduct of
                      Respondent No.1 is of little relevance for determining the issue involved
                      in the present case.


                      17)             Considering the overall conspectus of the case, there is no
                      warrant for interference in the concurrent findings recorded by the Co-
                      operative Court and the Co-operative Appellate Court. The Writ Petition
                      is devoid of merits. It is accordingly dismissed with no further order as to
                      costs.


                                                                              [SANDEEP V. MARNE, J.]

         Digitally
         signed by
         NEETA
NEETA    SHAILESH
SHAILESH SAWANT
SAWANT Date:
         2026.09.16
         19:51:04
         +0530




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