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CASE NO.: Appeal (civil)  306-307 of 2005

PETITIONER: A. Jitendernath

RESPONDENT: Jubilee Hills Coop. House Bld. Soc. & Anr.

DATE OF JUDGMENT: 02/05/2006

BENCH: S.B. Sinha & P.P. Naolekar

JUDGMENT: J U D G M E N T

S.B. SINHA, J :

       These appeals are directed against judgments and orders dated  13.11.2001 and 22.4.2002 passed by the High Court of Andhra Pradesh in  Civil Revision Petition No. 283 of 2000 and Civil Miscellaneous Petition  No. 7763 of 2002 respectively.

       Jubilee Hills Cooperative House Building Society Limited, Hyderabad  is a Society registered under the Andhra Pradesh Cooperative Societies Act,  1964.  It had enrolled a large number of members.  The father of the one  Shri Anne Srinivas and the mother of the Appellant, Mrs. A. Annapurna  Devi, herein were members of the said Society.         From a perusal of the bye-laws framed by the said Society, it appears  that it intended to allot one plot to the family of the member concerned.  The  bye-laws contain provisions for nomination.   

       Bye-laws 19 to 22 which are relevant for our purpose read as under:

"19. Every member may be declaration attested by two  witnesses nominate a person or persons to whom his  share or interest, shall be paid or transferred on his death.   A nominee may be changed by filing a fresh declaration  with the Secretary.  In the absence of any nomination the  amount of his share or interest shall be paid or transferred  to such person as may appear to the Managing  Committee to be legally entitled.  In case of any doubt  the Managing Committee shall call for a succession  certificate and act in accordance therewith.  All amounts  payable to a minor shall be paid to him through his  guardian.

20. The Society shall keep a Book wherein the names of  all persons so nominated and all revocation or variation  (if any) of such nomination shall be recorded within  fifteen days.

21. All shares transferred by virtue of a nomination or by  him or by legal transfer shall be transferred to the  nominee or heir on his becoming a member.  He shall  not, however, be entitled to withdraw any such share on  account of such transfer.

22. The nominee of a deceased member shall be made a  member provided he fulfils the qualifications of  membership."

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       The mother of the Appellant herein expired on 15.8.1977.  It was not  notified to the Society.  A plot bearing No. 39 in Phase III in Jubilee Hills  admeasuring 600 sq. yards was allotted in her favour.  On or about  5.11.1981, a notice was circulated to the members of the society that  allotment of plots would be done by way of draw of lots.  A copy of the said  notice was also sent to Mrs. A Annapurna Devi (since deceased).  Plot No.  39 was allotted in her favour on a provisional basis by the society on 20th  June, 1982.  She was called upon to pay a sum of Rs. 4,003.90 within one  month from the date of receipt thereof.  However, as no payment was made  within the stipulated period, on or about 30.9.1982, a letter was issued  granting final extension of time upto 30.11.1982 to make payment.  It was  categorically stated therein that the provisional allotment would be cancelled  and no representation in that behalf shall be entertained if no payment is  made on or before 30.11.1982 for confirmation of provisional allotment of  the said plot.  The said amount admittedly was not paid evidently because in  the meantime the mother of the Appellant had expired.   

       Shri Anne Srinivas was admitted as a member of the Society on  6.8.1983 in place of his father who was a member of the Society.   Indisputably, on 16.9.1983, plot No. 39 was allotted in his favour.   

       The Appellant on behalf of her mother wrote a letter on 16.3.1985 to  the First Respondent herein for allotment of site in respect of membership  No. 1646 stating:

"Sub: Allotment of site for Membership 1646.         I request you kindly allot me a site in lieu of my  plot No. 39 in phase 3 which has been given to someone  else.

       I had to pay to the society around Rs. 4,000/-, I am  ready to pay the above amount immediately and start  construction of the house if you would kindly allot me a  suitable plot nearby.  

       The plot 39 in phase 3 which was allotted to me  was given to some one else.  I was not in Hyderabad for  more than 2 = years and in correspondence from you was  received by me.

       When I came to the office to find out about my  plot no. 39, I was told that the same has been allotted to  some one else.  There has been a confusion and I had not  received any of your letters.  I would be even grateful to  you if you consider my case and allot me a suitable site  to construction of the house immediately.

       Thanking you,

                                       Yours faithfully,                                 For A. Anapoornamma

                               Son. A. Jithender Nath"

                                                               [Emphasis supplied]

       In response to the said letter, the allottee was informed that due to  non-payment of development charges, the said allotment had been cancelled.   By a letter dated 21.6.1985, the Appellant informed the Society about the  death of her mother and sought membership of the Society by way of  transfer.  

       On 18.3.1986, he made a representation for allotment of a new plot  stating :

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       "I received your letter dated 20-9-1985.  In this  regard, I would like to inform you, that I have already  submitted an affidavit duly notarized, and a death  certificate of my mother Late Smt. A. Annapurnamma.   Now, I enclose the original Affidavit No. 13820 dated  21-6-85, which is duly signed by gazetted officer.

       I request you to kindly transfer the membership to  my name and please allot a new plot to me, I am ready to  pay any balance due amount and I am also ready to built  a house immediately."

       Respondent No. 1 \026 Society admitted the Appellant as a member on  28.4.1986.  Despite the fact that the membership had been transferred to the  Appellant, a sale deed was executed by the Society in favour of Srinivas on  7.2.1987.  The said deed was also presented for registration.   

       Despite having been admitted as a member of the Society, no plot  admittedly was allotted to the Appellant.  The Appellant made a  representation for allotment of plot on 15.11.1988.  The Society in terms of  its letter dated 3.1.1990 declined to make any  allotment in his favour.   Questioning the said action on the part of the Society, the Appellant filed an  application on 4.3.1990 before the Assistant Registrar of the Cooperative  Society which was numbered as ARC 21 of 1990 praying for:

"The Plaintiff, therefore, prays that this Hon’ble Court  may be pleased to declare that the Plaintiff is entitled Plot  No. 39 of the Defendant Society and or in the alternative: (a)     to declare an alternative plot in the same block  to an extent of 600 sq. yards and deliver vacant  possession; (b)     An injunction be granted restraining the  Defendant from allotting the plot No. 39 to any  other member of the Society, pending disposal  of the suit."

       In the said proceeding, Srinivas was not impleaded as a party.  He,  thus, evidently had no notice thereof.  The First Respondent in response to  the notice issued by the Registrar allegedly stated that the said plot No. 39  has been allotted to Srinivas and he had constructed a house thereupon.   Despite the same Srinivas was not impleaded.  

       The Presiding Officer visited the site and found that no house was  constructed and, therefore, made an award in favour of the Appellant on or  about 22.4.1991 directing the Society to allot the plot No. 39 in favour of the  Appellant.  Pursuant thereto or in furtherance thereof, the Appellant paid all  the amounts payable therefor.  It is, however, not in dispute that that despite  the same, a deed of sale was registered in favour of Srinivas by the First  Respondent on 13.6.1991.

       An appeal marked as CTA No. 6 of 1991 was preferred before the  Third Assistant Judge, City Civil Court, Hyderabad by the First Respondent  against the award.  However, as the transfer of membership was not  intimated to Srinivas, he filed a suit in the court of VII Assistant Judge, City  Civil Court, Hyderabad which was marked as OS No. 3702 of 1992 wherein  the Appellant herein was not impleaded as a party.  During pendency of the  said suit, Srinivas transferred his right, title and interest in favour of the  Second Respondent herein by a deed of sale dated 25.7.1992.  The Second   Respondent thereafter filed an interlocutory application in the said CTA No.  6 of 1991 for being impleaded as a party thereat which was numbered as I.A.  No. 651 of 1993.  Both the proceedings were transferred to the District  Cooperative Tribunal, Hyderabad, C.T.A. No. 6 of 1991 was renumbered as  C.T.A. No. 130 of 1996.  

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       In the meantime, the Civil Court granted a decree in the said original  suit No. 3702 of 1992 on 16.10.1996 in favour of the Second Respondent.

       On 30.09.1996, an appeal was preferred by the First Respondent  against the award dated 22.4.1991 before the Cooperative Tribunal.  The  Second Respondent also filed an application for impleading himself as a  party therein.  By an order dated 30.09.1996, the said appeal as also the said  I.A. were dismissed in default.

       The said decree passed in OS No. 3702 of 1992 was put in execution  by the Second Respondent which was marked as EP No. 2 of 997.  A  revision application was also filed before the High Court by the Second  Respondent against the order dated 30.09.1996 dismissing the appeal  preferred by the First Respondent in default.

       The said revision petition was dismissed with a liberty reserved to the  Second Respondent to come on record as an additional respondent if the said  appeal was restored to its original file.  The Appellant also filed an execution  petition for executing the award dated 22.4.1991 before the Second Assistant  Judge, City Civil Court, Hyderabad.  An application was filed therein by the  Second Respondent contending that the said execution petition was not  maintainable and by an order dated 27.4.1998, the same was allowed by the  executing court,  holding:

"In view of the above discussion, it is evident that the  petitioner is claiming title and possession independently  and not through the JDR Society and that prima facie the  petitioner has lawful title over the disputed plot and also  possession of the same and that the JDR Society had no  title over the disputed plot even by the date of filing of  plaint in ARC 21/90 and that therefore the petitioner  cannot be dispossessed in execution of the decree in ARC  21/90.  It is made clear that the question of right, title or  interest in the property between the parties to this petition  to the extent of their relevance for the proper adjudication  of this petition alone has been considered in the light of  the observation in 1992 (1) ALT 371."

       The Appellant preferred an appeal against the said order dated  27.4.1998 in the Court of Additional Chief Judge, City Civil Court,  Hyderabad which was numbered as CMA No. 163 of 1998 and by a  judgment and order dated 22.12.1999, the said appeal was allowed opining  that no valid title passed to the said Srinivas prior to 22.4.1991 as the sale  deed in his favour was registered after passing of the award.  It was  observed:

"So far as the transfer made in the name of the petitioner  is concerned by the said Srinivas, it is not hit by clause  ’G’ of A.P. Cooperative Societies Act, 1964 (directions  of the effective and proper functioning of the cooperative  societies in the State) since, the same was passed on  3.12.1997 which is subsequent to the sale deed executed  in the name of the petitioner.  The petitioner obtained the  sale deed from her son who is the power of attorney  holder of the said Srinivas under Ex. A.9.  However, this  Court has arrived at a conclusion that three is no valid  title passed to the said Srinivas prior to the award passed  by the Tribunal on 22-4-1991.  The society being a party  to the said award, it ought to have stopped the  registration by virtue of the award and in fact, it did not  stop the same, and kept in abeyance, and allowed the  document to be registered to deprive the award passed by  the Tribunal.  Therefore, I am of the opinion, that the  learned Asst. Judge has arrived at a wrong conclusion

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and on the wrong premise that R.2 had no vested right in  the said property, allowed the petition.  Hence, it suffers  from infirmities and the impugned order is liable to be set  aside by allowing the appeal."

                The legality of the said order dated 22.12.1999 came to be questioned  by the Second Respondent herein before the High Court by filing a revision  application which by reason of the impugned order dated 13.11.2001 was  allowed by a learned judge of the said Court stating:

"\005The lower appellate court lost the sight of the fact that  as on the date of the order of the Deputy Registrar, the  deed was pending registration and once it was registered  on 13-6-1991, much prior to the initiation of execution  proceedings by the first respondent, it dates back to the  date of presentation of the document, i.e. 7-2-1987.  In  such circumstances and in view of the provisions  contemplated in Section 47 of the Registration Act as  well as the law laid down by the Supreme Court, which  was followed by other High Courts, the view taken by the  lower appellate court cannot be sustained.  Accordingly,  the order passed by the lower appellate court is set aside.   However, the right and entitlement of the first respondent  vis-‘-vis the second respondent cannot be defeated on  account of the above proceedings to which he is not a  party.  It is, therefore, left open to the first respondent to  approach the Deputy Registrar for such directions as are  necessary and permissible in law in view of the  development that has taken place culminating in the  order of the Executing Court in E.A. No. 155 of 1997."

       An application for clarification of the said order made by the Second  Respondent herein was disposed of by the High Court in terms of an an  order dated 22.04.2002 stating:

"The direction in the order dated 13.11.2001 in CRP No.  283 of 2000 as regards the right of the respondents to  approach the Deputy Registrar for such directions, as are  necessary and permissible in law are obviously for  allotment of an alternative plot other than plot No. 39  phase II which was found to have been validly  transferred in favour of Mr. A. Srinivas the vendor of the  petitioner herein, i.e., Smt. Mina Patalay.  The matter is  accordingly clarified."

       The Appellant is, thus, before us.   

       In view of the fact that one award was passed in favour of the  Appellant herein which attained finality, rightly or wrongly, and similarly a  decree having been passed in favour of the Respondent, this Court with a  view to do justice between the parties on or about 10.8.2005 asked the  learned counsel appearing on behalf of the First Respondent herein to  produce the bye-laws, the scheme of allotment and as to whether any other  plot was available which could be allotted in favour of the Appellant.  This  Court was informed that one plot being plot No. 400, Phase III was available  and the same would be allotted to the Appellant.  The said offer was  accepted by the Appellant.  An undertaking was also given to pay the price  therefor and other legal dues as and when demanded by the Society.

       Pursuant to or in furtherance of acceptance of the said offer, and  payment made by the Appellant to the Society, an allotment letter was issued  in his favour in respect of the said plot No. 400.  However, interlocutory

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applications were filed by one B.M. Ramalingeswara Rao being I.A. Nos. 5- 10 of 2005.  The matter came up before a 3-Judge Bench presided over by  Hon’ble the Chief Justice of India and in an order dated 9.9.2005 noticing  the statements made in this said application that the said plot was allotted to  the applicant therein in 1984, it was directed to be put up on 21.9.2005.   Interlocutory applications being Nos. 11 \026 12  were also filed by Dr. M.S.  Raju wherein also notices were issued.  In interlocutory applications being  Nos. 13 \026 14 by, however, while issuing notice by an order dated 8.12.2005,  this Court directed:

"Having heard learned counsel for the parties, we are of  the opinion that the respondent No. 1 \026 Jubilee Hills  Coop. House Bld. Soc. should file its responses to the  interlocutory applications for impleadment filed before  us.  Such respondents should be filed by 12.1.2006.  The  President of the respondent \026 Society shall hand over  authenticated copies of the relevant documents and shall  also keep the original records with the learned counsel  for the respondent \026 Society to enable the parties hereof  to make inspection thereto.  After such inspections of the  Society’s records are carried out, the parties before us  including those who have filed applications for  impleadment in these appeals would be at liberty to file  their affidavits.  Such affidavits should be filed by  25.1.2006."

       An application for impleadment has also been filed by one J.S. Rama  Murthy being I.A. Nos. 15-16 wherein it has been stated that an award in his  favour has been passed under Section 61 of the Andhra Pradesh Cooperative  Societies Act, wherein it was directed :

"Having regard to the facts, mentioned above and on  considering totality of the circumstances of the case, the  Respondent Society (i.e.) Jubilee Cooperative House  Building Society Ltd. TA-No. 173, Hyderabad is hereby  directed to allot and register a suitable plot to petitioner."

       Mr. S. Muralidhar, learned counsel appearing on behalf of the  Appellant, at the outset, submitted that the order the High Court as regards  interpretation of Section 47 of the Registration Act, 1908 holding that the  sale deed registered in favour of the said Srinivas by the First Respondent on  13.6.1991 would be effective from 7.2.1987 is not correct being contrary to  a 5-Judge Bench decision of this Court in Ram Saran Lall and Others v. Mst  Domini Kuer and Others [(1962) 2 SCR 474].  It was urged that the High  Court committed a manifest error in foreclosing the Appellant’s right in  respect of plot No. 39 by directing him to approach the Deputy Registrar  seeking for the  remedies afresh.   

       Drawing our attention to Bye-laws 70(a) and 71, it was contended that  as in terms thereof it is postulated that the lands belonging to the  Respondent- Society would be divided into plots for members thereof and  each member was eligible for being allotted a plot of land, the High Court  acted illegally and without jurisdiction in passing the impugned judgment  particularly in view of the fact that in terms of Rule 17 of the Andhra  Pradesh Cooperative Societies Rules, 1964 (for short "the Rules") as also  Bye-law 19 of the Society, a nomination by a member is envisaged.  It was  argued that as the Appellant was admitted as a member in place of his  deceased mother, he became eligible for being allotted the very plot being  No. 39 which could not have been allotted to the said Srinivas as no sale  deed had been executed in his favour at the relevant time.  Once the  Appellant was admitted to the membership, in all fairness, the Registrar,  Society should have cancelled the allotment made in favour of the said  Srinivas and allotted the same to the Appellant.  In any event, the society

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ought to have brought the relevant records to the notice of the Registrar so as  to enable him to consider grant of alternative relief in his favour as had been  prayed for.

       It was further urged that by reason of the award dated 22.4.1991, the  Appellant’s indefeasible right on the said plot has been recognized and the  appeal preferred thereagainst having been dismissed, the same attained  finality.  The said award, therefore, became final and binding and, thus, in  terms of the Bye-laws the vested right of the Appellant therein could not  have been taken away by reason of the decree passed in the suit.  In any  event as he was not a party in the said suit, the decree passed in favour of the  Second Respondent is not binding on him.  The principle of res judicata, the  learned counsel would submit, is, thus, attracted and in that view of the  matter, the Respondents herein cannot question the correctness or otherwise  of the said award which was evidently made prior to registration of the deed  of sale in favour of the said Srinivas.  In any event, plot No. 400 having been  allotted in favour of the Appellant, the Society must be held to have  recognized the right of the Appellant for allotment of plot in his capacity as  a member of the Respondent \026 Society.  As the said plot was available for  allotment, Mr. Muralidhar would submit, this Court may grant prayer (a) in  favour of the Appellant by directing formalization of the allotment of the  said plot by execution and registration of a sale deed in his favour.

       Mr. H.S. Gururaja, learned senior counsel appearing on behalf of the  Second Respondent, on the other hand, submitted that the allotment made in  favour of the mother of the Appellant must be deemed to have been  cancelled by the Society as the requisite payments therefor as demanded by  the Society had not been made.   

       Mr. G. Ramakrishna Prasad, learned counsel appearing on behalf of  the First Respondent \026 Society, urged that at the point of time when  purported allotment of plot No. 400 was made in favour of the Appellant  herein, the Administrator was Incharge, but the affairs of the Society having  been taken over by the elected body, it has now been found out that there  were several persons in whose favour directions have been issued by the  Authorities/ Tribunals to consider the matter relating to allotment of plots in  their favour in accordance with seniority.      

       Mr. T.L.V. Iyer, Mr. M.N. Rao, Mr. L. Nageswara Rao, learned senior  counsel also addressed us pressing the impleadment applications filed by  different applicants.  Our attention has also been drawn to an order dated  13.06.2005 passed by the Andhra Pradesh Cooperative Tribunal wherein it  was directed that allotment of plots including plot no.400 should be made in  accordance with the bye laws.

       The principal question which arises for consideration in this appeal is  as to whether the award passed in favour of the Appellant herein is capable  of enforced in law.  The said question may have to be answered in favour of  the Appellant only, if the principle of res judicata is found to be applicable in  this case.   

       The Appellant became a member of the Cooperative Society in place  of his mother.  As a member of a Society, nobody had a right to be allotted a  plot far less a particular plot.  Plot No. 39 was indisputably allotted in favour  of his mother.  But before the provisional allotment could fructify by making  a formal allotment and executing a deed of sale in her favour, she had  expired.  This fact was not communicated by the Appellant to the First  Respondent \026 Society for a long time.  He in his letter dated 16.3.1985  accepted that he was out of Hyderabad for more than two and half years.  He  did not deny or dispute that in the mean time the Society issued several  letters in the name of all allottees to deposit the development cost.  A notice  had also been issued to all the allottees asking them to deposit the  development charges failing which the order of allotment would stand  cancelled.  It stands admitted that the development charges had not been  deposited in respect of plot No. 39.  It may be that no formal letter of

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cancellation of the said plot was issued but in view of the admitted position  that the requirements as contained in letter dated 30.9.1982 of the First  Respondent having not been complied with, the allotment  would in law, be  deemed to be cancelled.

       An inference as regards cancellation of the said allotment must be  drawn in view of the fact that plot No. 39 admittedly was allotted in favour  of Mr. Srinivas.  Even if there had been no express cancellation of allotment  of the said plot, by reason of a fresh allotment, the provisional allotment  made in favour of mother of the appellant  must be held to have come to an  end.  The allotment of plot No. 39 in favour of the mother of the Appellant  was a provisional one.  By reason of such provisional allotment, the allottee  did not derive any legal right far less an indefeasible right.  Such provisional  allotment would have acquired permanence provided the requirements  therefor were complied with.   

       Furthermore, the Appellant in its letter dated 16.3.1985 requested for  allotment of another site in lieu of plot No. 39 in Phase III as the same had  been given to someone else.  He was informed thereabout.  He never put  forward his case before the First Respondent to allot plot No. 39 in his  favour upon cancellation of such allotment made in favour of Mr. Srinivas.   Even in his other letters, similar requests were made.  The Appellant was  also aware of the fact that allotment made in favour of her mother had been  cancelled due to non-payment of the development charges.  He had  specifically asked for allotment of another site wherefor he was even ready  to make extra-payment.  He had, thus, consistently been asking for allotment  of a new plot.  He despite such knowledge that allotment of plot No. 39  made in favour of his mother had been cancelled and subsequently made in  favour of somebody else, while questioning the refusal on the part of the  First Respondent herein to allot another plot in his favour and initiating the  arbitration proceeding only prayed for an order of injunction restraining the  Society from allotting plot No. 39 to any other member of the Society.  His  main prayer, however, was that an allotment of an alternative plot in the  same block to the extent of 600 sq. yards be made and the vacant possession  thereof be delivered.   

       It is beyond any cavil of doubt that the conduct of the First  Respondent \026 Society was not fair.  When it had made an allotment in favour  of Mr. Srinivas, it was obligatory on its part to disclose all the facts before  the Registrar so as to enable him to arrive at an independent opinion.  It  failed and neglected to do so and, thus, it created all sorts of confusions.

       If the contention of the Appellant is correct, that after the said award,  the Society accepted the deposit of the requisite amount from the Appellant,  we fail to see any reason as to why the said fact was not brought to the  notice of the said Srinivas.  The appeal preferred by the First Respondent  against the Appellant herein was also not properly pursued.  We do not  know whether any application for restoration has been filed.   

       It may be true, as was submitted by Mr. Gururaja that the appeal was  dismissed for default by the Cooperative Tribunal without giving any proper  notice of transfer, but in the facts and circumstances of the case, it is not  necessary to deal with the said question.   

       If the contention of the Appellant is to be accepted that by reason of  the provisional allotment made in favour of his mother, he acquired an  indefeasible right only because he at a later date was admitted as a member  of the Society, indisputably, the said Srinivas had acquired a higher right as  not only the said plot was allotted in his favour but also a deed of sale was  executed.  The Appellant does not deny or dispute about the factum of  execution of sale by the First Respondent herein in favour of Shri Srinivas as  far back as on 7.02.1987.   

       In the aforementioned situation, the effect as regards application of  Section 47 of the Registration Act requires consideration. The said provision

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reads as under: "47. Time from which registered document operates.\027 A  registered document shall operate from the time from   which it would have commenced to operate if no  registration thereof had been required or made, and not  from the time of its registration."           In terms of the aforementioned provision, therefore, if a deed of sale is  executed although not registered, the right, title and interest in respect  thereof shall pass with retrospective effect, i.e., from the date of execution  thereof.

       The question is no longer res integra in view of a large number of  decisions of Privy Council as also this Court including Kalyanasundaram  Pillai v. Karuppa Mooppanar [AIR 1927 PC 42], Venkatasubba Shrinivas  Hegde v. Subba Rama Hegde [AIR 1928 PC 86], Radhakisan Laxminarayan  Toshniwal v. Shridhar Ramchandra Alshi and Others [(1961) 1 SCR 248],  K.J. Nathan v. S.V. Maruthi Rao and Other [(1964) 6 SCR 727], Nanda  Ballabh Gururani v. Smt. Maqbool Begun, [(1980) 3 SCC 346] and Thakur  Kishan Singh (Dead) v. Arvind Kumar [(1994) 6 SCC 591].

       We would hereinafter notice a few decisions.   

       In Radhakisan Laxminarayan Toshniwal (supra), a Constitution Bench  of this Court has clearly held:

"It was then submitted that the sale deed had as a matter  of fact, been executed on February 1, 1944; but  respondent Sridhar brought the suit not on the cause of  action arising on the sale dated February 1, 1944, but on  the transaction of April 10, 1943, coupled with that of  April 24, 1943, which being mere contracts of sale  created no interest in the vendee and there was no right of  pre-emption in Respondent 1 which could be enforced  under the Code. Mr Chatterji urged that it did not matter  if the sale took place later and the suit was brought earlier  but the suit as laid down was one to pre-empt a sale of  April 1943 when, as a matter of fact, no sale had taken  place. If respondent Sridhar had based his right of pre- emption on the basis of the sale of February 1, 1944, the  appellant would have taken such defence as the law  allowed him. The defence in regard to the conversion of  the land from agricultural into non-agricultural site which  negatives the right of pre-emption would then have  become a very important issue in the case and the  appellant would have adduced proper proof in regard to  it. The right of pre-emption is a weak right and is not  looked upon with favour by courts and therefore the  courts could not go out of their way to help the pre- emptor."

       The aforementioned decision has consistently been followed by this  Court.  Strong reliance has been placed by Mr. Muralidhar on Ram Saran  Lall (supra).  It is interesting to note that in that case the decision of the  earlier Constitution Bench of this Court in Radhakisan Laxminarayan  Toshniwal (supra) was not brought to the court’s notice.  Hon’ble the  Chief  Justice B.P. Sinha was a party to both the decisions.  His Lordship,  therefore, presumably was aware of the distinctive features of both the cases.  

       In Ram Saran Lall (supra), the Constitution Bench of this Court was  considering a different question, namely, in the light of the provision relating  to pre-emption what would constitute a complete sale, as would appear from  the following:

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"\005We will assume that the learned Attorney-General’s  construction of the instrument of sale that the property  was intended to pass under it on the date of the  instrument is correct. Section 47 of the Registration Act  does not, however, say when a sale would be deemed to  be complete. It only permits a document when registered,  to operate from a certain date which may be earlier than  the date when it was registered. The object of this section  is to decide which of two or more registered instruments  in respect of the same property is to have effect. The  section applies to a document only after it has been  registered. It has nothing to do with the completion of the  registration and therefore nothing to do with the  completion of a sale when the instrument is one of sale.  A sale which is admittedly not completed until the  registration of the instrument of sale is completed, cannot  be said to have been completed earlier because by virtue  of Section 47 the instrument by which it is effected, after  it has been registered, commences to operate from an  earlier date. Therefore we do not think that the sale in  this case can be said, in view of Section 47, to have been  completed on January 31, 1946\005"

                                                       [Emphasis supplied]

       The said decision, therefore, does not in any way support the  contention of Mr. Muralidhar; rather runs counter thereto.

       We may notice that in Hiralal Agrawal v. Rampadarth Singh and  others [(1969) 1 SCR 328 : AIR 1969 SC 244] this Court made similar  observations.  Therein this Court was considering the question as to whether  an application for pre-emption which was filed before the registration of the  deed, although, cognizance in relation thereto was taken thereafter, would be  valid.

       Despite knowledge, that plot No. 39 has been allotted to somebody  else, the Appellant did not make the said Srinivas a party in his application  before the Registrar.  Ex facie the award being in violation of the principles  of natural justice would be a nullity.

       We have, furthermore, noticed hereinbefore the prayers made by the  Appellant in the said arbitration proceedings.  In view of prayer (a) which  was the main prayer ex facie the Registrar acted illegally and without  jurisdiction in directing the First Respondent to allot plot No. 39.  The First  Respondent made it clear that the plot in question had been allotted in favour  of the said Srinivas.  The question as to whether he raised constructions  thereupon or not was immaterial.  He despite such allotment having been  made in his favour was not impleaded as a party.  He was a necessary party.   No award therefor could have been passed in his absence.  In any event, so  far as plot No. 39 is concerned, the only prayer made by the Appellant was  an order of injunction.  The Registrar while exercising his judicial function  had no jurisdiction to pass such an order of injunction in view of prayer (a)  made in the application.

       The said award, therefore, was a nullity.  In this view of the matter,  the principles of res judicata will have no application.  [See.  Haryana State  Coop. Land Development Bank v. Neelam (2005) 5 SCC 91, Ram Chandra  Singh v. Savitri Devi and Ors. ,JT 2005 (11) SC 439]  An order which was  passed by an authority without jurisdiction need not be set aside, being a  nullity, it in the eyes of law never existed.  [See Balvant N. Viswamitra and  Others v. Yadav Sadashiv Mule (Dead) Through LRS. and Others (2004) 8  SCC 706]

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       Furthermore, the said award was put in execution.  The Executing  Court in view of title passed in favour of the said Srinivas and consequent  acquisition of title by him in terms of the deed of sale executed by him in  favour of the Second Respondent herein was entitled to enter into the  question as to whether the said award was capable of being executed.  As the  High Court rightly found that the Second Respondent has acquired a valid  title with effect from a date prior to making of the award, the same became  inexecutable.   If the said award was not capable of being executed, the  remedy of the Appellant evidently lies to ventilate his grievance as regards  allotment of plot by initiating a different proceeding.   

It is true that even in the suit filed by the Second Respondent herein  against the First Respondent being OS No. 3702 of 1992 the Appellant was  not impleaded as a party.  The decree passed, therefore, may not be binding  on the Appellant.  For the self-same reasons we have assigned hereinbefore,  the said decree may not operate as a res judicata but we have to consider the  matter from a different angle.  The Second Respondent did not enforce the  decree as against the Appellant herein where as the award, in view of the  peculiar facts and circumstances of this case, was required to be enforced by  the Executing Court as against the Second Respondent besides the First  Respondent herein and in that view of the matter the Second Respondent in  law could file an appropriate application not only for his impleadment but  also to show that the award is not enforceable in law.

       The High Court’s judgment, therefore, is unassailable albeit for  additional reasons stated hereinbefore.

       We may at this stage notice that Mr. Muralidhar categorically stated  that his client does not press for allotment of plot No. 39 and he would be  satisfied if some other plot is allotted in its favour.  This brings us to  consideration to the question of allotment of plot No. 400.

       The question which now arises for consideration is that what would be  the effect of allotment of plot No. 400 in Phase III by the First Respondent  during pendency of the proceedings before this Court.  We have noticed  hereinbefore that this Court, while asking the learned counsel appearing on  behalf of the First Respondent, was of the opinion that interest of justice  may be subserved if some plot which was available for allotment could be  directed to be allotted in favour of the Appellant herein.  A representation  was made, which now turns out to be wrong, on behalf of the First  Respondent that the plot No. 400 was available for allotment.  It was in that  situation, the offer of the First Respondent as regard allotment of the said  plot to the Appellant was accepted.  The Appellate paid a huge sum therefor.   The said amount has also been appropriated by the First Respondent.   However, in law only because an order of allotment has been issued in  favour of the Appellant herein by the First Respondent, the same by itself  would not mean that thereby the right of the others for being considered  therefor or for that matter any other plot which was available for allotment  could be put in jeopardy.  This Court whence proceeded to consider the  matter of allotment of another plot in favour of the Appellant by the First  Respondent, it had evidently in its mind that same plot may be available for  allotment but by reason thereof, the right of somebody else was not meant to  be nor could be affected.  Even in exercise of its jurisdiction under Article  142 of the Constitution while making an attempt to do complete justice to  the parties this Court cannot pass an order which could cause injustice to  others and in particular to those who are not before it.  The correctness or  otherwise of the contentions raised by the impleaded parties, thus, need not  be gone into.  We must, however, place on record that our attention has been  drawn to the fact that several proceedings as regard allotment of plot at the  hands of the society are pending adjudication before several forums.  Even a  direction has been issued by a Cooperative Tribunal as regard allotment of  plot No. 400.  It goes without saying that the courts of law would always see  to it that while making allotment of plot by a cooperative society, no  discrimination is caused amongst the members.  The Cooperative Society  having been formed for the purpose of allotment of plots to its members

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must strictly and scrupulously follow the statutory rules as also the bye-laws  framed by it.  It must also act within the four corners not only of the statue  and statutory rules but also the bye-laws framed by it.  In terms of the extant  law, seniority rule would govern the matter of allotment of land amongst the  members of the Society.  This Court is not in a position to determine the  inter se dispute, if any, even as regard the seniority amongst the members.   In fact this Court has not been called upon to do so nor in view of the lis  between the parties we can go thereinto.  Whether the Appellant would be  senior in the matter of allotment of plot over the others is a disputed question  of fact.  Such disputed question of fact, as and when any occasion arises  therefor, must be gone into and adjudicated upon by an appropriate forum.   The Appellant as a member has a right, although not indefeasible, to be  considered for allotment of a plot along with other members similarly  situated.  Such a right, therefore, could not have been taken away nor  directed to be taken away by any court of law.         We, therefore, are of the opinion that interest of justice would be sub- served if the First Respondent is directed to consider the question of  allotment amongst its members upon strict compliance of the extant rules  including its bye-laws wherefor cases of all persons eligible therefor must be  considered.

       It goes without saying that in the event of any dispute or difference as  regard entitlement to be allotted a plot between the parties, they would be at  liberty to initiate such proceedings or ventilate their grievances before such  forums as is permissible in law.   

       This brings to the fore another question viz. as to whether, in view of  the conduct of the First Respondent, the Appellant should be monetarily  compensated.  We think so.  The First Respondent despite the knowledge  that the award dated 22.4.1991 was not enforceable appears to have taken  some amount from the Appellant.  It compelled the Appellant to fight  litigations before various forums.  The Appellant also had to initiate an  execution proceeding for execution of the award passed by the Registrar.  It  succeeded at least before one court.  Even before this Court, a wrong  representation was made by the First Respondent that plot No. 400 was  available for allotment to the Appellant.  The said representation was turned  to be wrong.  As we are not in a position to consider the correctness or  otherwise of one representation or the other by the First Respondent herein  as also the contentions raised by the impleaded parties, we are of the opinion  that the conduct of the First Respondent is deplorable.  It being a Society  was obligated to render all assistance to this Court so as to enable it in turn  to render a decision in accordance with law.  It could not have made any  mis-representation before us.  We are not bothered as to whether at the  relevant point of time the First Respondent was represented by an  Administrator or an elected body.  It was admittedly being represented who  could do so before us in law.   

       We, therefore, direct the Registrar of the Cooperative Society to  initiate an enquiry against the persons concerned who were responsible for  making a wrong representation before us and take suitable action against  them in accordance with law.  We further direct that all amounts deposited  by the Appellant before the First Respondent be refunded to him with penal  interest at the rate of 24% per annum, subject, of course, to deduction of  such amount to which the First Respondent was entitled to for admitting him  as a member of the Society.  The First Respondent shall also pay a further  sum of Rs. 1,00,000/- (Rupees one lakh only) to the Appellant herein by way  of compensation.  The First Respondent shall also pay a sum of Rs.  1,00,000/- (Rupees one lakh only) to the Second Respondent by way of  compensation.  Such payments be made to them within a period of four  weeks from date.  The First Respondent shall be at liberty to recover the  amount of interest as also the amount of compensation directed to be paid to  the Appellant herein from such persons who may be found responsible  therefor.

       For the foregoing reasons, these appeals are dismissed, subject,

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however, to the aforementioned observations and directions.  The parties  shall, however, in the facts and circumstances of the case pay and bear their  own costs throughout.

       In view of our views aforementioned, it is not necessary for us to pass  any separate order on the interlocutory applications.  They are disposed of  accordingly.