JUDGMENT
R.K. Batta, J.
1. Rule. With the consent of learned Advocates for the parties, rule made returnable forthwith. Learned Advocates for the parties were heard on rule.
2. In order to appreciate the controversy, it is necessary to briefly enumerate the background in which these proceedings have been filed. The facts in both the petitions are identical and the issues involved are also identical and as such, both the petitions were heard together and they are disposed by a common judgment.
3. Petitioners were members of respondent Society. They are subsequent allottees of the shops. Initially, the shops were allotted to some other members which were cancelled and were allotted to the present petitioners. The initial allottees filed Dispute bearing No. 200/78 challenging the allotment made in favour of the petitioners and sale-deeds executed by the respondent Society in favour of the petitioners. The petitioners had paid total consideration of Rs. 40,000/- at the time of execution of Sale Deed in their favour. Besides that, admission fee and shares amounting to Rs. 111/- were taken from the petitioner by the respondent Society. The Judge, Co-operative Court before whom Dispute No. 200/78 was filed, passed the Award in favour of the original allottees and held sale-deeds in favour of the petitioners as illegal and ab initio void. Respondent Society was directed to refund consideration of the amount received from the petitioners along with interest @ 12% per annum from the date of deposit till realization. This Award passed by the Co-operative Court was challenged before the Co-operative Appellate Court, but the appeal was dismissed. Thereafter the petitioners filed Writ Petition No. 1553 of 83 which was also dismissed. The petitioners then preferred Letters Patent Appeal No. 81 of 1986 which also was dismissed. The petitioners then filed SLP which was dismissed vide order dated 6-5-1987. While dismissing the Special Leave Petition, the Apex Court observed that right of the petitioners to get their money back from the Society may be agitated separately. In view of this, the petitioners filed Disputes No. 24/90 and 23/90 respectively before the Co-operative Court for recovery of amount of consideration as per the Award of the Co-operative Court. The Co-operative Court passed an Award in favour of the petitioners on 15-6-1998, thereby directing the respondent Society to refund amount of Rs. 40,000/- with interest @ 12% per annum, as stated in the orders. The respondent Society filed Appeals No. 62 of 98 and 61 of 98 before the Co-operative Appellate Court against the orders of the Co-operative Court passed respectively in Dispute No. 24 of 1990 and Dispute No. 23 of 1990. The Co-operative Appellate Court allowed both the appeals and set aside the aforesaid orders passed by the Co-operative Court, These orders of the Co-operative Appellate Court are under challenge in these two petitions.
4. Learned Advocate for the petitioners has urged before that the proceedings in Dispute No. 24/90 and 23/90 respectively were filed in view of the observations of the Apex Court that the right of the petitioners to get their money back from the respondent Society may be agitated separately on account of which, the findings of the Appellate Court are perverse and are required to be set aside.
5. On the other hand, learned Advocate for the respondent Society urged before me that the original proceedings in Dispute No. 200/78 were finally decided by the Co-operative Court by passing an Award which has the force of decree and the petitioners should have, in fact, gone for execution of the said Award and there was absolutely no scope for filing any separate proceedings. He, therefore, contends that the Appellate Court had rightly set aside the judgments passed by the Co-operative Court.
6. By Award dated 27-4-1981 in Dispute No. 200 of 78, the Co-operative Court had held that the allotment of shops and execution of sale deeds in favour of the present petitioners was illegal and void ab initio and by the same Award, the present petitioners were held entitled to refund of amount deposited by them with the respondent Society with interest @12% per annum from the date of deposit till realization. It is at this stage pertinent to note that in LPA No. 81/86 and LPA No. 80/86 respectively, the present petitioners had claimed to be in possession of the suit shops and that is why, while dismissing the LPAs, this Court had directed the respondents not to take any steps to get the premises vacated from the appellants/ present petitioners for one month. It appears that it is in this view of the position that the present petitioners were still continuing in possession of the premises even though their sale deeds were held illegal and void ab initio and they were held entitled to refund of amounts deposited by them with society with interest and that the Apex Court while dismissing the SLP, observed that the right of the petitioners to get their money back may be agitated separately. These directions have to be understood in the context since the present petitioners were continuing to be in possession of the suit shops and had been held to be entitled to refund of amount paid under the sale deeds. The question of possession was not at all involved in the proceedings which culminated into the Award in Dispute No. 200/78. Therefore, the only alternative left was to file separate proceedings which proceedings came to be filed vide Dispute No. 24/90 and Dispute No. 23/90. In these proceedings, the respondent Society filed written statement, but unfortunately, there are no pleadings on the question of possession of the suit premises. In the absence of any pleadings or issue on the question, the evidence led by the respondent Society on this aspect cannot be looked into since a party cannot be allowed to travel beyond pleadings. Therefore, the only question which remained to be decided in the said disputes, was the entitlement of the petitioners to receive back the amount paid by them under sale deeds, which were held to be void ab initio. In the circumstances, the Co-operative Court ordered return of the said amount in favour of the petitioners. In the light of this controversy, the Co-operative Appellate Court was not justified in coming to the conclusion that the proceedings viz. Dispute No. 24/90 and Dispute No. 23/90 could not be filed. Filing of the separate proceedings arose in the circumstances referred above and in the circumstances, the petitioners could not have directly gone for execution. In the said facts and circumstances, I do not find any merit in the submission advanced by the learned Advocate for respondent.
7. For the aforesaid reasons, the orders dated 31/3/2001 passed by the Cooperative Appellate Court in Appeal No. 62 of 98 and 61 of 98 are hereby set aside and the orders dated 15-6-1998 passed by the Co-operative Court in Dispute No. 24 of 90 and 23 of 90 are restored. In the circumstances, the respondent Society is free to file appropriate proceedings for possession of the suit shops and also the amount of mesne profits from the petitioners since there is nothing on record to show that possession was ever handed over-by petitioners to the respondent Society at any time after the stand taken by the petitioners that they were in possession of the suit shops.
8. In view of the above, writ petitions are allowed and rule is made absolutely accordingly with no order as to costs.