- 1 - wp4580.19.odt IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD WRIT PETITION NO. 4580 OF 2019 The Secretary Bhavdi Vividh Karykari Seva Sahakari Society Limited & another ….Petitioners VERSUS Atmaram Bansilal Bhos & others …..Respondents Mr. R. R. Karpe, Advocate for the Petitioners. Mr. D. B. Rode, Advocate for Respondent Nos. 1 and 2. Mr. S. S. Wagh, Advocate holding for Mr. S. T. Shelke, Advocate for Respondent Nos. 4 and 5. CORAM : R. M. JOSHI, J. DATE : 15th OCTOBER, 2025. PER COURT : 1. By consent of both sides, heard finally at the stage of admission. 2. This Petition takes exception to the order passed below Exh. 49 in Regular Civil Suit No. 354/2017 whereby Application filed by Defendant Nos. 6 and 7 for framing of preliminary issue of maintainability of suit under Section 9A of the Code of Civil Procedure came to be rejected. - 2 - wp4580.19.odt 3. Record indicates that Plaintiffs filed suit claiming it to be in representative capacity taking exception in respect of the alleged entries made in the revenue record in respect of the land belonging to the Gram Panchayat. There is allegation that Defendant No. 5 fraudulently got portion of the said land transferred in his name and then executed a gift deed in favour of Defendant Nos. 6 and 7. It is the case of the Plaintiffs that the suit property is open land belonging to the Gram Panchayat and the same was used by the villagers for religious purpose. With these contentions, following prayers are made :- 7- lcc oknhps es- dksVkZl uez fouarh dh] v½ nkok feGdrhe/;s izfroknh ua- 5 ;kauh ekSts HkkoMh xzkeiapk;r gn~nhrhy xkoBk.k feGdr ua- 4 vfLrRokr vlrkuk laxuerkus Lor%ps ykHkklkBh xzkeiapk;rps iqoZinkf/kdkjh o iz'kkldh; vf/kdkjh ;kaps'kh gkrfeGo.kh d#u rlk csdk;nk iksdGhLr iksVffgLlk 4@1 d#u R;kl Lor%ps ukokph csdk;ns'khj uksan ykoqu ?ksryh rh >kysyh uksan iksdGhLr csdk;ns'khj vkgs vls Bjowu feGkos o nkok feGdr izfroknh ua- 3 xzkeiapk;r HkkoMh ;kaps ekydhph vkgs vlk tkghj Bjko d#u feGkok- c½ izfroknh dz- 5 us nkok feGdrhckcr csdk;ns'khj iksdGhLr uksanhP;k vk/kkjs fcxj dCtkpk foukgDd vf/kdkj cf{kl i=kkpk nLr fn- 26@5@2015 jksth nLr dz- 2185@2015 vUo;s izfroknh ua- 7 ps ukos d#u Bsoyk rks nLr csdkns'khj - 3 - wp4580.19.odt iksdGhLr vkgs] vYV`k Ogk;jl vkgs vlk tkghj Bjko d#u feGkok- d½ nkok feGdrhe/;s izfroknh ua- 6 o 7 ;kauh csdk;ns'khj vukf/kdkjkus foukijokuxh dsysys cka/kdke R;kauh Lor% dk<qu Vkdwu nkok feGdr iqoZor [kqyh d#u ns.ksckcrpk vns'kkRed gqdwe izfroknh ua- 6 o 7 ;kaps fo#/n nsookok- M½ nkok feGdrhef/ky oknhaP;k R;kaps dqVwac[ ukryxkaP;k o loZ xzkeLFkkaP;k ofgokVhyk miHkksxkyk nkok feGdrhe/khy l.k] mRlo lktjs dj.;kl ;s tk dj.;kl izfroknh ua- 5 rs 7 ;kauh Lor% vxj brjkaekQZr gjdr vMFkGk gksbZy vls dks.krsgh d`R; d# u;s vFkok v/kZoV cka/kdke iq.kZ d# u;s vlk fujarjps rkdhnhpk eukbZ gqdwe izfroknh dz- 5 rs 7 ;kaps fo#/n nsookok- 4. Defendant Nos. 6 and 7 appeared before the Trial Court and filed written statement. An application came to be moved for framing preliminary issue under Section 9A of the Code of Civil Procedure raising objection with regard to the jurisdiction of the Trial Court to entertain the suit. This objection came to be rejected by impugned order. Hence, this Petition. 5. Learned counsel for the Petitioners submits that the issue raised by these Defendants and the objection raised with regard to the jurisdiction of the Court ought to have been considered as a preliminary issue under Section 9A of the Code of Civil Procedure. - 4 - wp4580.19.odt He drew attention of the Court to the findings recorded by the Trial Court with regard to the issues involved in the present suit which could be the dispute under Section 19 of the Maharashtra Cooperative Societies Act. It is his submission that the Trial Court has gone into the issue which was beyond its jurisdiction. In these amongst other submissions, he claims setting aside impugned order and allowing Application Exhibit 42. 6. Learned counsel for contesting Respondents supported the impugned order. 7. Though it could be said that there is some substance in the contention of learned counsel for the Petitioners with regard to the observations made by the learned Trial Court, as a matter of fact from the plaint and the prayers made therein, it could be said that the suit is tenable before the Civil Court since the relief is sought in respect of declaration of the document of gift so also injunction. Once it is held so, question of taking exception to the jurisdiction and to frame issue in this regard under Section 9A of the Code of Civil Procedure does not arise. - 5 - wp4580.19.odt 8. In view of above discussion, this Court does not find any substance in the petition. It is however clarified that observations made by the Trial Court in the order impugned shall not be an impediment for the parties to substantiate their case before the Trial Court. Petition stands rejected. ( R. M. JOSHI) Judge dyb