V.C Daga, J.:— This petition is directed against the judgment dated 12th September 1984 delivered in Appeal No. 215 of 1980 by the Maharashtra State Co-operative Appellate Court, Mumbai confirming the judgment and award dated 5th September 1978 passed by the Judge, Co-operative Court, Satara in ABN No. 596/72-73; wherein it was held that the original disputant, viz. Shri Chhatrapati Shahu Co-operative Housing Societies Limited, Satara (for short, the “society”) was entitled for a decree of specific performance of contract and that the original opponents 1 to 6 were under an obligation to execute sale deed and hand over possession of the suit lands admeasuring 8 acres 6 gunthas situated at Satara (hereinafter referred to as “suit property” for short).

2. Facts in Brief

3. In brief, the facts giving rise to the present petition are as under:— The dispute was filed by the disputant “Shri Shah Co-operative Housing society”, a society registered on 5-10-1962 under the Maharashtra Co-operative societies Act, 1960 (the “Act” for short). The dispute was filed on 18th May 1973 on the following allegations that—

(a) The opponent Nos. 1 to 6 were the joint owners of the agricultural land bearing revised S. Nos. 280/1, 280/3, 281/1, 281/2, 293/1 and 283/2 situated at Satara.

(b) The opponent Nos. 1 to 6 were the members of the disputant society out of which opponent Nos. 2 to 5 were the promoter members. The opponent Nos. 2 and 3 were the founder members of the society.

(c) The opponent Nos. 1 to 6 with one Baburao Balasaheb Gorpade and some other prominent members of the Satara had taken leading part in formation of the society. Accordingly, opponent Nos. 1 to 6 agreed to offer their agricultural lands and after brief negotiation which took place in the month of September 1962, it was decided to offer Rs. 3000/- per acre by way of price thereof. The opponent Nos. 1 to 6, all being joint owners, accepted the said offer on 2-9-1962, and agreed to sell their jointly held and owned agricultural lands admeasuring 8 acres 5 gunthas @ Rs. 3000/- per acre. It was agreed and decided by and between the parties to execute sale deeds in favour of the society after the decision of the Civil Suit No. 53/1962, which was then pending in the Civil Court at Satara. In the said suit, parties to the suit were seeking partition and separate possession of their respective shares.

(d) In pursuance of the above understanding and final negotiations between the parties to the dispute, all the promoter members held their meeting on 22-9-1962, which was also attended by opponent Nos. 2 and 3. The proceeding book was opened. The minutes of the meeting were recorded therein. The resolution to purchase the lands offered by the opponent Nos. 1 to 6 at the rate of Rs. 3000/- per acre was adopted and entry thereof was made in the proceeding book with details of the survey numbers of the lands in question.

(e) The promoter members based on the above agreement and in pursuance of their resolutions adopted in a meeting held on 22-9-1962 applied for registration of the society. Accordingly, the society came to be registered on 5-10-1962.

(f) After registration of the society, the left out opponent Nos. 1, 4, 5 and 6 were admitted as primary members of the society. In pursuance of the negotiations, oral understanding followed by ratification thereof in a meeting held on 22-9-1962, written agreements in the form of receipts and acknowledgments were executed in favour of the society by the opponents from time to time; wherein, they not only reiterated their agreement to sell, but also acknowledged earnest money and part payment of the consideration received by them from time to time.

(g) The suit for partition came to be decided sometime in the year 1968. The final decree proceedings for partition were initiated before Collector, Satara. The lands were partitioned by metes and bounds and on 4th October 1972 the respective opponents were put in possession of their respective shares. That is how each one of the opponents came in possession of their respective share of lands.

(h) The society, finding each vendor in possession of his share of land, called upon each of them to execute sale deed of their respective shares in favour of the society. However, the vendors/opponents avoided to discharge their obligation, as such, legal notice was issued on 20th December 1972, by the society through their Advocate and called upon each of them to execute sale deed in favour of the society, in pursuance of the initial agreement to sell, dated 9th October 1962, ratified by opponents from time to time.

(i) In reply to the said notice, the present petitioners denied the transaction and also contended that the value of the land has increased many folds during the period 1962 to 1972 and, therefore, they refused to execute the sale deed at the rate of Rs. 3000/- per acre, as was agreed between the parties.

4. The society, faced with the aforesaid situation, had to raise dispute. Accordingly, dispute was filed before the Co-operative Court, Satara seeking directions against the opponents vendors to execute sale deed in respect of 8 acres gunthas of lands on the basis of agreement to sell. On being noticed, the present petitioner's original opponents along with others, appeared and filed their written statement denying the transaction in question and also raised therein certain technical legal pleas.

5. The learned Judge of the Co-operative Court, after considering the pleadings of the parties, framed issues. One of such issues related to the maintainability of the dispute under section 91 of the Act and, second issue related to the jurisdiction of the Co-operative Court to entertain and try the dispute as frame. The third issue was, as to whether the society is entitled for a decree of special performance of contract.

6. The parties were put to trial on the basis of issues framed. They we permitted to file documents and lead documentary as well as oral evidence support of their respective contentions. The trial Court, after scanning the oral and documentary evidence and hearing the parties to the dispute, was pleased to hold that the dispute as filed under section 91 of the Act was very much maintainable. The Co-operative Court, accordingly, assumed jurisdiction to entertain and try the dispute and ultimately, allowed the claim of the society. The opponents/vendors were directed to execute sale deeds of their respective shares in favour of the society, irrespective of the fact, whether the different pieces of lands admeasuring 8 acres 5 gunthas are at one place or at different places.

7. Aggrieved by the aforesaid judgment and award delivered by the Co-operative Court dated 16th September 1978, the present petitioners, in the capacity of appellants, invoked the appellate powers of the Co-operative Appellate Court, and challenged the aforesaid award on various grounds, amongst others; relating to the maintainability of the dispute and the competence of the Co-operative Court to entertain and try the said dispute.

8. The Appellate Court, after hearing the parties to the appeal, was of the view that the judgment delivered by the Co-operative Court was most perfunctory, thus, took upon itself to re-appreciate documentary and oral evidence afresh; so as to avoid remand to the trial Court.

9. At this juncture, it will be necessary to note that, the Co-operative Appellate Tribunal as a fact found that the society was formed and registered on 5-10-1962. The registration certificate (Exhibit 63) was relied upon by the Co-operative Appellate Court as a proof of registration of the society. The Co-operative Appellate Court while reaching to the conclusion, also relied upon Exhibit 139, viz. Proceeding Book of the General Body of the society which revealed that on 22nd September, 1962, the meeting of the promoter members of the society was attended by the petitioner Nos. 2 and 3 and they had confirmed on behalf of themselves and as also on behalf of the other joint owners of the property that hey had agreed to sell their respective shares in the lands in question to the society at the rate of Rs. 3000/- per acre. The bye laws of the society were signed by the original opponent Nos. 2 and 3. The Co-operative Appellate Court also appreciated and relied upon the Proceeding Book; wherein minutes of another meeting of the society held on 4-1-1963 (General Body meeting) were entered into. In the said meeting, left out vendors i.e other than the petitioner Nos. 2 and 3 were admitted as members. It was also reiterated by them in the said meeting that they did enter into agreement of sale to sell their lands in favour of he society. The Co-operative Appellate Court, after having considered the evidence on record, held that the original opponent Nos. 1 to 6 had accepted earnest money in respect of their respective shares in the lands and further held that such receipts filed were proved by the society, marked as Exhibits 65, 68 and 74 to 83. On the basis of the said receipts dated 9-10-1962, 12-6-1963, 25-8-1963, 2-10-1963, 6-10-1963, 7-10-1963, 16-6-1964, 2-9-1966 and 26-1-1968 the Co-operative Appellate Court, reached to the conclusion that the receipts referred to hereinabove came into existence after the formation of the society and that too after admission of the petitioner Nos. 2 and 3 as members of the society. Based on the aforesaid evidence, the Co-operative Appellate Court reached to the conclusion that the dispute was between the society and its members and the dispute was touching the business of the society. As such, dispute under section 91 of the Act was very much maintainable and that the Co-operative Court had jurisdiction to entertain and try the dispute. Thus, the Co-operative Appellate Court on the basis of reconsidered and re-appreciated evidence, but for different elaborate reasons, endorsed the findings recorded by the trial Court. In other words, the Co-operative Appellate Court concurred with the findings recorded by the trial Court. These concurrent findings of fact are subject matter of challenge in the present petition filed under Article 227 of the Constitution of India.

RIVAL CONTENTIONS

10. The learned Counsel appearing for the petitioners repeated almost all the same challenges before this Court and contended that the agreement to sell was entered into by the petitioners prior to the formation and registration of the society, therefore, the dispute in question was neither maintainable nor triable under section 91 of the Act. It was further contended that at any rate, considering the price rise, the trial Court should not have exercised discretion in favour of the society and should not have granted decree for specific performance of contract. It was also contended that dispute was barred by limitation, as such dispute ought to have been dismissed.

11. The learned Counsel appearing for the respondents contended that this Court not being a Court of Appeal, should not disturb the findings of fact recorded by both the Courts. In his submission, each finding recorded can be supported on the basis of material available on record. He further submitted that both the Courts below have taken into account all the relevant factors while allowing the claim of the society. Simply because another view is possible this Court should not exercise the writ jurisdiction. He sought to urge that the Apex Court time and again has warned the High Courts that the interference by the High Court under Article 227 of the Constitution must be within the limit laid down. He relied upon various judgments of the Apex Court and pressed in service the principles laid down therein. He contended that the Courts below exercised their discretion in favour of the society on the basis of appreciation of evidence and the same should not be disturbed by this Court. He further urged that the question of limitation is a mixed question of fact and law and the same was never raised in the courts below, as such, it should not be allowed to be raised or entertained at this stage of the proceedings. He thus prayed for dismissal of the petition.

FINDINGS

12. Having heard the parties at length, one thing is clear that the petitioners have suffered concurrent findings of fact and the same are the subject matter of challenge in this petition. The Apex Court in (Ganpat Ladha v. Sashikant Vishnu Shinde)1, (1978) 2 SCC 573 : A.I.R 1978 S.C 955 expressed the view that the High Court commits a gross error in interfering with what was a just and proper exercise of discretion in exercise of its power under Article 227 of the Constitution. The High Court under Article 227 has a limited jurisdiction. Turning to the case in hand, it is not in dispute that the original opponents Nos. 1 to 6 are members of the disputant society. It is also not in dispute that the transaction in question relates to and touches the very business of the society, it being a housing society. One of the aims of the society is to provide housing accommodation to its members. So far as the question as to the enforcement of the agreement to sell is concerned, it was no doubt entered into prior to formation of the society, but ample documentary evidence, as found by the lower Appellate Court and, referred to in paragraphs 7 and 8 supra, clearly suggests that the agreement to sell was not only ratified and reiterated by the vendors/original opponents 1 to 6 after formation of society and after becoming member thereof, but the same was consciously acted upon by them. The amount of consideration and part payments were received by them, as such the said transaction in question cannot be said to be a transaction not with the members of the society or that it does relate to the business of the society. At any rate, the present petitioners are very much parties to the various documents available on record, referred to by both the courts below. In the wake of the facts found and factual documentary evidence available on record, it is not open for this Court to reappreciate evidence once again and reach to the different conclusion. The appreciation of evidence done by the Courts below is legal, proper and reasonable. The view taken by the Court below is one of the possible views. The same is based on evidence. The cogent oral as well as documentary evidence is on record to justify the findings of fact recorded by both the courts below. The findings as to whether circumstances justify the exercise of discretion or not, unless clearly perverse and patently unreasonable, is, after all a finding of fact. It cannot be interfered with either under Article 226 or 227 of the Constitution. If a proper Court has come to the conclusion on examination and appreciation of the evidence on record and reached to the conclusion that the dispute was maintainable under section 91 of the Act and the Co-operative Court had jurisdiction to entertain and try the same, the said finding cannot be considered to be perverse. In such a situation, it will not be possible for this Court to interfere with the said finding of fact recorded by both the courts below even though the said question of jurisdiction is a mixed question of fact and law. The facts as found and the law as applied by the Courts below, no error is to be seen.

13. In (India Pipe Fitting Co. v. Fakruddin M.A Baker)2, (1977) 4 SCC 587 : A.I.R 1978 S.C 45, the Apex Court reiterated that the limitation of the Court while exercising power under Article 227 is one of judicial superintendence and cannot be exercised to upset the conclusions of facts, however erroneous these may be. It is observed that it is possible that another Court may be able to take a different view of the matter by appreciating the evidence in a different manner, if it determinedly chooses to do so. That will not be justice administered according to law to which courts are committed notwithstanding discretion in season and out of season, about philosophies. It was found by the Apex Court in the aforesaid case that the High Court arrogated to itself the powers of the Appellate Court. Turning to the facts of the present case, I do not even find any scope to take contrary view even if the evidence on record is reappreciated once more.

14. In (Satyanarayan Laxminarayan Hegde v. Millikarjun Bhavanappa Tirmale)3, A.I.R 1960 S.C 167, the Apex Court found that the High Court was wrong in thinking that the alleged error in the judgment of the Bombay Revenue Tribunal was one apparent on the face of the record so as to be capable of being corrected by a writ of certiorari and an error which had to be established by a long drawn process of reasoning on points where there may conceivably be two opinions cannot be said to be an error apparent on the face of the record. There might have been error in the judgment of the Appellate Bench of the Court of Small Causes but it is not an error palpable and apparent, right or wrong they had come to that conclusion. That was a possible or plausible conclusion. In the case on hand, no error apparent on the face of record could be pointed by the petitioners though this matter was heard by me at length.

15. The Apex Court in (Mrs. Labhkuwar Bhagwani Shah v. Janardhan Mahadeo Kalan)4, (1982) 3 SCC 514 has taken a view to the effect that concurrent finding of facts whether relating jurisdictional issue or otherwise were not open to interference by the High Court under Article 227 of the Constitution. This case on hand does involve an issue relating to the jurisdiction of the Co-operative Court. At any rate, as found hereinabove, concurrent findings of fact based on evidence and, proper appreciation thereof; have got to be respected for want of any error or erroneous appreciation.

16. In (Chandavarkar Sita Ratna Rao v. Ashalata S. Guram)5, 1986 (3) Bom. C.R 304 : (1986) 4 SCC 447, the Apex Court held that in exercise of jurisdiction under Article 227 of the Constitution, the High Court can go into the question of facts or look into the evidence if justice so requires it. But the High Court should decline to exercise its jurisdiction under Articles 226 and 227 of the Constitution to look into the facts in the absence of clear cut down reasons where the question depends upon the appreciation of evidence. It has been observed that the High Court should not interfere with a finding within the jurisdiction of the inferior Tribunal or Court except where the finding is perverse in law could have come to such a finding or there is misdirection in law or view of fact has been taken in the teeth of prepoderance of evidence or the finding is not based on any material evidence or it resulted in manifest injustice. It was further observed that except to the limited extent indicated above, the High Court has no jurisdiction. The case on hand does not fall in this category of cases. Hence, challenge to the jurisdiction of the Co-operative Court must fail. So far as the challenge to the exercise of discretion in favour of the society, in granting decree of specific performance of contract is concerned, it is necessary to note that the very registration of the society was based on the said transaction. Had there been no agreement to sell, the disputant society itself could not have been registered under the Act. Once it was found that agreement was legal and valid and survival of the society was dependent on the enforcement of the agreement, then such a discretion exercised by both the courts below cannot be said to be perverse. The Apex Court in (U.P Co-op. Federation v. Sundar Bais)6, A.I.R 1967 S.C 249 held that where the discretion vested in the Court has been properly exercised by the lower Court, the Appellate Court should be slow to interfere with the exercise of that discretion. In dealing with the matter raised before it at the appellate stage, the Appellate Court would normally not be justified in interfering with the exercise of the discretion under appeal solely on the ground that if it had considered the matter at the trial stage, it may have come to a contrary conclusion. If the discretion has been exercised by the trial Court reasonably and in a judicial manner, the fact that the Appellate Court would have taken a different view may not justify the interference with the trial Court's exercise of discretion. As is often said, it is ordinarily not open to the Appellate Court to substitute its own exercise of discretion for that of the trial Judge, but if it appears to the Appellate Court that in exercise of discretion the trial Court has acted unreasonably or capriciously or has ignored the relevant facts, then it would certainly be open to the Appellate Court to interfere with the discretion exercised by the trial Court. This principle is well established. Even applying this principle to the facts of the case on hand, no such case was made out by the petitioners either before the lower Appellate Court or before this Court. As found by me, the discretion has been properly exercised by the trial Court and it was rightly confirmed by the lower Appellate Court. No fault can be found with the exercise of discretion in favour of the disputant society.

17. The question of limitation was raised by the petitioner on the footing that under Article 113 of the Limitation Act, the limitation for enforcing agreement for specific performance is of 3 years. The said assumption is not correct. The limitation as prescribed under section 92(b) of the Act will be applicable which is of six years. The lower Appellate Court thus rightly rejected this contention. Even assuming that Article 113 of the Limitation Act applies to the facts of this case, even then the suit was within limitation. The agreement sought to be enforced specifically stipulates that the sale deeds shall be executed after the decision of the suit seeking partition and separate possession by metes and bounds and that too after putting each of them in possession of their respective portion of land. After decision of the suit for partition, the decree was put in execution. The Regular Darkhast for execution of the decree was filed on 2nd September 1968. The Collector effected partition as per decree and put the respective claimants in possession of the land on 4th October 1972. These facts are not in dispute. Thus the limitation would start running from 4th October 1972. The dispute was filed on 18th May 1973, well within the period of three years though the limitation period of six years was available with the disputant society. As such the dispute was filed well within the period of limitation. The findings recorded by the lower Appellate Court on this question for the reasons stated therein are thus confirmed.

18. For the aforesaid reasons, the petition is dismissed with no order as to costs.

19. Petition dismissed.