Judgment:
B.P. Dharmadhikari, J.
1. Challenge in both these letters patent appeals is to common judgment delivered by learned Single Judge of this Court on 11.5.2001 in First Appeals No. 36/91 and 37/94, dismissing the same. These two first appeals, in turn, challenge common judgment and decree passed by the Civil Judge, Sr. Division, Margao dated 31.12.1993 in Special Civil Suits No. 263/90A and 267/90/A. Special Civil Suit No. 263/90A was filed by present respondents Co-operative Society for recovery of compensation amount of Rs. 5,10,000/-, with interest against present appellants for collapse of the supporting wall raised by them and consequential damage to two buildings raised by them. Special Civil Suit No. 267/90/A was filed by the appellants for direction to the said Society to demolish the portion of buildings which had become dilapidated and, therefore, posed problems to their structure situated adjacent and develop those buildings and for further directions to construct a retaining wall. The suit filed by the present appellants came to be dismissed, while the suit filed by the Society came to be decreed.
2. Appellants before this Court are husband and wife. The property on which structure raised by them stands has been purchased on 9.9.1971 and the said property is described in the Land Registration Office under No. 46124 at page 128 of Book 120 (new). Boundaries of the said property are not in dispute. The Society, on the other hand, is owner and in possession of separate plot registered at serial No. 46151 of Book B 120 new series. It has been surveyed for the purpose of City Survey of Margao under Chalta No. 63 of P.T. Sheet No. 217. Boundaries of these properties are not in dispute. The plot of present appellants is on southern side of this plot of the Society. The Society had purchased this plot earlier and had raised 3 buildings in the years 1967 and 1968. The property of the appellants and the Society is on slope of hill. The Society, as also the appellants, had cut hill for raising their respective structures. It is the case of the Society that appellants resorted to cutting of the hillock excessively and because of difference of level of plot of the Society and their plot, the staircase constructed by the respondent Society on their portion of land collapsed. The Society then constructed a new staircase more to the north of earlier existing staircase as the staircase was the only access to their building. They spent amount of Rs. 10,000/-on it. The Society brought this fact to the notice of the Margao Municipal Council and vide letter/notice dated 4.3.1978, Margao Municipal Council asked the appellants to construct a retaining wall on western and northern sides of their plot. The appellants did not construct that wall and from 10.1.1979, started further cutting of hill on western and norther sides, adjoining the staircase. The Society again approached Margao Municipal Council and eventually filed Special Civil Suit No. 7/79 in January, 1979 for restraining the appellants, their family members, servants, agents, etc., from continuing further with cutting of hill on western and northern portion and from depositing earth on road of 3 metres width constructed by the Society. They also sought mandatory injunction to direct the appellants to construct retaining walls on western and northern sides. The dispute was amicably settled on 24.11.1982 between the parties and consent terms were filed before the Court.
3. As per these consent terms, then Society constructed the retaining wall again on southern side of this property i.e. on northern side of the property of the appellants. It is the case of the Society that after this also the appellants did not stop their activity of hill cutting and because of excessive hill cutting, the corner of retaining wall constructed by them got exposed and water percolated into wall through that western corner. On 24.6.1990, there was landsliding in which the said retaining wall collapsed and two buildings out of three buildings constructed by it were badly affected, rendering them unfit for human habitation without necessary repairs. The Society contacted experts and thereafter filed a special civil suit for recovering compensation amount of Rs. 5,10,000/-against the appellants vide Special Civil Suit No. 263/90/A.
4. The present appellants filed Special Civil Suit No. 267/90/A contending that the retaining wall constructed by the Society was weakened as water seeped into it because of septic tank constructed by the Society and their property got damaged. They, therefore, sought a direction to demolish the buildings which were damaged and dilapidated and posed problem to their own dwelling house. They had contacted expert Engineer by name Mayenkar and they sought direction that the Society should construct a retaining wall as suggested by the said Engineer. They also sought removal of debris and collapsed portion of the staircase and a direction to the Society to close the trenches and to make alternate arrangement to prevent water from entering into their property.
5. The trial Court then framed 7 issues in the suit filed by the Society and 13 issues in the suit filed by these appellants. Both the suits were tried together. The Society examined 4 witnesses; whereas the appellants examined 5 witnesses in support of their version and they also relied upon oral evidence. In the light of this evidence, the trial Court delivered the common judgment in both the suits on 31.12.1993 and held that the present appellants were at fault and because of excessive hill cutting water could seep in the retaining wall. It further found that before filing the suit against the Society, the present appellants did not issue mandatory notice as contemplated by Section 164 of the Maharashtra Co-operative Societies Act and hence the suit filed by them was not tenable. It, therefore, dismissed Special Civil Suit No. 267/90/A and decreed the suit filed by the Society and awarded them compensation of Rs. 5,10,000/-. First Appeal No. 36/94 was directed against the decree passed in Special Civil Suit No. 263/90/A filed by the Society, while First Appeal No. 37/94 was against dismissal of their own suit, by the appellants. This Court maintained the dismissal of the appellants' suit on the ground that notice under Section 164 of the Maharashtra Co-operative Societies Act was not given. However, it concluded that the Society could not establish that after construction of the retaining wall that there was any further hill cutting and hence cutting of hill was not the cause of collapse or landslide that took place on 24.6.1990. However, it then concluded that on account of excessive hill cutting and seepage of water in the open (uncovered) portion of the hill that retaining wall constructed by the Society got weakened which ultimately resulted in its collapse and also collapse of the staircase, caused extensive damage to the buildings constructed by the Society. This Court then considered quantum of compensation awarded by the trial Court and upheld it.
6. In this background, we have heard Senior Advocate Pereira with Advocate J. Godinho for the appellants and Senior Advocate Dessai with Advocate Ms. S. Rodrigues for the respondents in both the appeals. After inviting attention to the finding of facts recorded by the learned Single Judge that after consent terms were recorded on 24.11.1982 there was no hill cutting and hence, collapse is not attributable to such hill cutting, Advocate Pereira has contended that further finding that water leaked into the wall through open portion of hill is contrary to record and also contrary to the pleadings. He has taken the Court through the relevant discussion in this respect as contained in paras 17 and 18 of the Judgment of the learned Single Judge and urged that inference drawn in para 19 about reason for weakening of retaining wall constructed by the Society is contrary to application of mind in these paragraphs. He has invited attention to the plaint as filed by the Society to show that the cause of action as given in para 17 does not support the reasons given by the learned Single Judge and the impugned Judgment to that extent is, therefore, unsustainable. It is his contention that construction of retaining wall, its repairs and maintenance was the sole responsibility of the Society and in view of the finding of the leaned Single Judge that the said wall got weakened because of seepage of water into it over a number of years, no compensation could have been awarded to the Society and the appellants could not have been directed to pay the same. He has contended that though the trial Court has recorded finding of excessive hill cutting, the said finding is not supported by evidence on record and he has tried to demonstrate that the wall constructed by the Society as retaining wall in terms of the consent terms was not in terms of compromise and as per the specifications given by the experts. He has contended that the evidence of Shri Bhende examined as Expert by the Society clearly shows that he did not supervise the construction work and the wall constructed was not as per specifications given by the experts. In this connection he has invited attention to evidence adduced by the appellants to urge that the appellants never accepted that for collapse of staircase which led to filing of Special Civil Suit No. 7/79 they were responsible. He contends that perusal of consent terms also does not show that appellants accepted their fault in the matter. He contends that in these circumstances, reasons for awarding compensation are non-existent and the judgment and decree of the trial Court maintained by the learned Single Judge of this Court to that extent is liable to be quashed and set aside. In the alternative and without prejudice to these submissions, he has contended that during the pendency of these LPAs, the Society has demolished both these buildings and as such, there is no question of constructing any staircase or then of repairing those buildings. He, therefore, states that cause for compensation has, itself, vanished and, therefore, the Judgment and Decree is rendered infructuous. Special Civil Suit No. 263/90/A, therefore, according to him, is itself rendered infructuous and needs to be dismissed.
7. In so far as LPA No. 15/2001 which challenges the Judgment delivered in First Appeal No. 37/1994 dismissing the suit of the appellants, Advocate Pereira contends that as the fault in repairing and maintaining retaining wall and of not abiding by consent terms dated 24.11.1982 on the part of the Society is established, the said violations cannot be viewed as one touching the business of Society and hence, notice under Section 164 of the Maharashtra Co-operatives Societies Act was not necessary at all. In the alternative, he states that as during the pendency of these proceedings the Society itself has removed/demolished the dilapidated building and the staircase, the suit as filed by the appellants, ought to have been decreed.
8. Senior Advocate Dessai, on the other hand, contends that neither the trial Court, nor the appellate Court has found any lapse or failure on the part of the Society as sought to be contended by the appellants. He states that the retaining wall was constructed by the Society for the benefit of its members occupying the buildings constructed by the Society and it was, therefore, in discharge of its duties and obligations to the members and part of its business. Notice under Section 164 of the Maharashtra Co-operative Societies Act was, therefore, essential and the suit filed by the appellants being Special Civil Suit No. 267/1990 was rightly dismissed.
9. Coming to LPA 20/2001, Advocate Dessai contends that there are concurrent findings on facts reached by both the Courts and those findings cannot be disturbed by this Court in LPA. He argues that in view of concurrent findings, scope of consideration by this Court in exercise of its letters patent jurisdiction is narrowed down considerably and the judgments in Municipal Corporation of Brihanmumbai and Anr. v. State Bank of India reported at (199) 1 SCC 123 in Salem Advocate Bar Association, T.N. v. Union of India reported at : AIR2003SC189 and in Baddula Lakshmaiah and Ors. v. Sri Anjaneya Swami Temple and Ors. reported at (Para 2) are pressed into service to support the limitation on jurisdiction of this Court.
10. Learned Counsel then contends that the plaint filed by the Society needs to be looked into in its entirety and para 17 thereof is relevant in this background. He contends that though the learned Single Judge has found that hill cutting has not been proved, the appellants themselves gave suggestion to the witness examined by the Society to show that public at large removed the mud from their property. It is, therefore, his contention that by giving such suggestion, the appellants admitted that hill was cut even after construction of retaining wall and the trial Court, as also the learned Single Judge, have found it difficult to believe this story. This story itself, according to him, is sufficient to sustain the findings recorded by the learned trial Court that there was further hill cutting after consent terms were recorded and after construction of retaining wall by the Society. He relies upon the provisions of Order 41, Rule 22 of Code of Civil Procedure to urge that adverse findings recorded by the learned Single Judge can be assailed by him in the present LPA and this Court can reach a finding different than one reached by the learned Single Judge. He invited our attention to evidence in this respect of the trial Court, as also by the learned Single Judge. It is his further contention that weakening of retaining wall due to water seepage is not disputed and both the Courts have found that contention of present appellants that water percolated because of septic tank constructed by the Society was not proved. According to him, this finding is not being assailed even before this Court. Hence, the concurrent findings reached by both the Courts below need to be maintained. Again he has taken us through the relevant consideration by the trial Court along with relevant part of the Judgment of the learned Single Judge. He states that when the experts have given their opinion and their opinion has not been proved to be in any way erroneous, said opinion must be honoured by this Court and the concurrent findings cannot be disturbed in LPA. He has also taken us through relevant evidence in support of his arguments.
11. Before proceeding further in the matter, it is necessary to mention that the issue of maintainability of these letters patent appeals, has also fallen for consideration, because according to the Society Bombay High Court has not been conferred with jurisdiction and powers to entertain LPA, in so far as Goa State is concerned. These arguments are being rebutted by the Senior Advocate Shri Pereira. We have heard Senior Advocate Dessai himself in support of this plea in Letters Patent Appeal No. 15/2000 and the Senior Advocate Shri S.K. Kakodkar has opposed Advocate Dessai in that matter. Both learned Senior Advocates appearing here have adopted respective arguments/stand in that LPA with a request to consider those arguments as their arguments in the present LPA, also. By a separate Judgment delivered today in the said LPA, we have held that the provisions of the High Court of Bombay (Extension of Jurisdiction to Goa, Daman and Diu) Act, 1981 use the word 'jurisdiction' in Section 3 and Section 4 with different connotation and, hence we have found that the jurisdiction of Bombay High Court to entertain LPA is not available to it in Goa State. In view of the said Judgment, it is not necessary for us to independently record those reasons in the present Judgment.
12. This brings us to consideration of scope of LPA and three Judgments cited by Advocate Dessai. Perusal of Municipal Corporation of Brihanmumbai and anr., v. State Bank of India (supra) shows that the appeal filed under Clause 15 of Letters Patent Appeal before Bombay High Court was in fact a third appeal. It was found that the Additional Chief Judge of the Small Cause Court had decided an appeal under Section 217(1) of Bombay Municipal Corporation Act, 1888 and then a second appeal was filed before the learned Single Judge of this Court under Section 218D(1) of the said Act which was only upon a question of law or usage having force of law or the construction of a document. The Bombay Municipal Corporation Act, thereafter, did not provide for any appeal and in this background, provisions of Section 100A of the Code of Civil Procedure have been looked into and it has been concluded that since an appeal from appellate order was heard and decided by the learned Single Judge of the High Court, no further appeal was maintainable from the Judgment and Order of the learned Single Judge passed in that appeal. Here the learned Single Judge has not decided an appeal from appellate order and decree. The appeal before the learned Single Judge of this Court was against the original Judgment and Decree delivered in two civil suits. The said ruling, therefore, has no application. Judgment in Salem Advocate Bar Association, T.N. v. Union of India (supra) shows that there provisions of Section 100A C.P.C. are considered and it has been observed that where an appeal is heard by the learned Single Judge against Decree of the trial Court, a question may arise whether any further appeal should be permitted or not. In fact, this issue was considered by Division Bench of this Court in LPA No. 7/1996 and vide Judgment and Order dated 18.9.2002, LPAs were held to be not maintainable. That judgment was followed in the present LPA also, and on 25.9.2002, these appeals were also disposed of in terms thereof. However, it appears that the matter was then taken up before the Hon'ble Apex Court and Hon'ble Apex Court vide its Order dated 13.10.2004 delivered in Civil Appeal No. 1416/03, remanded the matter back to this Court in view of the Judgment of Full Bench of this Court in case of Rahul Sharad Awasthi v. Ratnakar Trimbak Pandit and Ors. : 2004(5)BomCR50 which held that Section 100A of C.P.C. brought into force from 1.7.2000 did not have retrospective effect. Therefore, the present LPAs came to be remanded/restored for consideration on merits. It is to be noticed that both these LPAs were filed in 2001 itself and were admitted on 22.10.2001 i.e. much before coming force of the above mentioned 2000 C.P.C. amendment. This ruling, therefore, also has no application in the present circumstances. The third ruling, i.e. Baddula Lakshmaiah and Ors. v. Sri Anjaneya Swami Temple and Ors. (supra), in paragraph 2 states that the Letters Patent Bench sits as a Court of Correction and corrects its own orders in exercise of the same jurisdiction as was vested in the Single Bench. The Bench exercises powers of a Court of Error and thus, the scope of powers is quite different and distinct. This ruling, therefore, shows that this Court while exercising letters patent jurisdiction has got some powers and authority as that of learned Single Judge of this Court. The contention of learned Senior Advocate Dessai that there are concurrent findings which cannot be upset and the letters patent appeal needs to be decided only on question of law by following analogy of second appeals under Section 100A C.P.C. is, therefore, misconceived.
13. The learned Single Judge has framed following 4 points for his consideration in para 11 of the Judgment and both the Senior Advocates have addressed us accordingly. Those points are as under:
(a) Whether the collapse of retaining wall and staircase as a consequence of which there was landslide damaging the building, is attributable to the appellants, or the respondent-Society
(b) Whether the quantum determined by the trial court for amount towards damages is appropriate
(c) Whether the suit filed by the appellants is maintainable in law? And
(d) What relief
14. Finding on point (a) at the end of para 18 of impugned judgment shows that the learned Single Judge could not uphold the view that present appellants resorted to further cutting of hill after consent decree and also could not sustain the finding of trial Court that hill cutting was cause of collapse or landslide which took place on 24.6.1990. Advocate Dessai has sought to challenge this finding by contending that there is material on record to show that hill cutting was resorted by the appellants. Perusal of plaint in Special Civil Suit No. 263/90/A filed by the Society, particularly its para 16 shows that the Society has pleaded that retaining wall in terms of consent terms was constructed in the year 1983. In para 17 thereafter it has been mentioned that after construction of such retaining wall, the appellants undertook further cutting of hill in their property on western side of their building, but then they partly constructed a masonry wall in north- south direction against the height left over after such cutting and did not cover the entire cut portion, thereby left most of the said height unprotected. The Society also pleaded that such cutting was done in various phases and lastly till the year 1986 or so. Thereafter, in para 18 incident of landslide on 24.6.1990 has been pleaded. Thus, the Society pleads hill cutting till the year 1986 or so and thereafter, the land slide. These pleadings, even if construed liberally, do not mean that the hill was cut after 1986 till 24.5.1990. In this background, when evidence adduced by the Society is looked into, PW.3 Heraldo Pinto has stated that he had seen some labourers cutting height of the hill in the month of April, 1990. He has also stated that the hill was cut vertically between 1977 to 1980. His cross examination shows that he was not aware who engaged labourers for cutting of hill during the months of March to June, 1990. He denied the suggestion that there was no hill cutting from March to June, 1990 or at any time prior to that. However, little later he stated that he noticed cutting of hill in the month of March to May, 1990 and prior to that he had not noticed any such cutting. Thus, this witness examined by the Society speaks about hill cutting from 1977 to 1980, i.e. prior to compromise dated 24.11.1980 and, thereafter, from March, 1990 to May, 1990. He specifically says that before March, 1990 he did not notice any hill cutting. Perusal of evidence of PW.1 Ali Massani shows that after construction of retaining wall, the appellants continued to cut the hill intermittently in subsequent years and in months of March, April and May, 1990. In his cross examination suggestion was given to him that mud from the plot of the appellants was taken away by members of public and that suggestion is denied by him. However, where the mud was lying, when it was removed and what is its relation with cutting of hill has not come on record. This suggestion, therefore, does not in any way show that the cutting of hill was continued or accepted by the appellants after 1983. The plaint, as already mentioned above, shows that last cutting of hill as pleaded therein is of March, 1986. This evidence and pleadings have been considered by the learned Single Judge to conclude that cutting of hill after 1983 has not been established by the Society. It is to be noticed that collapse had, admittedly, taken place on 24.6.1990 and if there was any cutting of hill 2 - 3 months prior to that, it could have been and ought to have been pleaded by the Society. However, the Society chose to plead that such cutting was in March, 1986. There is no protest letter by the Society to the appellants in respect of any such hill cutting. All these details and variation between pleadings and proof or relevance thereof, in so far as question to be decided is concerned, are not looked into by the trial Court in appropriate manner. Impact of hill cutting in immediate past on collapse is very material fact and failure to plead it must be viewed adversely. PW.3 examined by the Society specifically accepted that he did not notice any hill cutting prior to March, 1990. Thus, the finding reached by the learned Single Judge cannot be stated to be either erroneous or perverse.
15. The question to be decided is what was the reason for collapse of the retaining wall and who is responsible for it. Perusal of paragraph 21 of the plaint shows that the Society pleaded that height of the hill above western wall constructed by the appellants was not supported by any retaining wall and its 6/7 metres portion was lying exposed. The said portion caused side thrust and seepage of water through the retaining wall built by the Society, rendering it weak for several years. Because of this weakness, corner portion of said wall first collapsed and further collapse of retaining wall was consequence of that collapse. Thus, seepage of water over several years into retaining wall has been given a reason for weakening and collapse thereof. Perusal of evidence of Sakharam S. Bhende, Civil Engineer examined as an Expert by the Society also supports this stand in evidence of Ali Massani. He has stated that total height of excavation of the hill on western side was 11 metres and the appellants had constructed retaining wall of height of only 3 metres. He stated that retaining walls of the appellants and the Society were meeting at north-west corner of the appellants property. He has further stated that retaining wall constructed by the Society was sufficiently strong though the appellants have contended that said wall constructed by the Society was not as per specifications. In cross examination of this witness, they could not bring out any such material and their Engineer Shri Mayenkar also could not substantiate this fact. Shri Bhende has stated that when he inspected the site in the year 1990, wall constructed by the appellants was intact. Evidence of appellant No. 2 Socorro Dias recorded in Special Civil Suit No. 267/90A shows that he constructed the retaining wall in 1983 itself i.e. simultaneously along with retaining wall of the Society. Though he has tried to contend that water seeped into the retaining wall constructed by the Society through septic tank constructed by the Society on its own plot, the trial Court as also the learned Single Judge have found that it is not proved. No arguments in this respect are advanced before us. In the cross examination, appellant No. 2 accepted that retaining wall constructed by the Society had touched the western exposed portion of the hill at its western end and before collapse of retaining wall, there had been collapse of western side width where it was touching the western end of the retaining wall because of which the earth from the exposed portion of the hill had fallen down and a gap was created between the western end of the retaining wall and the exposed hill on the western side. This gap was at north-western corner of his property (appellant's property). He denied that the earth fell down and gap occurred because of cutting of hill. He stated that the retaining wall collapsed during the rainy season and added that at that time there was no rain.
16. This material on record is considered by the learned Single Judge from paragraphs 19 onwards and story of construction of soak pit, septic tank below staircase by the Society and percolation of waste water from and its seepage into the retaining wall has been found incorrect. It has been further found that the said evidence on record clearly reveals that the collapse was not due to weakness of construction of the retaining wall or staircase constructed by the Society or on account of negligence of the Society, but, was obviously on account of acts of cutting of hill and seepage of water in the open (uncovered) portion of the hill on the west end which rendered the retaining wall weak. The learned Single Judge has accepted the finding that seepage of water was taking place from open corner of the retaining wall for number of years. Expert Shri Bhende examined by the Society has also deposed accordingly. In fact, evidence of appellant Socorro Dias mentioned above also shows that a gap was created between the said retaining wall and exposed portion of hill and that portion of retaining wall collapsed first. The appellants themselves have come up with the case that there was seepage of water into the retaining wall which had weakened it. The findings reached by both the Courts, therefore, cannot be stated to be either erroneous or perverse.
17. However, an important thing to be noticed is that the wall got weakening because of seepage of water over a number of years. The consent terms need to be looked into in this background. Those consent terms are mentioned by the learned Single Judge in paragraph 6 of the appellate Judgment. As per term No. 1, the appellants were restrained from cutting of the land near the northern and the western boundary of the property of the Society. As per term No. 4, the Society was entitled to construct a retaining wall as per report of Shri Eleuterio Barreto and plan of Shri Luis D'Costa. Term No. 8 required the appellants to pay to the Society a sum of Rs. 16,000/-in three instalments as their contribution towards the said wall. As per term No. 6, the Society was given right to maintain and repair the said retaining wall and for that purposes right to enter with labourers and materials or otherwise into the northern portion of the appellant's property. Term No. 12 made the Society responsible to compensate the appellants if the appellants' building was damaged by fall of retaining wall or the staircase in future. Thus, these terms and conditions clearly entrusted the Society with duty to regularly maintain and repair the retaining wall constructed by them. The contention of Advocate Dessai that there is no plea of negligence on the part of Society in repairing or maintaining it cannot be accepted because the appellants have come up with specific defence that there was seepage of water into the retaining wall which weakened it. This is also the story pleaded by the Society in paragraph 21 of its plaint. Only difference, according to the appellants, is that the water percolated because of soak pit and the septic tank constructed below the staircase by the Society, while according to the Society water percolated through the western end of their retaining wall and because of exposed portion of the hill. The story of the appellants has not been found to be established by both the Courts and that finding has not been assailed before us during the arguments. It is, therefore, obvious that percolation of water into the wall over a number of years is a fact proved on record. As there is no hill cutting after 1983, i.e. after construction of retaining wall by the Society and by the appellants, established on record, the situation prevailing after construction of both the retaining walls continued further till collapse on 24.6.1990. If any gap was created between the western corner of the retaining wall constructed by the Society and the exposed portion of hill, the gap could have been noticed by the Society had it been vigilant. The wall was constructed by it and its maintenance and repairs was its responsibility. Not only this, term No. 12 of the consent terms made the Society responsible for compensating the appellants if the appellants' property was damaged because of fall of retaining wall or the staircase. The Society was, therefore, supposed to watch the retaining wall regularly and get it inspected through experts to find out its strength and retaining power. The fact that its western end was open and uncovered portion of it could have absorbed water was well within the knowledge of the Society and could have been foreseen by the Society when both retaining walls were constructed in 1983. It is obvious that in 1983, the appellants did not cover the entire exposed western portion of hill, but their retaining wall covered only part of it and left portion of 8 metres above that retaining wall uncovered. Society never protested and did not properly monitor the repairs and maintenance of the said wall in the situation prevailing at the site and did not take necessary steps to check or stop percolation of water. It did not give any notice to the appellants after 1983 to raise height of their retaining wall and to cover the entire portion of it. They woke up only after the land slide on 24.6.1990. In these circumstances, it is apparent that the appellants alone cannot be held responsible for the said land slide and collapse of retaining wall. The Society permitted the situation prevailing in 1983 to continue to exist without any protest or objection and deteriorate further. Therefore, it cannot recover 100 percent compensation in the matter from the appellants.
18. But then the hill was cut by the appellants in 1983 and consent terms did not impose any obligation upon them to construct a retaining wall covering the complete exposed portion. However, that does not mean that the present appellants did not owe any obligation to Society in that respect because of the consent terms. Evidence of appellant No. 2 shows that because of exposed portion a gap was created between the western end of the wall and exposed portion of the hill. It was, therefore, duty of the appellants also to see that exposed portion of the hill did not result into mischief or problem for others, including the Society. This aspect of the matter has not been considered either by the trial Court or by the learned Single Judge. In view of this material which is available on record, we find that the appellants, as well as the Society are equally responsible for creation of situation which resulted into unfortunate landslide on 24.6.1990.
19. In view of this finding, the liability needed to be apportioned equally between them and that the Society would be entitled to recover Rs. 2,55,000/-along with interest at the rate of 6 % per annum from the date of filing of Special Civil Suit No. 263/90/A and Judgment and Decree delivered therein is, accordingly, warranting modification. But, as LPA is held to be not tenable, no relief on these lines can be given to the appellants.
20. In so far as challenge in Letters Patent Appeal No. 15/2001 is concerned, the reasons given by the learned Single Judge are contained in paragraph 12. We have considered those reasons and also the arguments advanced before us. Housing complex was constructed by the Society for its members as part of its business and Special Civil Suit No. 7/1979 was also filed by it for protection of interest of its members and, therefore, as a part of its legal duty. The compromise was also entered into by it for protection of said buildings and retaining wall was constructed by the Society was part of its business. Thus, construction, repairs and maintenance of said retaining wall was an act of Society in discharge of its legal obligation and part of its business. Section 164 of the Maharashtra Co-operative Societies Act requires notice to be given, if impugned act is touching the business of the Society. The alleged negligence pointed out by the appellants in their Special Civil Suit No. 267/90A is negligence of Society in discharging its obligation and not undertaking its business. We, therefore, are not in a position to accept the arguments of Senior Advocate Pereira that said omission or negligence of the Society was not touching the business of the Society and, therefore, notice under Section 164 of the Maharashtra Co-operatives Societies Act was not essential. We fully endorse the reasons given by the learned Single Judge, as also by the learned trial Court in this respect and uphold the dismissal of Special Civil Suit No. 267/90/A. Consequently, Letters Patent Appeal No. 15/2001 is dismissed even on merits.
21. Thus, Letters Patent Appeal No. 15/2001 is dismissed on merits as also as not maintainable. Letters Patent Appeal No. 20/2001 is dismissed as not tenable. Both the appeals are dismissed with no order as to costs.