( 1. ) THIS is a second appeal under Section 100 of the CPC. The following substantial questions of law were formulated by order dated 9-12-1983 at the time of admission of this appeal.

(i) Whether in the facts and circumstances of the case the learned Lower Appellate Court has committed an error of law by not properly considering the Provisions of the M. P. Co-operative Societies Act, 1960 and the Rules made thereunder ? (ii) Whether the Civil Court in these circumstances had jurisdiction to try the suit in the present form ?

( 2. ) THE facts relevant for the decision of the questions referred to above are that the defendant No. 1 Kamal singh borrowed money from the defendant No. 2, which is a Co-operative Society. The defendant No. 1 executed the declaration form dated 15-11-1968 (Exhibit D. 1) in favour of the defendant No. 2. It was as required by Section 41 of the M. P. Co-operative Societies Act, 1960 (hereinafter to be referred to as "the Act" ). In other words, the defendant No. 1 created a charge on the lands mentioned in the declaration form in favour of the defendant No. 2. According to Section 41 of the Act any debt or outstanding demand owing to Society by a member "shall be first charge" in favour of the society on the loan owed by such member. The defendant No. 1 sold the land in dispute which was the subject matter of charge to the plaintiff by registered sale-deed dated 18-8-1972 Exhibit P. I. It is apparent that this sale was subject to the charge created by the defendant No. 1 in favour of defendant No. 2.

( 3. ) THE Trial Court dismissed the suit of the plaintiff for injunction for restraining the defendant from interfering with the possession of the plaintiff on the land in dispute. Claim of the defendant No. 2 was that there was an award in favour of the Society under Section 84 of the Act for enforcement of the charge but the defendant No. 2 did not produce any document in this respect. The Trial Court further held that Civil Court could not go into the question of the loan advanced by the Society to the defendant No. 1.

( 4. ) IN appeal by the plaintiff, the First Appellate Court held that there was no definite evidence to show that the defendant No. 2 had purchased the land in dispute in auction proceedings against the defendant No. 1 by the Recovery Officer. The First Appellate Court decreed the suit of the plaintiff for injunction. The defendant No. 2 has been restrained from disturbing the possession of the plaintiff on the land in dispute.

( 5. ) AFTER hearing the learned counsel for both sides and on careful consideration of the material on record, this Court is of the opinion that the First Appellate Court has wrongly gone into the question whether the defendant No. 2 has purchased the land in dispute in recovery proceedings against the defendant No. 1. That was the matter which could be enquired into by the Recovery Officer under the Rules framed under the Act. From the facts given above, it is obvious that the plaintiff purchased the land from the defendant No. 1 on 18-8-1972. The defendant No. 1 had created first charge on the land in dispute as per Section 41 of the Act. Therefore, the sale by the defendant No. 1 to the plaintiff must be held to be with subsisting charge.

( 6. ) A certified copy of the judgment dated 21-6-2000 in Second Appeal No. 115 of 1982 between the same parties, has been produced by the learned counsel for the appellant. It was in respect of different sale-deed but other facts were identical. It has been held that the First Appellate Court had no jurisdiction to examine the legality of the recovery proceedings before the Co-operative Court.

( 7. ) THE learned counsel for the respondent has cited decision of this Court in Kishan lal Vs. Registrar, Co-operative Societies, (1993 RN 183) in support of the plea that the plaintiff could legally file civil suit for declaration that he is the owner of the land in dispute. It is, further argued on behalf of the respondent that