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2009 Supreme(MP) 25
¼mPp U;k;ky;½+ HIGH COURT
U;k-ds-ds-ykgksVh
K.K. Lahoti, J.
lhrkjke fo- lgdkjh Hkwfe fodkl ¼Hkwfe ca/kd½ cSad fyfeVsM [kaMok rFkk vU;
Sitaram v. Co-operative Bhumi Vikas (Land Mortgage) Bank Ltd. Khandwa & Ors.
f}rh; vihy Ø- 694 lu~ 1996] tcyiqj flfoy vihy Ø- 7&, lu~ 1983 esa ikfjr ftyk U;k;k/kh‘k ds U;k;ky; [kaMok ds vij U;k;/kh‘k ds fu.kZ; rFkk fMØh ds fo#)% fu.khZr fnukad 6-1-2009A
Second Appeal No. 694 of 1996, Jabalpur; against judgment and decree of Additional Judge to the Court of District Judge, Khandwa, passed in civil Appeal No. 7-A of 1983; Decided on 6.1.2009.
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A.G. Dhande with D. Soni for appellant; Rajneesh Gupta for respondent Nos. 1 to 7.
Headnote: lgdkjh Hkwfe fodkl cSad vf/kfu;e] 1966 ¼e-iz-½&/kkjk 27&flfoy izfdz;k lafgrk] 1908&/kkjk 9&flfoy U;k;ky;ksa dh vf/kdkfjrk dk viotZu&lqxerk ls Lohd`r ugha&vf/kfu;e dh /kkjk 27 ds v/khu ,slh vf/kdkfjrk dk viotZu&flfoy U;k;ky; ds ikl bldk U;k;fu.kZ;u djus dh vf/kdkfjrk vHkh Hkh gS fd D;k lqlaxr vf/kfu;fefr ds mica/kksa dk vuqikyu fd;k x;k ;k ughaA
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iwoksZDr dks n`f"Vxr j[krs gq, fopkj.k U;k;ky; rFkk vihy U;k;ky; }kjk ikfjr vkf{kIr fof/k ds v/khu ekU; ugha gSA nksuksa vkns‘k vikLr fd, tkrs gSaA ekeyk nksuksa i{kdkjksa dks lk{; izLrqr djus dk volj iznku djus ds i‘pkr~ ekeys dks fofuf‘pr djus ds fy, fopkj.k U;k;ky; dks izfrizsf"kr fd;k tkrk gSA , vkb vkj 1963 ,l lh 1547] 1969 ts ,y ts 1 ¼mPpre U;k-½] 2007 jk fu 1 ¼,l lh½ rFkk ¼2008½ 5 ,l lh lh 542 vuqlfjrA , vkb vkj 2002 ,l lh 997 rFkk 2001 ¼3½ ,e ih ,p Vh 363 izHksfnrA ¼iSjk 15 ,oa 16½
Sahkari Bhumi Vikas Bank Adhiniyam, 1966 (M.P.) -- S. 27 -Civil P.C., 1908 -- S. 9 -- exclusion of civil Courts jurisdiction -- not readily accepted -- exclusion of such jurisdiction under S. 27 of the Adhiniyam -- civil Court yet has jurisdiction to adjudicate whether or not the provisions of relevant enactment have been complied with.
The Court below without properly considering the preliminary issue No. 19 held that the civil Court was having no jurisdiction, while as per the settled law by the Apex Court the civil Court was having jurisdiction to examine the question that without following the mandatory provision of the Act such sale was legal or not and what was the effect of no objection certificate issued by the Bank before purchase of the property by the plaintiff. All these questions alongwith other questions were to be examined by the trial Court, while deciding the issue No. 19. The issue No. 19 could not have been decided without recording evidence in the matter.
In view of aforesaid the impugned order passed by the trial Court and appellate Court are not sustainable under the law. Both the orders are set aside. The matter is remitted back to the trial Court to decide the matter after extending opportunity to both the parties to lead the evidence. AIR 1963 SC 1547, 1969 JLJ 1 (SC), 2007 RN 1 (SC) & (2008) 5 SCC 542 followed. AIR 2002 SC 997 and 2001 (3) MPHT 363 distinguished. [Paras 15 & 16]
1. The plaintiff has filed this appeal, aggrieved by the judgment and decree dated 12.3.1996 by Additional Judge to the Court of District Judge Khandwa in Civil Appeal No. 7-A/983, by which judgment and decree dated 16.3.1983 by the Civil Judge Class I, Burhanpur in civil Suit No. 8A/1975 was confirmed. Both the Courts below found that the Civil Court has no jurisdiction to decide the suit and the controversy lies within the purview of section 64 of the M.P. Cooperative Societies Act, 1960 (hereinafter referred to as 'Act' for short) and dismissed the suit.
2. This appeal was admitted on 25.9.1998 on the following substantial question of law :--
"Whether the Courts below erred in law in holding that the civil Court has no jurisdiction to grant the relief in view of section 27 of the M.P. Bhumi Vikas Adhiniyam, 1966?"
3. Learned counsel for appellant challenged the judgment and decree on the following grounds : -
(1) That the Courts below erred in holding that the suit was barred under Section 27 of the M.P. Sahakari Bhoorni Vikas Bank Adhiniyam, 1966 (hereinafter referred to as 'Adhiniyam of 1966' for short) while the civil Court was having jurisdiction to decide the controversy between the parties.
(2) That the appellant was not a borrower or a member of the Society and his case was not covered under Section 64 of the Act. The appellant purchased the property by registered sale deed dated 27.4.1964 after obtaining no objection certificate dated 14.4.1964 from the Bank. The appellant was a bonafide purchaser of the property after obtaining due no objection certificate from the Bank. The appellant after purchase of the property remained in possession of the land for more than 10 years and without any notice to the appellant, the property was auctioned on 30.5.1974 and 1.6.1974. Before auction of land of appellant, notice was mandatory, in absence of which the entire proceeding vitiates. It is submitted that as the provisions of section 64 are not applicable in the case of appellant the Court below erred in dismissing the suit in view of section 27 of the Adhiniyam of 1966.
(3) That section 27 of the Adhiniyam of 1966 is not applicable in the present case. It provides that only the title of the purchaser shall not be impeachable, but in case where the auction took place without any notice to the plaintiff, the provision of section 27 shall not be applicable. The Court below erred in wrongly interpreting section 27 of the Adhiniyam of 1966.
(4) The appellant has placed reliance on Apex Court judgment in Firm Seth Radha Kishan (Deceased) represented by Hari Kishan and others v. The Administrator, Municipal Committee, Ludhiana (AIR 1963 SC 1547), Firm and [Lluri Subbayra Chetty and Sons v. The State of Andhra Pradesh (AIR 1964 SC 322), Dhulabhai v. State of M.P. and another (1969 JLJ I = AIR 1969 SC 78), Prakash Narain Sharma v. Burmah Shell Cooperative Housing Society Ltd. [(2002) 7 SCC 46], Kishorilal v. Sales Officer, District Land Development Bank and others [2007 RN I = (2006) 7 SCC 496] and Rajasthan SRTC & others v. Mohar Singh [(2008) 5 SCC 542] and submitted that the judgment and decree passed by the Court below dismissing the suit of appellant are not sustainable under the law. The civil Court was having jurisdiction to examine into the cases where the provisions of the Act were not complied with and also to examine whether the tribunals had not acted in conformity with the fundamental and judicial procedure.
4. Shri Rajneesh Gupta, learned counsel for respondent Nos. 1 & 7 supported the judgment and decree of the Court below and submitted that the appellant stepped into the shoes of the borrower. He purchased the property from the purchaser of the borrower. The lands in question were mortgaged with the bank and under Section 64 (I) (c) the appellant is a person who was claiming through the borrower. In these circumstances, the appropriate remedy for the appellant was to file a dispute
