JUDGMENT 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 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 under Section 64 of the Act and the civil Court was having no jurisdiction to entertain and decide the dispute between the parties. In these circumstances, the appropriate remedy for the appellant was to file a dispute under Section 64 of the Act and the civil Court was having no jurisdiction to entertain and decide the dispute between the parties. He has also referred to Section 27 of the Adhiniyam of 1966 and submitted that the title of the purchaser cannot be impeached merely for irregularity. In the written statement the respondent has specifically pleaded that the appellant was having knowledge of the sale proceedings since 1970 and when the appellant was having knowledge of sale he ought to have approached the cooperative tribunal for redressal of the grievance. The Court below rightly dismissed the suit of appellant in which no interference is needed in this appeal. He has placed reliance to the Apex Court judgment in C. T. Nikam v. Municipal Corporation, Ahmedabad ( AIR 2002 SC 997 ) and Single Benchjudgment of this Court in Bruhtakar Sahakari Sakh Sanstha Maryadit Naitabali, Mandsaur v. Bherulal and another [ 2001 (3) MPHT 363 ] and submitted that this appeal may be dismissed with costs. 5. To appreciate the rival contentions of the parites, factual position in the case may be stated. Appellant Sitaram filed suit before the Civil Judge Class-I Burhanpuron 18.7.1975 for declaration that auction sale of Khasra No. 11 area 15.75 acres of village Kharkheda, Tahsil Burhanpur held on 30.5.1974 was viod in law and the plaintiff being rightful bhumiswami of the land was entitled to its possession, mesne profit and costs. The suit was filed on the allegations that plaintiff was the owner and in possession . of the suit land since 1964. The disputed land khasra No. II area 15.75 acres of village Kharkheda was recorded in the name of plaintiff as Bhumiswami in the record of rights. That before purchasing the suit land defendant approached the Bank on 14.4.1964 and moved an application for issuance of no objection certificate. The defendant bank certified that there was no charge or mortgage of bank on the suit land. After obtaining such no objection certificate plaintiff purchased the suit land on 2704.1964 by registered sale deed. That before purchasing the suit land defendant approached the Bank on 14.4.1964 and moved an application for issuance of no objection certificate. The defendant bank certified that there was no charge or mortgage of bank on the suit land. After obtaining such no objection certificate plaintiff purchased the suit land on 2704.1964 by registered sale deed. In para 1 (b) (3) the plaintiff pleaded that after having issued such no objection certificate, that there was no charge or mortgage on the suit land and the defendant bank was not entitled to proceed against the suit land for recovery of the loan under the doctrine of estoppel. That the plaintiff purchased the suit land from defendant No.9 Raghunath S/o Bekhu, Tehsil Burhanpur by registered sale deed dated 27.4.1964 and since then the plaintiff was in possession of the land on his own rights. The plaintiff was arrested and detained on 29.7.1975 under the Defence of India Act by Kaknar Police and he was sent to Khandwa Jail, where he remained confined till 18.8.1975. The plaintiff also pleaded in para 2 (b) of the plaint that respondent No.7 Dilipsingh in league with others, lodged false report against the plaintiff and got him arrested under the Defence of India Act and after the next date of arrest of plaintiff, Dilipsingh took unauthorised and unlawful possession of the suit land. That the defendant No. 7 threatened to the plaintiff that he was purchaser of the suit land in auction sale held by the sales officer of defendant No.2 under the Cooperative Societies Act for recovery of a debt due to defendant No.2 from Narayan S/o Kishan defendant No.4 and his deceased brother Kashinath. In para 4 (b) of the plaint it was pleaded that some proceedings were going on before the sales officer in respect of sale of alleged mortgage lands. The plaintiff applied to the sales officer that the suit land was not mortgaged with Bank and lands survey Nos. 59 and 63 were in possession of original mortgagor Narayan and heirs of Kashinath. The debt amount could be recovered from them, but inspite of this the land of plaintiff was put to sale. That the plaintiff who was a recorded Bhumiswami of the land and was in possession. He was never intimated about the date of sale. 59 and 63 were in possession of original mortgagor Narayan and heirs of Kashinath. The debt amount could be recovered from them, but inspite of this the land of plaintiff was put to sale. That the plaintiff who was a recorded Bhumiswami of the land and was in possession. He was never intimated about the date of sale. He was also not served with the demand notice in consequence of which the sale was held. Infact the plaintiff had no information about the alleged auction sale of land and became aware after two weeks of the alleged auction. With the aforesaid allegations and some other allegations, in respect of irregularity of sale, the suit was filed for the aforesaid reliefs. 6. The defendants contested the suit by filing written statement in which allegations of the plaint were denied inter alia. The defendant also took a plea that the civil Court was having no jurisdiction to entertain and decide the dispute between the parties. 7. The trial Court framed the 'issues. The issue No. 19 was the preliminary issue which was framed by the trial Court thus :- "Whether jurisdiction of civil Court is barred by M.P. Cooperative Societies Act and M.P. Sahakari Bhoomi Vikas Bank Adhiniyam, 1966 ?" The trial Court heard the parties on the preliminary issue and found the under Section 27 of the Adhiniyam of 1966 the suit was barred and dismissed the suit. Against the aforesaid judgment of the trial Court an appeal was preferred, but was also dismissed on the same grounds. 8. To appreciate the rival contentions of the parties it would be appropriate if section 27 of the Adhiniyam of 1966 is referred thus :- "27. Title purchaser not impeachable for irregularities :-- When a sale has been made in professed exercise of a power of sale under Section 19 and has been confirmed under Section 21, the title of the purchaser shall not be impeachable on the ground that no case had arisen to authorise the sale or that due notice was not given or that the power was otherwise improper or irregular exercise of the power shall have his remedy in damages against the Development Bank." Section 64 of the Act provides dispute to be filed before the Registrar. For ready reference section 64 may be referred which reads thus :- "64. For ready reference section 64 may be referred which reads thus :- "64. Disputes -- (1) Notwithstanding anything contained in any other law for the time being in force, [any dispute touching the constitution, management or business, terms and conditions of employment of a society or the liquidation of a society shall be referred to the Registrar] by any of the parties to the dispute if the parties thereto are among the following:- (a) a society, its committee, any past committee, any past or present officer, any past or present agent, any past or present servant or a nominee, heirs or legal representatives of any deceased agent or deceased servant of the society, or the liquidator of the society; (b) a member, past member or a person claiming through a member, past member or deceased member of a society or of a society which is a member of the society; (c) a person other than a member of the society who has been granted a loan by the society or with whom the society has or had business transactions and any person claiming through such a person; (d) a surety of a member, past member or deceased member or a person other than a member who has been granted a loan by the society, whether such a surety is or is not a member of the society; (e) any other society or the liquidator of such a society; and (f) a creditor of a society. (2) For the purpose of sub-section (1), a dispute shall indude- (i) a claim by a society for any debt or demand due to it from a member, past member or the nominee, heir or legal representative of a deceased member, whether such debt or demand be admitted or not; (ii) a claim by a surety against the principal debtor where the society has recovered from the surety and amount in respect of any debt or demand due to it from the principal debtor as a result of the default of the principal debtor, whether such debt or demand be admitted or not; (iii) a claim by a society for any loss caused to it by a member, past member or deceased member, any officer, past officer or deceased officer, any agent, past agent or deceased agent, or any servant, past servant or deceased servant, or its committee, past or present, whether such loss be admitted or not; (iv) a question regarding rights, etc., including tenancy 'rights between a housing society and its tenants or members; and (v) any dispute arising in connection with the election of any officer of the society or representative of the society or of composite society: Provided that the Registrar shall not entertain any dispute under this clause during the period commencing from the announcement of the election programme till the declaration of the results]. (3) If any question arising whether a dispute referred to the Registrar is a dispute, the decision thereon of the Registrar shall be final and shall not be called in question in any Court." Section 82 of the Act bars the jurisdiction of the Court. For ready reference Section 82 is referred thus:- "82. Bar of jurisidiction of Courts -- (1) Save as provided in this Act, no civil or revenue Court shall have any jurisdiction in respect of - (a) the registration of a society or of bye-laws or of an amendment of a bye-law; (b) the removal of a committee and the management of the society after such removal; (c) any dispute, required to be referred to the Registrar or his nominee or board of nominees; (d) any matter concerning the winding up and the dissolution of a society. (2) While a society is being wound up, no suit or other legal proceedings relating to the business of such society shall be proceeded with, or instituted against, the liquidator as such or against the society or any member thereof, except by leave of the Registrar and subject to such terms as he may impose. (3) Save as provided in this Act, no order, decision or award made under this Act shall be questioned in any Court or any ground whatsoever." 9. In this case, the allegations of the plaintiff are that the plaintiff purchased the property after obtaining no objection certificate from the respondent Bank. The aforesaid no objection certificate was issued on 14.4.1964. The appellant filed this no objection certificate before the appellate Court alongwith an application dated 11.12.1985. A specific averment was made in the plaint itself that such no objection certificate was obtained by the plaintiff before purchase of the land on 14.4.1964 and thereafter on 27.4.1964, the plaintiff pruchased the land from the predecessor. Apart from this the plaintiff very specifically averred that before auction of the land on notice, as envisaged under the Adhini yam of 1966, was issued to the appellant. Section 18 of the Adhiniyam of 1966 provides power of sale when and how to be exercised. For ready reference Section 18 may be referred which reads thus:- "18. Power of sale when and how to be exercised - (1) Notwithstanding anything contained in the Transfer of Property Act, 1882 (IV of 1882), or the Trustees and Mortgages Powers Act, 1866 (XXVIII of 1866) the committee of the bank or any person authorised by such committee in this behalf shall, in case of default of payment of mortgage money or any part thereof, have power, in addition to any other remedy available to the bank, to bring the mortgaged property to sale without the intervention of the Court. (2) No such power shall be exercised unless and until; (a) the Board has previously authorised the exercise thereof after hearing the objections, if any, of the mortgagor or mortgagors: [Provided that the Board shall be deemed to have authorised the exercise of such power if no reply is received from the Board within thirty days of making a reference by the committee of the bank or any person authorised by the committee for the purpose.] (b) notice in writing requiring payment of such mortgage money or part thereof has been served upon(i) the mortgagor or each of the mortgagors; (ii) any person who has any interest or charge upon the mortgaged property or in or upon the right to redeem the same so far as known to the committee; (iii) any surety for the payment of the mortgage debt or any part thereof; and (iv) any creditor of the mortgagor who has in a suit for the administration of his estate obtained a decree for sale of the mortgaged property; and ' (c) default has been made in payment of such mortgaged money or part thereof for three months after service of the notice." Sub-section (2) of Section 18 specifically provides that no such power shall be exercised until and unless notice upon the person specified in section has been served, including the person who has interest or charge in the mortgage property. 10. In this case, the plaintiff purchased the property after obtaining no objection certificate dated 14.4.1964 from the Bank. The land was purchased by the plaintiff on 27.4.1964 and for a period of near about years the plaintiff was in possession of the property and as per averments in the plaint he was recorded Bhumiswami of the property. In these circumstances, the plaintiff was a person whose interest was involved in the property and was entitled to a notice as required under Section 18 of the Act. It is a settled law that for deciding preliminary issue averments in the plaint are to be seen. Though defendant in the written statement had alleged that the plaintiff was having knowledge of sale, but in the written statement nowhere it was stated that a due notice as required under Section 18 was served on the plaintiff. It is a settled law that for deciding preliminary issue averments in the plaint are to be seen. Though defendant in the written statement had alleged that the plaintiff was having knowledge of sale, but in the written statement nowhere it was stated that a due notice as required under Section 18 was served on the plaintiff. In absence of aforesaid in the written statement, the averments made in the plaint may be taken into consideration while deciding preliminary issue No. 19 in the matter. Recently the Apex Court in Kishorilal (supra) considered this aspect of non-issuance of notice. The Apex Court in para 10& 11 of the judgment considered non-issuance of notice and scope of Section 27 of the Adhiniyam. The Apex Court held that Section 27 of the Act does not state that no notice is necessary to be' served. It speaks if due notice has been served. Admittedly no notice was served on the appellant of that case and in those circumstances the Apex Court set aside the auction proceedings, though directed refund of sale consideration to the purchaser, but the sale was found to be invalid. 11. In this case as per the averments made in the plaint, as no notice as required under Section 18 of the Act was served and when no such notice was served upon the plaintiff, the auction cannot be said to be a legal auction within the purview of provisions of Adhiniyam and in that circumstance, the provisions of Section 27 may not be applicable. But this question is to be decided by the trial Court. If at this juncture this Court records any finding then it may affect the interest of the parties, who shall be free to adduce, evidence in this regard. But from the perusal of averments made in the plaint it can very well be gathered that plaintiff specifically averred that no such notice was issued and without issuance of notice as required under Section 18, an auction took place. In these circumstances as per averments of the plaintiff the entire auction was invalid. The civil Court was having jurisdiction to examine such issue, about the auction took place without following the mandatory provisions of the Act. 12. In these circumstances as per averments of the plaintiff the entire auction was invalid. The civil Court was having jurisdiction to examine such issue, about the auction took place without following the mandatory provisions of the Act. 12. The Apex Court in Firm and Illuri Subbayya Chetty (supra), held that even if the jurisdiction of civil Court is excluded, the civil Court has jurisdiction to examine into cases where the provisions of the Act were complied with or the statutory tribunal had not acted in conformity with the fundamental principles of judicial procedure. The Apex Court in Dhulabhai (supra) held that an exclusion of jurisdiction of civil Court is not readily to be inferred unless the conditions enumerated in the judgment apply. The Apex Court enumerated as far as 7 conditions in which the jurisdiction of the civil Court may be excluded, but in the present case any of the aforesaid conditions do not apply. The Apex Court in Prakash Narain Sharma (supra) considering the legal position held that the even where exclusion of jurisdiction of civil Court is statutorily provided still on availability of requisite grounds the civil Court can entertain a civil suit on well defined parameters settled by the constitution Bench of the Apex Court in Dhulabhai (supra). 13. The judgment relied on by Shri Rajneesh Gupta in C.T. Nikam (supra) relates to termination order passed by an employer and in that case the Apex Court was considering the question of jurisdiction of civil Court qua an industrial dispute. The Apex Court held that the relief sought for can be properly given by forum under the Industrial Disputes Act and the jurisdiction of civil Court was impliedly barred. But the factual position in the present case is entirely different. In this case as per the averments made in the plaint the plaintiff alleged that he purchased the property after obtaining due no objection certificate from the Bank and was in possession of the property for a period of more than 10 years when the auction took place and that too without any notice as was mandatorily required under the Act. In the light of aforesaid fact the judgment of C. T. Nikam (supra) is not applicable in the present case. 14. In the light of aforesaid fact the judgment of C. T. Nikam (supra) is not applicable in the present case. 14. So far as the judgment of Single Bench of this Court in Bruhtakar Sahakari Sakh Sanstha Maryadit Naitabali (supra) relied on by the learned counsel for respondents is concerned, this Court though held that independent suit for declaration of title on land in dispute is maintainable, but question whether any amount was due to the society was in exclusive domain of the authorities empowered to decide under the Cooperative Societies Act and the civil Court for enforcement of the charge or for recovery of loan would be barred under the Cooperative Societies Act. 15. But the facutal position in the present case is entirely different and the aforesaid judgment is not applicable in the present case. 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. 16. 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. The parties present here in are directed to remain present before the trial Court on 30th of March 2009 for which date no notice shall be necessary. On the aforesaid date the trial Court shall fix a date for recording evidence of both the parties. Both the parties if needed, may produce necessary" documents before the trial Court on the date. Thereafter the trial Court shall proceed in the matter in accordance with law. 17. Considering the facts of the case, there shall be no order as to costs. Both the parties if needed, may produce necessary" documents before the trial Court on the date. Thereafter the trial Court shall proceed in the matter in accordance with law. 17. Considering the facts of the case, there shall be no order as to costs. While remanding the matter, looking to the long pendency of the case, the trial Court is directed to expedite the hearing of the case and shall make an endeavour to decide the case expeditiously as far as possible within a period of six months from the aforesaid date.