NAZIR AHAMAD, ABDULARAZAK, LAKSHARI Vs. ANWARPASHYA SAYYADMEERA MUJWAR

JUDGEMENT

(1.) The unsuccessful plaintiff has filed the present regular second appeal against the judgment and decree dated 11.01.2008 made in R.A.No.199/2006 on the file of the Principal Civil Judge (Sr.Dn.), Vijayapur dismissing the appeal, confirming the judgment and decree dated 22.09.2006 made in O.S.No.97/2005 on the file of Principal Civil Judge (Jr.Dn.), Vijayapur dismissing the suit with cost of Rs.5,000/- mainly on the ground that the suit filed by the plaintiff was not maintainable in view of the provisions of Section 125 of the Karnataka Cooperative Societies Act, 1959 (for short 'the Act').

(2.) The present appellant was the plaintiff before the Trial Court filed a suit for permanent injunction restraining the defendants from evicting him from the suit house property bearing CTS No.915/1A2 measuring 117.58 sq. meters of Ward No.V of Vijayapur city without due process of law contending that the first defendant is the owner of the suit property and he was in financial difficulty during the year 2001. Therefore, he approached the plaintiff and requested him to advance loan of Rs.80,000/- to meet the legal necessities. The first defendant offered to let the suit property on rent till the amount is repaid. Accordingly, on 28.06.2001 the plaintiff paid a sum of Rs.80,000/- to the first defendant and later executed the unregistered mortgage deed on the same day and put the plaintiff in possession of the suit property. It was also contended that the first defendant had obtained loan from the second defendant and charge was created in respect of the suit property and the first defendant became defaulter. Hence, the second defendant initiated recovery proceedings by visiting the suit property and threatening the plaintiff to dispossess him from the suit property. Therefore, the plaintiff has filed the suit for the relief sought for.

(3.) The first defendant remained absent in spite of service of summons and he was placed exparte. The suit was resisted by the second defendant by filing written statement and contended that the suit was not maintainable and the Civil Court has no jurisdiction to entertain the suit and no statutory notice was caused by the plaintiff before filing of the suit. The second defendant has denied that the first defendant had borrowed a sum of Rs.80,000/- from the plaintiff, who in turn executed the mortgage deed etc., and sought for dismissal of the suit.