AVTAR SINGH Vs. SUKHVINDER SINGH

JUDGEMENT

(1.) THE trial Court, on June 11, 3987, dismissed the suit brought by Sakhvinder Singh and others, sons of Gurbax Singh, on the two preliminary issues relating to the jurisdiction of the Civil Court to try the suit and for want of notice under Section 79 of the Punjab Co-operative Societies Act. 1961 (hereinafor called 'the Act' ). On appeal filed by Sukhvinder Singh and others, plaintiffs, the Additional District Judge, Patiala, set aside the judgment and decree of the trial Court and remanded the case back to the trial Court for decision of the issues in the light of the evidence to be produced by the parties It was also noticed that some application for amendment of the plaint was moved which was also for disposal by the trial Court. Two of the defendants have filed this revision petition.

(2.) SUKHVINDER Singh and others filed this suit for declaration that auction sale and sale certificate dated December 27, 1989, issued by the Sales Officer in respect of land measuring 30 Bighas 3 Biswas in favour of Avtar Singh and Sarwan Singh defendants was illegal, null and void' and not binding on the plaintiffs. The plaintiffs are sons of Gurbax Singh who had taken loan of Rs 18,000/ -from the Patiala Primary Co-operative Mortgage Bank Ltd. , Patiala, (for short called 'the Bank') in the year 1972, as per allegations of the Bank. In fact he had taken only Rs. 5. 000/which had been returned. At that time Gurbax Singh was of unsound mind and not capable of entering into any agreement. The plaintiffs claim to be owners of the suit land in view of a decree dated November 4, 1977, passed by Senior Sub Judge, Patiala. It was the said land which was sold by the Assistant Registrar, Co-operative Societies, Patiala cum-Sales Officer. At the time the plaintiffs were stated to be minors and the sale was effected without their consent or their guardian's consent. At the time of the sale Gurbax Singh had no concern with the suit land. It was further alleged by the plaintiffs that in fact no auction took place. The appellants were cot given any opportunity of hearing before auction The Bank contested the suit and denied the allegations of the plaintiffs, for want of knowledge. Decree of transfer of land in favour of the plaintiffs. It was alleged that Gurbax Singh got redeemed the land after raising a loan of Rs. 18,100/- from the bank in the year 1971 and in lieu thereof he mortgaged 30 Big eras 3 Biswas of land with the Bank. Thereafter Gurbax Singh raised another loan of Rs. 5,000/- required for the tube-well This was taken in August 1972 and Gurbax Singh bad agreed to mortgage 12 Bighas 10 Biswas of land as security. Since Gurbax Singh failed to repay the loan, the Assistant Registrar sold the land. In the alternative it was stated that even if the land was transferred in favour of the plaintiffs, they were bound to pay the dues to the bank as, it was specially mentioned that the transfer of suit land was subject to in-cumberances if already on the land. It was further asserted that earlier a similar suit was filed which was dismissed on November, 3, 1979 and the present suit was barred by res judicata The Assistant Registrar-cum Sales Officer also contested the suit inter al a pleading that Gurbax Singh had failed to repay the loan and the matter was referred to the Arbitrator. Award was given against Gurbax Singh and it was in execution of the Award that the land was put to auction which was purchased by Avtar Singh and Swaran Singh defendants.

(3.) TWO preliminary issues which were deeded by the trial Court were issues Nos. 6 and 11 which are reproduced below :-6. Whether this court has no jurisdiction to try this suit and the same is barred under the provisions of Co-operative Societies Act ? OPD (11) Whether the suit is bad for want of notice under Section 79 of Punjab Co-operative Societies Act to the Society ? OPD