Page 1

Civil Appeal No.           of 2017 @ SLP© No. 16722 of 2016

REPORTABLE

IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO.  3771  OF 2017 [Arising out of SLP(C) No.16722 of 2016]

RAVISH AND ANR.                                    …Appellants

Versus

SMT. R. BHARATHI               ...Respondent

J U D G M E N T

R.  BANUMATHI  J.

Leave granted.

2. This appeal is preferred against the judgment of the High Court

of Karnataka at Bengaluru dated 20.07.2015 in and by which the High

Court dismissed the Regular First Appeal No.522 of 2015 granting

liberty  to  the  appellants/defendants  to  institute  independent

proceedings and establish their claim in an appropriate suit.

3. Briefly  stated,  case  of  the  respondent/plaintiff  as  per  the

averments in the plaint is as follows:- Respondent/plaintiff  filed the

suit bearing OS No.4376 of 2014 for permanent injunction claiming

Page No. 1 of 6

Page 2

Civil Appeal No.           of 2017 @ SLP© No. 16722 of 2016

that she is the absolute owner of the site bearing No.1077/21.  Case

of the respondent/plaintiff is that the said site came to be allotted in

her  name by Vishwabharathi  House Building Co-operative  Society

(for  short  ‘VHBC  Society’)  by  way  of  allotment  letter  dated

02.08.2004.   Pursuant to the issuance of site allotment letter dated

02.08.2004, VHBC Society executed sale deed dated 06.12.2004 in

favour  of  the  respondent/plaintiff  which  came  to  be  registered  on

09.12.2004.  Respondent/plaintiff states that the VHBC Society had

issued possession certificate dated 10.01.2005 in her name.  Further

case of the respondent/plaintiff is that as there was dispute amongst

the  members  regarding  allotment  of  sites,  some  members  of  the

VHBC Society filed a writ petition against VHBC Society and in the

said  writ  petition  vide order  dated  16.11.2010,  the  High  Court

stipulated  certain  guidelines  to  be  followed  by  VHBC  Society  for

allotment of sites to the members.  Pursuant to the direction of the

High Court, VHBC Society issued a paper publication calling upon its

members to produce the documents pertaining to the seniority and

eligibility of its members for allotment of sites in the layout formed by

VHBC  Society  as  per  the  new  Bangalore  Development

Authority(BDA) layout plan.The respondent/plaintiff states that VHBC

Page No. 2 of 6

Page 3

Civil Appeal No.           of 2017 @ SLP© No. 16722 of 2016

Society issued a fresh allotment letter dated 14.06.2013 allotting a

new Site No.4307 measuring 139.40 sq. mtrs. in Phase-IV of VHBC

Society layout  which was approved by BDA.  Further  case of  the

respondent/plaintiff  is  that  subsequent  to  the issuance of  the  said

allotment  letter  dated  14.06.2013,  a  supplement  deed  dated

30.08.2013 came to be executed in favour of the respondent/plaintiff

for the said Site bearing No.4307.  Possession of the said site is also

said to have been given to the plaintiff for the new Site No.4307 with

the possession certificate dated 19.11.2013.  Claiming that she is the

owner  of  the  said  Site  No.4307  and  alleging  that  the

appellants/defendants  are  trying  to  interfere  with  her  possession,

respondent/plaintiff  filed  the  suit  bearing  OS No.4376  of  2014  for

permanent  injunction  before  the  XVII  Additional  City  Civil  and

Sessions Judge, Bengaluru.

4. In  the  said  suit,  summons  were  served  upon  the

appellants/defendants but the appellants did not appear in the suit.

Based on the evidence of the plaintiff (PW-1) and the documents filed

by  the  respondent/plaintiff,  the  suit  was  decreed  ex-parte  on

13.10.2014.  Being aggrieved by the ex-parte decree passed in OS

No.4376 of 2014, the appellants/defendants filed Regular First Appeal

Page No. 3 of 6

Page 4

Civil Appeal No.           of 2017 @ SLP© No. 16722 of 2016

bearing No.522 of 2015.  Case of the appellants/defendants is that

the  suit  schedule  property  originally  being  carved  as  bearing  Site

No.690 came to  be sold by VHBC Society  in  favour  of  Shri  M.N.

Sundaresh by a registered sale deed dated 27.06.2003.  The said

VHBC Society also gave possession of the said property Site No.690

in favour of the said M.N. Sundaresh and to that effect, a possession

certificate was also issued by VHBC Society in favour of  the said

M.N. Sundaresh.  Further case of the appellants/defendants is that

they purchased the suit property bearing Site No.690 by a registered

sale deed dated 03.06.2011 from the said M.N. Sundaresh.  Case of

the appellants is that the suit property is nothing but Site No.690 and

only  the  appellants  are  in  possession  and  enjoyment  of  the  suit

property.   Further  case  of  the  appellants/defendants  is  that  the

plaintiff/respondent has manipulated certain documents to lay a false

claim in the suit property.

5. The  High  Court  in  appeal  noticed  that  the

appellants/defendants  were  claiming  to  be  owners  of  the  suit

property; however, the High Court observed that the suit property is in

respect  of  Site  No.4307,  but  the  sale  deed  of  the

appellants/defendants  and  their  predecessors  are  in  respect  of

Page No. 4 of 6

Page 5

Civil Appeal No.           of 2017 @ SLP© No. 16722 of 2016

original  Site  No.690  and  directed  the  appellants/defendants  to

institute independent proceedings to establish their right by filing an

appropriate suit.  In our view, as both parties claim right to the suit

property through VHBC Society by virtue of sale deeds in their favour,

the High Court rather than relegating the appellants/defendants to file

a fresh suit, it would have been in order if the High Court remitted the

matter back to the trial court to resolve the dispute after trial.  In our

view, the High Court erred in dismissing the appeal and relegating the

appellants/defendants to file  a fresh suit.   As both the parties are

claiming  right  to  the  registered  sale  deed  originating  from  VHBC

Society  and  also  claiming  right  of  possession,  in  the  interest  of

justice, the judgment of the High Court as well as the trial court are to

be set aside and the matter remitted back to the trial court.

6. The  learned  counsel  for  the  respondent/plaintiff  raised

objections  for  remitting  the  matter  back  to  the  trial  court  and

submitted that the respondent/plaintiff has already put up construction

in the suit property and if the matter is remitted back to the trial court,

it  may  prejudicially  affect  the  interest  of  the  respondent/plaintiff.

Having regard to the rival contentions of the parties claiming to be in

possession,  it  would  be  open  to  the  trial  court  to  appoint  a

Page No. 5 of 6

Page 6

Civil Appeal No.           of 2017 @ SLP© No. 16722 of 2016

Commissioner to get a report as to the location of the disputed sites

both Site No.4307 and Site No.690 and their physical features and

other relevant facts.  It is also open to the trial court either on its own

or on the application of either of the parties to summon the officials of

the Vishwabharathi House Building Co-operative Society Limited and

relevant documents for resolving the dispute between the parties.

7. In the result, the impugned judgment of the High Court as well

as the trial court is set aside and the matter is remitted to the trial

court  for  consideration  of  the  matter  afresh.  The

appellants/defendants  are  directed  to  file  their  written  statement

within four weeks from today and the trial court is directed to afford

sufficient opportunity to both the parties to adduce their evidence and

proceed with the matter in accordance with law.  We make it clear

that we have not expressed any opinion on the merits of the matter.

8. The appeal stands allowed on the above terms.

...……………………….J.  [KURIAN JOSEPH]  

                            .………………………..J.  [R. BANUMATHI]

New Delhi; March 07, 2017

Page No. 6 of 6