RAVISH AND ANR.versusSMT. R. BHARATHI

                         [2017] 2 S.C.R. 917



                        RAVISH AND ANR.                                   A
                                  V.

                        SMT. R. BHARAT.HI
                   (Civil Appeal No. 3771 of2017)
                          MARCH 07, 2017                                  B

        [KURIAN JOSEPH AND R. BANUMATHI, JJ.]
       Suit for permanent injunction - Claim of plaintiff based on
premise that she was allotted a site no.4307 by the Cooperative
society and she was the owner of the said site and the appel/antsc
defendants were trying to interfere with her possession - Summons
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served but defendants did not appear - Trial court passed ex-parte
decree - Defendant challenged the ex-parte decree on the ground
that suit property originally carved as site no. 690 was purchased
by him from original allottee - High Court while noting that suit
property is site no.4307 but the sale deed of defendants is in respect    D
of site no. 690, directed defendants to institute independent
proceedings to establish their right by filing appropriate suit - On
appeal, Held: High Court instead of relegating the appellants!
defendants to file a fresh suit ought to have remitted the matter
back to the trial court to resolve the dispute after trial -As both the
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parties were claiming right to the registered sale deed originating
from the Cooperative Society and also claiming right of possession,
therefore, in the interest of justice, the judgment of the High Court
as well as the trial court set aside and the matter remitted back to
the trial court for fresh consideration.
                                                                          F
     Allowing the appeal and remitting the matter to trial court,
the Court          ·
       HELD: 1. As both the parties are claiming right to the
registered sale deed originating from the Cooperative Society
and also claitning right of possession, in the interest of justice,
                                                                          G
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. It would
be open -to the trial court to appoint a 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
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                                  917
918            SUPREME COURT REPORTS                          [2017]2 S.C.R.


A     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
      Co-operative Society and relevant documents for resolving the
      dispute between the parties. [Paras 5, 61 (920-D, F)
           CIVIL APPELLATE JURISDICTION: Civil Appeal No. 3771
B     of2017.

           From the Judgment and Order dated 20.07.2015 of the High Court
      ofKarnataka at Bengaluru, in Regular First Appeal No. 522 of2015.

            Balaji Srinivasan, Ms. Pratiksha Mishra, Ms. Vaishnavi
C     Subrahmanyam, Ms. Srishti Govil,Abhishek Bharti, Advs. for Appelhmts.

             Naveen R. Nath, Shrinivas B. S., Ms. Hetu Arora Sethi, Advs.
      for the Respondent.

            The Judgment ofthe Court was delivered by
D           R. BANUMATHI J. l . 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.522of2015 granting liberty
      to the appellants/defendants to institute independent proceedings and
E     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.4376of2014 for permanent injunction claiming that she
      is the absolute owner of the site bearing No.1077/21. Case of the
 F    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 ofallotment 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
G
      that the VHBC Society had issued possession certificate dated l 0.01.2005
      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 16.11.20 I 0, the
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            RAVISH AND ANR. v. SMT. R. BHARATHI                                 919
                    [R. BANUMATHl, J.]

High Court stipulated certain guidelines to be followed by VHBC Society         A
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 DevelopmentAuthority(BDA)
                                                                                 B
layout plan.The respondent/plaintiff states that VHBC Society issued a
fresh allotment letter dated 14.06.2013 allotting a new Site No.4307
measuring 139.40 sq. mtrs. in Phase-IV ofVHBC Society layout which
was approved by BOA. 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              c
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,
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respondent/plaintiff filed the suit bearing OS No.4376 of 2014 for
pennanent 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
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evidence of the plaintiff (PW-I) 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 bearing No.522 of2015.
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           F
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          G
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
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              SUPREME COURT REPORTS                             (2017] 2 S.C.R.



A   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 observea that the suit property is in respect of Site No.4307, but
B   the sale deed of the appellants/defendants and their predecessors are in
    respect of 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
c   suit, it would have been in order ifthe 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 appel !ants/
    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
D   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
E   respondent/plaintiff has already put up construction in the suit property
    and ifthe 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 Commissioner to get a report as to the
    location of the disputed sites both Site No.4307 and Site No.690 and
F   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.
G           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 statemel1t within four weeks from today and
    the trial court is directed to afford sufficient opportunity to both the parties
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                RAVISH AND ANR. v. SMT. R. BHARATHI                         921
                        [R. BANUMATHI, J.]

to adduce their evidence and proceed with the matter in accordance           A
with la~ We make it clear that we have not expressed any opinion 9\1
the merits of the matter.
       8. The appeal stands allowed on the above terms.


Devika Gujral                                             Appeal allowed.    B