advocatemmmohan

My photo

ADVOCATEMMMOHAN -  Practicing both IN CIVIL, CRIMINAL AND FAMILY LAWS,Etc.,

WELCOME TO LEGAL WORLD

WELCOME TO MY LEGAL WORLD - FOR KNOWLEDGE IN LAW & FOR LEGAL OPINIONS - SHARE THIS

Thursday, March 16, 2017

Remand to Trial court 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. 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 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. 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.

|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  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 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   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
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 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

No comments:

Post a Comment

Note: Only a member of this blog may post a comment.