TUSHAR KANTI BOSE AND ORS. versus SA VITRI DEVI AND ORS.

Citation: [1996] SUPP. 4 S.C.R. 17 · Decided: 25-07-1996 · Supreme Court of India · Bench: K. RAMASWAMY · Disposal: Appeal(s) allowed

Judgment (excerpt)

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TUSHAR KANTI BOSE AND ORS. 
A 
v. 
SA VITRI DEVI AND ORS. 
JULY 25, 1996 
B 
[K. RAMASWAMY AND G.B. PATTANAIK, JJ.] 
Companies Act, 1956 : 
c 
Liquidation proceedings~Properties purchased through Court 
sale--Application for demarcation-Objections to-Single Judge appointed 
Special Officer and passed an order of mandatory injunction-Appeal before 
Division Bench-Division Bench appointing another Special Officer to get 
properties swveyed and to submit the report-Swvey done, report sub-
mitted-objection to report dismissed for d<fauit-Later another Division 
Bench dismissed the appeal without conside1;ng the rep011 of Special Officer D 
based on the swvey-Held, the rep01t of Special Officer as also the swvey 
done by the SuTVeyor constitute an i111po1tant iteni of evidence which could 
not have been ignored by Division Bench while disposing of the appeal-Mat-
ter remitted to High Cowt for disposal. 
The appellants purchased a certain property from 'B' a company 
under liquidation, through a Court sale in liquidation proceedings. They 
filed, with the leave of the Company Judge, an application before the 
littuidator for demarcation of the property. An order was passed directing 
'B' company to demarcate the property purchased by the appellants. The 
respondents who had purchased the adjoining premises from the said 'B' 
company in 1953, filed an application for injunction alleging that the 
appellants, on the garb of demarcation, were trying to encroach upon their 
property. The Single Judge of the High Court found that the appellants 
E 
F 
had made two holes on the wall so as to have access to the portion in 
occupation of the respondents and had raised a wall and dispossessed the G 
respondents from a portion of the property. The Single Judge directed the 
appellants to close down the holes, remove the obstacles and restore back 
the portion of the premises to the respondents, and appointed a special 
ofticer to supervise the compliance with the order. The appellant chal· 
lenged the order in appeal before the Division Bench of the High Court, 
which passed an order of status <1uo as on that date, and appointed H 
17 
18 
SUPREME COURT REPORTS [1996] SUPP. 4 S.C.R. 
A another Special Officer to take possession of the rooms in dispute. The 
Special Officer was also directed to appoint a surveyor to demarcate the 
respective properties belonging to the parties. The Special Officer got the 
properties demarcated and submitted his report. The respondents filed 
their objections which was dismissed in default. Later, the matter came to 
B 
c 
be listed before another Division Bench, which dismissed the appeal and 
directed the Special Officer appointed by the Single Judge to band over 
possession of the property to the respondents. Aggrieved, the appellants 
filed the appeal. 
It was contended for the appellants that the Division Bench of the 
High Court erred in disposing of the matter without considering the report 
of the Special Officer appointed by t(1e Division Bench and whose report 
was based on the survey done by the surveyor, particularly when the 
objections filed by the respondents to the said report bad been rejected. 
For the respondents, it was contended that in view of several pending 
D litigations between the parties for declaration of title and for possession, 
it was not open for the appellants to have got tl)eir title established on the 
basis Qf the order of demarcation and, as such, the Division Bench rightly 
dismissed the appeal. 
E 
Allowing the appeal, this Court 
HELD : 1. The order of the Division Bench cannot be sustained on 
the sole ground of non-consideration of the relevant material. The Special 
Officer was appointed by the Division Bench on 12th November, 1991 and 
it was directed that he would demarcate the two plots by taking assistance 
F 
of a Surveyor. The Special Officer appointed the Surveyor on the consent 
of the parties and ultimately on the basis of the survey done, the Special 
Officer had submitted his report on 28th April, 1992. An objection filed to 
the said report by the respondents stood dismissed on 1st September, 1992. 
The aforesaid report of the Special Officer as we:t as the survey done by 
the surveyor constitute an important item of evidence which could not have 
G been ignored by the Division Bench while disposing of the appeal, Further, 
so far as the appeal is concerned, it is the Special Officer who had been 
appointed by the Division Bench and said ord

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