Per Shri B.A.Shaikh, Hon’ble Presiding Member.
1. All these five appeals are being disposed of by this Common order as common question of law and facts are involved in them.
2. These five appeals are filed by the original complainants in five complaints bearing CC.Nos.RBT/CC/11/604, RBT/CC/11/605, RBT/CC/11/618, RBT/CC/11/678 and RBT/CC/12/31, feeling aggrieved by common order dated 11/08/2016 passed in those five complaints by the Additional District Consumer Forum Nagpur.
3. The common case of the original complainants/appellants herein as set out in their aforesaid five consumer complaint in brief is as under.
a) The opposite party (for short O.P.)No.1/appellant No.1 is a housing agency called as “Harihar Housing Agency, Developers and Builders and Property Broker”.The original O.P.No.2/respondent No.2 herein is its partner. The original O.P.No.3/respondent No.3 herein is also another developer called as “M and P. Estate Developers”. The appellants purchased the respective plots described in detail in each of the complaint, from the respondent No.3 on behalf if respondent Nos.1 and 2 out of their land bearing Khasra No.136, described in detail in the respective complaint. They also paid full consideration of the same to the respondents. The respondents executed registered sale deed infavour of the appellants. However at the time of execution of the sale deed the respondent did not give physical possession of the plots mentioned in the sale deeds, by assigning the reason that dispute has arisen due to inter change of the place of land of Kh.No.136 and 138 and Special Civil Suit No.418/2011 is filed before the Civil Court in that respect and hence the sale deeds can not be executed.
b) However, thereafter also the possession of those plots was not given to the appellants though they had made request to the respondents orally and in writing from time to time. They also issued notices to them for giving possession of plots but no response is given by the respondent to their notice. Hence the appellants filed the aforesaid five consumer complaints against the common respondents seeking direction to them to give possession of their respective plots after due measurement or alternatively to pay each of them compensation of Rs.2,50,000/- with interest @ 18% P.A. due to delay in giving of the possession and causing loss and mental harassment and also to pay each of the complainants litigation cost of Rs.15,000/-.
4. The respondents filed their common reply to each of the aforesaid complaint and thereby resisted the said complainants. They admitted that they sold the respective plot to the appellants as per the sale deeds. However they raised objection that the complaints are barred by limitation. It is their case in brief that the owners of Kh.No.138 have played fraud and prepared Khasara Map showing their land in place of Kh.No.136 which is owned by the respondents. Therefore Civil Suit bearing No.418/2011 is filed by the respondents against the owners of the land of Kh.No.138 which is pending before the Civil Court. The said owners of Kh.No.138 have illegally taken possession of entire Kh.No.136. The Civil Court though granted injunction, the owner of that land of Kh.No.138 committed breach of the said injunction order and forcibly took the possession of that land of Kh.No.136 on the basis of the false and fabricated documents. The respondents have therefore initiated proceeding against them for breach of injunction order.
5. It is also submitted by the respondents in their aforesaid reply that they have filed an application under section 145 of Cr.P.C. for restoration of the possession and the Sub Divisional Officer Nagpur allowed the said application and directed the police authority to hand over the entire land of Kh.No.136 to respondents. The respondents had issued letter to the appellants and their advocate to remain present for taking possession of their respective plots of Khasra No.136 but they failed to appear. Hence possession could not be given to them. It is also submitted by the respondents in their aforesaid reply that they can not be directed to deliver the possession of plots during pendency of the aforesaid civil suit. Hence they had requested that the said complaints may be dismissed.
6. The District Forum below after hearing both the parties and considering evidence brought on record in those five complaints, came to the conclusion under common impugned order that the civil suit No.418/2011 is pending before the Civil Court and the application filed to Superintendent of District Land Record Nagpur about the inter change of place of Kh. No.136 and 138 in the map is also pending and hence no direction can be given for providing possession of the plots of land of Khasra No.136, to the appellant which they have purchased as per the sale deeds from the respondents. Moreover the Forum also observed that it is the power of the District Land Record Officer to determine the boundaries of the land and the District Forum can not enter in to the dispute relating to boundaries of land and that the application made by the respondent for demarcation of the boundaries is also pending before concerned authority. Hence the Forum held that all these complaints deserve to be dismissed. In the light of above discussion the learned Forum below dismissed the said five complaints by passing common impugned order.
7. As observed above these five appeals are filed by original complainants, feeling aggrieved by dismissal of the aforesaid five complaints. We have heard advocate Mr.P.N.Upadhyay appearing for the appellants and advocate Mr.S.S.Nerkar appearing for the respondents. We have also perused the entire record and proceedings of these five appeals.
8. The learned advocate of the respondents during the course of hearing made a submission that the respondents are ready to hand over the possession of the plots as per the sale deeds to the appellants after the land is duly measured by the concerned authority. He also submitted that the application is also moved to the said authority and the land will be measured very soon by the said authority and after demarcation of the boundaries of the plots, the possession of the plots will be given to the respective appellants within one month of the said measurement and demarcation of the boundaries. He also submitted that otherwise also the Government has initiated acquisition proceeding inrespect of certain portion of the land of Kh.No.136, but as the land is not measured by the competent authority of the Government, possession of the plots can not be delivered to the appellants. He therefore requested that all these appeals may be dismissed.
9. On the other hand, the learned advocate of the appellants submitted that direction may be given to the respondents to get measured the land within three months from competent authority and to deliver the possession of the plots to the appellants within three months from the date of the decision in these appeals. He further submitted that direction may be also given to the respondents that if the possession of the plots is not delivered within three months as above then they shall pay price of those plots as per present government ready recknor rate of the land, with interest to the appellants. He further submitted that if the land is acquired by the government in due course of time then also there will be sufficient land left out of Kh.No.136 for providing possession of the plots to the appellants and hence he requested that appeals may be allowed as per his aforesaid submission.
10. We are of the considered view that it is the obligation on the part of the respondents to provide possession of the respective plots as per registered sale deeds to the respective appellants when the appellants already paid full price of the same to the respondents and obtained registered sale deeds as per law from them. The Forum therefore erred in dismissing the complaints only on the ground that the dispute about the demarcation of the boundaries is pending before the Court of Law and the competent authority. We find that the Forum ought to have given direction for delivery of possession after getting the land measured, from competent authority or in alternative to pay reasonable compensation to the appellants with interest and cost. Hence the common impugned order deserves to be set aside. Accordingly we proceed to pass the following order.
// ORDER //
- These five appeals bearing Nos.A/16/197, A/16/198, A/16/199, A/16/200 and A/16/202 are partly allowed as under.
- The common impugned order passed in five complaints bearing Nos.RBT/CC/11/604, RBT/CC/11/605 RBT/CC/11/618, RBT/CC/11/678 and RBT/CC/12/31 is set aside. The said five complaints are partly allowed as under.
- The original opposite party Nos.1, 2 and 3/respondent Nos.1, 2 and 3 herein shall get measured the land described in the complaints, from competent authority of the government within six months from the date of receipt of the copy of the present order and shall get demarcated the plots of the said land and shall handover the possession of the respective plot as per the respective sale deeds to the respective appellants within a period of six months from the date of receipt of copy of present order.
- If the respondents are unable to comply with the aforesaid direction within six months from the date of receipt of copy of the present order then they shall alternatively pay by way of compensation, price of the respective plots to the respective appellants as per the government ready recknor rate as on the date 30/12/2015, on which the said respective five complaints were registered before the Additional District Consumer Forum Nagpur and they shall also pay interest @ 9% P.A. from 30/12/2015 over that amount, till realization of the said amount by the respective appellants.
- The respondents shall also pay compensation of Rs.5,000/- for physical and mental harassment and litigation cost of Rs.5,000/- to the appellants in each of the five appeals.
- Copy of the present common order be furnished to both parties, free of cost.
