DATE OF FILING : 25.08.2014.
DATE OF S/R : 19.11.2014.
DATE OF FINAL ORDER : 28.07.2015.
Jagannath Ghosh,
son of late Sakti Charan Ghosh,
residing at 1/24, Chandra Kumar Banerjee Lane, Shibpur,
District Howrah,
PIN 711 102………...………………………………………………….. COMPLAINANT.
Versus -
1. Jagabandhu Paul,
son of late Abadhouta Paul,
residing at 11/4, Old Bibitala 1st Bye Lane, P.S. Shibpur,
District Howrah,
PIN 711102.
2. Tarak Paul,
son of late Abadhouta Paul
of 1/19, Chandra Kumar Banerjee Lane, Shibpur,
Howrah 711 102. …………………………………………OPPOSITE PARTIES.
P R E S E N T
Hon’ble President : Shri B. D. Nanda, M.A. ( double ), L.L.M., WBHJS.
Hon’ble Member : Smt. Jhumki Saha.
Hon’ble Member : Shri A.K. Pathak.
F I N A L O R D E R
- Complainant, Jagannath Ghosh,by filing a petition U/S 12 of the C .P. Act, 1986 ( as amended up to date ) has prayed for a direction to be given upon the o.p. no. 1 to execute the sale deed in favour of the complainant or refund the advance amount with interest, to provide the peaceful possession of the scheduled property along with NOC and ‘No Encumbrance Certificate’,along with a prayer for giving a direction upon o.p. no. 2 not to create any obstruction at the time of taking possession along with prayer for police help, to pay Rs. 1,00,000/- as compensation alongwith other relief or reliefs as theForum may deem fit and proper.
- The brief facts of the case is that the complainant entered into an agreement for sale with o.p. no. 1 on payment of Rs. 50,000/- as advance amount out of total consideration amount of Rs. 9 lac some time in the month of July, 2011 vide Annexure Agreement for sale. Thereafter o.p. no. 1 neither executedthe sale deed nor handed over the peaceful possession of the scheduled bastu land in favour of the complainant which really caused severe residential problem to the complainant. Ultimately complainant sent a lawyer’s notice on 25.01.2012 to the o.p. no. 1. And o.p. no. 1 assured him that he would definitely take positive steps within few months and received Rs. 4 lacs further from the complainant. Since then o.p. no. 1 remained silent rather it is alleged that he has engaged o.p. no. 2, brother of o.p. no. 1 for creating obstruction with criminal force so that complainant may not be able to take possession of the said bastu land having a structure thereon. So finding no other alternative complainant lodged oneG.D. Entry being no. 2338 dated 24.8.2014 vide Annexure. But even then no fruitful result came out and so being frustrated complainant filed this instant petition with the aforesaid prayers.
- Notices were served. O.p. no. 1 neither appeared nor filed any W/V but o.p. no. 2 appeared and filed written version. Accordingly, case heard on contest against o.p. no. 2 and ex parte against o.p. no. 1.
- Upon pleadings of both parties two points arose for determination :
i) Is there any deficiency in service on the part of the O.Ps. ?
- Whether the complainant is entitled to get any relief as prayed for ?
DECISION WITH REASONS :
- Both the points are taken up together for consideration. We have carefully gone through the written version and the Annexures filed byo.p. no. 2 and noted their contents. It is very much clear and evident from the document like ‘preliminary decree’ in T.S. 170 of 2010 dated 11.11.2010 passed by the Civil Judge, ( Sr. Divison ), Howrah, that the partition suit was filed by o.p. no. 1 against o.p. no. 2 and otherswith respect to the premises no. 1/19,Chandra Kumar Banerjee Lane, P.S. Shibpur, District Howrah, and that plot i.e., premises no. 1/19 was butted and bounded as follows :
“On the North : Premises No. 1/19/1, Chandra Kumar Banerjee Lane,
On the South : 1/18, Chandra Kumar Banerjee Lane,
On the East : Pond,
On the West : - Chandra Kumar Banerjee Lane.”
- So it is amply clear that the premises no. 1/19 and Premises no. 1/19/1 both lying in Chandra Kumar Banerjee Lane, are not same and identical. These two are separate from each other. And the agreement for sale entered into between complainant and o.p. no. 1 with respect to premises 1/19/1, Chandra Kumar Banerjee Lane, Howrah. Howrah Municipal Corporation received quarterly tax for the premises no. 1/19/1, Chandra Kumar Banerjee Lane. O.P. no. 1 received the total consideration amount from the complainant and executed the sale deed on 2nd March, 2015 with respect to the schedule premises no. being 1/19/1, Chandra Kumar Banerjee Lane in favour of the complainant during the pendency of the instant case vide Annexure xerox copy of sale deed but failed to hand over the peaceful possession of the scheduled property to the complainant due to the severe obstruction raised by o.p. no. 2. But as per the agreement for sale as well as the sale deed, o.p. no. 1 is duty bound to hand over the peaceful possession of the scheduled property. By not doing so, o.p. no. 1 is definitely found to be at fault which is nothing but gross deficiency on the part of o.p. no. 1. Complainant has not paid any amount to o.p. no. 2. Accordingly, we are of the candid opinion that it is a fit case where the prayers of the complainant should be allowed in part against o.p. no. 1.
Hence,
O R D E R E D
That the C. C. Case No. 467 of 2014 ( HDF 467 of 2014 ) be allowed in part on contest with costs against the O.P. no. 1 and dismissed against o.p. no. 2 without cost.
That the O.P. 1 is directed to hand over the peaceful possession of the scheduled property to the complainant within one month from this order i.d., Rs. 50/- per day shall be imposed upon o.p. no. 1 till actual delivery of possession.
That I/C, Shibpur P.S., Howrah, is hereby directed to accord necessary police assistance in this matter as and when required by the complainant and o.p. no. 1.
That the o.p. no. 2 is strictly directed not to create any disturbance at the time of giving possession to the complainant by the o.p. no. 1 i.d., he has to face the legal consequences.
The o.p. no. 1 is further directed to pay Rs. 5,000/- as compensation and Rs. 2,000/- as litigation costs to the complainant within one month from this order i.d., 9% interest per annum shall be imposed on the aforementioned amount till actual payment.
The complainant is at liberty to put the decree into execution after expiry of the appeal period.
Supply the copies of the order to the parties, as per rule.
DICTATED & CORRECTED
BY ME.
( Jhumki Saha)
Member, C.D.R.F., Howrah.
