BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM AT BANGALORE URBAN

 04^th DAY OF NOVEMBER 2015

O R D E R

SRI. P.V SINGRI, PRESIDENT

The complainant has filed this complaint U/s.12 of the Consumer Protection Act, 1986 against the Opposite Parties (herein after referred as OPs) with a prayer to direct the OPs to restore him the site Nos.108 & 109 formed out of survey No.14/4 and 15 of Doddanagamangala Village, Bangalore South Taluk, Bangalore or else pay the present market value of the said site together with interest @ 18% p.a from the date of receipt of the said amount till the realization and Rs.10,00,000/- towards damages together with litigation costs.

2. The brief averments made in the complaint are as under:

The complainant in pursuance of the invitation in an Exhibition organized by OP-1 at Hyderabad expressed his desire to purchase two sites bearing Nos.108 & 109 each measuring 30X40 formed out of survey No.14/4 and 15, Doddanagamangala Village of Begur Hobli, Bangalore South Taluk, Bangalore.  Accordingly, the complainant purchased the said sites for a total consideration of Rs.4,52,000/- and the OP-1 executed two separate registered sale deeds dated 06.05.2003 and 01.06.2004 in favour of the complainant with a promise to deliver the sites shortly after marking the boundaries.  In pursuance of the said sale deeds, the complainant got Khatha from the concerned Panchayat and paid taxes upto 2013-14.  In the mean while one Thriveni & others filed a suit on the file of Civil Judge, Senior Division, Bangalore Rural District, Bangalore in O.S No.523/2011 and obtained an order of injunction and put up compound wall including both the sites of the complainant.  When the complainant questioned the same they denied the right of the complainant over the said sites and further claimed that the said sites have been illegally formed in their land bearing survey No.14/16 and not in survey No.14/4 and 15.  Consequently a Court Commissioner was appointed to survey the land and accordingly the Surveyor from the Revenue Department visited the disputed spot in presence of both the parties and measured the land and submitted his report to the Court.  According to which, the sites sold to the complainant have been formed in survey No.14/16 and not in survey No.14/4 and 15 of the said village, as claimed by the OP.

From the Commissioner report submitted to the Civil Court, the complainant was shocked to know that the OP-1 instead of forming the sites in land survey No.14/4 and 15 as contended by them have done so in survey No.14/16 which does not belong to them.  Thereafter, the complainant has issued a notice calling upon the OPs for paying him the present market value of the said sites together with interest @ 18% p.a and compensation of Rs.10,00,000/- for having played fraud on him.  Some persons have also filed a suit in respect of the said land in O.S No.1005/2013 on the file of the same Court alleging that the OP played fraud and purchased the said land by taking power of attorney and the said suit is still pending.  From the report of the Court Commissioner, it is apparent that the OP has sold the sites which does not belong to him and thereby committed fraud on the complainant and cheated him.

For the aforesaid reasons, the complainant pray for an order directing the OPs to restore him the site Nos.108 & 109 formed out of survey No.14/4 and 15 each measuring 30x40 situated at Doddanagamangala Village, Bangalore South Taluk, Bangalore or else direct them to pay the present market value of the said sites together with interest @ 18% p.a from the date of receipt of the said amount till realization and Rs.10,00,000/- towards damages for having caused mental agony, hardship and inconvenience together with litigation costs.

3. Despite service of notice, OP-2 remained absent and was placed ex-parte.

OP-1 in response to the notice appeared through his advocate and filed his version denying the entire allegations made against him in the complaint and further contended as under:

That the OP-1 is the owner of property bearing No.14/4 to an extent of 0.20 guntas purchased by virtue of sale deed dated 26.03.2002 referring to sites No.116 to 130 by virtue of sale deed dated 26.03.2002, registered in the office of Sub Registrar, Bommanahalli and by virtue of the sale deed dated 27.07.2001 acquired an extent of 1 Acre under registered sale deed and another extent of 0.20 guntas acquired under registered sale deed dated 26.03.2002 registered in the office of Sub Registrar, Bommanahalli.  Thus, the OP-1 in all acquired 2 acres of land in survey No.14/4 from one M.Prabhakar, the Registered Power of Attorney Holder executed by one Kempaiah, Venkatesh and Suresh.  Thus, the said Boopathy being the bonafide purchaser for valuable consideration as mentioned above is in lawful possession and enjoyment of the above mentioned extent of land and formed a layout.  Admittedly the site Nos.108 & 109 have been sold and conveyed in favour of complainant by virtue of registered sale deed dated 06.05.2003 and 01.06.2004.  That the complainant has obtained transfer of khatha and has paid taxes upto 2013-2014 and exercising the right of ownership over the said site and the complainant therefore filed the present complaint with an oblique motive and malafide intention to extract money from the OP.  That one Thriveni and others filed suit in O.S No.523/2011 with an oblique motive and malafide intention to grab the land.  That the OP-1 has instituted a suit against the said Thriveni and others in O.S No.504/2011 in view of threatened interference and to safe-guard the interest of the purchasers of the sites.  Therefore, the complainant has no cause of action to file the complaint.

For the aforesaid reasons, the OP prays for dismissal of the complaint with exemplary costs.

4. On the rival contentions of both the parties, the points that arise for our determination in this case are as under:

           
           5. The complainant to substantiate the allegations made in the complaint filed his affidavit evidence in lieu of oral evidence.  The OP-1 filed his affidavit evidence in support of his case.  Both the parties have submitted written arguments.

6. Perused the allegations made in the complaint, the averments made in the version filed by OP-1, written submissions submitted by both the parties and various documents relied upon by both the parties and other materials placed on record.  Also heard the oral arguments advanced by learned advocate for the complainant.

7. Our answer to the above points are as under:

REASONS

8.  The OP-1 admitted the execution of sale deeds in favour of the complainant.  The complainant produced the copies of two sale deeds executed by OP-1 in his favour in respect of site Nos.108 & 109 in the layout formed out of survey No.14/4 and 15 situated in the limits of Doddanagamangala Village, Begur Hobli, Bangalore South Taluk, Bangalore.  The complainant has also produced the copies of pass book in which the instalments paid by the complainant towards purchase of said sites is recorded.  As per the documents on record, the complainant has paid a sum of Rs.2,40,000/- towards purchase of each site.  It is also not in dispute that in pursuance of the registered sale deed in his favour the complainant got khatha of the said site in his favour and was regularly paying taxes upto the year 2013-14.  The complainant claims that the OP did not hand over the possession of the said sites on the date of execution of the sale deeds on the ground that the marking of the sites was not completed.

9. The dispute arose when the complainant came to know about a suit filed by one Thriveni and others in respect of the above said survey numbers on the file of Principal Civil Judge, Jr. Division, Bangalore Rural District, Bangalore in O.S No.523/2011.  Admittedly the Learned Civil Judge granted temporary injunction in favour of said Thriveni and others and in pursuance of such order, the Plaintiffs therein put up a compound wall around land bearing survey No.14/16.  The complainant who impleaded himself as one of the party in the said suit shocked to know that the two sites which have been sold to the OP were inside the compound wall put up by the said Thriveni and others.  The Learned Civil Judge appointed Court Commissioner to survey the land and demarcate land survey No.14/16.  The Court Commissioner and Surveyor belonging to Survey Department visited the disputed property by issuing notice to the Plaintiff and Defendants to the said suit and conducted the survey and submitted his report together with survey map.  On submission of survey map the complainant was shocked to know that the site Nos.108 & 109 sold by the OP-1 are in fact part of survey No.14/16 and not survey No.14/4 and 15 as claimed by OP-1.  When the complainant came to know that both the sites sold to him were in land survey No.14/16 belonging the Plaintiff in O.S No.523/2011 immediately got issued a legal notice to OP-1 calling upon him either secure him the said sites or refund him the present market price of the said sites together with interest and damages.  The OP-1 who was in a mood of denial did not comply with the legal notice issued by the complainant.  Therefore, the complainant has approached this Forum.

10. In the version, no where the OP-1 disputes the correctness of the surveyor report submitted by the Court Commissioner appointed in O.S No.523/2011.  The OP-1 also does not state with definiteness that the sites No.108 and 109 sold in favour of complainant are in fact carved out of land survey No.14/4 and 15 as mentioned in his brochure.  It is pertinent to note that in para-8 of his version OP-1 states that he purchased 0.20 guntas of land out of survey No.14/4 under registered sale deed on 26.03.2002 which refers to site Nos.116 to 130.  This statement of OP-1 in his version makes it abundantly clear that site Nos.116 to 130 only situated in the layout to be formed the land survey No.14/4.  Though OP-1 claims that he purchased 1 acre of land under registered sale deed dated 27.07.2001 and another 0.20 guntas of land under registered sale deed dated 26.03.2002 in survey No.14/4 under two separate registered sale deeds but does not specifically state as to whether the two subject sites are situated within extent of land so purchased by him.  Thus, it is clear from the averments from the OP-1 himself that the two sites which are sold to the complainants does not fall within survey No.14/4.

11. The close perusal of the survey map submitted by the Court Commissioner reveals that survey No.14/4 is situated far away from survey No. 14/16 & 15.  According to the report and survey map of the Court Commissioner, site Nos.108 & 109 falls within the survey No.14/16.  The said sites neither falls within the boundaries of survey Nos. 14/4 or 15.  Thus from the material placed on record, it is crystal clear that the complainant has sold the said sites to the complainant without having any marketable title over the same.  In view of the report of the Court Commissioner now the complainant cannot lay his hands on the said sites.  The conduct of OP-1 in forming the layout in somebodies land and selling the same as his own, not only amounts to deficiency in service but also amounts to cheating and fraud.  It is apparent that OP-1 has duped the complainant and has made him to believe that site Nos.108 & 109 are within the boundaries of survey No.14/4 and 15 of Doddanagamangala Village, Begur Hobli, Bangalore South Taluk, Bangalore.

12. The complainant has sought a direction to the OP-1 to restore him the said sites bearing No.108 & 109.  The complainant cannot be granted this relief since the material placed on record shows that the OP-1 is not the owner of land survey No.14/16 where these two sites exists.  Under the circumstances, the OP-1 has to be directed to refund Rs.4,52,000/- received from the complainant together with interest @ 18% p.a from the date of registration of the sites till the date of realization.  Since, the complainant has not produced any material to show the present market value of the said sites, certain damages can be awarded to him to compensate the loss he has suffered as well as the mental agony, inconvenience and hardship suffered.  In the given circumstances of the case, we are of the opinion that the OP-1 be directed to pay a compensation of Rs.5,00,000/- to the complainant for deficiency in service and for causing mental agony, hardship and inconvenience together with litigation cost of Rs.3,000/-.  The order could not be passed within the stipulated time due to heavy pendency.

13. In the result, we proceed to pass the following:

O R D E R

The complaint filed by the complainant U/s.12 of the Consumer Protection Act, 1986 is allowed in part.  The OP-1 is directed to refund a sum of Rs.4,52,000/- to the complainant together with interest @ 18% p.a from the date of registration of sale deeds till the date of realization.  Further the OP-1 is directed to pay compensation of Rs.5,00,000/- to the complainant for the deficiency in service together with litigation cost of Rs.3,000/-.

The complaint against OP-2 is dismissed.

The OP-1 shall comply the order passed by this Forum within six weeks from today.

          Send the copy of the order to both the parties free of costs.

(Dictated to the Stenographer, got it transcribed and corrected, pronounced in the Forum on this 04^th day of November 2015)

MEMBER                            MEMBER                    PRESIDENT

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Witnesses examined on behalf of the complainants dated 26.09.2014.

1. Sri.N Jayawantham

Documents produced by the complainant:

Witnesses examined on behalf of the Opposite parties - Nil

MEMBER                            MEMBER                    PRESIDENT

Vln*