COMPLAINT FILED: 26.10.2009<br /> DISPOSED ON: 27.08.2010<br /> <br /> <br /> BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM AT BANGALORE (URBAN)<br /> <br /> <br /> 27th AUGUST 2010<br /> <br /> <br /> PRESENT :- SRI. B.S. REDDY PRESIDENT<br /> SMT. M. YASHODHAMMA MEMBER <br /> SRI. A. MUNIYAPPA MEMBER<br /> <br /> COMPLAINT NO.2488/2009<br /> <br /> <br /> COMPLAINANT Mr. G.T. Sampath Kumar<br /> S/o G.R.Thrunarayan Iyanger<br /> Aged about 53 years,<br /> Residing at 105, LIG, KEB Colony, 2nd Stage 6th Cross,<br /> Basaveshwara Nagar,<br /> Bangalore-560 011.<br /> <br /> Advocte : S. Nagaraja<br /> <br /> <br /> V/s.<br /> <br /> <br /> OPPOSITE PARTIES M/s. Upkar Estates<br /> Rep. by its Partner K.H.Khan<br /> No.41/1, R.V. Road,<br /> Basavanagudi,<br /> Bangalore-560 044.<br /> <br /> Advocate : S.A.Sami <br /> <br /> <br /> <br /> <br /> <br /> <br /> O R D E R<br /> <br /> <br /> SMT. M. YASHODHAMMA, MEMBER<br /> <br /> This is a complaint filed u/s. 12 of the Consumer Protection Act of 1986 by the complainant seeking direction against the Opposite Party (herein after called as O.P) to refund Rs.3,00,000/- paid towards sale consideration and other charges together with 18% interest from 03.11.2004 till the date realization or to convey other alternative site with same measurement in the same layout at the cost of the OP within time specified by this forum and to pay Rs. 25,000/- stamp duty and Registration fee and compensation of Rs.75,000/- on the allegations of deficiency in service. <br /> <br /> 2. The brief averments made in the complaint are as follows:<br /> <br /> Complainant lured away by the offer made by the land owners and OP who is a developer engaged informing of residential layout known as ‘UPKAR RESIDENCY; opted to purchase a site situated at Hullali village, Yashwanthpura Hobli, Bangalore North Taluk. The assurance made and documents produced by the OP made the complainant to believe that site bearing No.529 formed in Survey No. 59/60 is free from litigations, acquisitions. OP promised to put up compound wall surrounding entire layout with security. Based upon the said promise. Complainant purchased site bearing No. 529 from OP by paying the entire sale consideration of Rs.3,00,000/- which is inclusive of development charges. The sale deed is executed by OP as a GPA holder of land owners and developer in favour of the complainant on 03.12.2004. The site measuring 40 X 30 feet registered as Document No.38033/2004-05 in the office of Sub-Registrar, Bangalore North Taluk. The possession of the site was handed over to the complainant as shown in sale deed. But OP failed to put up a compound wall to the entire layout as promised by them thereby permitted the 3rd party to encroach the site of the complainant. Complainant approached OP for redressal. At that time it was promised that due to some confusion compound wall constructed encroaching the complainant property bearing site No. 529 along with other sites by 3rd person and OP assured to give an alternative site of the same dimension with property documentation without any extra expenditure to the complainant.<br /> <br /> 3. Believing the words of the OP. Complainant desisted from initiating any action against the OP. After repeated requested and demand made OP failed to provide alternative site to the complainant. Complainant caused legal notice to OP on 08.06.2009. OP gave the untenable reply to the said notice demanding of the charges. OP being a developer though assured and promised it could have put up a compound wall to the layout and security was provided, no intruders were encroached the site of the complainant. OP failed to provide the compound wall security and road towards west. Inspite of repeated demands when OP failed to comply his demands, complainant felt deficiency in service against the OP. under the circumstances he is advised to file this complaint for the necessary reliefs. <br /> <br /> 4. On appearance, OP filed version mainly admitting the fact that complainant purchased the site in question from owners Sri. Hanumantha and others for a valuable consideration under a registered sale deed dated 03.12.2004 represented by their GPA holder Sri.K.H.Khan, which is registered as document No.38033/04-05 in the office of the Sub-Registrar, Bangalore North Taluk. As on the date of execution the possession of the site was handed over to the complainant as shown in the sale deed; The Katha transferred in the name of the complainant; He is paying the taxes. After five years complainant filed this complaint; which is not maintainable and barred by limitation. The allegation that OP failed to put up the compound wall to the entire layout as promised thereby permitted the 3rd party to encroached the site of the complainant is denied by OP. Further OP denied that due to some confusion the compound wall constructed encroaching the complainant property bearing site No.529 along with other sites; however OP assured to give an alternative site for complainant with the same dimension with proper documentation without extra expenditure to the complainant is also denied by OP; It gave a suitable reply to the notice issued by the complainant; The said transaction in respect of the property purchased by the complainant is completed in all aspects of the TP Act and valid title has passed on to the complainant and sale deed is registered in favour of the complainant by the owners and complainant has taken possession of the said property; as such the present complaint is not maintainable, as there is no deficiency of service by the OP. Its bounded duty of the complainant to safe guard his own property from any illegal occupation if any from 3rd party; Complainant has no legal right or locus standi to file this complaint; There is no privity of contract between complainant and the OP; OP never promised the complainant that a compound wall will be put up in the layout in which the site is formed, which is formed by the owners of the land as such OP not liable, to pay any amount claimed by the complainant. Complainant issued legal notice to the owners of the property Sri. Hanumanthappa and others along with the OP; but in this complaint only OP is made as a party to this proceedings without making the owners of the property as parties; as such complaint is liable to be dismissed for non-joinder of necessary parties; Among other grounds OP prayed from dismissal of the complaint. <br /> <br /> 5. In order to substantiate the complaint averments the Complainant filed his affidavit evidence and produced the copy of the sale deed dated 03.12.2004 and copy of the notice dated 08.06.2009 and reply dated 08.07.2009 and copy of the layout plan. OP also filed his affidavit evidence not produced any documents.<br /> <br /> 6. In view of the above said facts the points now that arise for our consideration in this complaint are as under;<br /> <br /> Point No. 1 :- Whether the complainant has proved <br /> the deficiency in service on the part of the OP?<br /> <br /> Point No. 2 :- If so, whether the complainant is <br /> entitled for the reliefs now claimed?<br /> <br /> Point No. 3 :- To what Order?<br /> <br /> <br /> 7. We have gone through the pleadings of the parties, both oral and documentary evidence and the arguments advanced. In view of the reasons given by us in the following paragraphs our findings on:<br /> <br /> Point No.1:- In negative<br /> Point No.2:- Negative <br /> Point No.3:- As per final Order.<br /> <br /> R E A S O N S<br /> <br /> 8. At the outset it is not at dispute that the complainant purchased the site bearing No.529 formed in survey No.59/60 situated at ‘Upkar Residency Hullai Village, Yeshwanthpura Hobli, Bangalore North Taluk from its owners through G.P.A holder for total consideration of Rs.3,00,000/-. The copy of the sale deed executed by the OP who is a GPA holder of the said land owners in favour of the complainant dated 03.12.2004 is produced. The complainant is in possession of the same. The Khatha of the said property is transferred in the name of the complainant. Complainant is paying the taxes. These facts are not in dispute now the grievance of the complaint is that some third party constructed the compound wall encroaching the complainant’s property along with other property. Complainant failed to produce any documents in support of his contention that OP has promised to put up a compound wall surrounding entire layout with security. Further it is contended by the complainant that when complainant approached OP for redressal at that time it was promised that due to some confusion compound wall was constructed encroaching the complainant property and OP assured to give an alternative site of the same dimension. Complainant failed to produce any documents in support this contention. When OP failed to comply his demand complainant got issued legal notice on 08.06.2009 to OP along with land owners. OP gave the reply notice stating OP is not responsible for any illegal encroachment by third parties. Perused the copy of the notice and reply notice produce by the complainant. Hence complainant approached this forum for the necessary reliefs.<br /> <br /> 9. As against the case of complainant the defence of the OP is that, admittedly complainant is in possession of the site bearing No.529, since from the date of execution of sale deed dated 03.12.2004. After lapse of around five years complainant filed this complaint which is barred by limitation. There is some force in the say of the OP. Complainant has failed to furnish the particular date and details of the persons who encroached the site. Complainant failed to make his venders as a parties to the proceedings.<br /> <br /> 10. Further it is contended by the OP that there is no privity of contract between the OP and the complainant as he never promised to put up the compound wall. It was formed by the owners of the land. Hence he is not liable to pay any amount claimed by the complainant. We have perused the documents produced by the complainant. OP executed sale deed as a G.P.A holder of the owners but in complaint only OP is made as a party; owners are not made parties, hence complaint is bad for non joinder of necessary parties.<br /> <br /> 11. Admittedly complainant is possession of the property and paying the taxes since 03.12.2004. Even if any trespasser or encroached upon his property, it is for the complainant to initiate legal action against them and same cannot be attributed as deficiency in service on the part of the OP. Complainant failed to prove the allegation of deficiency in service on the part of the OP. The complaint is devoid of merits. Under the circumstance we are of the considered view that complaint fails and is liable to dismissed. Accordingly we proceed to pass the following:<br /> <br /> <br /> ORDER<br /> <br /> The complaint is dismissed. Considering the nature of dispute there is no order as to costs.<br /> <br /> (Dictated to the Stenographer and typed in the computer and transcribed by her verified and corrected, and then pronounced in the Open Court by us on this the 27th day of August 2010.) <br /> <br /> <br /> <br /> PRESIDENT<br /> <br /> <br /> <br /> MEMBER MEMBER <br /> <br /> gm. <br /> <br /> <br /> <br /> <br />