ORDER

(Passed this on 27^th October,  2016)

Shri Shekhar P. Muley, President.

01.   All these complaints are being disposed of by a common order since the Opposite parties and facts, except some details, are same.

02.       All the complaints are filed for not executing sale deeds of the plots by the OPs and thereby making deficiency in service.

03.      Facts in short are that the OP No.3 is a firm of which the OP 1 and 2 are owners. Shri Manikrao Vaidhya, the husband (since deceased) of the OP 1 was doing business

of sale purchase of land. He had a land bearing                          Kh. No’s. 62/1, 63/1 at Vethari and layout was made thereon. The complainants decided to purchase plots in the said layout and paid some amounts to late husband of the O.P. 1. The details of transactions of the complainants in each case are as under.

04.      The complainants have stated that they have paid entire consideration of their respective plots, and also paid registration charges Rs.4165/-. Therefore they requested late Manikrao Vaidhya (hereinafter the deceased) to execute sale deeds in their favour. But he was simply giving them assurances of executing sale deeds and thus avoiding execution. At last on 21.6.2004 on their persistent demands late Manikrao Vaidhya executed agreement of sale and possession letter of their respective plots. The complainants then erected compound and started construction. On 11.3.2008 one Vinaykumar Shridhar Gowardhan threatened the complainants and forcibly took possession of the plot. Police report of the incident was lodged. The complainants then sought explanation from the deceased regrading their illegal dispossession by Vinaykumar Govardhan. He explained to them that in the year 2002 he had purchased the said land bearing P.H. No. is 34 and Kh. No. 62/1 of Velahari  from the legal heirs of its original owner Chindhuji Thakre, who had already sold the said land to Vinaykumar Gowardhan on 14.11.1991. It is further stated that from             7/12 extract of the land it appears that Vinaykumar Gowardhan has instituted a civil suit against legal heirs of Chindhuji Thakre. Thus the deceased despite having knowledge that the original owner Chindhuji Thakre had already sold the land to Vinaykumar Gowardhan purchased the said land from legal heirs of Chindhuji Thakre, made layout thereon and sold plots to the complainants on accepting full consideration amount and thus cheated them and extracted money.

05.    The deceased died on 10.8.2010 and after his death the O.P. 1 and 2 are looking after the business of the O.P.3. Therefore the complainants requested them to execute sale deeds, but they are not ready to execute sale deeds.                 The deceased and legal heirs of Chindhuji Thakre connived

together to fleece the complainants. Hence, they are now seeking execution of sale deeds of their respective plots, or market value of the plots, besides compensation and litigation cost.

06.    O.P. 1 and 2 filed their joint written version at Ex.8. The complainants are unknown to them. It is admitted that the deceased had a business of purchasing land and after making layouts thereon selling plots. After his death the

O.P.1 and 2 became owners of the O.P. 3, M.K. Real Estate. They have no knowledge of agreement between the complainants and the deceased nor was there any written agreement between the complainant and the deceased. It is also denied that the complainants agreed to purchase respective plots by paying amounts to the deceased as described in the complaint. Delivery of possession of respective plots by the deceased and thereafter constructing compound wall and houses are denied as false. They have no knowledge about dispossession of the complainants and police report against Vinaykumar Gowardhan. However, it is not disputed that the deceased had purchased the said land from the legal heirs of Chindhuji Thakre. The deceased had no knowledge of transaction by Vinaykumar Gowardhan. It is

denied that the complainants requested them to execute sale deeds of the plots but they are not ready to execute sale deeds. Denying all other allegations, it is submitted to dismiss the complaint.

07.    Nobody appeared on behalf of the OP 3 despite service of notice. Hence, the matter has been heard ex-parte against the OP3.

08.       We have heard rival arguments and perused documents. Upon considering the same we record our findings and reasons as under.

FINDINGS  AND  REASONS

09.       In order to substantiate their complaints, the complainants have relied on following documents,

1. payments receipts.
2. Possession letter,
3. police report,
4. sale deed on Vinaykumar Gowardhan,
5. 7/12 extract of the land in names of L.R’s of Chindhuji Thakre,
6. sale deed in favour of the OP 3,
7. Membership forms of the complainants.  

10.        Admittedly, the alleged transactions of plots were done with the deceased, when he alone was the sole proprietor of M. K. Real Estates (O.P.3).  According to the complainants entire consideration amount was paid by them to the deceased. Receipts are filed on record in support of payments. The O.P’s have denied that any payments were made to the deceased. If the receipts are examined it would be seen that the same bear logo of the M.K. Real Estates (O.P.3) and are signed by somebody on behalf of the O.P. 3. It is nobody’s case that the receipts were issued or signed by the deceased. But it is also to be noted that the O.P. 1 and 2 have not specifically denied about issuance of the receipts nor have they alleged fraud or cheating in respect of the receipts. So also it is not denied that the deceased was having layout on land Kh. No. 62/1 and 63/1 at Velahari. The complainants have become members of the O.P. 3 while booking the plots. It is not disputed that the deceased was running business of making layouts and selling plots. So considering all these facts together, we have no hesitation to hold that the complainants did agree to purchase their respective plots from the deceased.

11.      The complainants were given possession letters of their respective plots by the O.P. 3. The O.P. 1 and 2 have simply denied about delivery of possession, but have not alleged that the said possession letter is bogus or fabricated. Learned counsel for the O.P’s argued that the signatures on the receipts and possession letter has not been proved to be that of the deceased. The receipts were signed by somebody for the O.P. 3. The complainants could not prove who signed the receipts or received payments. When the payments are specifically denied by the O.P’s, the complainants must prove it by some evidence.

12.      In this case the main issue is whether the the deceased had ownership right and interest to sell the plots to the complainants. Because the land in question was earlier belonged to Chindhuji Thakre, who had sold it to Vinaykumar Gowardhan on 14.11.1991. Thus Vinaykumar Gowardhan has become owner of the said land much before the deceased purchased the said land. So on the date of alleged agreement with the complainants, the deceased had no transferable title in the land. This fact was very well known to the deceased and in spite of that he purchased the said land from the legal heirs of Chindhuji Thakre and then made layout and sold plots to the complainants. Even                            the  complainants  have admitted this fact in their complaints.

They have filed copy of sale deed of Vinaykumar Gowardhan. A perusal of the same would show that Vinaykumar Gowardhan purchased land Kh. No. 62/1 ad measuring 2.22 HR of Vela. Same property was later purchased by the deceased from LRs of Chindhuji Thakre. Therefore sale deed of the deceased has no legal value to clothe him with ownership right. It appears the deceased cheated the complainants by selling plots of which he was not owner.

13.    In these cases there is no written agreements. Therefore terms of agreement could not be ascertained. Moreover, the complainants have not mentioned what was total consideration of the respective plots. The O.P. 1 and 2 alleged even absence of privity of contract between the complainants and the O.P. 1 and 2 so as to bring these cases under the purview of the Consumer Protection Act. It is contended that the the O.P. 3 was a sole proprietor concern of which the deceased alone was the proprietor. After his death his legal heirs cannot be held responsible for any act done by such sole proprietor. Reliance is placed on a judgment of the National Commission in the case of “Kundalik Mokal v/s Jaysheel Construction Company”           -III (2011) CPJ 404 (NC). The facts were that the complainant had booked a flat which was being constructed by the respondent Jaysheel Company. One Phalle was the Director of the said company. He was authorised to book flats and though he deposited the booking amount yet the complainant was not allotted the flat and so he had filed the complaint. The defence was that Phalle was the sole proprietor of the respondent company and after his death the contract was terminated by the society and the work was got done from another agency. It was alleged that the complainant has fabricated certain documents and lodged false complaint. It was held that the deceased Phalle was sole proprietor of the respondent company and after his death the liability cannot be fastened on the respondents No. 1 and 2 who are the son and widow left by him. It was further held that the complainant failed to prove that late Phalle was authorised agent of the respondent company to issue any allotment letter to prospective purchaser. It was not proved that the complainant was consumer qua the respondents. It was also not proved that he paid any amount to the deceased Phalle. Thus the legal heirs of late Phalle were held not liable to repay the amount when the respondent company was the sole proprietary business of late Phalle. The judgment in  Kundalik Mokal case squarely applicable to the present cases.

14.    Learned counsel for the O.P’s  further submitted that a complicated question of law and fact is involved which cannot be decided by the forum. The consumer forum always refrains from deciding any dispute which involves complicated question. In such case parties are generally advised to approach civil court. The present cases depict fraud and cheating. The land in question is owned by Vinaykumar Gowardhan, who is not a party before us. Unless the sale deed of Vinaykumar Gowardhan is cancelled, the deceased could not have transfered valid title to the complainants. As such the forum does not have jurisdiction to decide all these issues.

15.        Another objection is of limitation. Learned counsel for the O.P’s contended that as per the complainants the alleged agreements of sale are of the years 2001, 2003 and 2005 and the complaints are filed in the year 2011, after a gap of more than five years and thus the complaints are hopelessly barred by time. These complaints are not pertaining to recovery of money. The complaints are regarding non execution of sale deeds. In such cases cause of action is continuous and therefore the complaints are not barred by limitation.

16.      The complainants´ counsel has also relied on a few judgments. But those will hardly be of any help to the complainants. The judgments relied upon are mainly on the deficiency in services of the OP. As stated earlier, the complainants have purchased plots from such person who had no legal title and interest to sell the same. The complainants therefore have not derived any interest or title from the deceased to compel the legal heirs of the deceased to execute sale deeds or ask for refund of money. They should have approached civil court to get declaration regarding sale deed of Vinaykumar Gowardhan and regarding their rights too.

17.       For aforesaid reasons, we are of the opinion that the complainants have approached wrong forum for redressal of their grievances. The complaints are therefore liable to be dismissed. Hence, we pass the following order.

ORDER

1. All these complaints are dismissed with no order as to cost.

2. Copy of the order be given to both the parties free of cost.
3. Copy of the judgment and order be kept in RBT/CC/ No’s. -11/217, 11/400, & 11/ 401.