Order-31.
Date-23/07/2015.
Today is fixed for passing order.Fact remains that in this execution case DHr prayed for allotment of his one flat having an area of 400 sq. ft. or the decretal amount of Rs. 12 lakhs.Fact remains that in the execution proceeding, JDr/Developer appeared, filed objection and that was finally heard on 09.01.2015 and this Forum found that as per Development Agreement, landowners 12 in numbers that is including the present DHr executed a Development Agreement and jointly they are entitled to 50 percent share of total built up area and balance 50 percent of the construction shall be taken by the Developer and by order No. 22 dated 09.01.2015, this Forum already decided that the complainant including other landowners already in possession of landowners (co/joint-sharers) allocation of 50 percent in Premises No. 20, Dr. Suresh Sarkar Road, P.S.- Entally, Kolkata – 14 and the Forum also decided that no doubt 50 percent of the constructed portion along with tenanted portion were taken by the landowners including the DHr.
Thereafter this DHr one of the landowners and other landowners sold away the tenanted portion that is about 1897.396 sq. ft. after receiving of Rs. 14 lakhs from the Developer.That means out of the 50 percent allocation of the landowners, landowners already sold away 1897.396 sq. ft. and it is already proved that DHr is the daughter of Baidyanath Ghosh and Baidyanath Ghosh as one of the co-sharer was entitled to 12.50 percent of landlord allocation i.e. 1200 sq. ft.
It is fact rather undisputed fact that Pallab Ghosh and Tapas Ghosh are two brothers of the present DHr and they are occupying their 1200 sq. ft. area including excess area on the 2nd floor and 4th floor out of the 50 percent allocation of the landlord share and in possession of Tapash Ghosh 187.778 sq. ft. and 829.640 sq. ft. and in possession of Pallabi Ghosh an area of 1094.612 sq. ft. are occupied by them, that means even after selling their areas on the ground floor i.e. out of total sold out area 1897.496 but even then Tapash Ghosh and Pallab Ghosh jointly have been possessing an area of 211.030 sq. ft. and it is evident from the LBS Report which has been filed as per order of this Forum.
Truth is that only to ascertain the actual possession of the heirs of Baidyanath Ghosh and other landlords, parties were directed to appoint or depute LBS and to search out the present landlords (co-sharers) possession out of the total construction.DHr was also directed to appoint LBS but they did not appoint for which as per that order, LBS was appointed by the JDr and that work was done under the protection of Entally Police and that report has been submitted on 28.04.2015 and no doubt the entire work was done by the LBS in presence of the landowners and the JDr with the help of Entally Police.Copies were supplied to the Ld. Lawyer for the DHr on 19.05.2015, DHr were directed to file such explanation against such LBS Report.But no explanation or no objection was filed in writing by the Ld. Lawyer of the DHr and on 07.06.2015 DHr expressed that she does not file any explanation against LBS Report.So, the matter was heard finally on that date and Ld. Lawyer for the DHr made only note ‘objection’, but no objection was filed.
Considering the conduct of the DHr in the present case, it is clear that DHr has no intention to say what is the position of the landowners in the landowner’s allocation out of the total construction.Already we have decided that after proper consideration of the entire materials that 50 percent of the total construction along with tenanted portion were allotted to the landowners and landowners including the present DHr’s sold away tenanted portion i.e. ground floor and for which the present DHr also received Rs. 1,00,000/- for her share, that means out of 1200 sq. ft. of the legal heirs of Baidyanath Ghosh as entitled sold away a reasonable portion out of 1200 sq. ft..Then invariably the area of allocation of Baidyanath Ghosh had been decreased.
So, under any circumstances, the DHr is not entitled to any area separately because already DHr and her two brothers have been possessing a total area of 2112.030 sq. ft.But in reality legal heirs of Baidyanath Ghosh i.e. DHR and other two brothers Tapash Ghosh and Pallab Ghosh are entitled to only 1200 sq. ft., but they are possessing an extra area of 912.03 sq. ft. and that portion should be returned to the JDr and further for selling 1897.496 sq. ft. by all the landowners including DHr and other legal heirs of Baidyanath Ghosh i.e. Pallab Ghosh and Tapash Ghosh are not entitled to 1200 sq. ft. at this stage but out of that some portions had already been sold away from the portion from the ground floor.
Another factor is that from the LBS Report, it is clear that at present the landowners (co-sharers) are possessing 8243.48 sq. ft. whereas JDr is possessing 5535.505 sq. ft.But in reality out of total construction, the landowners jointly were entitled to an area of 6889.46 sq. ft.But their possession in the total area is 8243.428 sq. ft. as per report of LBS and LBS Report has not been challenged by the DHr and truth is that in presence of the landowners that LBS Report was prepared with the help of Entally Police.
So, considering that fact, it is clear that the present DHr is not entitled to execute the decree under any circumstances and fact remains that DHr and her two brothers Tapash Ghosh and Pallab Ghosh have been possessing a constructed area of 2112.030 sq. ft. which is excess area than that of the area what the DHr and her two brothers are entitled to.
So, considering that fact, it is also proved that the area which would be allotted to Baidyanath Ghosh i.e. 1200 sq. ft. had already been allotted to her legal heirs and present complainant is married but more than that area is in possession of her two brothers Tapash Ghosh and Pallab Ghosh and as per Agreement, there was no such averments that each and every co-sharer shall have to get a separate flat but in respect of their 50 percent of the construction and that had already been given and in fact landowners are possessing more area than that of actual area they are entitled to.
In view of the above fact, we find that LBS Report supports that the 1200 sq. ft. which would be allotted to Baidyanath Ghosh, DHr and her two brother are already in possession as legal heirs of Baidyanath Ghosh i.e. Tapash Ghosh and Pallab Ghosh including DHr.
So, DHr/complainant is not entitled to any separate flat on any ground in views of the fact.As per Development Agreement, DHr is not entitled to get any separate flat and in fact three flats are occupied by two brothers i.e. Tapash Ghosh and Pallab Ghosh on the 2nd floor and 4th floor and from the LBS Report it is found that Pallabi Ghosh on the 4th floor has been possessing 1094.612 sq. ft.
So, possession has already been determined by the JDr that means 50 percent of the entire construction of the Premises had already been allocated to the landowners (co-sharers) which is further proved from the LBS Report.Most interesting factor is that DHr is always silent about that as because there was nothing to say against the LBS report about the possession of the landowners and occupation of the landowners, in respect of more than 50 percent area. The DHr did not appoint any LBS, did not file any objection against the LBS Report and ultimately on 17.06.2015 DHr personally submitted that they do not submit any explanation of LBS Report and matter was heard finally.
Truth is that this DHr filed a complaint without making other co-sharers party in the original complaint case and managed to get a decree in exparte form.But fact remains that in the judgement about Development Agreement, it is specifically mentioned.But anyhow the Forum overlooked the matter and passed a decree for handing over a flat.But there is no question of handing over any flat.But as legal heirs of Baidyanath Ghosh, she is entitled to joint possession and truth is that joint possession has already been given to her their brothers, DHr had no separate allocation but the possession of 1200 sq. ft. has already been taken by their two brothers treated as joint possession and in that case only DHr may file a partition suit against her brothers.But as per Development Agreement, she is not entitled to any separate flat having an area of 400 sq. ft. and Development Agreement does not speak so which is also evident from the body of the judgement.
Another factor is that this DHr in the present execution proceeding had their scope to file objection against the LBS Report or she may raise such objection but she is silent.Truth is that DHr is married woman and she has been residing with her husband and there is some unscrupulous persons behind her who are pulling thread and in execution proceeding the entire truth was searched out by this Forum and an order was passed on 09.01.2015 vide order No.22.DHr has not filed any such appeal, did not show her anxiety in this regard to challenge this order and by that order we have already come to a conclusion that the total decree is fully satisfied for getting more than 50 percent of the constructed area along with tenanted portion and selling of their share on the ground floor out of the total construction.
So, we are convinced that the order as passed by this Forum vide Order No.22 dated 09.01.2015 is found in all respect is correct.Truth is that DHr is legal heirs of Baidyanath Ghosh is in joint possession of more than 1200 sq. ft. of area along with her two brothers Pallab Ghosh and Tapas Ghosh on the second floor and fourth floor and in this regard DHr has no say.LBS Report has not been challenged, though on 19.05.2015 order was passed for final explanation of DHr against LBS Report.Thereafter again order was passed on 08.05.2015 and when DHr’s husband is present, but no explanation was filed by the DHr.On 17.06.2015, both parties were present but DHr did not file any explanation and thereafter argument was heard finally.
This is the conduct of the DHr from the very inception of the complaint and by suppressing the entire truth managed to procure an exparte decree which was detected when JDr appeared and filed objection and that was decided in favour of the JDr vide order No. 22 dated 09.01.2015.But only to satisfy the DHr, LBS Report was collected which has been accepted by this Forum for determination when there was no explanation against that LBS Report by the DHr and finally we find that decision of this Forum vide Order No. 22 dated 09.01.2015 is further substantiated by the LBS Report that the two brothers of the DHr have been possessing more than 1200 sq. ft. area jointly as legal heirs of Baidyanath Ghosh and invariably possession of the present DHr is joint possession and in fact there are three flats – two in the second floor and one in the first floor.Probably DHr failed to reside with them for some family dispute when somehow or otherwise the DHr filed this complaint suppressing the truth and in fact that the order as passed by this Forum vide Order No. 22 dated 09.01.2015 is further confirmed substantiated by the LBS Report.
In the result, this execution case is finally disposed of holding that DHr’s 400 sq. ft. is already in joint possession of her other brothers .
Hence, it is
ORDERED
That the execution case be and the same is dismissed on contest without any cost.
