DIST. CONSUMER  DISPUTES  REDRESAL  COMMISSION

NORTH 24 Pgs., BARASAT.

C. C.  CASE  NO. 272/2022

           Date of Filing:                         Date of Admission:                               Date of Disposal:                

                                                                                                                         10.03.2023

P R E S E N T               :-        Smt. Sukla Sengupta………………..President

  :-        Smt. Monisha Shaw …………………. Member.

                                      :-        Sri Abhijit Basu……………………….Member

JUDGMENT / FINAL ORDER

            The instant petition of complaint has filed by the complainant under Section 35 of the C.P. Act, 2019 against the opposite parties.

            It is stated by the complainant that both the parties to this case are residing within the jurisdiction of this commission.

            It is further stated by the complainant that he used to reside in the ground floor at holding No. 9, Vivekananda Road situated at Mouza – Chanak Gram, J.L. No. 4, R.S. No. 39, Touzi No. 2998 in C.C. Dag No. 880, 880/1511, C.C. Khatian No. 724, 292, R.S. Dag No. 6644, 6637, 6639,6640, 6641, 6642, 6634, 6636, R.S. Khatian No. 2570, 292 land measuring about 318 decimal and prior to that the father and grandfather of the complainant used to possess the said property.

            It is further stated by the complainant that the opposite party desired to develop the said property by exploiting the same and offered the complainant to hand over the possession of the said property with an intention to demolish the old building and reconstruct multistoried building thereon. The complainant being agreed to the proposal of the opposite party entered into an agreement to develop the property on 11.12.2020 with certain terms and conditions engrafted in the said agreement and it was agreed by and between the parties that the opposite party will hand over the flat in question and shop room free of cost and without payment of consideration and the complainant will not have to pay any single farthing towards acceptance of possession of the 2^nd floor flat and said shop room.

            The complainant further stated that he is residing in the premises in question since long back and had perfected title with possession what residing property as an adverse possessor. It is alleged that it was agreed by the opposite party that after completion of the construction of the flat in question of shop room the opposite party will register the deed of conveyance either in favour of the complainant or his wife. The flat in question has been described in the ‘B’ schedule of the petition of complaint and shop room has been described in the ‘C’ schedule of the petition of complaint.

            It is further stated by the complainant that the deed of conveyance will be registered by the O.P at their cost and do also bear the entire cost of electricity in the said flat in question. In default they have to compensate the complainant by paying Rs. 20,000/-per month. But till

Contd/-2

C. C.  CASE  NO. 272/2022

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filing this case the opposite party neither hand over the flat in question ‘B’ schedule nor the shop room. Hence this case filed by the complainant with a prayer to give direction to the opposite party to hand over and delivery the possession of the flat and shop room in question and give direction to the opposite party to pay compensation or Rs.5,00,000/- for harassment, mental pain and agony and Rs. 3,00,000/- creating unnecessary trouble for delaying performance of application of the agreement dated 11.12.2020 and also to give direction to pay 3,00,000/- deficiency in service and unfair trade practice.

            The complainant further prayed for giving direction to the O.P for paying Rs. 5,00,000/- towards consideration as per agreement dated 11.12.2020 and permanent injunction restraining the opposite party from creating third party’s interest on the flat in question, cost of the proceedings and any other relief to which the complainant is entitled to get relief or reliefs under the law, equity and natural justice.

            The O.P member even on receive the notice did not appear in this case. Thus the case do run exparte in this case. So, there is no defence on the part of the opposite party.

            In view of the above stated facts and circumstances the points of consideration are as follows:-

1. Is the complainant is consumer?
2. Is the there any deficiency in service on the part of the opposite party?
3. is the complainant entitled to get the relief as prayed for?
4. What other relief or reliefs is the complainant entitled to get?

Point for consideration

            All the points for considerations are taken together for convenience and discussion and to avoid unnecessary repetitions.

Decision with Reasons

            It is the case of the complainant that he is residing in premises in question since long back. So the land owners and the developer requested him to vacate the possession as they intend to construct a multistoried building thereon and they will hand over a flat to him measuring about 750 Sq.ft in second floor and shop room free of cost as mentioned in schedule ‘B’ and ‘C’ in the complaint.

            Let us see what is the status of the complainant in respect of the property in question as mentioned in the schedule ‘A’ of the petition of complaint. The complainant annexed the agreement in between the developer and the land owners and also notarized declaration which has brought into evidence of annexure ‘A’ it is palpably clear that the complainant is an adverse possessor in respect of the ‘A’ schedule property. So, as per provision of law i.e. C.P. Act 2019 and adverse possessor cannot be termed as a ‘consumer’by any means and if the complainant cannot be termed as a “consumer” then he cannot get any relief from a Consumer Commission. From the facts and circumstances as well as unchallenged testimony of the complainant it is crystal clear that the complainant want to get a legal seal in respect of his possession in the property in question. But remedy if any, to an adverse possessor is lying before the proper Forum but Consumer Commission is not a proper Forum.

            Hence considering the position of law and the facts and circumstances as well as the evidence materials on record of this case this commission is unable to accept the complainant as a consumer .

            Under such circumstances this commission has no other option but to hold the view that the complainant is not a consumer at all. So, he cannot get any relief from this commission and he failed to prove his case beyond the shadow of reasonable doubt against the opposite party.

Contd/-3

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            The case is properly stamped.

            Hence,

                             Ordered,

            that the case be and the same is dismissed exparte without cost.

           Let plain copy of this order be given to the parties free of cost as per the CPR, 2005.

Dictated & Corrected by me                      

President

Member                                                         Member                                 President