Date of filing : 24.5.2017
Judgment : Dt.5.3.2018
Mrs. Balaka Chatterjee, Member
This petition of complaint is filed under section 12 of C.P.Act, 1986 by Smt. Mira Das alias Mira Yadav alleging deficiency in service on the part of the opposite party (OP hereinafter) namely Smt. Anjana Dey.
Case of the Complainant in brief is that husband of the Complainant namely Ranjit Das (Since deceased) was absolute owner of a piece of land by virtue of a sale deed executed between Ranjit Das and Shaktirani Das measuring about 2 cottah 15 chittacks 19 sq.ft. in Mouza-Haridevpur, Pargana – Khaspur, R.S.No.35, J.L.Nop.25, Touzi No.40, Khatian No.367(Old) 2284 (New) Dag No.426 lying and situated at 1406 Ustad Amir Ali Khan Sarani, P.S.-Haridevpur, Kolkata-700 082, entered into a development agreement with OP on 17.01.2014, for constructing a multistoried building thereupon and the OP started construction work after obtaining permission from the concerned authority. The Complainant stated that subsequently her husband, Ranjit Das, died on 12.11.2015 leaving behind his legal heirs i.e. Pramila Das, mother of the Ranjit Das (deceased) and Mira Das wife of Ranjit Das. The Complainant further stated that she got married to one Bejoy Yadav on 11.06.1981 and said Bejoy Yadav died on 8.6.1992 and thereafter the Complainant remarried to Ranjit Das on 9.1.2013. It is further stated by the Complainant that after demise of Ranjit Das she contacted the OP and requested to deliver owner’s allocation to her as per terms of the agreement dt.17.01.2014 but the OP paid no heed to that request and thereafter the Complainant sent legal notice through her Advocate on 22.02.2016 in reply to which the OP sent Advocate’s letter dt.11.3.2016 demanding necessary documents like Death Certificate of Ranjit Das and proof of legal heirship. Complainant complied the demand by sending necessary documents to OP on 30.3.2016 and again on 19.4.2017 sent a legal notice demanding handing over the owner’s allocation to the Complainant but the OP and her husband failed and neglected to handover owner’s allocation. So, the Complainant filed this case praying for a direction upon OP to handover owner’s allocation to the Complainant, to pay interest @ 7% p.a. and cost.
The OP contested the case by filing written version denying and disputing all the allegations made out in the petitions of Complainant stating inter alia, that said Ranjit Das entered into an agreement with OP on 17.1.2014 and subsequently died intestate on 12.11.2015 leaving behind his mother Smt. Promila Das, wife Smt. Dipa Das and daughter Payel Das as legal heirs on this ground owner’s allocation could not be handed over to the Complainant since she had no locus standi to claim owner’s allocation.
Both parties adduced evidence followed by cross examination in the form of questionnaire and reply thereto. But OP did not file reply to the questionnaire of the Complainant.
The Complainant adduced photocopy of Death Certificate of Ranjit Das, marriage certificate of Mira Das and Ranjit Das, Advocate letters dt.30.3.2016 and 19.4.2017, issued to the Advocate of the Complainants, Affidavit, Sale Deed executed between Ranjit Das and Shaktirani Das, Agreement dt.17.11.2014.
In course of argument Ld. Advocate for the Complainant narrated the facts mentioned in the petition of complaint. Ld. Advocate for the OP submitted that Promila Das has not been made a party in the instant case, therefore, the complaint suffers from non-joinder of necessary party.
Points for determination
- Whether the case is maintainable under the C. P.Act?
- Whether there is deficiency in service on the part of the OP?
- Whether the Complainant is entitled to get relief as prayed for?
Decision with reasons
Point No.1:
The Complainant has stated that her husband namely Ranjit Das being owner of a piece of land lying and situated at 1406 Ustad Amir Ali Khan Sarani, P.S.-Haridevpur, Kolkata-700 082 entered into a development agreement with the OP for development of the said piece of land by constructing a multistoried building therein under certain terms and condition including delivery of owner’s allocation by the Developer. The Complainant has further stated that the said Ranjit Das died intestate on 12.11.2015. In paragraph 4 of the affidavit-in-chief adduced by the Complainant, it is mentioned that the said Ranjit Das died intestate on 12.11.2015 leaving behind his mother Smt. Promila Das and the Complainant and as per law of succession, the Complainant and the said Promila Das have become joint owners of the property in question and, therefore, they are entitled to be considered as legal heirs, successors and representatives of said Ranjit Das in respect of the said Development Agreement dt.17.01.2014. It is evident that the Complainant herself admitted that there is also another legal heir excluding her mother of Ranjit Das (since deceased) who has right, title and interest to the property in question, but did not implead her as party to the instant case. Hence, the instant petition of complaint suffers from non-joinder of necessary party.
Further, the OP has stated by adducing evidence that the said Ranjit Das (since deceased) was married to one Dipa Das and they have a daughter namely Payel Das. The OP has stated that mother of the said Ranjit Das, Promila Das, wife of said Ranjit Das, namely Dipa Das and daughter of the said Ranjit Das namely Payel Das are the legal heirs of said Ranjit Das and the Complainant have no locus standi to file the instant case. It is evident from the reply by the Complainant in respect of question No.33 as to cross examination in form of written questionnaire filed by the OP she stated that “Dipa Das was the first wife of Ranjit Das but she does not know any Payel Das”. Unless and until the actual legal heirs of the said Ranjit Das since deceased have not been determined no direction can be given to the OP Developer to handover the owner’s allocation portion to the legal heirs of said Ranjit Das.
However, these states of affairs indicate that intriqueted point of succession is involved in the instant case.
There is no scope under the C.P.Act to determine the successor of deceased person. Considering the facts as discussed hereinabove, we are of opinion that the instant case is not maintainable under the C.P.Act.
Point No.1 decided accordingly.
Point Nos.2 & 3
Since Point No.1 decided negative, there is no scope to discuss point Nos.2 & 3.
In the result the consumer complaint does not succeed.
Hence,
ordered
That CC/290/2017 is dismissed on contest being not maintainable.
