No. 16/08.07.2011.

HON’BLE JUSTICE SRI PRABIR KUMAR SAMANTA, PRESIDENT.

Revision Petitioner and O.P. Nos. 1 & 2 are present through their Ld. Advocates.  O.P. Nos. 1 & 2 files list of dates.  This revisional application is directed against the order dated 03.02.2010 passed in Execution Case No. 75 of 2007.  It is not in dispute that the complaint case has been allowed by directing the O.Ps, the promoter – developer and landowners to execute and register the Deed of Conveyance in respect of the questioned along with a garage as per schedule of the agreement that has been entered into by and between the parties within the period mentioned in the order of disposal of the complaint case.  It is not in dispute that possession of the subject flat as well as a garage has already been delivered to the Complainant by the O.P., developer – promoter sometime in the month of August, 2001.  The dispute arose between the parties as to the particular garage which should be mentioned in the schedule of properties in the Deed of Conveyance which would be executed and registered by the O.P., promoter – developer and landowners pursuant to the aforesaid order of disposal of the complaint case.  Interestingly the agreement for sale did not mention the particular garage which would be sold to the Complaint.  While the Complainant demands mentioning of the middle garage in the schedule of properties of the Deed of Conveyance for the purpose of execution and registration of the same in favour of the Complainant, the O.Ps have contended that the Complainant has been given possession of the corner garage of which he is in possession since the date of delivery of possession and as such the same should be transferred in favour of the Complainant by executing and registering the aforesaid Deed of Conveyance. 

Regard being had to the said dispute we are of the view that the Complainant would be entitled to the particular garage of which the possession has been delivered to him by the O.Ps in the month of August, 2001 while delivering possession of the flat pursuant to the agreement for sale.  Upon perusal of the records we do not find any materials whatsoever to establish that the Complainant is in possession of the particular middle garage as demanded by him or the garage at the corner as alleged by the O.Ps.  We, therefore, hold that the Executing Forum has acted illegally and with material irregularity in its exercise of jurisdiction in holding that the Complainant would be entitled to the middle garage.  In the absence of any materials on record to show that the Complainant is in possession of the same since the date of delivery of the possession of the garage to her, we are unable to sustain the impugned judgement and order.  The same is accordingly set aside.  The execution case be sent back on remand to the Executing Forum with a direction to decide the question on the basis of the evidence, if any, on record and also on the basis of the evidence that may be adduced by the parties to establish the possession which was delivered to the Complainant by the O.Ps at the time of delivering possession of the garage to the Complainant.   The parties will be at liberty to lead evidence on such point if found necessary by the Executing Forum.  The Executing Forum will accordingly decided the execution case.  The revisional application is thus disposed of.