This is a complaint made by Sri Hrishikesh Nag, son of Late B.M.Nag, 2/51, Rabindra Nagar, P.S.-Behala at present P.S. Parnasree, Kolkata-700 060 against (1) Nilesh Sarkar, son of Late Satya Bijoy Sarkar alias Sadhan Sarkar of 3/227, Rabindra Nagar, P.S.- Parnasree, Kolkata-700 060, OP No.1, (2) Smt. Bulu Roy Chowdhury, wife of Sri Narayan Roychowdhury, 48/61, Swiss Park, P.S.-Charu Market, Kolkata-700 033 and also of 3/227, Rabindra Nagar, P.S.-Parnasree, Kolkata-700 060, OP No.2, (3) Smt. Neli Sarkar, daughter of Late Satya Bijoy Sarkar alias Sadhan Sarkar of 3/227, Rabindra Nagar, P.S.-Parnasree, Kolkata-700 060, OP No.3, (4) Smt. Chaitali Ghosh Roychowdhury, wife of Sri Supriya Ghosh Roychowdhury of 3/A, Jheel Road, P.s.- Garfa, Kolkata-700 031 and also of 3/227,Rabindra Nagar, P.S.-Parnasree, Kolkata-700 060, OP No.5 and (5) Sanjoy Chatterjee, son of Late Sunil Chatterjee of 60/24, Mahendra Banerjee Road, P.S.-Parnasree, Kolkata-700 060, OP No.5, praying for a direction upon the OPs to execute as well as to register a deed of conveyance in favour of the Complainant in respect of the flat described in Schedule B along with undivided proportionate share of land described in the Schedule A and further order directing the OP to pay sum of Rs.50,000/- to the Complainant on account of damage and losses and any other reliefs.
Case in brief is that Shefali Sarkar wife of Satya Bijoy Sarkar alias Sadhan Sarkar was the owner of the land measuring about 4 cottahs 8 chittacks 10 sq.ft. lying in Mouza – Behala, R.S.No.83, J.L.No.2, Touji No.346 by way of purchase from the then owner, Manmotha Nath Adhikary, with the aid of a Bengali Kobala, duly executed and registered at the office of the Joint Sub-Registrar at Alipore at Behala.
Shefali Sarkar, during her life time entered into a development agreement on 30.11.2008 with developer, Sri Sanjoy Chatterjee. OP No.5. got the plan sanctioned from Kolkata Municipal Corporation, which was subsequently considered by the Special Officer (Building) of KMC in Building Demolition case No.98D for the year 2004-05.
Said developer OP No.5, constructed the building according to the said sanctioned plan upon the Schedule A consisting of several residential flat and offered to sell a few flats from developer’s allocation.
Said Shefali Sarkar, due to her legal urgent need to meet the legal necessity, since deceased, agreed to sell a flat being super built up area of 700 sq.ft. on the 2nd floor of three storied building for a price of Rs.5,00,000/- and the agreement for sale was executed on 16.1.2007.
Shefali sarkar died on 27.10.2008 leaving OP No.1 to 4 her heirs and legal representatives. OP No.1 being only son of Shefali Sarkar, received a further sum of Rs.80,000/- on 12.3.2009 and delivered vacant possession of the said flat in favour of the Complainant. Complainant paid Rs.4,20,000/- in terms of the agreement dt.16.1.2007. But, despite several requests and demands OP No.1 to 4 did not execute and register the deed of conveyance in respect of the said flat mentioned in the schedule B. Complainant, sent notices to the OP for making registration, but of no use. So, Complainant filed this case.
OP No.5 filed written version and denied all the material allegations of the complaint. He has denied that the complaint is maintainable. Further, he has denied all the allegations made out in the complaint and prayed for dismissal of this complaint. OP No.2, 3 & 4 have filed separate written version and they have also denied the allegations of the complainant. Further, they have stated that they became co-sharer of the property having undivided 1/5th share in the said property and they have filed a civil suit being title Suit No.2822 of 2012 for partition of the said property and the said suit is pending before the Ld. 7th Civil Judge, Sr. Division of Alipore. They have also moved an application under Order 39 rules of the Civil Procedure Code for granting temporary injunction with a prayer of ad-interim order. In terms of the prayer the Ld. 7th Civil Judge Sr. Division was pleased to pass an order of status quo and the order is still subsisting. Further, they have alleged that Complainant is a party in the said suit. But, he has totally suppressed the said suit in the present case. The disputes whether Shefali Sarkar was the real owner of the said property or Satya Bijoy Sarkar was the real owner of the said property is the subject matter of the said Civil suit. So, this proceeding should be stayed. Further, they have stated that Sadhan Sarkar died intestate on 4.11.1992 and after his death the OP along with their mother Shefali Sarkar and brother Nilesh Sarkar were the co-sharers of the said property and if such sale was made after the death of her husband by virtue of such alleged sale at best her 1/5th share of the said land measuring about 1 cottah 8 chittaks 20 sq.ft. has been transferred to the third party. However, these OPs have stated that as the title deed stands in the name of the said Shefali Sarkar the said property was mutated in the name of Shefali Sarkar but actually Satya Bijoy Sarkar alias Sadhan Sarkar out of his own fund and for his sole benefit mutated the said property in the name of his wife Shefali Sarkar and thus by such mutation Shefali Sarkar cannot have any interest over the said property.
Further, they have also alleged that the transaction between Complainant and OPs cannot be considered as valid transaction and since the title deed is pending this Forum does not have jurisdiction to adjudicate this case. So, these OPs have prayed for dismissal of the complaint case.
Decision with reasons
Complainant has filed affidavit-in-chief where he has reiterated the facts mentioned in the complaint against this OP No.5 has put certain questions to which Complainant has replied. OP No.2, 3 & 4 have also filed questionnaire against the affidavit-in-chief of the Complainant. OP Chaitali Ghosh Roy Chowdhury has filed affidavit-in-chief wherein she has stated that the complaint is totally mischievous and Shefali Sarkar did not have title over the property. OP No.2, 3 & 4 have also filed written argument.
Main point for determination is whether Complainant is entitled to the reliefs as prayed for.
On perusal of the prayer portion of the complaint, it appears that Complainant has prayed for direction upon the OPs to execute as well as register a deed of conveyance in favour of the Complainant in respect of the flat described in schedule B along with the undivided proportionate share of land described in the Schedule A. Complainant has based his claim on the basis of an agreement for sale between one Shefali Sarkar and Nilesh Sarkar. But the name of the Complainant appears as r Hrishikesh Nag, purchaser but surprisingly the signature of Hrishikesh Nag does not appear on this agreement for sale took place between Nilesh Sarkar and Shefali Sarkar, wherein Hrishikesh Nag was becoming the purchaser, there is no explanation why his signature does not appear in the agreement for sale on all the pages. Only on page No.5 the signature of Hrishikesh Nag appears. Further, it appears that this agreement was entered on 10.1.2007 where it is stated that purchase has already paid Rs.80,000/- and remaining sum of Rs.4,20,000/- paid to Shefali Sarkar out of Rs.5,00,000/-. Shefali Sarkar died on 27.10.2008. Complainant has not filed any receipt to establish that he has paid as claimed in the complaint petition Rs.4,20,000/- to Shefali Sarkar.
Further, on perusal of the questionnaire filed by both the sides do not appear that Complainant made any payment as claimed. There appears that there is dispute regarding the ownership of the property for which a title suit is pending before the Civil Court.
In such circumstances, we are of the view that Complainant did not approach this Forum with clean hand.
Accordingly, Complainant failed to prove the allegations made out in the complaint.
Hence,
ordered
CC/36/2015 is dismissed on contest.
