Judgment dated 28-06-2016
This is a complaint made by Mrs. Anita Ghosal wife of Late Partha Ghosal, Priyam Ghosal daughter of Late Partha Ghosal and Apurba Ghosal daughter of Late Partha Ghosal all residing at 18C, Lake View Road, P.S. Lake, Kolkata-700 029 against Surendralal Seth, Sunil Seth, Salu Khanna daughter of Surendralal Seth praying for a direction upon the OP for hand over vacant and peaceful possession of the petitioner, directing the OP for registration of the said possession to the petitioner, pay a sum of Rs.2,00,000/- for mental agony and Rs.1,00,000/- as litigation cost.
Facts in brief are that OP No.1 is the husband of Late Bharati Seth and OP No. 2 & 3 are son and daughter of Bharati Seth. Partha Ghosal is the husband of Petitioner No.1 and father of Petitioner No.2 & 3. He entered into an agreement for sale with said Bharati Seth on 13/2/1998 for purchasing a flat and it was agreed that flat to be sold on consideration of Rs.16 lakhs. As per the agreement Partha Ghosal paid Rs.2,00,000/- in cash as booking money and thereafter amount was paid in cash or by cheque.
After receiving the money OP Bharati Seth declared that she is bound to register the flat mentioned in schedule below. On 1/3/1999 Partha Ghosal mortgaged the said flat for taking loan. Partha Ghosal is enjoying the possession but registration was not made. Partha Ghosal died on 20/4/2005 leaving behind Complainants as heirs. After death of Partha Ghosal the flat was locked by Complainant but taking advantage of the absence of Complainant’s OP tried to break the lock and OP No.1 put another lock in the said flat. Petitioner requested OP to make registration but of no use. So Complainant filed this case. OP files written version and denied all the allegations of the complaint. It is further case of the OP that the petitioner has intentionally suppressed that title suit bearing no. 49/2006 which is pending before the Ld. Civil Judge, Senior Division 9th Court, Alipore. Further case of OP is that Partha Ghosal was inducted as a tenant by Bharati Seth on a monthly rent of Rs.7,000/- as per English Calender. It was agreed between Bharati Seth and Partha Ghosal that Partha Ghosal would vacate the property as and when required. Partha Ghosal developer paying rent since July, 1999. In the suit one Shri Shyam Sunder Agarwal filed a petition for joining as a necessary party as defendant. It is the contention of the said Agarwal that Bharati Seth entered into an agreement for sale with Partha Ghosal for sale of entire first floor of premises no.81A, Motilal Nehru Road for a sum of Rs.16,00,000/- and on payment of total consideration money the possession was handed over and Shyam Sunder Agarwal has paid the money. So OPs have prayed for dismissal of this suit.
Decision with reasons
Complainant has filed affidavit-in-chief wherein he has reiterated the facts mentioned in the complaint. Xerox copy of the cheques in favour of Bharati Seth has been filed to establish that the payment was made by the Complainant. There are also copies of receipts filed showing the payment of money to Bharati Seth. Bharati Seth who has accepted money on behalf of GCB Development Tinsel City Pvt. Ltd. OP has filed interrogations against the affidavit-in-chief of the Complainant. Complainant has replied to the interrogations from where it appears that the cases of both the suits have been reflected in this.
Main point for determination is whether Complainants are entitled to the reliefs as prayed. First relief is a direction upon the OPs for handing over the vacant and peaceful possession of the petitioners. Unfortunately it is not mentioned whether the Complainant wants the possession of land or flat. Similarly second prayer is for registration of said possession. This is also unfortunate and flat is not mentioned here.
The dispute relates to the year 2005 and even before it. if the Xerox copy of the agreement for sale is accepted. It appears that it was entered on 13/2/1998. Then the question arises as to why Partha Ghosal who was allegedly in possession of the flat could not get it registered in his name and what prevented Bharati Seth to make such registration.
Further, it appears that one Agarwal is allegedly stake holder who as per OPs ; entered appearance in the civil suit. This complaint was filed in 2016 i.e. after 11 years of death of Partha Ghosal which in turn reveals that upto filing of this complaint there is no problem and prayers of Partha Ghosal who claimed himself as Complainant did not suffer any difficulty in possessing property mentioned in the schedule.
Existence of title suit No.49/2016 reveals that the matter relates to civil dispute and it does not appear prima facie for invoking provision of Consumer Protection Act.
As such we are of the view that Complainants are not entitled to any relief as because they have also failed to furnish any document to establish that they are heirs of Partha Ghosal.
Hence,
O R D E R E D
CC/11/2016 and the same is dismissed on contest.
