AI Structured Summary
Not yet generated for this judgment
Judgment
ONE Swapan Kumar Ghosh, inherited exclusively, premises No.79, Sambhu Babu Lane, Entally, Kolkata. He died, leaving behind his widow, Smt. Swarnalata Ghosh, one daughter, Sarbani Ghosh and two sons, namely, Samir Ghosh and Susanta Ghosh. Sushanta died intestate, leaving behind his widow, Gayatri Ghosh and his son Samit. Thus Samir had 1/4th share in the said premises.
ON 15.02.1999, Samir Ghosh, since deceased, husband of Smt.Anjali Ghosh, OP1, one of the Co-sharers of premises No.79 started developing the said premises as a Promoter and Developer and entered into an Agreement with the complainants Sh.Swapan Kumar Ghosh and Smt. Swarnalata Ghosh, for the sale of a flat. On 02.02.2000, said Samir Ghosh further agreed, in writing, on the reverse side of the 1st page of the agreement, to sell the garage space in the Ground Floor, measuring 200 sq.ft. In the meantime, Smt. Sarbani Ghosh, sister of Samir Ghosh and Co-sharer, filed a Title Suit before the Civil Judge, Sealdah, for declaration of her share in the property and for revocation of Power of Attorney that was executed by her in favour of said Samir Ghosh. The parties entered into the compromise and one of the terms of the compromise was that Samir Ghosh would pay a sum of Rs.2,60,000/.- only to said Smt.Sarbani Ghosh towards her 1/4th share of entitlement in the sale proceeds of two flats and one garage space, being owners allocation, out of total 12 flats and three garage spaces, as constructed upon development of the said premises.
IT was also agreed that upon such demand made to Smt.Sarbani Ghosh, the Deed of Conveyance, shall be executed and signed by all the co-sharers of the said property, including Smt.Sarbani Ghosh, without any objection and further claims, whatsoever.
IN the meantime, the complainants came to learn that said Samir, for some unknown reasons, had created a Gift Deed for the garage space in favour of Pradip Kumar Dutta, proforma OP, Successor of Interest of Lt.Chittaranjan Dutta, one of the tenants of the said premises. Other two garage spaces were sold to Alok Kumar Sur and Prabir Kumar Majumdar, on 17.01.2001 and 17.08.2001, respectively, by registered sale deeds. It is alleged that OPs have failed to execute and register the Conveyance Deed for the space for garage in spite of repeated requests. Ultimately, a complaint was filed with the District Forum. Pradip Dutta did not contest the case. District Fourm partly allowed the complaint and directed them to execute and register the flat in question in favour of the complainants, within one month, from the date of receipt of the certified copy of the said order. However, the District Forum did not grant the relief of execution and registration of said garage space in favour of the complainants and held that the complainants may seek relief from Civil court.
THEREAFTER , appeal was preferred before the State Commission regarding refusal of order/directions upon the respondents to execute and register the Sale Deed in respect of garage space in favour of the complainants. The State Commission vide its order dated 24.08.2012 observed:- "It is true that the subsequent agreed dated 02.02.2000 as written in the backside of page 1 of the original agreement is the continuation of the earlier one. But it appears that the Proforma OP, Sri Pradip Dutta got the garage by virtue of a deed of gift dated 07.08.01 executed by the owners and subsequently he sold the property to another person on 16.12.2004. Although the agreement in favour of the appellants dated 02.02.2000 is earlier than the deed of gift, it is well settled that an agreement does not convey title in favour of another and in view of the successive deeds of transfer in respect of the garage, we are of the considered view that the appellants/complainants are not entitled to get an order for execution and registration of deed of conveyance in respect of the garage. But in view of the receipt being annexure ''D '' at page 41 it is clear that the owners received Rs.40,000/- from the purchaser for the sale of the garage. Under the circumstances aforesaid, we find it expedient in the interest of justice that appellants /complainants should get refund of the sum of Rs.40,000/- from the owners/respondents herein. The appeal is allowed. In addition to the reliefs granted by the Learned District Forum, it is ordered that the owners/respondents herein will refund the sum of Rs.40,000/- in respect of the consideration money of the garage and pay litigation cost of Rs.5,000/- to the appellants/ complainants within 45 days from the date of passing this order failing which the said amount of Rs.45,000/- will carry interest @ 9% per annum till realization. The impugned judgment stands modified to the extent above ".
ON behalf of the respondent, it was argued that the garage space was gifted to OP-6. He has sold the property to another person. This Commission cannot decide the question of title. The complainants had paid a sum of Rs.40,000/- to the land owners and they should get back the said amount. All these arguments carry no conviction. The order passed by the State Commission is neither just nor reasonable. It is also interesting to note that the State Commission has granted Rs.40,000/-, plus, Rs.5,000/- as litigation charges, without granting any interest to the complainants. The above said gift deed was created in order to pull the wool in the eyes of law. The agreement to sell, though does not give any title in favour of the purchaser, yet it is well know that, that can be made effective by filing a suit for Specific Performance. The subsequent gift deed/executed for ulterior motive cannot demolish the agreement to sell. The agreement to Sell was executed, first of all, and in order to remove the effect of that agreement to Sell, a gift deed was created. It is, therefore, clear that the Seller and the Receiver of gift were working in cahoots with each other. The third-party to whom the flat was sold, received that space at his own peril. Pradip Dutta had no power to sell it to anybody. His own title was defective. The purchaser of that garage is bound to return that space to the complainants. complainants are the real owners of that space.
LEARNED counsel for the petitioners pointed out that the market value of that piece of land, i.e., parking space, is nowadays, is Rs.5,05,440/-. He has produced a document under the caption "Government of West Bengal, Office of the D.S.R.-III South, 24-Paraganas ". Its market value is stated to be of Rs.5,05,440/-. It is surprising to note that the State Commission did not take this fact into its notice. It did not even grant interest. The State Commission further stated that the owners/respondents will refund Rs.40,000/- to the complainants, which is nothing but a drop in the bucket. For all these reasons, we hereby accept the revision petition. The respondents are directed to execute the parking space in favour of the complainants. Pradip Dutta and purchaser of the said house, Mrs.Mala Ghosh have no right/title to that space. It is well known that a person cannot pass a better title than that he himself has. The objection raised by them are puerile and baseless. The Revision Petition stands accepted. Respondents are directed to execute the title deeds within 60 days otherwise they will pay the penalty of Rs.25,000/- per month till the needful is done. Litigation charges and compensation is directed to be paid in the sum of Rs.1,00,000/- within 60 days, otherwise it will carry interest @ 9% p.a.