District : South 24 Parganas
In the Court of the Learned 1st
Court of Executive Magistrate, at Alipore, South 24 Parganas.
Ref.:
M.P.Case no. 3158 of 2017
In
the matter of :
Nagma
Begam, _________Petitioner
-
Versus –
1.
Shri Adarsh Khanna,
2.
Smt. Poonam Khanna,
______Opposite Parties.
An application under Section 144(5) of
the Criminal Procedure Code’ 1973;
The
humble petition on behalf of the opposite parties Shri Adarsh Khanna, and Smt.
Poonam Khanna, most respectfully;
Sheweth as under:
1.
That this opposite party came into the
knowledge of this present proceeding on communication made by the police
regarding the proceeding pending before this Learned Court in this present
proceeding and thereafter on bare reading of the pleading, this opposite parties
was astonished as how the petitioner herein suppressing the material facts and
the true state of affairs made in their pleading before the Learned Court.
Therefore this opposite parties reasonably desirous to place their material
facts related to the true state of affairs and thus seeks to get kind
intervention of this Learned Court in terms of the provisions of section 144(5)
of the Criminal Procedure Code, 1973.
2.
That at the first this opposite party
submits their objection to the petition 144(2) of the Criminal Procedure
Code,1973, made by one Nagma Begam, in the following manner:
a)
That the petition under objection is
not maintainable in law.
b)
That the petition under objection is
bad in form as well as in law.
c)
That save and except those are matters
of record. All other statements made in the petition under objection are not
correct and as such hereby denied and the petitioner is put to strict proof
thereof.
d)
That the present application under
Section 144 (2) of the Criminal Procedure Code’ 1973, is not maintainable in
it’s present form, in any manner, whatsoever.
3.
That before dealing with the
statements made in the petition under objection parawise, this opposite party
states the following facts for your honour’s kind perusal.
a)
One Late Dayal Chandra Khanna, father
of this opposite party, as the absolute owner of premises no. 162/A/120, Lake
Gardens, now numbered as 120, Lake Garden, Police Station Lake, Kolkata –
700045, containing an area of Land 6 Cottahas and 11 Sq. ft. may be the same a
little more or less, in fee simple in possession free from all encumbrances,
liens, lispendens, whatsoever.
b)
The said Dayal Chandra Khanna, father
of this opposite party died intestate on or about 22nd day of
September’ 1986, leaving behind his surviving his wife Satish Khanna, and their
two sons Adarsha Khanna ( this opposite party ), and Rakesh Khanna as his legal
heirs.
c)
In the event of aforesaid, Satish
Khanna, alongwith two sons Adarsh Khanna and Rakesh Khanna became jointly
entitled to ALL THAT premises no. 162/A/120, Lake Garden, now numbered as 120,
Lake Garden, Police Station Lake, Kolkata – 700045.
d)
Since such inheritance, the heiress
and the heirs, namely Satish Khanna, Adarsh Khanna, and Rakesh Khanna,
respectively, got their names jointly mutated in the book assessment record of
Kolkata Municipal Corporation, Since then they were enjoying the said land
hereditaments and premises as land owners thereof on payment of taxes and other
outgoings to the concerned authorities and exercising all rights of ownership
according to the law of land.
e)
With a view to construct or cause to
be constructed a building on the said land, after demolishing the old structure
standing hereon, the land owners including the vendor herein entered into an
Agreement on the 11th day of November’ 1986, with one Mr. Harshad H.
Doshi, of 66A, Chakraberia Road, Kolkata – 700020, to construct a four storied
(G+3) building on the said premises no. 162/A/120, Lake Gardens, now numbered
as 120, Lake Gardens, Police Station Lake, Kolkata – 700045, on the terms and
conditions in the said Agreement as per plans sanctioned and approved by the
Kolkata Municipal Corporation, vide Plan no. 464(1) dated 11th
December’ 1985.
f)
In pursuance of the said Agreement
dated 11th November, 1986, the said Developer Mr. Harshad H. Doshi,
delivered to the Land Owners, the entire 3rd floor measuring
approximately 2800 Sq. ft. of Super built up area, comprising of flat no. 3A,
3B, each measuring 1350 Sq. ft. and a common room measuring 100 sq. ft. for the
exclusive use of the owners of flat No. 3A, and 3B, as part of the
consideration as per clause no. 6 of the said Agreement dated 11th
November’ 1986, and the said Land Owner including the vendor herein since then
enjoying the entire 3rd floor of the building standing on the said
premises no. 120, Lake Gardens, Police Station Lake, Kolkata – 700045, as
absolute owners thereof on payment of taxes and other outgoings to the
concerned authorities and exercise all rights of ownership according to the Law
of Land.
g)
Out of the consideration received from
the developer, Harshad H. Doshi, flat no. 3A, measuring approximately 1350 sq.
ft. on the eastern side of the 3rd floor has been occupying by the
Rakesh Khanna, while flat no. 3B, measuring approximately 1350 sq. ft. on the
western side of the 3rd floor has been occupying by the Adarsh
Khanna, and the common room reserved for the exclusive of the owners of the
flat no. 3A and 3B measuring approximately 100 sq. ft. was occupied by Satish
Khanna, mother of this opposite party. However the entire floor is held jointly
by Satish Khanna, Adarsh Khanna, and Rakesh Khanna, each having 1/3rd
shares.
h)
By virtue of Deed of Gift in the year
2011, the aforesaid Rakesh Khanna, having his undivided 1/3rd
sharers i.e. 450 sq. ft. more or less in the flat no. 3B measuring 1350 sq. ft.
and situated on the western side of the 3rd of the building standing
on premises no. 120, Lake Gardens, Kolkata – 700045, gifted and transferred
unto and in favour of Adarsh Khanna, the opposite party herein along with
Corporation sanctioned plan no. 464(1) dated 11th December’ 1985,
together with all user and easement right for egress and ingress, and
installation of electricity, water connection, telephone connections, drainage
facilities over and upon and under the common passage, lying and situate of the
entire property, which is morefully and particularly described in the first
schedule hereunder written which has duly registered in the office of the
registrar of the DSR – I, Alipore, and entered Being no. 02567 for the year
2012.
i)
Satish Khanna, mother of this opposite
party, has been jointly possessing, occupying and enjoying the aforesaid flat
no. 3A, eAstern side and 3B Western Side of the 3rd floor flat, the
said Satish Khanna died intestate on 02-10-2015, leaving behind her surviving
her two sons (1) Adarsh Khanna, and (2) Rakesh Khanna as her only legal heirs,
successors, and legal representatives to jointly inherit the undivided 50%
sharer each from their deceased mother sharers of the aforesaid 3rd
floor flat i.e. flat no. 3A, 3B, and 100 sq. ft. common room between the said
two flats, subsequently both the son of satish khanna, since deceased amicable
exchanged equally the undivided share of their mother in respect of both the
flats of the said premises. Be it mentioned here that Satish Khanna, the mother
of this opposite party gifted her undivided 1/3rd share in flat no.
3B, on the western side of third floor in the building standing on the premises
no. 120, Lake Garden, Kolkata – 700045, equivalent to 450 sq. ft. in the said
flat no. 3B, in favour of this opposite party by an unregistered deed of gift.
j)
After the said deed of gift from
Rakesh Khanna and Satish Khanna since deceased the brother and the mother of
this opposite party respectively this opposite party Adarsh Khanna, became
absolute rightful owner of the Flat no. 3B, measuring 1350 sq. ft. and situate
on the western side of the 3rd floor in the building standing on
premises no. 120, Lake Gardens, Police Station Lake, Kolkata – 700045.
k)
In the course of hearing on
22-07-2002, under Section 188(2) of the Kolkata Municipal Corporation Act’
1980. The entire building was appointed to the respective occupiers and the
entire 3rd floor was assessed in only two parts as flat no. 3A, and
3B, Assessee no. of the Flat no. 3B, being 21-093-08-0168-9, and accordingly
tax has been paid off by this opposite party.
l)
The Development Agreement entered with
Mr. Harshad H. Doshi, as Agreement dated 11th day of November’ 1986,
and in terms of the said development agreement, this opposite party along with
his mother and brother who are co-sharer were in delivery of the owners’
allocation, and since then they were enjoying the possession of the owner’s
allocation.
m) This
opposite party is not a developer and nor a service provider in any terms of
the facts and in the Law. This opposite party is in occupancy of his owners
allocation being flat no. 3B, on western Side at 3rd floor at
premises being no. 120, Lake Garden, Police Station – Lake, since last 30 (
thirty ) years. And since he was in need of money in the year 2016, he entered
into an agreement for Sale 27th day of January’ 2016, with the
petitioner herein.
n)
The petitioner preferred one Consumer
Complaint against the opposite party viz. CC/ 437 / 2016, before the Hon’ble
State Consumer Disputes Redressal Commission, West Bengal, whereas the said
consumer complaint is still pending for the adjudication in terms of the
Consumer Protection Act’ 1986, and in the said proceeding the opposite party
made his appearance and submitted his written version as well as placed one
appropriate intralocutory application on the ground of maintainability of her
application under Section 17 of the Consumer Protection Act’ 1986.
o)
That motivatedly, the present
application has been placed before this Learned Court by the petitioner,
stating inter alia false and frivolous story, thereof, as for her wrongful gain
and others.
p)
That the Schedule property is not
belongs to the petitioner in any manner, whatsoever. The Opposite party is only
one of the co-sharer in respect of the schedule property, and therefore he is
not absolute owner of the schedule property. The opposite party with his family
residing at the schedule property, and he did never handed over any physical
possession to anyone, including the petitioner, herein.
q)
That the petitioner stated her false
and concocted story, for her wrongful gain.
4. That the statements
made in Paragraphs 2, and 3, are the matter of records, and therefore this
opposite parties do not place his any comments on those statements contended in
the respective paragraphs as stated herein above, and reiterated the contents
of paragraph no. 3, herein in this petition.
5. That the statements
made in Paragraph no. 1, 4, 5, 6, 7, and 8, of the petition under objection is
not correct except the portions those are matters of record and put the
petitioner for the strict proof thereof. This opposite party reiterated the
contents of paragraph no. 3, herein in this petition. The opposite party
submits that the
Schedule property is not belongs to the petitioner in any manner, whatsoever.
The Opposite party is only one of the co-sharer in respect of the schedule
property, and therefore he is not absolute owner of the schedule property. The
opposite party with his family residing at the schedule property, and he did
never handed over any physical possession to anyone, including the petitioner,
herein.
6. That the statements
made in Paragraph no. 9, of the petition under objection is not correct except
the portions those are matters of record and put the petitioner for the strict
proof thereof. This opposite parties reiterated the contents of paragraph no.
3, herein in this petition. Further this opposite party states that the petition
under objection has not been made ever in any bonafide context to get justice
before the Learned Court, rather the petitioner placed such impugned petition
on suppressing material facts to obtain a rest raiment order from the Learned
Court for their fulfilment of wrongful demand if any.
7. That the petitioner
have not been able to make out any case under Section 144(2) of the Code of
Criminal Procedure’ 1973 and under the aforesaid circumstances, the petition
under objection is liable to be rejected with cost.
8. That this opposite
party states and submits that in the circumstances of above mentioned facts,
the present proceedings should be dropped and file in the interest of faire
administration of justice.
9. That unless the
Learned Court pleased to dismiss the petition under objection, this opposite
party will highly prejudice and suffer with irreparable loss and injury,
thereof.
10. That the balance of
convenience and inconvenience are in favour of this opposite party and the
petitioner will not prejudice, in any manner, whatsoever.
11. That this
application is made bonafide in the interest of administration of justice.
In the aforesaid
circumstances, it is just expedient in the interest of administration of justice
that the Learned Court may be pleased to drop the proceedings under section 144
(5) of Cr. P. C. and / or to pass such other necessary order or orders as your
Honour may deem fit and proper for the end of justice.
And
for this act of kindness, the Petitioners as in duty bound shall ever pray.
V E R I F I C A T I O N
I,
Shri Adarsh Khana, being the opposite party no. 1, in the present proceeding, I
am Conversant and acquainted with the material facts, therefore do hereby declare that the
statements made in Paragraphs 1 to _____ above are true to my knowledge and
belief, and I sign and verify this application under Section 144 (5) of the
Criminal Procedure Code’ 1973, as on _________________2017, at Baruipur, South
24 Parganas.
Signature
Identified
by me,
Advocate.
Prepared
in my chamber,
Advocate.
Date
: _________________________2017.
Place
: Alipore, South 24 Parganas.
V E R I F I C A T I O N
I,
Smt. Poonam Khanna, being the opposite party no. 2, in the present proceeding,
I am Conversant and acquainted with the material facts, therefore do hereby declare that the
statements made in Paragraphs 1 to _____ above are true to my knowledge and
belief, and I sign and verify this application under Section 144 (5) of the
Criminal Procedure Code’ 1973, as on _________________2017, at Baruipur, South
24 Parganas.
Signature
Identified
by me,
Advocate.
Prepared
in my chamber,
Advocate.
Date
: _________________________2017.
Place
: Alipore, South 24 Parganas.
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