• Possession by third person having intact right

Sir ji

Mr A has purchased one Flat from Builder namely Mr B in 2018 in Maharashtra and paid full sale-consideration to Mr B . The Builder Mr. B executed Agreement to Sale in favour of Mr A. and attached receipt of full sale-consideration therewith. 

Thereafter Mr A mortgaged the said Flat to Mr X towards his dues and handed over the original copy of Agreement to Sale and Money Receipts issued by Builder Mr. B in favour of Mr A. On that basis basis Mr X applied to withdraw the RCS which had been filed by him againt Mr A in 2017 in Court in Ahmednagar District . And after perusing the aforesaid original Agreement to Sale and Money Receipt, the Ahmednagar Court allowed Mr X to withdraw the said suit. 

Now Builder Mr. B refused to register the Flat in favour of Mr. A and therefore Mr A cannot register flat in favour of Mr. X and therefore Mr. X warned him for leagal consequences 

Hence, Mr. A filed suit for injunction and declaration in 2019 against Builder Mr B in Other Court where the Flat is situated. The Other Court granted status quo against Builder but Mr A could not attend the Other Court regualrly and hence status quo order was not extended further and so vacated. But the said Suit and Exhibit - 5 therein are pending before other Court


NOW,

I suggested them as under :- 


Let Mr A withdraw the suit against Builder Mr. B 

Then Let Mr X take possession of the said Flat (with help of Police if needed) on basis of Order passed by Ahmednagar Court in the suit of 2017 becuse rights of Mr X is not yet challanged and because the other Court has not put any bar or any stay against Plaintiff Mr A or Mr X with respect to the said Flat

please guide 

HARIOM
Asked 13 days ago in Civil Law from Nashik, Maharashtra

It would be a misguidance if A is advised to withdraw the suit.

If A withdraws the suit then he may not have any ground to claim his property from the builder.

The builder should have executed the registered sale deed in favor A long ago, whereas due to some reasons this could happen till now hence A as approached court with  suit for declaration of his title based on the sale agreement and also on payment of the full sale consideration amount to the builder.

Hence it may not be advisable for A to withdraw the suit because he will be never be able to claim rights or interest over this property and he would miserably fail to fulfill his commitment to X in this regard

T Kalaiselvan
Advocate, Vellore
58873 Answers
746 Consultations

5.0 on 5.0

He can take possession unless it's not challenged by the affected party 

Prashant Nayak
Advocate, Mumbai
14521 Answers
24 Consultations

4.6 on 5.0

Agreement of sale is not a sale till sale deed is registered .

You are going through a wrong process. 

Now you need specific order from court for registration in favour of X by B otherwise  B can not legally do it. You have complicated the entire process which is legally wrong also since without registration of sale deed in your favour you can not mortgage it to other. 

X as on date can not take the possession of the property since he is not a party to the sale transaction .

Without specific court order you can not do anything now. 

 

Kallol Majumdar
Advocate, Kolkata
1864 Answers
2 Consultations

5.0 on 5.0

1) A can withdraw suit against builder 

 

2) X can take possession of flat as per court decree 

 

3) please clarify why builder is not willing to execute sale deed in favour of X 

 

4) A can pay builder transfer charges and tripartite  agreement can be executed between builder A and X 

Ajay Sethi
Advocate, Mumbai
69042 Answers
4153 Consultations

5.0 on 5.0

Mr A can file a civil suit as well for the specic performance of contract and and interim injuction to restrict the builder from alienating the property or to sell it to some one else so as to defeat case. 

Mohammed Mujeeb
Advocate, Hyderabad
11746 Answers
4 Consultations

4.5 on 5.0

- Herein , till date the actual owner of the said flat is Mr.B -builder , and no one execpt him , has right to transfer the owner ship /sell the said flat as per law , including Mr.A or Mr.X. 

- Agreement to Sale in favour of Mr A. and attached receipt of full sale-consideration therewith , is not a title deed or sale deed , which is required to claim ownership. 

- Mr. A , handover the said documents in favour of Mr X , to clear his dues , and not for selling the flat . 

- Ahmednagar District court has only granted to withdraw the case of RCS , and not to execute the sale deed in favour of Mr. X, and further there is no relation between Mr B and Mr X legally. 

- Since, the case is pending for adjucation before other Court , hence Mr X cannot take possession legally , on the gound of first court order, but he can be party in the said suit. 

- If Mr.A will withdraw the case from the other court , then the ownership will remain with Mr.X. 

- Police cannot assist you for the same , because your suggestion is against the law. 

 

Good luck and dont forget to rating Positivley. 

Mohammed Shahzad
Advocate, Delhi
1071 Answers
19 Consultations

5.0 on 5.0

No your suggestion is not at all good. 

Because Ahmednagar court have not order for taking possession of flat but the suit was withdrawn without any relief from court on ground of settlement between parties. 

The suit of mr A should be filed for specific performance of contract against builder. 

So he should file application for amendment of plaint to change ground of suit. 

Mohit Kapoor
Advocate, Rohtak
4800 Answers
1 Consultation

5.0 on 5.0

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