• Validity of status of occupants

I have a leasedhold property in Salt Lake, Kolkata, In 1995 I have executed a developer's agreement and a GPA( on a Rs.50 stamp paper, only notarized) in favor of a developer to develop the same with clauses of developer's allocation, subject to permission from the Govt. of West Bengal and owner's allocation(no permission obtained). Later I found out that the developer had sold off the developer's part in my property to two parties by taking money from them and entering into only MoUs (unregistered & not notarized)on Rs.10 stamp paper with them and giving them physical possession. I was totally unaware of this activity due to my absence in the city and no payments received by me. Developer is now out of the scene. The occupants are now claiming to be owners of their part in the property by virtue of the MoU and making payments to the developer/attorney. There is no registered sale/assignment deed in their name nor any tenancy agreement, nor any licensee agreement. I have already filed a suit for eviction before the period of adverse possession. HOW DO I CHALLENGE THIS AND GET THEM EVICTED. Point to be noted that leasehold property in Salt Lake cannot be sub-leased or sub-licensed or sold/assigned in whole or in part without prior written permission from the Govt. POA cancelled since 2002 and eviction notice issued.
Asked 1 year ago in Property Law from Kolkata, West Bengal
Religion: Hindu
1) it is necessary to peruse development agreement signed with developer , GPA executed by you to advice 

2) did your agreement contain a clause that developer shall shall be free to assign / transfer the agreement? 

3) in any case since the developer has assigned the development rights without your consent terminate the agreement with developer. 

4) development rights for development of plot were subject to obtaining permission from the govt 

5) since developer has acted in a malafide manner terminate agreement and file suit for eviction against developer and 2 parties 
Ajay Sethi
Advocate, Mumbai
23116 Answers
1214 Consultations
5.0 on 5.0
You are really in mess and need immediate legal protection.
The wordings of the development agreement and POA is very essential to determine to rights of the stranger purchasers of the developer's allocation.
On prima facie reading of your query it appears that they are not the lawful owners of the developer's allocation and certainly they can not claim share in the property.
However be vigilant and protect the physical possession of the property form them and immediately file a civil suit for declaration and injunction.
Mere cancellation of development agreement will not solve your problem.
Devajyoti Barman
Advocate, Kolkata
5154 Answers
54 Consultations
4.9 on 5.0
It is absolutely a fraudulent activity of the developer who utilising your absence in the city played fraud upon you by selling the property that too just on mere MOU.  The sale is not at all recognised nor legally valid.  The so called possession by the buyers can treated as encroachment or land grabbing. 
A criminal complaint can be lodged against the developer for his act of cheating.
Upon cancellation of POA given to him, he is relieved of his liability hence you have to follow up the issue through criminal complaint alone.  
The so called buyers can claim recovery of money through civil suit against the developer who sold the property fraudulently to them through an invalid document namely MOU.
Since you have already filed the eviction suit, you may wait for the outcome of the court verdict.  You have a strong case and you will certainly get back your property in a vacant possession by court verdict itself. 
T Kalaiselvan
Advocate, Vellore
13932 Answers
127 Consultations
5.0 on 5.0
1) file appeal against order passed by the judge 

2) deed of assignment is not duly stamped and registered and is in admissible in evidence 

3) rights of developer were subject to obtain permission from govt which was never done 

4) the mistake you have made is in development agreement allowed  clause to be incorporated regarding transfer , assignment of development right
Ajay Sethi
Advocate, Mumbai
23116 Answers
1214 Consultations
5.0 on 5.0
You must prefer an appeal against the impugned judgement which appears to be a miscarriage of justice.The unregistered MOU cannot be admitted as legally valid evidence.  The necessity permission from government has not been obtained.  Just because the electricity and water supply connections are made available, they cannot be considered as valid occupants.  Further the sale consideration was not passed on to the owner as per the clauses of GPA neither it suffered stamp duty, all  these along with other grounds may constitute as valid grounds for appeal. 
T Kalaiselvan
Advocate, Vellore
13932 Answers
127 Consultations
5.0 on 5.0
1. The sale could have been made only through a registered sale deed and not MOU. If they have taken the possession then a suit for eviction is the appropriate remedy. You have to also challenge the instrument of transfer executed by the developer in favour of the other parties. 

2. A criminal case for cheating and breach of trust should also be filed against the developer if he acted contrary to the agreement executed between both of you. 

3. The delay in filing the suit is treated as knowledge of the acts of the defendants which are challenged in the court. If there was no delay by you in filing the suit then the finding of the court with respect to your knowledge is unsustainable, which you can challenge in the higher court. 
Ashish Davessar
Advocate, Jaipur
18057 Answers
445 Consultations
5.0 on 5.0
1).Can the Developer's Agreement be cancelled after elapse of so many years(1995 to 2015), a civil suit is already in progress for almost 10 years and what will be it's purpose when the developer has already done what he intended to do ie. sell part of the property, get money and has now fled the scene without legalizing his works properly? Do we really get some benefit by cancelling the agreement now ?
The developer's agreement if in force as on this date, it may be cancelled due to  breach of conditions of contract.  Since you have already file a recovery suit, let the case be progressed in its own stride, in the meantime you may avoid further damage by the developer on the basis of the inforce  agreement, though he has actually fled the scene by swindling the money, what  is the guarantee that he may not operate from remote location with the same type of fraudulent activities.


2).Can we challenge the validity/legality of the POA made in 1995 on a Rs.50/= stamp paper and only notarized, now in court and then the subsequent documents made by the developer based on the POA.
The POA deed if not cancelled at the time of his alleged  illegal transactions that time, the same has to be challenged on the basis of legal validity only.


3). Can the defendant's bring in new set of documents as evidence or exhibits at this 1st appeal stage to prove their case or remove some existing documents to suit their purpose.
Let them file any new document, you have rights to object them for creating records to fill up the lacunae.  First wait if they are bringing any such new evidence, verify the veracity and then challenge their legal validity.




4). I get to know that an unregistered and not duly & properly stamped MoU  ie. on a Rs. 10/= stamp paper cannot be taken as evidence in the court and also cannot be taken as a deed of assignment as granted by the Judge. Please confirm, can you site any case laws for it.
There are various settled laws to confirm that the unregistered documents in this regard are not admissible as evidence. You may contact your lawyer who will be able to get them.


5). Can we file any criminal case against the developer or the occupants now after a gap of so many years ie. from 1995 to 2015-will that be sustainable and beneficial ?
You should  have done this long ago, at this stage he take a defence that since the matter is before a civil court, this is not maintainable. However f you have influence with the higher police officials, you may try to put pressure on the local police through them by lodging a criminal complaint. 


T Kalaiselvan
Advocate, Vellore
13932 Answers
127 Consultations
5.0 on 5.0
1) has any interim orders been passed by court directing maintenance of  status quo ? 

2) if no such orders passed you can terminate development agreement 

3) POA  is valid 

4) no new evidence can be led at appellate stage 

5) deed of assignment not stamped and regd is in admissible in evidence 

6) filing criminal case at this stage after gap of so many years would not be beneficial 
Ajay Sethi
Advocate, Mumbai
23116 Answers
1214 Consultations
5.0 on 5.0
1. The agreement should be cancelled even if the developer has unilaterally acted in its breach. The cancellation would be an assertion of the legal rights.

2. An unregistered POA is not a document of rights. So you can and should challenge it.

3. They can bring further evidence with the permission of court.

4. No case law is required, so do not bother finding one.

5. The criminal case for breach of agreement and cheating can be filed even after 20 years.
Ashish Davessar
Advocate, Jaipur
18057 Answers
445 Consultations
5.0 on 5.0

Ask a Lawyer

Get legal answers from top-rated lawyers in 1 hour. It's quick, easy, and anonymous!
Ask a Lawyer

Property Lawyers

T Kalaiselvan
Advocate, Vellore
13932 Answers
127 Consultations
5.0 on 5.0
Ajay Sethi
Advocate, Mumbai
23116 Answers
1214 Consultations
5.0 on 5.0
Ashish Davessar
Advocate, Jaipur
18057 Answers
445 Consultations
5.0 on 5.0
Krishna Kishore Ganguly
Advocate, Kolkata
12043 Answers
228 Consultations
5.0 on 5.0
Devajyoti Barman
Advocate, Kolkata
5154 Answers
54 Consultations
4.9 on 5.0
Rajgopalan Sripathi
Advocate, Hyderabad
869 Answers
43 Consultations
5.0 on 5.0
Atulay Nehra
Advocate, Noida
424 Answers
15 Consultations
4.7 on 5.0
Ajay N S
Advocate, Ernakulam
1905 Answers
19 Consultations
5.0 on 5.0
Shivendra Pratap Singh
Advocate, Lucknow
2729 Answers
41 Consultations
4.9 on 5.0
Thresiamma G. Mathew
Advocate, Mumbai
1316 Answers
85 Consultations
5.0 on 5.0