Decided on June 20,2018

Swastik Assam Real Estate Pvt. Ltd. Appellant
Ratan Raha Respondents


KALYAN RAI SURANA,J. - (1.) Heard Mr. M. Choudhury, learned Senior Advocate, assisted by Mr. S. Deka, learned counsel for the petitioners. Also Heard Mr. K. Bhattacharjee the learned counsel for the respondent.
(2.) This application under Article 227 of the Constitution of India is directed against the order dated 18.07.2017 passed by the learned Civil Judge No.3, Kamrup (M), Guwahati, thereby rejecting petition No. 4668/17 filed by the petitioners and allowing petition No.460/17 filed by the respondents for local investigation, in connection with T.S. No. 269/2014.
(3.) The petitioners herein are the defendants in T.S.269/2014. The four respondents having interest in separate plots of land, but having a common cause are the plaintiffs in the said suit. The petitioners are builders and real estate developers. By three separate agreements dated 19.12.2008, 12.12.2008, 17.12.2008 with the respondents No.1, 2 and jointly with respondents No.3 and 4, the parties agreed that the petitioners will construct a multi-storey building on their respective land described in schedule A to D of the plaint. The said agreements were modified by virtue of three registered deed of rectification dated 23.7.2010 registered on separate dates. The proposed constructions had come up and thereafter a dispute arose with regard to the allocation of space due to the respondents and, as such the said suit was filed containing the following prayers:- (i) A decree for declaration that the plaintiffs are entitled to 35% construed area of flats and car parking of "Silver Square Residency" (schedule-D) as agreed in their original agreements (Annexure-1, 2 and 3) and entitled to another 10% constructed area of flats as per Deed of Rectifications (Annexure-1(A), 2(A) and 3(A) of the suit read with Annexure- 1, 2 and 3 of the suit, and a declaration that all deeds and agreements for sale of flats of "Silver Square Residency" created/ executed by defendants in respect of more than 55% of the building as void and illegal. (ii) A decree for mandatory injunction directing the defendants to give account of the Numbers and area of flats proposed to be sold by them to different customers and directing the defendants to put the plaintiffs in possession of the plaintiff's 45% share of flats/ apartments of "Silver Square Residency" mentioned in Schedule-D of his plaint before sale and handing over possession of any flat thereof in favour of any prospective purchaser by the defendants. (iii) A permanent injunction prohibiting the defendants and their men, heir, attorney etc. from making any alienation of flats and proportionate share of land of Schedule-D in favour of any prospective purchaser without having consenting signature of the plaintiffs in such deeds of sale/ alienation and restraining the defendants from taking any advance of booking of flats in respect of the 45% share of flats to be given to the plaintiffs in 1st, 2nd and 3rd of the building, and restraining the defendants and their heirs, attorneys etc. from sale and giving possession of any flat of "Silver Square Residency" to any person until and unless the plaintiffs are given their due 45% share as per agreement and deeds of rectifications. (iv) The cost of the suit may be given in favour of the plaintiffs. Alternatively (v) The plaintiffs prays for a decree declaring that the plaintiffs are entitled for recovery of khas possession of Schedule-A, B and C land respectively by dismantling all structures and constructions over the said land due to frustration of the agreements (Annexure-1, 1(A), 2, 2(A), 3 and 3(A) on refusal of defendants to abide by the terms and conditions of the said agreements. (vi) Any other relief/ reliefs may be given to the plaintiffs to which they are entitled under the law and equity. ;

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