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Subsequently, a dispute in their family arose and it is further alleged that her stepson Mr.Nitesh had taken forcible possession. Said Mr.Nitesh also filed a Special Civil Suit No.633/2008 against the complainant and his brothers for partition and possession of his share from the family properties and wherein he had obtained temporary injunction against the complainant and his brothers to not to create any third party interest in the flat in question. He claimed that he is residing in the said flat. Thus, the builder asked to dismiss the consumer complaint.

4. Referring to the documents on record, both the parties relied upon some of them viz. notice dated 04/04/2009 sent by complainant and reply given to it by the builder on 04/05/2009. Copy of non-cognizable complaint given by the complainant against her stepson Mr.Nitesh on 14/07/2008. Copy of the complaint in Special Civil Suit No.633/2008 and copy of order of temporary injunction passed by the Court in the said suit. Police complaint dated 14/07/2008 against Mr.Nitesh. Letter dated 19/08/2008 written by the complainant to the builder.

8. The complainant-Smt.Shobha Ugamraj Jain in her affidavit tried to make a case that her stepson Mr.Nitesh glove in hands with the builder had taken possession of the flat. It is not in dispute that several disputes including a civil dispute arose between the parties i.e. family of complainant and Mr.Nitesh even had filed a Special Civil Suit No.633/2008 in Thane Court and had also obtained temporary injunction against the defendants including complainant to not to create any third party interest in the suit flat i.e. the flat which is a subject matter of this consumer complaint. Perusing said order of temporary injunction dated 18/05/2009, the Civil Court observed that whether said flat is an independent, self acquired property of complainant-Smt.Shobha Ugamraj Jain or is a joint family property wherein Mr.Nitesh had share or not is a question in issue in the said suit filed by Mr.Nitesh. Referring to the non-cognizable complaint dated 14/07/2008 which was given by the complainant against Mr.Nitesh, it could be seen that both, complainant and Mr.Nitesh were residing together and since a quarrel had taken place between wife of Mr.Nitesh and Niteshs mother i.e. the complainant, said report was given on 14/07/2008. This indicates that at the relevant time both, the complainant-Smt.Shobha Ugamraj Jain and her stepson Mr.Nitesh were residing together. This is what her stepson Mr.Nitesh is submitting and which is reflected from the proceedings before the Civil Court. We, therefore, do not believe the case of the complainant that her stepson Mr.Nitesh and the builder glove in hands with each other and, accordingly, the builder handed over the possession to Mr.Nitesh.

9. Case of the complainant is further destroyed by her communication dated 19/08/2008 to the builder wherein she complained after making a statement that her stepson Mr.Nitesh in spite of her asking to him, was not handing over the keys back to the builder and vacating the flat and therefore, the builder can take appropriate legal action against Mr.Nitesh. In this letter, she never complained that Mr.Nitesh had forcibly taken possession of the flat in question. It is pertinent to note that while drafting the consumer complaint even though all the defences and facts to which a reference is made earlier, were very much within the knowledge of the complainant, she did not make any reference to them. Only after the builder filed a written version, she tried to explain the same.