Delhi High Court
Master Chiranjiv Singh And Master ... vs S. Harinder Singh on 29 February, 2008
Author: S N Dhingra
Bench: S N Dhingra
JUDGMENT
Shiv Narayan Dhingra, J.
1. This suit has been filed by the Plaintiffs claiming therein that Plaintiffs were owners of 50% of Property No. D-10, NDSE-II measuring approximately 1000 sq. yards and rest of the 50% was owned by Defendant Harinder Singh. The property was partitioned in 1999 and Plaintiffs got half portion which was in occupation of Zohra Emporium as tenants and roof of the first floor to the extent, it was occupied by Zohra Emporium and the portion on the rear side was in possession of Omega Exports and was to be the absolute property of Defendant. It is stated that parties applied for separate mutation and separate assessment of the property tax in respect of front and rear portions. The Plaintiffs had been realizing rent from the tenants in the front portion to the exclusion of the Defendant. Though the property has been divided but FAR available for construction of the said plot was joint and plans have to be submitted with consent and approval of other. The Defendant without approaching either of the Plaintiffs started raising construction on the terrace of the property without prior sanction of plans by the municipal authorities. It is stated that any authorized construction on the terrace would cast serious prejudice to the Plaintiffs rights and even if the construction was authorised, FAR consumed by the Defendant shall affect the rights of the Plaintiffs.
2. It is undisputed that Defendant S.Harinder Singh is owner of 50% of this property. It seems that after passing the award by Mr.Haji Ayamuddin, wherein he assigned this property entirely to S.Harinder Singh, S.Harinder Singh considered himself as owner of whole of property and started raising construction. The award of Mr.Haji Ayamuddin has been set aside by this Court in OMP No. 261/2003 titled S.Nirmal Singh and Anr. v. S.Harinder Singh and Anr. S.Harinder Singh, is therefore, owner of only 50% of property. The record also shows that MCD has already taken cognizance of the unauthorized construction and has initiated action vide its letter dated 13.9.2004 This Court, therefore, need not give any further directions to MCD.
3. Since both the parties are owners of 50% of the property each therefore, FAR can be consumed by both the parties in the same proportion. I consider that within this limit, Defendant is at liberty to raise construction after getting the plan sanctioned from MCD. The Plaintiffs have no right to restrain Defendant from utilizing his 50% of the FAR. However, Defendant cannot raise unauthorized construction.
4. The Suit of the Plaintiffs is decreed to the extent that Defendant is restrained from raising a construction, without a proper sanctioned plan. The Defendant has a right to utilize 50% of the FAR and within that FAR if he gets a plan sanctioned from MCD within his 50% portion, the Plaintiffs cannot have objection. With these directions, the suit is disposed of.
