Delhi High Court
Omkar Singh Bhandari vs Dhanna Devi on 30 July, 2018
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ RFA No. 922/2016 & CM No. 43994/2016
% 30th July, 2018
OMKAR SINGH BHANDARI ..... Appellant
Through: Mr. B.S.Chauhan, Advocate.
versus
DHANNA DEVI ..... Respondent
Through: Mr. Rajat Sachdev, Advocate.
CORAM:
HON'BLE MR. JUSTICE VALMIKI J.MEHTA
To be referred to the Reporter or not?
VALMIKI J. MEHTA, J (ORAL)
1. This Regular First Appeal under Section 96 of the Code of Civil
Procedure, 1908(CPC) is filed by the plaintiff in the suit impugning
the Judgment of the Trial Court dated 15.2.2016 by which the trial
court has dismissed the suit without trial and at the stage of pleadings.
Trial court has dismissed the suit by holding that if the
appellant/plaintiff purchased from the seller-Rubina Rais the suit
property, but since Ms. Rubina Rais did not purchase the suit property
from the earlier owners, therefore, the appellant/plaintiff would not be
the owner of the suit property i.e the top floor above the second floor
being the third floor of the Janta Flat bearing No. 280-C/A6, Top
Floor, Paschim Vihar, Delhi.
2. The chain of undisputed title documents is as under:-
(i) The original owner Sh. Mohan Singh sold rights in the second
floor by means of registered documentation dated 9.3.2006 to Smt.
Dhanna Devi. (ii) Smt. Dhanna Devi by means of registered
documentation dated 18.10.2007 transferred the second floor of the
aforesaid Janta Flat to Mohd. Zakir. (iii) Mohd. Zakir by means of
documentation dated 16.9.2008 transferred rights in the second floor
to Smt. Rubina Rais. (iv) The appellant/plaintiff purchased the suit
property from Smt. Rubina Rais in terms of the documentation dated
24.1.2011.
3. Trial court has dismissed the suit by observing that since what
was sold by the aforesaid documentation was only the second floor
without the top floor i.e the terrace floor/third floor above the second
floor was not the subject matter of documentation, hence the
appellant/plaintiff could not have purchased the suit property being the
top floor i.e the third floor over the second floor which was first sold
by Sh. Mohan Singh to Smt. Dhanna Devi and ultimately came to be
owned by the appellant/plaintiff.
4. In my opinion, it is a matter of evidence as to when the second
floor as a whole was sold, whether the same was or was not sold with
roof rights for constructing a third floor over the second floor. The
position which has arisen in this case is because really the third floor is
an illegal third floor being not sanctioned by the Delhi Development
Authority (DDA) with respect to the subject flat. Various issues will
arise in the suit including as to whether there are any rights whatsoever
which could at all have been created in the third floor in favour of the
appellant/plaintiff, being an illegal construction. Also there will be the
factual issue as to what will be the effect of having ownership of the
second floor, i.e second floor is with or without terrace rights being the
top floor constructed on the terrace over the second floor, in terms of the
clear chain of documentation from Sh. Mohan Singh to Smt. Dhanna
Devi, Smt. Dhanna Devi to Mohd. Zakir, Mohd. Zakir to Smt. Rubina
Rais and Smt. Rubina Rais to the appellant/plaintiff.
5. Therefore, the subject suit was not a suit which could have been
dismissed without trial at the stage of pleadings, and only after
evidence would have been led as to whether or not the top floor or the
third or the terrace floor above the second floor was or was not subject
matter of the entire chain of documents commencing from Sh. Mohan
Singh and ending with the appellant/plaintiff, could the issue of
existence or lack of existence of title of the third floor (suit property)
in favour of the appellant/plaintiff could be decided. Therefore, trial
has to take place on all the aspects including the aspect as to whether
an illegal constructed floor could or could not have been sold,
provided of course that such a defence is taken by the
respondent/defendant.
6. In view of the aforesaid discussion, this appeal is allowed. The
impugned judgment of the Trial Court dated 15.2.2016 is set aside.
Trial court will now decide the suit in accordance with law after trial
including on the legal issue as to whether legally a third floor is
capable of being transferred in the facts of the present case where
DDA does not permit construction on the third floor.
7. Parties to appear before the District and Sessions Judge, West
Tis Hazari Courts, Delhi on 28.8.2018 and the District and Sessions
Judge will decide the suit itself or will mark the suit for disposal to a
competent court in accordance with law. Parties are left to bear their
own costs.
JULY 30, 2018/ib VALMIKI J. MEHTA, J
