Ms. Sharmistha Sanyal & Anr v. Mr. Sujit Sen & Ors

RAJIV SAHAI ENDLAW, J. MAY 01, 2018 bs/pp

* IN THE HIGH COURT OF DELHI AT NEW DELHI % Date of decision: 1st May, 2018 + SHARMISTHA SANYAL & ANR ..... Plaintiffs Through: Mr. Lohit Ganguly, Adv. Versus SUJIT SEN & ORS ..... Defendants Through: Mr. Shatadev Chakraborty, Ms. Sonia Dube and Ms. Surbhi Anand, Advs. for D-1. Mr. Arjun Mitra, Adv. for D-2&3. CORAM: HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW IA No.2848/2018 (of D-1 u/O VII R-11 CPC) 1. The plaintiffs have filed the present suit pleading: (i) that the land underneath property No.J-1975, Chitranjan Park, New Delhi was earlier granted on leasehold basis and was subsequently on 1st March, 2000 converted into freehold; (ii) that in the year 2002, defendant No.1 Sujit Sen and his brother Subir Sen executed a registered Partition Deed dated 15th April, 2002 partitioning the property aforesaid into two equal halves, with the front part going to Subir Sen and the rear half falling to the share of the defendant No.1 Sujit Sen; (iii) that the said Subir Sen had died, leaving defendants No.2&3 Arghya Sen and Aparajita Sen as his heirs; (iv) that partition of the plot of land underneath the property aforesaid into two halves, was void ab initio, being contrary to the Master Plan of Delhi and the Building Bye-Laws and other regulations, and thus Subir Sen and the defendant No.1 remained owners in equal share of the entire property; (v) that the defendant No.1, vide Sale Deed dated 7th May, 2014, sold the first floor of the rear half of the property to the two plaintiffs; (vi) that the defendant No.1, preceding the sale, explained to the plaintiffs that he had partitioned the plot with his late brother Subir Sen and under the said partition, he owned the rear half of the property only and the front half belonged to the share of his late brother Subir Sen; it was further represented to the plaintiffs that as per standard practice, the plaintiffs would have a proportionate ownership interest in the entire rear half of the plot; (vii) that though the Partition Deed dated 15th April, 2002 was disclosed by the defendant No.1 to the plaintiffs but the defendant No.1 did not disclose to the plaintiffs that the said partition was illegal, void ab initio and contrary to law; (viii) that the plaintiffs, at the time of purchase, had enquired from the defendant No.1 as to what would be the share of the plaintiffs in the property in the eventuality of the entire structure on the plot of land collapsing and/or if all the owners of the property decided to sell the property jointly and the defendant No.1 had informed the plaintiffs that the shares of all the owners would be proportionate; (viii) that the defendant No.1 had also represented to the plaintiffs that if the additional Floor Area Ratio (FAR) would be available on the property, the plaintiffs would have a share therein; (ix) that the plaintiffs paid consideration of Rs.1.50 crores out of which Rs.62 lakhs less TDS was paid by cheque and the remaining in cash but against receipt; (x) that the plaintiffs came in possession of the first floor of the rear half of the property in May, 2014 and got the same mutated in their names and the electricity and water connections of the first floor of the rear half of the property were also transferred in the names of the plaintiffs; (xi) that the rear half of the property, at the time of purchase by the plaintiffs, comprised of ground, first and second floors with terrace above and in which everybody has proportionate rights; (xii) that the defendant No.1 approached the plaintiffs in 2015 for raising construction of a floor above the second floor and claimed to have obtained the consent of defendants No.2&3 therefor and further stated that the said additional floor could be built jointly by everyone; (xiii) however the Structural Engineer opined and advised that the additional floor is unfeasible under the existing rules and the existing structure of the building also could not take the load thereof; (xiv) that the defendant No.1 filed Suit No.208