MUKIT ABBASI Vs. C.N. CHOUDHARY

JUDGEMENT

(1.) THESE three Regular First Appeals (RFAs) are filed against the same judgment and decree of the trial Court i.e. the judgment and decree dated 23.3.2009. RFA 301 of 2009 has been filed by the plaintiff in the suit. RFA 236 of 2009 has been filed by defendant Nos. 1 and 2 in the suit. RFA No. 358 of 2009 is filed by defendant No. 4 in the suit. Plaintiff in the suit was the purchaser of second floor with roof rights in the property No. B -43/S -1, Dilshad Colony, Delhi. The defendant Nos. 1 and 2 in the suit were the builders who along with defendant No. 3 sold the property, being the second floor, with roof rights by means of a registered sale deed dated 25.5.2004 to the plaintiff. Defendant No.4 is a Bank which sanctioned the loan to the plaintiff against equitable mortgage of the property in question.

(2.) THE disputes which have arisen in this case are on account of the peculiarity of builders in the state of New Delhi constructing a basement which is partly below the ground level and partly above the ground level. The peculiarity accentuated, inasmuch as, the basement which is partly below the ground level and partly above the ground level, is called as a lower ground floor instead of a basement, and the actual ground floor is called as an upper ground floor. The reason for this convenient description of the basement as the lower ground floor is because, at the relevant time when the building in question was constructed, in Delhi, only three floors could have been constructed on a plot of land, i.e. ground floor, first floor and second floor. In addition to the three floors, a basement could also be constructed, provided the same was duly sanctioned. In a way, therefore, four floors could be constructed, i.e. basement plus three floors. However, merely being entitled to construct a basement and three floors would not mean that the basement could be constructed without sanction of the plan for construction of the basement. In the facts of this case, the sanctioned plan does not provide for construction of a basement, and therefore the lower ground floor which is constructed partly above the ground level and partly below the ground level can arguendo become the ground floor and the second floor which is described as second floor will be a legal construction, i.e. the second floor, but not the third floor which will be an illegal construction. It is also possible that since the basement is not sanctioned, then, the lower ground floor is actually a basement and since only two other floors would be capable of being constructed under the sanctioned plan and hence the third floor will be a legal construction becoming the second floor as the lower ground floor will be a basement constructed without sanction. I may note that in the present case, there is no dispute that the sanctioned plan for the building does not show existence of basement on the plot in question where the building had been constructed. I may reiterate that if the basement was not sanctioned, in view of the facts of the present case on the plot in question, then, so far as the lower ground floor is concerned, possibly the same could be said to be a basement and the second floor which was sold to the plaintiff would really become the second floor, and not the third floor, which could not have been demolished by the Municipal Corporation of Delhi (MCD). With this preface, let me turn to the pleadings of the parties in the present case, the issues framed and the judgment of the trial Court.

(3.) THE suit was contested by defendant Nos. 1 and 2/builders by taking up a case that plaintiff with open eyes acted upon the sale deed in his favour by taking possession of a particular floor in the property and therefore it could not be argued on behalf of the plaintiff that he was entitled to damages or the plaintiff is entitled to the property being the second floor which was already sold to defendant No. 6, and which sale took place prior to the execution of the sale deed in favour of the plaintiff. The MCD was defendant No. 5 in the suit and the suit was also contested by it. There is no decree of damages which has been passed against defendant No.5/MCD. The defendant No.4/Bank, which gave the loan, argued that there was no negligence on its part because the loan was given as per the sanctioned plan which showed the existence of the second floor and the loan was with respect to the second floor of the property. Defendant No. 3 remained ex -parte in the trial Court.