VIJAY KUMAR TREHAN Vs. SUSHIL KUMAR TREHAN

JUDGEMENT

(1.) THE property bearing number B-2, Defence Colony, New Delhi was owned by late Dr. Capt. Bhagat Ram Trehan, father of plaintiff and defendants no.1 and 2. Defendants no.3 and 4 are their sisters. Vide Will dated 16.04.1986, the above referred property as bequeathed by Dr. Capt. Bhagat Ram Trehan to the plaintiff and defendants no.1 and 2. The case of the plaintiff is that he was given 1/3rd share comprising of entire ground floor except garage, lavatory and adjoining garage, defendant no.2 was given 1/3rd share comprising entire first floor except annexe over the garage and defendant no.1 was given his 1/3rd share comprising of entire second floor, garage on the ground floor, lavatory adjoining the garage and annexee over the garage, with permission to construct the second floor annexe. The third and subsequent floor could also be constructed by the plaintiff and defendants no.1 and 2 with joint investment/ contribution and in the event of such a construction, the advantage of the same was to be equally shared by all the three brothers. The covered area bequeathed to the plaintiff, defendant no.1 and defendant no.2 is stated to be 1269.03 sq ft., 1221.23 sq. ft. and 1215.43 sq. ft respectively. Defendant no.1, vide sale deed dated 14.10.2004, sold the garage located on the ground floor, lavatory adjoining garage and annexe over the garage to the plaintiff. Subsequently, defendant no.2 sold the whole his entire 1/3rd share in the suit property in favour of the plaintiff vide sale deed dated 15.10.2004. The case of the plaintiff is that in view of the Will dated 16.4.1986 and the sale deeds dated 14.10.2004 and 15.10.2004 executed by the defendants no.1 and 2 in his favour, he is entitled to more than 2/3rd of the total FAR permissible in respect of the suit property. It is also his contention that defendant no.1 started illegal construction over the second floor thereby trying to go beyond the FAR area allocated to his share and that he has illegally replaced Barsati on the second floor by drawing cum dinning, a lounge Varandah, 2 bedrooms, kitchen store and an open sit out garden. It is further alleged that defendant no.1 also started illegal erection of a wall over the first floor annexe. The plaintiff has, therefore, sought the following reliefs in the present suit:

(2.) DEFENDANT no.1 filed written statement contesting the suit. It is alleged in the written statement that the construction which the plaintiff claims to be illegal, was raised during the lifetime of Dr. Capt. Bhagat Ram Trehan. The Will executed by late Dr. Cap. Bhagat Ram Trehan on 16.4.1986 as well as sale deeds executed by defendants no.1 and 2 in favour of the plaintiff have, however, been admitted in the written statement. It is further claimed that plaintiff is the co-owner in respect of 2/3rd share of the suit property comprising of ground floor and first floor whereas defendant no.1 is the co-owner to the extent of remaining 1/3rd undivided share comprising of second floor. It is further alleged that rest of the property is meant for common usage including the lawn, front open space in the rear portion as also proportionate rights in the basement own floor and upper floor, as and when constructed in terms of the Will dated 16.4.1986. It is further alleged that at the time of dividing the suit property amongst his three sons by way of a Will dated 16.4.1986 by late Dr. Capt. Bhagat Ram Trehan, had taken into consideration the comparative market value of each floor being given to his sons and since there was only a limited construction on the second floor at that time, defendant no.1 was compensated by giving him the additional space on the ground floor of the suit property as well as annexe over the said garage with permission to construct second annexe. Defendant no.1 has also disputed the extent of the covered area given in the plaint in respect of various portions, which their father is alleged to have bequeathed to his sons.

(3.) THE Will executed by Dr. Capt. Bhagat Ram Trehan dated 16.4.1986, which is otherwise an admitted document, inter alia, reads as under: