ABDUL AZIZ BHARMAR Vs. VINOD ANAND

JUDGEMENT

(1.) The Petition raises an interesting issue of Plaintiff's right to claim ownership in flats constructed on non-suit land owned by a third party by use of TDR generated from the suit land, in which Plaintiff claims ownership. The issue arises in the light of opposition by the owner of non-suit land to his impleadment to the suit. No doubt the TDR is generated from the suit land in which Plaintiff claims ownership, but is the TDR akin to immovable property and whether its utilization on another land would mean 'transfer of right' in suit land in favour of owner of non-suit land entitling the Plaintiff to run behind such owner and claim rights in flats constructed in that land? TDR is capable of being freely sold and monetized. Therefore, whether extraction of TDR from suit land and its utilization on another land would create in Plaintiff's favour merely a right to claim monetary value of that TDR or can he also claim ownership rights in the flats constructed by use of such TDR? Whether owner of non-suit land would be a necessary party to the suit because TDR from suit land is utilized on his land? These are the issue that this Court is tasked upon to decide in the present Petition.

(2.) By this Petition filed under Article 227 of the Constitution of India, Petitioners challenge order dtd. 16/2/2023 passed by 7th Joint Civil Judge Senior Division, Thane, allowing the Application at Exhibit-156 filed by the Plaintiff under Order I Rule 10 read with Order VI Rule 17 and Sec. 151 of the Code of Civil Procedure, 1908 (the Code). By the impugned order, the Trial Court has directed impleadment of the Petitioners as Defendants to the Suit and has permitted Plaintiff to amend the Suit for incorporating inter alia pleadings and prayers relating to flats sold to them by Defendant No.9.

(3.) The land under dispute in the suit is inter alia the land bearing Survey No. 29/6. Plaintiff-Respondent No.1 claims right, title and interest therein on the strength of Conveyance Deed dtd. 20/9/1990. He has instituted Special Civil Suit No.579 of 2010 in the Court of Civil Judge Senior Division, Thane, seeking a declaration of ownership in respect of various suit properties, including land bearing Survey No. 29/6. Though the suit involves various lands, for the purpose of present Petition, the relevant land involved in the suit is the one which bears Survey No. 29/6, which is being referred in the judgment as 'suit land' for the sake of brevity and convenience. Defendant No. 9 claims ownership in suit land and Plaintiff has challenged ownership claim of Defendant No. 9 in that land. There is 'adjoining land' to suit land, which bears Survey Nos.25/1, 25/2 and 29/8 (adjoining land) of which Petitioners are the owners. Plaintiff per se does not dispute ownership of adjoining land by Petitioners and has no concern with the same.