• Illegally constructed wall in a public path by a neighbor

Fellow Lawyers,

I need your suggestion to find the best possible way to legally break an illegally constructed wall adjacent to our house and on our path which was also publicly accessible few months back when one of our neighbors constructed the wall as they have the documents which prove that piece of land belongs to them. Also true is the matter that 5 other families have been using that path for more than 50 years. This wall was constructed in August last year even though it was only a path as per what i know since my birth(1984) and my father also confirms the same(father YOB - 1954). Please let me know what are the best possible legal ways to break this wall to start using the path again and also let me know the minimum no of months/years this process can take to complete. The matter is based in Cuttack, Odisha.

Thanks
Asked 7 years ago in Property Law
Religion: Muslim

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7 Answers

1)if the path had been used by 5 families for last 50 years and wall has been constructed by neighbour file suit claiming easmentary right of prescription

2)An easement can be acquired by prescription under Section 15 of the Easements Act. Every occupier of the land is prima facie entitled to the exclusive use and enjoyment thereof and of the natural advantages arising from its situation and environments without let or hindrance. Every right of easement claimed is a restriction on such exclusive right and is an evasion of it. Hence, the burden of proof of the element constituting a right of easement lies on the person who asserts that right and thereby invades the natural right of the occupier of the land on which the right is claimed. The law is jealous of a claim to an easement, and the burden is on the party asserting such a claim to prove it clearly. This, he must do by showing a grant conferring an easement in express term or by necessary implication, or where an easement is claimed by prescription, he must prove the facts essential to the acquisition of the prescriptive title. Thus, he must show that the user was open and notorious, that it was with the knowledge and acquisition of the owner of the servient tenement that the use was continuous and uninterrupted hostile and under a claim of right, exclusive and continued for the period requisite for the acquisition of an easement by prescription, without change or material variation.

3) seek orders to direct neighbour to demolish wall erected by him as pathway was used for period of 50 years

Ajay Sethi
Advocate, Mumbai
95220 Answers
7612 Consultations

5.0 on 5.0

A right of way may be acquired by prescription where the same has been peaceably and properly enjoyed by any person claiming title thereto as an easement, and as of right, without any interruption and for 20 years. Thus, in the present case it is for you to prove that the disputed path way was being used openly and peaceably for 20 years.

Ajay Sethi
Advocate, Mumbai
95220 Answers
7612 Consultations

5.0 on 5.0

1. You have delayed in reacting in to the matter.

2. When the wall was being constructed, you all should have reported the matter to police and thereafter brought a stay order restraining the said neighbour in constructing the wall.

3. Has the pathway been recorded in the books and records of local panchayat/municipality as patthway used by the public?

4. If yes, then you can file case before the Court praying for restoration of the pathway for the use of the public in general.

5. You cannot take law on to your hand and break the wall of your own without any court order.

Krishna Kishore Ganguly
Advocate, Kolkata
27245 Answers
726 Consultations

5.0 on 5.0

It would take 15 years for case to be disposed of

2) you can get interim reliefs within period of one month

Ajay Sethi
Advocate, Mumbai
95220 Answers
7612 Consultations

5.0 on 5.0

1. The case should be filed before the High Court as Writ Petition which should not take more than 1 month to come up for hearing if mention is made about it before the Judge.

2. The legal fees will vary from lawyer to lawyer and may be within Rs. 80 K in total.

Krishna Kishore Ganguly
Advocate, Kolkata
27245 Answers
726 Consultations

5.0 on 5.0

Please let me know what are the best possible legal ways to break this wall to start using the path again and also let me know the minimum no of months/years this process can take to complete. The matter is based in Cuttack, Odisha.

A suit for mandatory injunction to remove the obstacles and for easement rights for ingress and egress access to road side from the house property is the solution available to this situation.

An easement is a right which the owner or occupier of certain land possesses, as such, for the beneficial enjoyment of that land, to do and continue to do something, or to prevent and continue to prevent something being done, in or upon, or in respect of, certain other land not his own. Dominant and servient heritages and owners. -The land for the beneficial enjoyment of which the right exists is called the dominant heritage, and the owner or occupier thereof the dominant owner; the land on which the liability is imposed is called the servient heritage, and the owner or occupier thereof the servient owner. Explanation. -In the first and second clauses of this section, the expression "land" includes also things permanently attached to the earth; the expression "beneficial enjoyment" includes also possible convenience, remote advantage, and even a mere amenity; and the expression "to do something" includes removal and appropriation by the dominant owner, for the beneficial enjoyment of the dominant heritage, of any part of the soil of the servient heritage, or anything growing or subsisting thereon.

T Kalaiselvan
Advocate, Vellore
85420 Answers
2239 Consultations

5.0 on 5.0

I know you guys practice in different courts and situation and timings may vary based on no. of cases and population density of the area, but can anyone provide me an average time period this case can take to reach to its destination?

Such types of cases will easily consume at least two years period for disposal provided the case trial is conducted on regular basis.

If there is any interruption due to various reasons then it may take upto 5 years too.

T Kalaiselvan
Advocate, Vellore
85420 Answers
2239 Consultations

5.0 on 5.0

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