Dear sir, My grandfather was one among his five brothers. My father is one among his five brothers. My father and his elder brother lived outside the state for most period as they are in govt jobs. Remaining brothers with financial support from both elder brother managed the paternal property since long. But evertything has changed may be due to increasing consumption and spending and modern education of children like us. This led to feeling of utilising of property separately as those three were hardly giving a penny accrued out of the property. They , infact, blunty rejected the proposal of amicable partition and openly declared , to our surprise, that they wouldnt give us an inch of property, may be they are jealous of jobs my father are in but paradoxically unaware of committment, sacrifices, devotion required to do a govt job. Unmoved by our constant appeal for 7 years, my father moved to file partition suit with whatever documents we could collect ,making all of them respondents including elder brother as he too was undecisive about going further. The problem arised that the original and vital documents are in custody with younger brothers which they didnt shared with us. My father made mistake of not keeping those documents with himself in past times. Although, we had copy of mutation executed by our grandfather, the court asked us to file document on which basis partition was carried out among grandfather and his brothers. We searched with others but in vain. In all offices from bdo, co, record office etc , they told that all documents prior to 1980 were destroyed in flood which they gave in writing. Also, the lawer asked for copy of something called khatian and how it become your grandfather's father property. We are now totally confused how to proceed further. In reply to notice, they filed reply which wrongly claimed that there had been partition among my father and brothers by metes and bounds which we never heard of. What is this metes and bounds? They also sold some rich part of land by themselves without our consent and claim that that part belonged to their share. How could they keep rich and valuable share with themselves as its unequal division in their own terms. Where is the boundary demarcated? There is none. Nothing. Purely False claims by them. The land consists of some residential area and mostly agricultural. Land rent being paid up to date. Big chunks are in hands of goondas since long and they are deliberatley utilising that. We couldnt focus on that. The younger brothers plan may be that they , if forced for partion, may allot those lands in our share which we could never set that free from goondas and creepy elements. Sir, plz guide us how to proceed further in this case in court so as to obtain stay order immediatley so that they couldnt sell them off or utilise for agricultural harvesting. How could we obtain that documnet that exhibits partion was done among my grandfather' brothers?
1. You may file an application to direct the younger brother to produce all the vital agreements/ documents with regards to the property.
2. Also you may file an affidavit in the court saying that records have been destroyed and there happens to be no option but to proceed on oral testimony.
3. If the property has not been divided till date then it is your inalienable right to claim the same.
Metes and bounds are the boundary lines of land, with their terminal points and angles. It is a way of describing land by listing the compass directions and distances of the boundaries. It is often used in connection with the Government Survey System.
Further it may be noted that more concrete advice can only be given after perusing the documents. It is therefore advised to consult a good local lawyer with all the documents in hand.
Regards
In partition suit seek an injunction restraining sale of property by brothers
2) seek appointment of court receiver
3) deny any partition has taken place till date
4) if no records are available you can by statement of grand uncles prove partition has taken place by
5) if grand uncles are not alive their legal heirs may have documents regarding partition that has taken place in family
1.Partition by metes and bounds means physicalpartition.
2.if this is so then there must be separate enjoyment of property as per the partition. If it is not then their claim of such partition is not sustainable.
3.So let them what they say but in absence of any such proof the court will not accept such version.
4.In the meantime do ask for injunction so the joint properties may not be sold .The court should pass such other.
1. You can try to get certified copy of the documents from the Registration office if those are available.
2. Since the other side has already stated that the property was partitioned by metes and bounds (means partition by setting boundaries), then ask them to submit evidence of the said partition.
3. In case of partition conducted by the Court commissioner, the shares of the land will be determined based on the value of the land allocated to each parties.i.e. every body will get share of the property which will have equal value.
4. Those occupied land will not be allotted to you by the Court commissioner which will be excluded while making the partition by him.
Sir, we know for sure that the documents are in custody with them but they denied in their filed reply. Actually, earlier it was in custody of eldermost brother but after house shifting to new place, they left locked in a box in old house where younger brothers were allowed to live as they had no option. After some years when asked for, they refused about its whereabouts, the box was missing. Can we force them to submit by conducting seizure or raid by police authorities? Also, since mutation is in name of grandfather , is it not alone sufficient to prove that land belongs to us. But why court is asking to furnish details so as to establish root identity of land. Is mutation not enough? I mean, what kind of other papers should we submit so that it can be established? It was an ancestral property and subdivided among grandfathers and separate mutation done. It can be argued that it is no longer an ancestral property partition case but it is an established land of our grandfather which is to be sub divided into his five sons. Mutation might have been done only when they would have produced their records of land and partition agreement etc. . I also fail to understand why our lawyer asking for something called jamabandi but here is again a problem. We did fetch the copy from office but found that though total area of land is correct, name of grandfather is correct but details of khata , khesras etc is not written as in mutation paper. When brought to light, we were told that it was due to mistake of the then karamchari in 1960's. What should we do now?
1) mutation does not confer title to property
2) entry in revenue records is only for payment of property taxes
3)hence court wants you to produce title documents
4) jamalbanndi does show your grand father name as owner and also reflect total area of land owned by him
5)issue legal notice to younger brothers to produce documents of title lying in his possession
You may issue notice to your younger brother in order to produce the copy of the original documents also it may be noted that the mutation of the property does not confer the the title of the property on one person and therefore the court wants you to produce the title documents.
If you think that the relevant documents are in position of the opposite parties then you may prefer an application under order 12 of the code of civil procedure for discovery of documents. the court after receiving that application Salma can order and bound opposite party to produce all the relevant documents which are in their possession.
If revenue officer admit in that there is no official record before 1980 to prove that whether partition had taken place or not then the court shall resume under section 114 of the Indian Evidence Act that no partition had been taken place. Therefore the burden to prove that partition have taken place, will shifted upon the opposite party.
1.Mutation certificate does not confirm the title of the property but title deed does.
2. Try to collect the certified copies of the title deeds pertaining to the said property, if the same are available with the Registrar's office.
3. Once schedule of the suit property is established,it will be easy for the Court to decide on the matter and appoint a Court Commissioner to divide the property in metes and bounds in response to the partition suit, if filed by you.
4. If you are unable to get the copy of the title deed, pray before the Court to accept the mutation certificate as the record of the title of the property and also the admission of the other side about the schedule of the suit property.
5. If the Court refuses to accept your plea and passes adverse order, challenge the sad adverse order before the higher court immediately since you can not be held responsible for the loss/damage caused to the records kept by the Registrar due to flood.
Sir, plz guide us how to proceed further in this case in court so as to obtain stay order immediatley so that they couldnt sell them off or utilise for agricultural harvesting. How could we obtain that documnet that exhibits partion was done among my grandfather' brothers?
In the partition suit itself an application for injunction to restrain the respondent from alienating the property or encumbering the same in any manner should have been filed.
You check it up with your advocate on this.
As far as the documents, if you believe that they are in possession of the respondents, you may file a petition before court to direct them to produce the same before court.
After some years when asked for, they refused about its whereabouts, the box was missing. Can we force them to submit by conducting seizure or raid by police authorities?
Police assistance cannot be sought on this, instead you can apply for certified registration copies of the documents in their possession.
The mutation records in your grandfather's name shall also prove the share of his property and his possession of the same with the proper demarcation you can obtain the mutation records from the revenue department.
The details are not conforming to the actual extent of the property, then you may obtain the entire mutation records of the same property which have been done by the other shareholders or can file an application for appointing an advocate commissioner to inspect the suit property and give his report based on the government surveyor's survey report along with the village revenue records.