) I am defendant in an "partition suite"and court had granted intrem injunction against me for restraining the construction activities on the suite property. 2) 20% construction completed. 3) Both Plentiff and me( defendant) are stranger buyers of suite property by same previous owner. 4) Both possess comman enjoyment, also noted in 7/12Extract 8)Defendant Area.= 34.5 R by R. Purchase Deed on 2010. Plaintiff Area = 1.5 R . by Purchase dend on 1985. 9) I am still construtin in said suite property. 10) Plaintiff had applied for police aid U/'s 151. What will the consisusses if the application is accepted by the court.what action can police take on site? 11) On what grounds can I vacate the stay order in higher court? a) Partition had lapsed many years since 1985. can it be legally void of asking partition after such a long period. b) Why the plaintiff had not got partition done from original owner? Is not void of any rule in CPC? c)lots of area will be available even after completion of construction for small area 1.5 R of plaintiff to be awarded? Is it considered as "Forced Partition" as described in print by plaintiff.? c) Do I get any legal advantage as owing a larger share compared to plaintiff? e)Can prevention of fragmentation act make the suite non tenable, as the area to be partitioned is mear 1.5 R. The suite land falls under proposed residential area (yellow belt). Some Facts as below. 1) I had sought NOC for construction from local grampanchyat, also applied for "Town planning Authority" but no answer for the same, hence taken as a deemed permission. 2) Inofficially the construction is for my family residence, in the name of farm house. But now the suite property is updated to proposed " Yellow Zone" I don't think there will no any issue? .As plaintiff is challenging the construction under a title " Farm House". What are some of the remedy to vacate the stay order and also make the partition suite non tenable?
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1. Since there is prima facie evidence in favour of the plaintiff the court has rightly granted interim injunction which is likely to continue till the disposal of the suit.
2. So try tp expedite the suit so final outcome comes in your favour along which the order of injunction will also go.
3. That a[art I do not find any other option to vacate the order of injunction.
1) pending hearing and final disposal of suit court grants stay order if prima facie case is made out by defendants
2)if balance of convenience is in your favour and you have strong case on merits stay order can be vacated in appeal
3) plaintiff can always file suit for partition for division of property by metes and bounds
Dear Sir,
You may go to Appellate Court and try to get vacate interim injunction order. You produce all the documents and also say that your construction will be as per the conditions which may be imposed by the Court. Further say that the proposed construction is required bonafidely for residence of your family and you have invested huge amounts for purchase of building materials. You are legally constructing after having deemed permission for construction. The other side will be advised by the Court by approach Panchayath Authorities and submits their objections to your application for construction.
Ask in short and clear.
First of all you see that on what grounds did he get this temporary injunction against you.
You analyze how and on what grounds can defend your interest in the suit and in this injunction petition.
The limitation for partition and advantage of more extent of area cannot be claimed as grounds for vacating the injunction order pending against you.
Continuing the construction work during the effective validity of the injunction order will be treated as contempt of court, you have to be careful about that.
1)What will be the result if application u/s 151 is granted to the plaintiff? 2)Please advice me specific advice to vacate the injunction order against me.
File appeal against stay order granted against you
1. if the application is allowed then the relief prayed for has been granted.
2. You have to project the reasons which aggrieved you by this decision and produce the documentary evidences to disprove their claim while seeking to vacate the injunction.
First of all inquiry need to be conducted on application filed by the plaintiff. If he proves beyond reasonable doubt that you have constructed Even after the injunction granted by court court may Order the property guilty of such disobedience or breach to be attached, and may also Order you to be detained in the civil prison for a term not exceeding three months. Better file an application under order 7 rule 11 that the plaint is barred by law and the court can decide on 151 only after deciding order 7 rule 11 application.
You can try your luck in Appellate Court to vacate the stay showing irreparable damage to you.
151. Arrest to prevent the commission of cognizable offences.—
(1) A police officer knowing of a design to commit any cognizable offence may arrest, without orders from a Magistrate and without a warrant, the person so designing, if it appears to such officer that the commission of the offence cannot be otherwise prevented.
(2) No person arrested under sub-section (1) shall be detained in custody for a period exceeding twenty-four hours from the time of his arrest unless his further detention is required or authorised under any other provisions of this Code or of any other law for the time being in force.
STATE AMENDMENT
Maharashtra:
In section 151,—
(a) in sub-section (2), after the words “required or authorised”, insert the words, “under sub-section (3) or”;
(b) after sub-section (2), insert the following sub-section, namely:—
“(3) (a) W here a person is arrested under this section and the officer making the arrest, or the officer incharge of the police station before whom the arrested person is produced, has reasonable grounds to believe that the detention of the arrested person for a period longer than twenty-four hours from the time of arrest (excluding the time required to take the arrested person from the place of arrest to the Court of a Judicial Magistrate) is necessary, by reasons that—
(i) the person is likely to continue the design to commit, or is likely to commit, the cognizable offence referred to in sub-section (1) after his release; and
( ii) the circumstances of the case are such that his being at large is likely to be prejudicial to the maintenance of public order,
the officer making the arrest, or the officer in charge of the police station, shall produce such arrested person before the nearest Judicial Magistrate, together with a report in writing stating the reasons for the continued detention of such person for a period longer than twenty-four hours.
(b) Notwithstanding anything contained in this Code or any other law for the time being in force, where the Magistrate before whom such arrested person is produced is satisfied that there are reasonable grounds for the temporary detention of such person in custody beyond the period of twenty- four hours, he may, from time to time, by order remand such person to such custody as he may think fit:
Provided that, no person shall be detained under this section for a period exceeding fifteen days at a time, and for a total period exceeding thirty days from the date of arrest of such person.
(c) W hen any person is remanded to custody under clause (b), the Magistrate shall, as soon as may be, communicate to such person the grounds on which the order has been made and such person may make a representation against the order to the Court of Session. The Sessions Judge may, on receipt of such representation, after holding such inquiry as he deems fit, either reject the representation, or if he considers that further detention of the arrested person is not necessary, or that it is otherwise proper and just so to do, may vacate the order and the arrested person shall then be released forthwith.”
[Vide Maharashtra Act 7 of 1981, sec. 8 (w.r.e.f. 27-8-1980).
