• Criminal Trespass

My grandfather owned 6 acres of land in his name at the time of his death.(others he had disposed off earlier). He died without a will in October 2001. He has total 12 children (8 female and 4 male children). The property was tilled by my younger maternal uncle on behalf of my grandmother till this year (the name has remained unchanged so far i.e. still my grandfather owns the land). My grandmother expired in May 2017. Now the grand son of one of my maternal uncle (uncle has expired long back) has come forward saying that he has rights and has gone ahead with tilling approximately 2.5 acres of land. He has also planted some seeds in the last week and they have grown approximately couple of inches. We tried telling him not to change the status quo until he establishes his rights by going to court but he's adamant and he's going ahead with his plan. My mother and her sisters want my younger maternal uncle to till the land until this matter is resolved. [i.e. maintain the status quo]

Today we paid visit to the land and confronted my maternal uncle's grand son but he said he has rights and he'll till the land. We also said we have the rights and as protest we removed few saplings [ around 10 feet x 5 feet area] and the person brought a police constable to the site. The constable said you have to demarcate your portion and his portion and allow him to till the land. I told him the police have no authority to make this kind of decision and the courts have to decide this. He was upset and he asked us to visit the station. I asked him produce a copy of the complaint so that we can understand the grounds. He said he does not have it currently and again asked to visit the station and went away.

We visited the station with a complaint explaining that this person (my maternal uncle's grand son) has encroached our land and has started tilling with the intent of establishing his rights. The constable tried to threaten us that he will register case under section 427 of IPC for damaging crop and asked us to come and visit the PSI in the evening.

Later in the evening we visited the station, the opposite party was also there. The PSI sternly told the person that he cannot trespass and he has to approach the courts and get appropriate relief if he has the rights.And told him that the Police will book him under criminal trespass if he does not listen.
Now after an hour or so we again receive a call from the station to again meet the PSI tomorrow.
My questions:

1. Does my maternal uncle's grandson has rights to till land ? 2.5 acres of it ?
2. Can he unilaterally trespass and establish his rights ?
3. Is 427 IPC applicable to uprooting few saplings from land to which we have legitimate rights ? and the bounds for each person are not decided yet 4. The police is doing flip flops as there are attempts to influence them so how can we deal with threatening ?5. Do we have a case that my maternal uncle's grandson can be booked for criminal trespass?
Asked 4 years ago in Property Law
Religion: Hindu

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8 Answers

1. if the grandson has not been having access to the land then without the order from civil court he can not enter into your land and start tilling. If he does the same indeed amounts to criminal trespass.

2. For this he will have to file a suit for partition and get a final decree.

3. Yes the section applies here.

4. File a petition in the court of magistrate under section 156(3) crpc.

5. Yes indeed.

Devajyoti Barman
Advocate, Kolkata
22515 Answers
402 Consultations

5.0 on 5.0

Firslty, yes though it is the trespass, but it may be difficult to hold him for the criminal tresspass.

Secondly, if there has beeen a status quo then the debtor of the order can’t change the status quo.

Thirdly, you should move an applicationnunder order 39 order 2A for sending him behind the bars for 3 months.

Fourthly, no you can’t be convicted for the same but yes may be harassed for doing the same, so, advice you to not to go for the same, and go before the court of law.

Sanjay Baniwal
Advocate, South Delhi
5464 Answers
13 Consultations

5.0 on 5.0

1. No the maternal uncle grandson has no right over the 2.5 acer he has share in his fathers share only not more then that.

2. No he cannot file a suit of partition and bring a stay on him .

3. See police has no right to deal with the issue to decide with ownership but even if it is encroachment you cannot damage the property you can seek relief from the court. Sir since he has also right in the property and it is not demarcated he cannot be held for criminal trespass it is better to file suit of partition and divide the share in the property further tough uncle in possession of the land can file a tresspass case if he has illegally by force without court order taken it

Shubham Jhajharia
Advocate, Ahmedabad
25516 Answers
179 Consultations

5.0 on 5.0

1. No. Your maternal uncle's grandson has rights to till land. He might have some right to the property being a legal heir of your deceased uncle, but same can only be determined by way of filing a suit for partition in Civil Court. He cannot just encroach your land and start tilling without any prior consent of the court.

2.No. He has to approach court to get a favourable order against you,then he can take the possession of the portion as decided by the court.

3. Yes. Section 427 does apply.

4. This is a purely civil matter, but you still try to send your complaint under section 154 (3) CrPC to the senior officials of police describing your complaint and asking them to order investigation and registration of FIR in your case. You can also approach magistrate under section 156 (3) CrPC, if the senior officials also fail to register your FIR.

5. No. The chances are very meagre as he also has some rights in the said land.

Moreover, filing a suit for injunction against him with temporary relief should be done in this case by you.

Siddharth Jain
Advocate, New Delhi
5930 Answers
101 Consultations

5.0 on 5.0

You have to file suit for partition for division of property by metes and bounds

2) seek an injunction restraining grandson from cultivating the land or creating any third party rights

3) grandson does not ha ve rights to till 2.5 acres of land

4)he cannot take forcible possession of 2.5 acres

5) you can uproot saplings as you are co owner of property

Ajay Sethi
Advocate, Mumbai
87947 Answers
6207 Consultations

5.0 on 5.0

Dear Client,

At what age G F expired ?

No and without partition and demarcation, this issue will not resolve, Well, he has right to till up to 1/12th or 1/4th or vary ( depends on death and marriage of daughters ) portion but still required partition.

Not without court order or mutual settlement/partition.

Sec 427 IPC do not attract but under Wildlife Protection Act (WPA) 1972, but for for cutting saplings but fully grown tress.

File Civil suit and get stay than police role will over.

Yes,

Yogendra Singh Rajawat
Advocate, Jaipur
21481 Answers
31 Consultations

4.4 on 5.0

If the said property is in pool of ancestral Property and not become self acquired then he may have right but he has to prove the same in court. He can't illegally trespass the same. You can file the same and book him under 427 ipc

Prashant Nayak
Advocate, Mumbai
27273 Answers
88 Consultations

4.4 on 5.0

Since that person is one among the legal heirs, his acts cannot be treated as trespass, however he has to abide by the decision taken in common, if not the aggrieved party can approach court for relief and remedy.

The aggrieved part cannot take law into their hands i.e.,, damaging the crops, this will be considered as an offence.

Instead of complicating the simple things, you may better approach court with a suit for partition and get an injunction order agaisnt him restraining him from indulging in the cultivating activities till the disposal of the suit.

T Kalaiselvan
Advocate, Vellore
78104 Answers
1543 Consultations

5.0 on 5.0

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