• Interpretation of HC order in view of flat and removing construction on my share

The Appln for injunction (to prevent the Builder purchaser from constructing his apartment) was filed in a partition suit. Appln was rejected by TC. Appeal was preferred hence confirmed in plaintiff’s favour. WP was filed by Def. to set aside order of appellate court. In that proceeding Advocate for petitioner (Defendant) offered 2 BHK flat - 850 sq.ft) to respondent (plaintiff) in under construction. The adv for plaintiff accepted the offer without consulting the plaintiff-(respondent) though plaintiff was present on that day in Court Room, Therefore HC passed order that the said 2 BHK flat should be kept vacant and no third party interest will be created till the disposal of partition suit pending in TC. A review appln was filed on ground that neither any such instructions or consent was given to advocate by Resp hence the matter should be recall and review. HC dismissed the review petition for reason that order passed in presence of resp and his advocate accepted the flat.

The flat which was offered before HC was 2 BHK (850 sq.feet) but actually on sanctioned plan it is 1 BHK (450 sq.feet), hence Petitioner was also moved MA to correct the earlier order which was typo mistake made by HC, but HC rejected their application on the basis of the advocate for petitioner clearly stated it is 2 BHK (850 sq. feet) flat and never he said 1 BHK (450 sq. feet) flat.

However it is pertinent to note that my share in suit is 2500 sq. feet in open land, which was existing at the time filing the partition suit as well as filing of Application for injunction. 

The Defendant has almost completed the construction till now (inclusive my share of 2500 sq. feet) by taking disadvantage whenever there was no injunction (almost 1 & ½ years). It is also pertinent to note that, My share is 2500 sq.feet while flat is of 450 sq.feet. 

it is also pertinently note that, HC in its order did not mention anywhere that the claim of plaintiff in partition suit is substituted or compensated by / in this order. In fact it is mentioned in the order of HC that, “The impugned order passed by the Ld District Court (appellate court) is substituted by this order” “in my view, the interest of justice would be met with if the impugned order of appellate court is substituted by this order”.in fact it is mentioned that the order of appellate court (preventing defendants from constructing on whole suit property) is substituted by HC’s order in the interest of justice which will meet with if the impugned order of appellate court is substituted by this order. 

My Question. 

What is interpretation of flat which is kept vacant. whether it is kept as a security against my share or whether it is compensated against my share, which cannot satisfy my claim of 2500 sq.ft in open space.

whether LTC will order to remove construction on my share?

what would be end result in TC in view of that flat and demolishing the construction, constructed on my share, if decided by LTC
Asked 12 days ago in Civil Law from Satara, Maharashtra

it is kept as security against your share 

 

2) construction would not be  demolished but you would get compensation for your share 

 

3) if you are able to prove that your share is 2500 square feet court would grant you said share 

Ajay Sethi
Advocate, Mumbai
58473 Answers
3536 Consultations

5.0 on 5.0

Dear Client,

First question can be answered on perusal of court order. Am confuse, on what condition flat is offered ? IF settlement between parties than what is the purpose left for lower court proceeding.

Well, TC suit is going on which means partition will decide by court on subject land and offered flat has nothing to do with partition suit. May be it is offered, so that no stay shall be granted and no alienation of your share of land, if any decide by trial court.

If partition ordered in your favor, you will have absolute right on construction whether to demolish or use it.

rest can be advise on perusal of documents and order.

Yogendra Singh Rajawat
Advocate, Jaipur
8241 Answers
7 Consultations

4.7 on 5.0

1. would have appreciated had you uploaded the trial court order, appellate court order and HC order in WP

2. without seeing them it is difficult to say anything on their correct interpretation, especially the HC order in WP

3. If i am not wrong then HC has not stayed your partition suit. Nor could the HC do that in writ jurisdiction. The HC has only sought to balance and secure your right in your partition suit by directing the builder to reserve one flat of 2BHK in new building and to keep that vacant and unsold

4. so the disposal of that flat would depend on the outcome of your partition suit

5. generally courts will not be inclined to order demolition of construction as many third party rights would have been created and ordering demolition would mean, all those third parties would be required to be ousted. The court will not take such a drastic measure of removing so many families

6. however the HC cannot substitute its own finding in place of the appellate court's finding. The HC is only required to see whether the appellate court order is with or without jurisdiction

7. so that gives you a scope of challenge against the HC order, which you must do

8. as there is presently no stay against the construction, as the appellate court order is set aside, you must take immediate steps to challenge the HC order in SC and obtain an interim stay 

Yusuf Rampurawala
Advocate, Mumbai
3469 Answers
14 Consultations

5.0 on 5.0

1) in suit reliefs granted would depend upon pleadings , evidence on record and reliefs claimed in suit 

 

2) if any construction has been carried out on your share court can direct demolition of construction carried on 

 

3)  in Satish Chander Sethi v. M/s Chunilal Shyam Sunder, (1995-3)111 P.L.R. 685, it was held that a co-sharer has full right to enjoy the use and the fruit of the property under his exclusive possession to the extent of his share.However, this right is still subject to partition and a co-sharer is liable to remove the structure if required on partition. No allegation that the purchaser from one co-sharer has not become co-sharer or was in possession of excess of his share. Vendee of co-sharer steps into the shoes of original co-sharer. He can raise construction even before partition. Since every co-sharer has a right on every inch of land before partition, every one has a right to raise construction on the land in their exclusive possession. 

Ajay Sethi
Advocate, Mumbai
58473 Answers
3536 Consultations

5.0 on 5.0

Have the lower court passed preliminary decree ? Once it is passed , your share will become confirm than you can request for stay on construction.

Yogendra Singh Rajawat
Advocate, Jaipur
8241 Answers
7 Consultations

4.7 on 5.0

Yes your interpretation is absolutely correct no claim or construction allowed till co-sharer share is not decided through legal partition

Prashant Nayak
Advocate, Mumbai
6126 Answers
5 Consultations

4.8 on 5.0

  1. As per the information mentioned in the presnet query, make sit clear that there was no consent from the side of the respondent though he was presnet in the court.
  2. And let me tell you that mere presence of the respondent doesn’t mean that he has agreed to all what his lawyer has been putting before the court of law.
  3. As the language should be read in a way that the 2 BHK (which is actually now not been intended by the other party, but they can’t do to that as they have given the statement for the same) would be kept as only security, because it has been talking about the final outcome of the partition suit.
  4. And sir, I would have adviced you to file LPA in the Bombay high court, but recently from one of my client (only adviced him on some legal points) got to know that it has been abolished there.
  5. So, now would advice you to file SLP in SC for injunction over construction irrespective of the fact of having it at any stage to teach them a lesson as to what they are doing is illegal.
  6. Because once you get injunction then they will also not be able to enjoy the same till the final outcome of the TC proceedings.

Rest, there are so many strong arguments which can be made in your case to at least give you some relief as TC will take how many more years, no body knows it.

Sanjay Baniwal
Advocate, South Delhi
3416 Answers
7 Consultations

5.0 on 5.0

Plz see latest SC judgment in civil appeal 7461 of 2009 in which the court has culled out basic principles on which a court in a writ petition filed under 226 can interfere with orders of lower courts

Plz share the WP case number in HC in which this order was passed. I can check it from court website. Is it a Bombay HC decision ? 

Yusuf Rampurawala
Advocate, Mumbai
3469 Answers
14 Consultations

5.0 on 5.0

The high court in its interim order has HC passed order that the said 2 BHK flat should be kept vacant and no third party interest will be created till the disposal of partition suit pending in TC.  This clearly implies that this order shall remain valid till the disposal 

of main suit for partition.  Your claim for your own share in the partition suit has not been disturbed by high court by pronouncing this order. Therefore this cannot be considered as a compensation for your share in the partition suit.

 

Let the partition suit be decreed and you can find the relief allotted to you in the suit  after which you will come to know the result.

 

 

 

T Kalaiselvan
Advocate, Vellore
48555 Answers
576 Consultations

5.0 on 5.0

Your partition suit has not been disposed yet.

Before disposal dont jump into any conclusion.

Let the court decide the fate of the case.

If you are aggrieved by the judgment by the trial court, you may prefer an appeal against the judgment and seek justice to your justified and natural claim.

 

T Kalaiselvan
Advocate, Vellore
48555 Answers
576 Consultations

5.0 on 5.0

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