Dear Client,
You can file suit of recovery of possession but possibility of success is rare as he is in peaceful possession from long time.
Property related
I have property which is in joint name equally with some other person.Other person had constructed property on his part and on my part of property 30 years ago. Means it is 120 square feet. 60 square feet in his name and 60 in my name. As he had constructed his house on 85 square-feet and balance was constructed by my father 30 years ago. Can I Claim my part of 25 square feet which is held by him. now because I have never challenged that part till now in 30 years. The other person has all the maps passed of 85 square-feet with the municipal corporation and also he has assessment of 85 square feet from the municipal corporation. He has let out the property since then, to various tenants since last 30 years which my father never objected. Please guide.
Asked 5 years ago in Property Law
Religion: Hindu
17 Answers
1) As per limitations Act court won't accept your case to registered in the court.
2) There is one way that you tell court that you came to know on paper land belongs to yours and you were not aware of such thing as your father has purchased this property, If you have land dealing papers on your name than you can file case against your co-owners on that basis and get extra portion from him.
Before filing needs to review your mutation papers.
Dear Sir,
You must take a contention that with your permission his encroachment was allowed and agreed to pay part of monthly rents is receiving. Accordingly he was paying on yearly basis 20% of the rents he received. You must further say that recently stopped to give such compensation as such claim for either such amount or the encroached property as per the sale deeds.
If your relationship is good with joint owner then settle the matter amicably.
If joint owner refused to vacate then you should take legal course against him.
In any case, if the building has been illegally constructed on the land, one could approach the High Court and file a writ, praying for issuance of directions on the concerned municipal and urban development authorities to take down the structure.
Also, if it is an ongoing construction, or if it is a completed structure and the aggrieved party wishes to hinder any further functioning/operation of such structure, an injunction may be sought against any further construction or operation, as the case may be, before the concerened civil court exercising jurisdiction over the area wherein the disputed construction/land lies.
Please approach a trusted advocate and present the complete facts and circumstances to him/her, and only then can you get proper and wholesome advice on how to proceed further with this matter.
You can file suit for partition for division of property by metes and bounds
2) seek injunction restraining sale of property by your co owner
Sir but the question is that I have the property papers of whole of the property with myself. And that is in the knowledge of all and my community.And the other person is not having any document with him. Basically this property is in the name of my mother who is alive and for which my father had paid 30 years ago. All the taxes related to 85 square feet are regularly paid by them. That person had paid to my father for 25 square feet then but we did not transferred the property legally. Also there is no proof of this payment with them. Should I file the claim or not? Because it may lead to extra burden of advocate fees. If I am certain, only then I will file case?
Asked 5 years ago
Your mother has to file suit for eviction against said person if he is unauthorised possession of your portion of property
So you meant to say, you want recovery of area for which you are already been paid but no proof of payment and you want to take advantage of this situation.
Frivolous suit not advisable, rest your wish, His claim stringer due to long undisputed possession.
Dear Sir,
- As you shared that other party has already got the map passed and paying all taxes till date, it is very difficult to prove in court
- Also due to limitation act, Court will deny the submission
- However the only remedy is available to file the injunction suit for non-sale and simultaneously file the eviction suit (Chances of success is too bleak)
- Advisable to solve the matter amicably with other party
Regards
Vivek Arya
Dear Sir,
You have to take personal consultation because more than 12 years possession deems to be adverse possession. Nobody can assure you 100% success guarantee. you may try for settlement since you have a case on merits.
1) Before filing any case kindly show your property papers for review , because above your query statement says property is on your mother's name but the the taxes are paid by other person. Now here I need to review Tax receipt for current year and if you have any old receipt when the house was constructed.
2) Mutation papers from revenue department.
See you can seek partition of the plot from the co-owner and can claim equal share in the property. You can file a partition suit before the civil court in local jurisdiction seeking your share in the property.
See since you are co-owner and there are property documents and all the proof available with you then in that case the case is good on merits and you can proceed with the same.
First file a suit of partition alleging that property is in joint name and may be divided equally by the court as the co-owner is denying to give the equal share as agreed.
You need to file suit for claiming and partition for your share
your claim will not survive in court
its a clear cut case of adverse possession of excess 25 sq.ft. by the party holding 85 sq.ft.
the person has already perfected his title by adverse possession for the extra 25 sq.ft and he has been in possession for more than 12 years [which is the period for which a person has to remain in adverse possession]
Your claim for this encroached portion may not hold grounds and may be badly affected by operation of law of adverse possession claimed by the other person.
It was very well in the knowledge of your father for 30 years or more and he never objected, so by operating the law of adverse possession, the opposite party may get your case defeated.
Even though you possess the property related documents and you may be right that this property was encroached by the opposite party, since you never bothered to claim your portion of property for over 30 years, your case may not be maintainable .
Any how, you may discuss with your advocate about the possibility of the case and proceed.