Path to house as well as land
I have a dispute over path to access my house as well as agriculture land. In the old time this path remains under the ownership of some other parties. In view of the above I have file A petition under section 150 of Punjab Land Revenue Act for Prevention of encroachment on land which is only source of ingress and egress to land act to District Collector. The DC have demaded the copies of the order/decree of the any competent court in which some order have been passed in this regard. I have submitted the copies. Thereafter he processed the matter to District Tehsildar for further action under intimation to his court. But in the mean while the opposite parties try to demolish the existing path. immediately my family member lodge a police complaint to local police and I also intimate DC by writing a letter. But finally they get success in their evil game and demolish the existing path with JCB after 7 days. But no action have been taken by administration as well police. But we have catch clip in the camera and photos. After that my family member approach to DC as well local SDM but in vain. They decline action against the offenders. At last the opposite parties approach to civil court regarding stay to restrain us for parmanent injuction . Now matter is under civil court. Now the condition is that my family harrased by them and my house get locked i their property. At this situation please provide me urgent and suitable advise so that I can relief for my blocked path. Thanks
Asked in Property Law from Sirsa, Haryana
1) you have to file deatiled reply in suit proceedings
2) claim easement of necessity .
3) An easement of necessity is an easement without which a property cannot be used at all, and not one merely necessary to the reasonable enjoyment of the property.
4) i had advised you to file suit for declaration to declare the easementary right of the plaintiffs over the suit cart track and to restrain the opposite parties from interfering with the peaceful possession of the suit cart track by you
5) you should rely upon photographs and camera clip to show that you have been using the common path for years and it was demolished by using JCB
6) you should also take out interim application in suit for permission to use common path to access your house pending hearing and final disposal of the suit
1998-2-L.W.-147 (Mangayarkarasi Vs. Veerappan Ambalam and Others) wherein in Para-21 it was held thus:-
"21. Bearing the principles laid down by the several decisions referred to above, the whole question in the present case boils down to whether what was claimed by the respondents was an easement of necessity. The ratio of the decisions is to the effect that there must be absolute necessity. Convenience was not the test. No doubt, there need not be an expressed grant. The non-mentioning in the sale did not matter as long as a case for implied grant was made out. The Commissioner's Report and the plan show the lie of the land. The Commissioner has specifically mentioned about the absence of cart track in the suit property. He has also noticed that the respondents had access to the road along the eastern property...."
A learned Single Judge of this Court has held in the above judgment that if there was alternative footpath in existence, however inconvenient it might be, still there could not be a claim as an easement of necessity.
1. When they tried to demolish the existing path you should have moved to civil court to seek a stay order. Police has no role to play in this.
2. Since they have already gone to the court the only advice is to enter defence and contest the case filed by them lest the court passes an order which will clog your rights.
1. You can take steps to vacate the stay for the reason that you do not have access to your house.
2. You should approach the court to vacate the stay of the existing trial court.Move an application for that if denied approach the high court with a writ petition.
3. If the court has given the stay without proper consideration and perusal of facts , you should bring it o the notice of the court while challenging it.
For ingress and egress issues, yo should have actually approached the civil court instead of the district collector. A suit for mandatory injunction restraining the defendants fro obstructing the use of path way by you which is the access t your property as well as for easement rights should have been filed wth an application for temporary injunction on the same lines.
Even now, you can file a counter to their suit and pray for vacation of the injunction order against you.
You can file a suit for easement rights and mandatory injunction also as stated above even now.
Hi, you have to approach the High Court by way of writ petition to direct the DC to take suitable action and allow you to use the pathway.