• Trespassing/land grab

Dear all
This issue relates to a lengthy Muslim partition suit involving my great grandfather's estate which was distributed amongst his 8 legal heirs - 4 daughters and 4 sons. My grandfather (eldest brother and 4th oldest in order) inherited a plot of land measuring 3000 sq yards on which he had constructed a commercial complex back in the early 90s and another area of land measuring 7000 sq yards on which he constructed a cinema hall which is incomplete. He had 5 daughters and one of them is my mother. In the year 1994, a 'declaration deed' was signed amongst the 7 legal heirs relinquishing their rights to the above properties and also mentioning that the building was constructed from my grandfather's own funds and that none of the other siblings or their children would ever stake a claim on this property or harass my grandfather's children with regards to it. The eldest sibling had passed away in 1986 and the deed was signed by her daughter who was the registered GPA holder of the rest of the third generation involving the descendants of the eldest daughter. 

The partition suit was filed by my grandfather's younger brothers against him in 1997 and unfortunately the preliminary decree in the Hyderabad City Civil Court said to partition the above properties by meats and bounds as the deed was not registered among 35 legal heirs. My mother and aunties are currently contesting this in the high court and the appeal is awaited. We currently also have a stay in High Court. Both properties have always been in our possession (since about the 1980s). This includes sanctioning of GHMC plans in our names and all taxes have been paid for over 30 years in my grandfather and his daughter's names. In the preliminary decree, there is no mention that any parties could take possession from us. Today I found out that a son of my grandfather's second brother ( my mother's first cousin) has encroached on the second property with 20 goons and has squatted there. They have cleaned the barren land and painted the cinema hall and not allowing anyone to enter. The local police stations SHO has questioned him how he has trespassed to which he says that the preliminary decree is giving me a share so I took possession.
My questions are :
1. Is this fellow legally entitled to do the above despite the matter being stayed in High Court. Is this not a land grab ?
2. If not, can we book a criminal case against him and if so under which sections ?
Asked 17 days ago in Criminal Law from United Kingdom
Religion: Muslim

No he is not allowed to take possession during stay by high court every share holder have to maintain status quo. 

Yes you can lodge FIR against your cousin.

Mohit Kapoor
Advocate, Rohtak
4213 Answers
1 Consultation

5.0 on 5.0

You would file first appeal before honble high court and high court would stay in the order of civil court, therefor civil court has no power to proceed the suit, you only filed application before high court. 

you may file complaint before jurisdictional police u/s 441 of ipc and land grabbing act. 

Mohammed Mujeeb
Advocate, Hyderabad
10972 Answers
4 Consultations

4.5 on 5.0

1. No it's a illegal approach. You can mention the same in HC and get the trespassing removed. 

2. You can also book him under criminal trespass of IPC

Prashant Nayak
Advocate, Mumbai
13722 Answers
23 Consultations

4.6 on 5.0

This is purely a civil matter wherein civil suit is pending and the case is also pending in the high court against the preliminary decree.

Now the issue of encroachment. An appeal against  the preliminary decree is pending and hence status quo should be maintained and for this permanent injunction should be sought in the city civil court and if it rejects or does not grant it then file an application in the high court.

You can lodge an fir but it is a civil dispute wherein the other party has deliberately misinterpreted the decree and has squatted on the property.

The police shall not register the fir and even if it does the high court shall quash it.

Regards 


You can go for contempt if there is an injunction.

Rahul Mishra
Advocate, Lucknow
4718 Answers
11 Consultations

5.0 on 5.0

You can take out contempt of court proceedings against your  mother first cousin for having taken forcible possession although HC has stayed the decree 

 

2) you can file case of criminal trespass under section 441 of IPC 

 

3) Section 447 of the IPC lays down that anyone who commits criminal trespassshall be punished with imprisonment of a term which may extent to three months and/or fine which may extend to five hundred rupees.

Ajay Sethi
Advocate, Mumbai
68048 Answers
4107 Consultations

5.0 on 5.0

No, the preliminary decree clearly says that your grandfather and his daughters will have  share in the property and no one else.

We need to review the preliminary decree that how your mother's cousin took possession here. You can take injunction from court and have a property sealed till further decree.

Ganesh Kadam
Advocate, Pune
7969 Answers
68 Consultations

4.9 on 5.0

Dear Concern,

Since I have already answered your previous question let me answer your further question to the point which you are asking. Please note - 

01. The fact that there is a stay from the High Court and despite being that the concern has encroached in to the land is violation of the order passed by the High Court and you can bring an application under Order 39 Rule 2A for punishing the concern for his act. The Hon'ble High Court will take stern action in against him.

02. Besides since he has used criminal force to encroach into this property so you can also bring criminal case under section 504, 506, 120B etc. of the IPC in  against this concern.

I would again request you to find a good advocate office for your case as that is extremely necessary. Otherwise things like these will keep on happening and you keep on coming to this platform to seek legal opinion.

My best wishes to you.

Pulkit Prakash
Advocate, Delhi
189 Answers
3 Consultations

5.0 on 5.0

1. The preliminary decree and the stay order of the HC have to be perused to ascertain whether there is contempt of court or not.

2. Even if it is contempt of court it may not necessarily amount to criminal trespass.

Ashish Davessar
Advocate, Jaipur
26507 Answers
791 Consultations

5.0 on 5.0

1. No, that fellow has illegally trespassed into the portion , where court has already passed status quo order. No parties of the suit allowed to contmept the court order. 

-  Hence, your mother should file a petition of contempt against the said persons for non comply of passed order , after making the SHO as a party as well.

2. you should lodge your complaint to the higher police official under section 447 & 506 IPC for trespassing and threatening for dire consequences. 

Mohammed Shahzad
Advocate, Delhi
766 Answers
18 Consultations

5.0 on 5.0

Even when court holidays are going in one bench of high court will be running and if that is also not possible then you can even move a house motion your counsel can go to magistrate house and take order there is a procedure for that. 

Mohammed Mujeeb
Advocate, Hyderabad
10972 Answers
4 Consultations

4.5 on 5.0

You have to take out contempt of court proceedings as mentioned herein above 

 

court does  not take  kindly  to its orders being violated and action would be taken against culprits 

Ajay Sethi
Advocate, Mumbai
68048 Answers
4107 Consultations

5.0 on 5.0

Dear Concern,

Despite the Court being closed the High Court still hears the matters which are urgent by the way of Chamber Hearing. 

Ask your advocate to approach the High Court by the way of Chamber Hearing and he will get your things done in this vacation time itself.

Pulkit Prakash
Advocate, Delhi
189 Answers
3 Consultations

5.0 on 5.0

It's better you take HC help after reopening. It will give appropriate direction to the concerned police station to take action

Prashant Nayak
Advocate, Mumbai
13722 Answers
23 Consultations

4.6 on 5.0

If they are taking help from MIM political party, you can directly contact one of the party members and get protected in this for time being till you get injunction from court against that decree.

Ganesh Kadam
Advocate, Pune
7969 Answers
68 Consultations

4.9 on 5.0

You should lodge FIR against those goons and mother's cousin for contempt of court orders and trespassing your house by force 

 

Mohit Kapoor
Advocate, Rohtak
4213 Answers
1 Consultation

5.0 on 5.0

1. The act of that person is illegal, he may have a pre-decree, but until and unless the property has been properly partitioned, he cannot claim his share which has not been identified yet, moreover the pre-decree has been stayed by the high court, hence he can be considered as an unauthorised squatter.

2. You can even file a contempt of court case against him for doing this act especially when there is a stay against the operation of the trial court order.

 

T Kalaiselvan
Advocate, Vellore
57736 Answers
729 Consultations

5.0 on 5.0

Yes, since this is a crimninal offence, the police can very well interfere and give you protection.

In the meantime you can also prefer a petition  before high court for contempt of court action against them.

So the pressure to be mounted from all quarters

T Kalaiselvan
Advocate, Vellore
57736 Answers
729 Consultations

5.0 on 5.0

1. The said decree has been stayed by the High Court for which it has now become ineffective. So, he is not entitled to encroach in to the said property taken shelter on the said stayed decree.

 

2. You should lodge a police complaint against him for encroaching/trespassing in to the area and if police does not take any action, can file a Writ Petition against police inaction praying for an order upon the police to register FIR and act as per law.

Krishna Kishore Ganguly
Advocate, Kolkata
22690 Answers
606 Consultations

5.0 on 5.0

1. Act as advised in my earlier post.

 

2. There must be vacation bench to take up such urgent matters. Approach the High Court immediately.

Krishna Kishore Ganguly
Advocate, Kolkata
22690 Answers
606 Consultations

5.0 on 5.0

Wait for the courts direction. Police can be easily influenced in many cases but courts are still a hope 

Prashant Nayak
Advocate, Mumbai
13722 Answers
23 Consultations

4.6 on 5.0

On courts being reopened take legal proceedings as mentioned herein above 

Ajay Sethi
Advocate, Mumbai
68048 Answers
4107 Consultations

5.0 on 5.0

You can file an emergency case even during vacation period. 

Did no lawyer tell you about this existing facility. 

If the police is not cooperative then the next choice is court alone,  you may have to wait. 

T Kalaiselvan
Advocate, Vellore
57736 Answers
729 Consultations

5.0 on 5.0

1. There is vacation bench in the concerned High Court.

 

2. Approach the vacation bench of the said High Court immediately as advised  in my earlier post.

Krishna Kishore Ganguly
Advocate, Kolkata
22690 Answers
606 Consultations

5.0 on 5.0

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