• Encroachment of my property boundary

I am a 55 year old housewife from Kerala. My father had about 3 acres of land in a rural area. He died in 2014. He made a gift deed to me of a portion of his land 2.5 ares in 2011. My elder brother was given the same area of land adjacent to my portion. There are other brothers and sisters. He gave gift deeds to only 3 of us before his death. Remaining 1 acre is still undivided in his name. Our mother is still alive. All the brothers and sisters live in another town. Only my elder brother constructed compound wall of rubble foundation and bricks as soon as he got the land. Recently, when I measured my land for constructing a wall, I found that he has constructed his wall about 2m inside my property on one side. He threw away the stones which my unofficial surveyor had placed, thus spoiling the attempted measurements. As a result of his encroachment, I have lost about 1000 sq. ft of land for which I am paying land tax. When I spoke to him, he misbehaved with me. I am trying for a legal solution. One advocate told me that first I have to apply to the Taluk Surveyor to get a proper survey of the land. This can take about 8 months or so. I have applied and it is in process (now in Village Office for a report). My advocate told me that once my elder brother disputes the Taluk Surveyor's measurements, then only I can approach a Court to reclaim my land. But other 3 advocates told me that I can directly approach Court to get an order to fix my boundary. I am confused. Please give me a correct procedure which should not waste time and which shall be effective. How can I get the encroached wall from my land? I will be glad to give any more details.
Asked 3 years ago in Property Law from Trivandrum, Kerala
Religion: Hindu
It is not true in your advocate version regarding the report of Taluk surveyor. In your case file a suit for fixation of boundary and recovery of possession . Also file a survey commission  with the help of Taluk surveyor.suit is to be decided only after proper identification of the properties with reference to title deeds.  After getting the commission report if necessary amend the relief portion in the suit . 

Important :
When a suit is filed for fixation of boundary, if portion of the plaint schedule property is found to be in the possession of others, no decree for fixation of boundary could be granted without seeking a decree for recovery of possession of that portion of property.
Ajay N S
Advocate, Ernakulam
2818 Answers
47 Consultations

5.0 on 5.0

You can approach civil court with a suit for mandatory injunction against your brother restraining him from interfering in your peaceful possession and enjoyment of the property and also file an IA from ejecting him from the encroached portion of the property and to identify the exact extent of such encroachment you may apply for measurement and a report by an advocate commissioner with the help of taluk surveyor and Village officer. Take the help of a good lawyer and proceed. 
T Kalaiselvan
Advocate, Vellore
36851 Answers
403 Consultations

5.0 on 5.0

1) you have been rightly advised by your lawyer to get proper survey of your land done . 

2) you can also move court  in this regard .

3) but rather than moving court immediately and spending money on legal fees better get land surveyed by the taluka surveyor 

4) judicial  process also takes lot of time . you wont get results in 3 months or so 
Ajay Sethi
Advocate, Mumbai
46678 Answers
2762 Consultations

5.0 on 5.0

1. You do not have to wait for the report of any surveyor. 

2. The legal recourse available to you is to file a case for eviction against your brother. The court can order the demolition of the construction which has been made inside the land gifted to you. The more you delay going to court the more defences he will be able to take in the court.
Ashish Davessar
Advocate, Jaipur
23097 Answers
639 Consultations

5.0 on 5.0

1. You can lodge a police complaint for encroaching/trespassing nto your territory,

2. It should be your first step,

3.After that you should file a civil suit also against your brother's act of encroachment and pray for a direction upon the Taluk Surveyor to expeditiously conduct the said survey for which you have already applied for.
Krishna Kishore Ganguly
Advocate, Kolkata
18749 Answers
452 Consultations

5.0 on 5.0

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