My mother is one of the owner in an agricultural land with 4 other co-owners in Gurgaon. As of now all co-owners (including my mother) have constructed boundary walls/fences to take possession of different parts of the total land. But these possessions aren't done with mutual agreement and aren't exactly equal in size or fair in other parameters like length of the front of each share. My mother has filed a suit for partition for fair division of land but that suit is still ongoing/pending in Revenue Court. Now one of the co-owner is doing construction of building on a part of the land. We fear that is construction would be difficult to demolish later and can give him absolute ownership of that part of land. We have been suggested to file for temporary injunction in civil court to get a stay on further construction on this jointly owned land. My query is: Can temporary injunction be granted just on basis that there is a suit fro partition pending and a co-owner is doing construction on property? Because someone told us that as per Supreme Court judgments to get temporary injunction the condition of irreparable damage must be satisfied. Not sure if it fulfills this condition because judge can say that the construction can be demolished later once the partition suit gets decided so where is the irreparable damage in this? Please advise if we should file for temporary injunction and if not then else we can do to stop further construction on the land.
Status quo/stay application you should have filed in partition suit only. In same suit file application of stay on construction.
Balance of convenience and irreparable loss is primary factor to grant stay. Filling suit of injunction has no complication, Even if stay not granted, same situation will exits as of present.
in partition suit filed by you seek an injunction restraining co owner from carrying on further construction during pendency of partition suit and from creating any third party rights on the land
yes as per aforesaid condition the irreparable loss condition should be satisfied along with balance of convenience and prima-facie case
Hi
Yes you are rite, it would be difficult for you to get the building demolished later on.
Yes you will the stay orders on the point that the ownership of land is not finalized and the partition suit is pending in the court.
That would be sufficient for getting the stay on construction.
Thanks
See in the partition suit filed by your mother she can file an application seeking interim stay pending the suit before the Revenue court. The revenue court may pass order on same.
1. Once partition suit is pending before the Revenue Court, THEN none of the parties are legally entitled to construct anything on their own land, else the partition suit becomes infructuous and there would be nothing left to decide.
2. File Contempt Application, stating abuse of process of law, obtain stay order (or even demolition order) and restraining order on all the other co-owners, for any such activity.
3. Another option is to settle amicably, with permission of court, conduct govt. survey, demarcation proceedings, file consent terms and withdraw partition suit.
There is no legal infirmity in filing the temporatry injunction application in the main suit itself based on the developments i.e., the constructions work being carried out by one of the defendants during the pendency of the suit with regard to same schedule of property that is in dispute.
You dont bother about what court says on your application, you may file the application as per law and leave it to the court to decide about it.
1. You cannot file another case in civil court till the suit is pending in revenue court.
2. You should make application in revenue court itself for stay on construction on disputed property.
Thanks for your valuable responses. I discussed with my lawyer - he said that revenue court doesn't have the power to grant stay order only civil court can do that. He is suggesting that we file for suit of permanent injunction in civil court and seek temporary stay as part of it. Is this also a possible option?
File ciivl suit seek permanent injunction as advised by your lawyer
See revenue court in its subject matters have power to stay though if as per state act if there is no power you gave to file same before civil court .
Lawyer is wrong, in rural land, renevue court has jurisdiction and not civil court.
If he is saying than go ahead
The revenue courts are executive courts who do not powers to that of the civil courts, hence you may follow the advise of your vocative who knows the ground reality and the circumstances
1. YES. It is possible and I've suggested the same in my earlier reply.
Yes