• Path to house through agriculture land

Hi sir/Mam,  
                   I am a defense person  and my native place is at Sirsa, Haryana. My house is situated in a village in my agriculture land isolated to village. I was using a path which is under the ownership of the other person and using it since appx 35-40 year ago.The mentioned land through which path is crossing is under the ownership of other parson earlier was under the ownership of my grandpa but he exchanged it with the that person in 1992 through a court decree. It was found that the other person mentioned in exchange that particular land was exchanged with the plot situated in the boundary of village.(plot is of non registered type). Also, In the revenue entries the entire land is under the ownership and possession of  third person. The prices of land is under hike, in the greed of fetching more he dismantle the path and file a civil suit under section 39 rule 1 & 2. Now my family is confine to my house because there is no other path available. He is very head strong person. we defend the case and Lower court pass a order giving direction that palintiff application is allowed which shall subject to the condition that the plaintiff shall alllow them to pass them through his land. But aggrieved with the order he  challeged the lower court order in a appeal to session court during vacation period for modification of the order in vacation period and session court order the operation of lower court order stayed for 6 days. In the verge of the order he again completely dismantle the path and block it completely and make it full of water. Again the proceeding of the court continued and finally order of the session court was favourable. The session court considered the entire conspiracy of the appeallant and finally dismissed his appeal. I also through a application under section 144 of CPC. The session court mentioned in the order that the defendant have liberty to file such application but the lower court shall decide the application within 2 weeks. The session court also mentioned that I have evolved easemantary right but which will  be prejudicated in the trial court.  But my family is in problem without any path to my house.  Now the paintiff is trying to appeal in the high court . He want to suppress me under financial pressure.Sir pl provide me relevant advise
Asked 1 year ago in Civil Law from Sirsa, Jammu and Kashmir
1) you have already won before trial court and sessions court 

2) even if defendant files an appeal he won't succeed in getting any reliefs 

3) oppose grant of any stay as there is no other access to your house
Ajay Sethi
Advocate, Mumbai
23097 Answers
1212 Consultations
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1) you must have engaged a lawyer and he must have appeared in court on your behalf .he must have guided you on judgement passed by court 

2) you can reproduce the judgement here if you so desire 
Ajay Sethi
Advocate, Mumbai
23097 Answers
1212 Consultations
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1) you have got an excellent order 

2) now make an application before lower court under section 144 CPC for restitution and lower court will pass order within period of 2 weeks on your application 
Ajay Sethi
Advocate, Mumbai
23097 Answers
1212 Consultations
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Hi, you have to file a Caveat petition in the High Court so that the plaintiff will not take ex-parte order of injunction and contest the case on merits and from going to the facts of your case you have good case on merits.

Secondly, you have to file a declaratory suit for easement  right as the plaintiff was obstructing the right of path way.
Pradeep Bharathipura
Advocate, Bangalore
4104 Answers
133 Consultations
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1) chances are bleak that HC will interfere with orders passed by trial court 

2) you can file declaratory suit for easementary right . Both suits would be clubbed together 
Ajay Sethi
Advocate, Mumbai
23097 Answers
1212 Consultations
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In your case the appellate court has upheld the decision of the lower court hence it becomes a fact that you are entitled to easement rights.
As appeal has been dismissed, let the plaintiff go for an appeal before high court too, you can challenge the same on the same grounds and merits, the case can be expected to be decided in your favor in the appeal before high court too. The appellate court has discussed the issue fully and very rightly dismissed the appeal. 
T Kalaiselvan
Advocate, Vellore
13910 Answers
127 Consultations
5.0 on 5.0
1. The plaintiff remained unsuccessful in the lower court as well as in his appeal. He can now move the High Court through appeal. The High Court can reverse the decision of both the lower courts to rule in his favour. You should contest his claim in the High Court if at all he files a further appeal.

2. This man has been ordered by the court to allow you to access to the path, but he has demolished it. You should have sought a stay order to restrain him from demolishing the path which you wanted to walk on to access your property. Your failure to seek the stay order gave him an escape route.


Ashish Davessar
Advocate, Jaipur
18055 Answers
445 Consultations
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1. This case has been filed by the person against whom you claim to have an easementary right. The finding of the court will be limited to the legal claim made by him. It will not be an affirmative finding for you even if the High Court and Supreme Court dismiss his appeal.

2. If you wish to access your property through the land owned by him then you should file a separate declaratory suit seeking a judicial command to him to not to block your path. 
Ashish Davessar
Advocate, Jaipur
18055 Answers
445 Consultations
5.0 on 5.0

The pendency of the suit filed by this man does not prevent you from filing a declaratory suit to claim your easementary right in the land owned by him.
Ashish Davessar
Advocate, Jaipur
18055 Answers
445 Consultations
5.0 on 5.0
1) did you oppose withdrawal ?

2) file declaratory suit for easement right and move for urgent interim reliefs 

3) in said suit mention about litigation till date and enclose copy of orders passed by trial court and appellate court 
Ajay Sethi
Advocate, Mumbai
23097 Answers
1212 Consultations
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1) your lawyer has done a good job got you good results from court . You don't need to suspect him 

2) it would take your lawyer 5 days to file suit to claim essmentary right of access and for injunction restraining your neighbour from obstructing your right of way 

3) court can grant you interim reliefs 
Ajay Sethi
Advocate, Mumbai
23097 Answers
1212 Consultations
5.0 on 5.0
The referred section is reproduced below for your information
144. Application for restitution.- (1) Where and in so far as a decree or an order is varied or reversed in any appeal, revision or other proceeding or is set aside or modified ii any suit instituted for the purpose, the court which passed the decree or order shall, on the application of any party entitled to any benefit by way of restitution or otherwise, cause such restitution to be made as will, so far as may be, place the parties in the position which they would have occupied but for such decree or order or such part thereof as has been varied, reversed, set aside or modified and, for this purpose, the court may make any orders, including orders for the refund of costs and for the payment of interest, damages, compensation and mesne profits, which are property consequential on such variation; reversal, setting aside or modification of the decree of the decree or order.

Explanation: For the purposes of sub-section (1), the expression “court which passed the decree or order” shall be deemed to include,—

(a) where the decree or order has been varied or reversed in exercise of appellate or revisional jurisdiction, the court of first instance; 

(b) where the decree or order has been set aside by a separate suit, the court of first 
instance which passed such decree or order;

(c) where the court of first instance has ceased to exist or has ceased to have jurisdiction to execute it, the court which, if the suit wherein the decree or order was passed were instituted at the time of making the application for restitution under this section, would have jurisdiction to try such suit.

If the plaintiff wants to withdraw the suit or appeal, you may see what grounds have been specified for withdrawal and if it affects  your stand, you may raise objection to it and put forth your arguments against it. 
If you feel your lawyer is not cooperating you may change him. 
You already have a relief in your hand, why dont you file an execution petition to execute the decree. 
T Kalaiselvan
Advocate, Vellore
13910 Answers
127 Consultations
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1. You cannot oppose the withdrawal of the case if the plaintiff wishes to withdraw it.

2. It is but natural that it will take 4-5 days for your lawyer to draft the case and file it. 

3. An easementary suit is filed to claim the easementary rights i.e the right to use for passage the land owned by another.

4. You cannot file a 144 application in your suit to claim easementary rights.
Ashish Davessar
Advocate, Jaipur
18055 Answers
445 Consultations
5.0 on 5.0
1) objection if any should have been taken before withdrawal . You cannot object once suit is permitted to be withdraw by court 

2) you ought to file declaratory suit for eadementary rights 
Ajay Sethi
Advocate, Mumbai
23097 Answers
1212 Consultations
5.0 on 5.0
1. The order is in your favour,

2. You have the easement right to use his land for ingress and outgress of your land,

3. His application has not strong leg to stand upon,

4. Contest his cases fittingly.
Krishna Kishore Ganguly
Advocate, Kolkata
12028 Answers
227 Consultations
5.0 on 5.0
The Judgement will be in your favour since no court can decline your easement right.
Krishna Kishore Ganguly
Advocate, Kolkata
12028 Answers
227 Consultations
5.0 on 5.0
1. The Court has rightly passed the speaking order,

2. No court can deny your easement right made available to you by the Act.
Krishna Kishore Ganguly
Advocate, Kolkata
12028 Answers
227 Consultations
5.0 on 5.0
1. Under the given circumstances, there is no probability for the court to deny your easement right,

2. You can also file a declaratory suit to get your easement right validated by court order.
Krishna Kishore Ganguly
Advocate, Kolkata
12028 Answers
227 Consultations
5.0 on 5.0
1. File a police complaint for blocking your path,

2. File a Writ Petition before the High Court against police inaction and praying for direction upon other party to allow you your easement right, 
Krishna Kishore Ganguly
Advocate, Kolkata
12028 Answers
227 Consultations
5.0 on 5.0
1. An applicant can withdraw his application legally with the leave of the Court,

2. You can file a suit claiming your easement right,

3. For immediate relief, you should file W.P. before the high Court as advised in my earlier post. 
Krishna Kishore Ganguly
Advocate, Kolkata
12028 Answers
227 Consultations
5.0 on 5.0
1. He is being guided by a competent lawyer,

2. It is a clever move on his part to withdraw his application when he was about to get adverse order,

3. File the said declaratory suit for your easement right immediately,

4. For immediate relief, file the W.P. as advised in my earlier post.
Krishna Kishore Ganguly
Advocate, Kolkata
12028 Answers
227 Consultations
5.0 on 5.0
If the plaintiff was permitted to withdraw the suit and the suit stands disposed, where do you have a case to object?
Why do you supply information in piece meal basis.?
While asking questions you must come out with facts if not you will get misguided information only.
You can file a suit for easement rights and also for declaration of the same but now you cannot file objections to the withdrawal of the suit. 
T Kalaiselvan
Advocate, Vellore
13910 Answers
127 Consultations
5.0 on 5.0
1) since appellTe court has directed trial court to dispose of your application filed under section 144 Crpc within 2 weeks you can wait for orders on your application then file declaratory suit for easement
Ajay Sethi
Advocate, Mumbai
23097 Answers
1212 Consultations
5.0 on 5.0
You are making the events clear only now.  In the given situation you just wait for his reply to the pending petition under section 144 of CPC against him.  If he is indulging in another nonsense reply, you may try the option for filing the proposed declaratory suit for easement rights.
Be in touch with your lawyer. 
T Kalaiselvan
Advocate, Vellore
13910 Answers
127 Consultations
5.0 on 5.0
1. He had filed the suit, so he was at liberty to withdraw it.

2. What you should understand is that you are the aggrieved person in as much as the path has been blocked by the plaintiff. The dismissal of a suit filed by the plaintiff does not restore the path to access your property as in a suit the court can give an affirmative finding limited only to the prayer of the plaintiff. It cannot grant an executable relief to the defendant. So you are the one who has to file a suit to claim the access to your property through his path.
Ashish Davessar
Advocate, Jaipur
18055 Answers
445 Consultations
5.0 on 5.0

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