1. No
2. Yes if directed by court
3. Yes
4. You can make a prayer
Can access to suit land stop from executing preliminary decree proceedings in a partition suit?
My father won a partition suit against his brothers in 2006 and court has passed preliminary decree and awarded 1/5h share in 2012. After my father death I continued the suit and filed for execution of preliminary decree in 2016, the preliminary decree was not challenged by the defendants. The court has appointed the court commissioner for land survey and fixing the boundaries. The suit land is little away from the public road and have to pass through others land to access the suit land. Myself, the court commissioner and my lawyer when we went for land survey with the Mandal Surveyor and Mandal Revenue inspector.Instigated by the defendants(my father brothers and cousins) the land owners (pattedars) are letting us go the suit land saying, "there is no public way as such to the suit land and we will not let any one pass through our lands, this is our private property and you cann`t step in to our land with out our consent" there was an potentially voilent mob of around 200 people gathered there and hurling abuses and arguing with me. I called the local police for security, the police did come but didn`t clear the mob and the court commissioner was also not determined to do the survey and neither did she give any direction to the police nor filed any complaint with the police reg the obstruction in executing the court decree. I don`t know about the intensions and integrity of the court commissioner and my lawyer (sic), we turned back with out doing any thing! the court commissioner didn`t submit the report about the actual happening on the ground about the execution to the court, The report submitted by commissoner to the court was "Partially executed", my advocate also didn`t insist about the report submitted to the court !! its been an year this happened, due to Covid second wave, I took a gap. am planning for another attempt in the month of january2022 after serving notices to the defendants. My questions here are: 1. Can access to the suit land stop the court commissioner and the govt land serveyor and local revenue inspector and the plaintiff(me, my sister and mother) from getting the preliminary order executed? 2. do the commissioner has the powers to get the land survey and fix the boundaries when there is no public road access to the suit land? 3. I brought the village naksha from govt office, a public road is passing through one of the suit survey numbers, but the suit land in the same survey number is little away and have to pass through others land. is this useful any way to enter through that survey number in to the suit land? 4. can I pray the court to directly to give an order to revenue department to issue pattedar pass books for 1/5th share in the preliminary decree as the defendants are usin strong arm tactics and obstructing the land survey with the neighbouring land owners with access to land as pretext?? 5. are there any previous court judgememts in favour of me in this scenario, if so please quote in the reply.
Asked 4 years ago in Property Law
Religion: Hindu
7 Answers
1) commsiioner has powere to survey the land and fix the boundaries
2) approach your land through public road
3) if there is no access to land and commisioner is prevented from accessing the land he should submit report accordingly to court
4) in the final decree division of your share in land has to be done by metes and bounds
1. Since you apprehend trouble from the neighboring land owners, you may have to seek police protection to the commissioner through court for inspecting and surveying the land .
2. No, commissioner cannot proceed with the warrant for inspection and survey of the land if there is an objection fro others, he may report the matter to the court and seek court direction on further issues.
3. See the ansewr given in the first above.
4. You can discuss with your advocate and file a petition for necessary releif as per provisions of law.
5. same as above.
1. No, none can stop them to perform the said work assigned by the court .
- Further, in case of trouble , you can lodge a written compliant to the police for interrupting in the assigned work by the court ,and further submitted the same to the court.
- Further , you can also file a contempt petition before the court against the troublers.
2. YES
3. Yes,
- Otherwise , you can file a suit for pathway to your land under the Easement Act.
4. No, without passing a final decree it cannot be possible.
after the Preliminary Decree was passed in above Partition suit in year 2012, the defendants have not gone for appeal , and the final decree proceedings are initiated in 2019 and advocate commissioner is assigned for bifurcation on suit land. during the final decree proceedings,3 defendants (fathers) in the OS have died while sons of the deceased defendants are already party to OS, daughters are to be brought the record. More than 6 months after of death, daughters of the deceased defendants are not brought to the record, instead I (plaintiff) have have applied with in 90 days limitation time to bring daughters to the record. Notices(summons) are sent to the daughters of the deceased defendants but returned as unserved. bringing deceased defendants LRs to the record is becoming big burden in terms of money and travel to get them served. My questions are below, 1. Can the final decree proceedings (suit land bifurcation) will suspended till the LRs of deceased defendants are brought to the record? This is a partition suit instituted in 2006. 2. Defendants’ has lawyer moved a set a side petition when defendants are alive reg advocate commissioner appointment which happened exparte but now he is now silent about that and my advocate is not raising this pending petition saying some defendants in the set aside petition are died now file a petition bringing all LRs of the deceased defendants. What to do about this? 3. can I ask the court to exempt plaintiff (myself) from bringing LRs (daughters) of the deceased defendant to the record as sons of Deceased defendants are already party to OS, deceased defendant LRs are intentionally not filed any papers to come to record, as this suit is already decided and the preliminary decree is delivered in 2012, appeal time is also over long back? 4. if so what is the section under which I can ask for exemption? 5. does right to sue exist for living defendants and LRs at this stage (appeal time over)? according to section?
Asked 3 years ago
1) legal heirs have to be brought on record to proceed with decree proceedings
2) as plaintiff you have to bring legal heirs on record by taking out application together with affidavit in support
3) you cannot ask court to exempt you from bringing daughters on record
1. The LRs have to be impleaded as necessary parties to the suit
If court notices are not served then you can take steps under order V rule 20 cpc.
2. All the necessary parties have to impleaded to the suit without which the suit cannot be proceeded.
3. No.
4. If you want to continue with the suit you have to follow the procedures of law.
5. You cannot leave the LRs behind to proceed with the suit
1. You need to apply for suspension
2. Tell your advocate yo fir the needful
3. Yes
5. Yes