• Right to measure neighbour's property

My property is a corner south-east one. East is Main Road and South is Cross Road. The mother deed was measuring 85 * 45 with 85 being on the south side, then it got bifurcated as 
1) 32 1/2 * 45 ( my neighbors) and 
2) 47 1/2 * 45 (ours) and 
3) 4 1/2 feet passage between this bifurcation towards the west. 
So totally 85 is divided into three parts. In the bifurcated sale deeds of ours it is mentioned that the passage belongs to our property and in neighbor's  sale deed it is mentioned that they have retained the rights to use passage for walking(in kannada odaduva hakkannu padediruththeve). After that all other sale deeds just mentioned passage adjoining to our property in the schedule. 

In reality our property is only 42 * 45. Before we buy, our neighbour had already constructed the house and had left only 3 1/4 as passage. So we paid only for reality but sale deed was registered with original measurement itself. 

We also constructed house fully(42) without leaving any set back on that side since we already had the passage.

Now so many questions arising out of this since our neighbor is now claiming that the passage belongs to him and that he has paid 50k and got the passage from their owner and we are not suppose to do any repair work on the passage side. 

Please answer the following questions arising out of this:
1) can we go and directly measure his property? Surely he wont allow us.
2) If he objects what are we suppose to do? Is there any legal way to first apply for measurement and then file case for reclaiming the passage?
3) Both of us being sale deed measurement different from the sanction plan and the actual construction, can we file a court case for reclaiming passage rights? Is it suitable? 
Pls advise.

Thanks in advance.
Asked 4 years ago in Property Law from Bangalore, Karnataka
You better file a suit for declaration where you can claim for 
1. Right of user of the same including right to make repairment works.
2. Appointment of commissioner to measure the area of passage and
3. For injunction against disturbance to your peaceful enjoyment and possession of the passage.

This would effectively solve your all kinds of problems.
Devajyoti Barman
Advocate, Kolkata
12800 Answers
165 Consultations

5.0 on 5.0

file declaratory suit for right to use the passage and for carrying out repair work . 

2) you can is said suit seek appointment of Commissioner for carrying out measurements 

3) obtain stay order against any disturbance to your peaceful use of said passage
Ajay Sethi
Advocate, Mumbai
45421 Answers
2668 Consultations

5.0 on 5.0

File suit for obtaining direction to use the passage and to start repair work and to seek survey department's help to find out the measurements and to obtain stay order to prevent disturbance for your peaceful use of the passage.
Shashidhar S. Sastry
Advocate, Bangalore
1633 Answers
107 Consultations

5.0 on 5.0

1. File a declaratory suit praying for declaration that you have the right to use the said  passage including your right of repair,

2. Also file an application U/o 39 Rule 1 & 2, refraining him from blocking you,

3. During trial, pray for appointment of Commissioner to measure the property.
Krishna Kishore Ganguly
Advocate, Kolkata
18406 Answers
447 Consultations

5.0 on 5.0

1. Get certified copies of the bifurcated sale deed from Sub-Registrar's Office. Get certified copy of bifurcated Khata from BBMP.

2. If bifurcated Khata shows the measurement of 47.5 feet x 45 feet, it means that the passage of 4.5 feet belongs to you and gets transferred to you.

3. Yes it is possible if you can produce the sale deed of 1966-67 showing the bifurcation. If you apply to BBMP for Khata extract you can get it along with measurements.
Shashidhar S. Sastry
Advocate, Bangalore
1633 Answers
107 Consultations

5.0 on 5.0

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