• About injunction

Hi  

Our grand father has written his property to three of his children; my father ,his brother  and sister.
He had two houses in  common place spread across 1200 sqft. House-1   has a  path of 15 feet width  and 75 m length from the road towards  house. and  house-2 is totally independent and has separate way to the road.There is no problem for house-2 in accessing the road or any other problem to get vehicles inside,it has its own way.

My grandfather has written in his will that , the first house is written to two of his sons and the second house is to his daughter.He mentioned that  al three people can use the common way of the house-1 with all the rights.

These two houses he bought from two separate parties.We have our house document which has the measurements.It tells that the width of the path is 15 feet. and length is 75 mtrs as specified above.

my aunt ( my father's sister )  is arguing that the way is only 3 feet width, and the remaining land on the way belongs to her.But she has not provided any supporting document  so far.


We have filed for an injunction order about the way is 15 feet and is common to all three people in june 2012 and we got temporary order in favour us.But  the case is still prolonging in the court.My aunt is kept saying that she will provide the document and saying different reasons and taking time indefinitely.Every one week my father is attending the court,but they are not even coming to the court,their lawyer is simply asking for more time and getting it postponed every time.

Note:My aunt's house was bought by agreement bases only,there was no registered document also.So there were no measurements for it as far as we know.


 Can we get permanent injunction order in favour of us?How long one can post pone like this?

The judge is asking my father to attend the court every time  but the opposite party is not even attending the court,but the case is simply getting postponed  by the judge.Is he really required to attend with out a miss? he is aged person and not able to travel every week because he has to travel 700 kms every week. He is "OK" to travel,but there is no progress happening .He is simply attending and coming back.

please help us with Your valuable suggestion. 

Thanks & Regards
Dileep
Asked 1 year ago in Property Law from Bangalore, Karnataka
Religion: Hindu
1) you can obtain permanent injunction based on your house documents which mention he area of the pathway 

2) oppose application for adjournment taken by your aunt lawyer 

3) Insist on payment of costs by your aunt for costs of adjournment 

4) your father need not attend court on each date if he is represented by a lawyer 
Ajay Sethi
Advocate, Mumbai
23240 Answers
1219 Consultations
5.0 on 5.0
1. The permanent injunction can be issued only when the court passes the final judgment. Since the case is getting prolonged you can move the High Court for a speedy disposal.

2. Your father is not required to attend the court on any date as the presence of his lawyer should suffice. 
Ashish Davessar
Advocate, Jaipur
18102 Answers
448 Consultations
5.0 on 5.0
 passage should also be sufficient for entry and exit of vehicles and not merely for walking . argument of your sister is not valid 
Ajay Sethi
Advocate, Mumbai
23240 Answers
1219 Consultations
5.0 on 5.0
If the second house was purchased out of a registered sale deed document, a certified cop of the document may be obtained from your side and also a petition to inspect the suit property and give his report by an advocate commissioner to be appointed by court can be filed. In the civil suit, until party's appearance is required, your father's appearance is not necessary, you may confirm it through your advocate. 
If the opposite party is trying to use dilatory tactics, your advocate may put pressure before the court about this and insist on an expeditious trial. 
T Kalaiselvan
Advocate, Vellore
14010 Answers
127 Consultations
5.0 on 5.0
1) case may take some years to be disposed of depending upon pendency of cases on trial court 


2) you won't get a decent price for your house if case is pending in court 

3) temporary injunction will continue till disposal of case or till stay is vacated 

4) if case had reached cross examination stage it would not take years for disposal of case 
Ajay Sethi
Advocate, Mumbai
23240 Answers
1219 Consultations
5.0 on 5.0
But I w'd like to know is there any rule like that only after partition is done one can file a case  for the way?
There is no such thing required for it.  As the property is in possession and enjoyment by a oral partition and oral demarcation, the documents standing in the names of the owners will entitle to the respective shares hence filing a case need not be after confirmation of a proper partition.  This question by that advocate is one among the routine questions to extract any wrong information to use it against your case. 


And  2nd question he asked us  that  we are not maintaining house properly. 
This question was unnecessary by the advocate because he is actually trying to extract from your father's mouth that he is not in possession, but since the property is in your possession though you dont live there practically, there is nothing to worry about such cheap extracts. 




For your subsequent question, the answer is not the one what you have understood, it is just a practice of some courts to favor some senior counsels one  or two time and not always.  You should ask your counsel to be more vigilant on these aspects so that the court is not lenient to the other side always.  Since you already have an injunction order in your favor, keep extending  it until the suit is disposed. 




Can we sell our property when the case is continuing on the path like this with the temporary injunction order? How long this temporary injunction order will be valid? Or even after the case is over , will there be any problem to sell our part of the house. because it is a combined house. Aunt’s house is anyway it is separate.

If there is no restriction to sell the property by a court of law, you can very well go ahead to dispose the same.  The injunction will be valid till the disposal of suit provided you keep extending the temporary injunction on each and every date of hearing. 


Please  advise for us to go further and please let us if we are going in right direction.
Yes the case is proceeding in the right direction.  
T Kalaiselvan
Advocate, Vellore
14010 Answers
127 Consultations
5.0 on 5.0
1. If the width is shown as 15 feet in the sale deed then this is the minimum width which is required to be maintained.

2. One is not required to wait till the partition of the property to file a lawsuit to claim the right of way.

3. Failure to maintain the property is, unless it is followed by the loss of personal right, not a ground to seek injunction.

4. There is no time limit for the court to deliver the judgment. Every court of law has to strive to deliver the judgment in the earliest possible time having regard to its capacity and resources. It is illegal for a judge to grant time to a lawyer only because of his seniority. You should move the HC against the lower court for not expediting the disposal of the case.

5. Unless there is a stay order issued by the court you are at liberty to sell your property but this has to be preceded by the partition of the property. The temporary injunction is valid till such time that court recalls it.
Ashish Davessar
Advocate, Jaipur
18102 Answers
448 Consultations
5.0 on 5.0

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