The common passage is essential to the usage of the property. Moreover, it has been mentioned as belonging to none. Therefore they are obstructing your right of way and existence. File a case in the civil court.
Process to transfer ownership of common passage
My grandfather and his two brothers had divided our land into 3 plots of which ours were in the backside, so there is a common passage which is my only entrance. Our partition deed mentions that as common passage . Now the other two houses have built their own entrances which does not need common passage except for us (because our plot was in the back and can be accessed only through that passage). Because no one else uses it, it is only us who have been maintaining the passage for our usage for last 10 years. Now, when I'm trying to sell my plot (only my plot, not the common passage) my uncles are threatening that prospective buyers on the common passage usage. Is there any legal way I can ask honorable court to grant my exclusive access to the common passage, because it is the only passage to my plot whereas other two plots are front facing and already have their own gates and do not need the passage.
Asked 3 years ago in Property Law
Religion: Hindu
10 Answers
Your partition deed mentions common passage
your uncles cannot deny buyer access to plot through common passage
buyer can claim easmentary right of necessity
seek injunction restraining uncles from obstructing right of way through common passage
Dear Client,
It can be claimed only when there is absolute necessity for it, i.e. when the property cannot be used at all without the easement and not merely where it is necessary for its reasonable, or more convenient enjoyment. You can file for Easementary Rights in the court.
Hope this clarifies your query and requirement.
Thank you.
1. As per the partition deed registered earlier, there is a common passage for all the parties and one party is only using the same.
2. The common passage can not be taken away by the other parties and you can sell your piece of back side property along with the right to use the common passage without rendering any exclusivity on it though the other parties have no requirement to use the same for their entrance.
I understand no one can obstruct me from aceesiing it but my questiin was can I seek an exclusive access for it . The common passage is indeed essential to access my plot and there is absolutely no other way to access my plot. Plus having access to the common passage also means anyone has direct access to my private property and private installations as well. In such a case is it possible to seek exclusive access to the common passage i.e. disallowing others from accessing it ? My main concerns are as follows 1. Only I have necessity of using that to read my plot, all other plots have their own entrance. 2. Others are misusing the claim to the common passage by using my private property installations which is a serious security risk for me. Based on this, is it legally possible to seek my exclusive access on the common passage ?
Asked 3 years ago
You cannot seek exclusive access as it is common passage
If your ingress and egress is affected or blocked by the other plot owners and your easement rights are deprived then you can file a suit for mandatory in junction seeking easement rights in the common passage as easement rights by necessity.
If that is the only way for you to access road from your property then the other shareholders cannot stop you using the same neither they can stop the future buyer from having ther rights or the predecessor over the common passage.
If they still threaten to block the passage you may issue a legal notice and then approach court to establish your rights in the common passage which would pave way for the future buyer to have this rights in the common passage.
1. The common passage as the name suggests is common for all the shareholders and cannot be given exclusively to you alone, because you have neither bought it nor you have been specifically allotted with specific rights for your own exclusive usage alone.
Therefore you cannot stop other shareholders of the property adjacent to you from using the common passage.
The shareholders who have been allotted the plots adjacent to yours may be having another entrance too but it will not deprive them from using this common passage, hence you cannot justify your demand for having exclusive rights in the common passage unto yourself alone.
If the same is sold to you as private passage then it's not common area. Common area can't be owned
Dear Client,
When an easement holder has an exclusive easement, he or she may need to hire a lawyer to take action against the property owner or someone else that limits the use of the land. The exclusive easement does not give others access to the property, and the lawyer may need to take action on other violators of the exclusive easement.
Thank You.
1. The said passage has been mentioned as common passage in the registered partition deed.
2. You can not claim exclusive right on it.