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. Our plot is so built that accessing the common passage directly leads to accessing our private property/apparatus too (which are not in common passage ) and often it's a huge privacy and security issue. Is there any legal way I can ask honorable court to grant me 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.
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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.
An adequate remedy may be sought from the court.
You can easmentary right of necessity as there is no other access to your plot
2) file suit seeking easmentary right of necessity and seek injunction restraining uncles from disturbing access to common passage
The provisions of Indian Easement Act provide that, where a partition is made of the joint property of several persons and if an easement over the share of one of them is necessary for enjoying the share of another of them, the latter shall be entitled to such easement. That is if any ancestral property is divided among legal heirs, it is obligatory on the part of each legal heir to allow any legal heir proper use of property by transferring him access to make proper use of that property. You can file suit in civil Court seeking suitable pathway permanently to your property by filing a suit under Section 13 of the Act. Court will force them to transfer such portion of land in your favor.
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.
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 ?
Exclusive passage can be enforced only by order of Court.
You cannot be granted exclusive access to common passage
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.
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 injunction seeking easement rights in the common passage as easement rights by necessity.
If you have installed any objects in the common passage, and asking a exclusive rights in the common passage citing the security reasons is not a justified claim hence court may not entertain your claim for exclusive rights to you over the common passage for whatever reason you may try toi convince the court.
The title to the common passage is on all the users of the passage, hence your claim for its rights unto you alone is not tenable in law.
The shareholders who have been allotted the plots adjacent to yours may be having another entrance too but it will not deprive their rights of using this common passage, hence you cannot justify your demand for having exclusive rights in the common passage unto yourself alone.
First of all it is illegal for you to install any structure or any object for your own use in the common passage.
Therefore claiming security issues and risk of damage to your property lying in the common passage can be termed as abuse of law and deprivation of others rights in the property belonging to everyone.
Therefore your case before court in this regard may not be entertained or maintainable.
Yes if the same is sold to you as private place then the same is not common area. Common areas 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.