• Road through land

My cousin live in the neibourhood ,have right for locomotion through our land by partition registered by our grand father in1965 .width for locomotion was not given in the partition document.Even though he have his own road of width 3 meter, he asked 2 and half meter road through our land.we gave it 6 years back.he built a road using sand through our land.he encroached our land and expanded width to 3 and half meter.
We took land plan from village office and found that his first road also passing through our land but we were not aware about that for last 20 years.so applied for land survey.Before we could do anything he filed Injunction for both roads through two different cases.finally he is using two roads , both through our land.do we have any chace to get back our land by atleast closing one road.or can we reduce width of new road.
Asked 1 year ago in Property Law from Alappuzha, Kerala
Religion: Hindu
1) your cousin has easementary  right of way as per partition deed for the second road  

2) you can close the first road . 

3) cousin cannot claim easementary  right of access through both the roads . 

4) you have not mentioned if he has filed suit and sought injunction whether any stay has been granted by court ? . 

5) seek clubbing of both cases 

6) file detailed reply in both cases 

7) contact a local lawyer 
Ajay Sethi
Advocate, Mumbai
23184 Answers
1218 Consultations
5.0 on 5.0
It appears two suits are pending on the same dispute.
Since suits are pending both of you will be bound by its outcome.
Without knowing the contents of pleadings of both suits Ican not comment on merit of the said suits.
However I would surely recommend you to engage a good lawyer for effectively contesting the said suits highlighting all the points which are in  your favour.
Devajyoti Barman
Advocate, Kolkata
5189 Answers
54 Consultations
4.9 on 5.0
Hi, you have to file a suit for deceleration and possession that you are the absolute owner of the property  and also for possession of the property from your cousin and he  has encroached the property.
Pradeep Bharathipura
Advocate, Bangalore
4104 Answers
133 Consultations
4.3 on 5.0
File a joint trial application and contest the case jointly. Your cousin has easement right through your property.But it does not mean that you have to provide two roads.Produce the revenue records in your case .If needed make amendments in your cases. You can several chances to win your case but shape your case as per new inventeed revenue records.
Ajay N S
Advocate, Ernakulam
1911 Answers
19 Consultations
5.0 on 5.0
1. What is the outcome of injunction suits filed by him? 

2. Subject to the outcome of the injunction suits you have the remedy to file a lawsuit for eviction to get back the property which he is, according to you, possessing illegally. 
Ashish Davessar
Advocate, Jaipur
18088 Answers
447 Consultations
5.0 on 5.0
The easement rights are for the passage or to access the road from the property.  His claim is for easement rights on two sides which is contrary to law. Easements are most often created by express language in binding documents. Parties generally grant an easement to another, or reserve an easement for themselves. Under most circumstances having a conversation with another party is not sufficient.
 Implied easements are not recorded or explicitly stated until a court decides a dispute, but reflect the practices and customs of use for a property. Courts typically refer to the intent of the parties, as well as prior use, to determine the existence of an implied easement.
 creating an easement requires imposing a burden (the easement) upon another party for the benefit of the landlocked owner, the court looks to the original circumstances in weighing the relative apportionment of benefit and burden to both lots in making its equitable determination whether such easement shall be created by the court. This method of creating an easement, being an active creation by a court of an otherwise non-existent right, may be automatically extinguished upon termination of the necessity (for example, if a new public road is built adjacent to the landlocked tenement or another easement is acquired without regard to comparison of ease or practicality between the imposed easement and any valid substitute). When, from a cause which preceded the imposition of an easement, the person by whom it was imposed ceases to have any right in the servient heritage, the easement is extinguished.An easement must not be used for any purpose not connected with the enjoyment of the dominant heritage.  
Where an easement can be legally enjoyed only at a certain place, or at certain times, or between certain hours, or for a particular purpose, is enjoyment during the said period at another place, or at other items, or between other hours, or for another purpose, does not prevent is extinction.

The above are certain aspects of easement rights and its extinction.  
If he has filed an injunction suit, you may challenge the same on the basis of the documentary evidences in your support as well as the merits on your side.  You should be clear and specific in the relief to be sought against him so that any ambiguity does not result into a fatal situation to your case. 
T Kalaiselvan
Advocate, Vellore
13971 Answers
127 Consultations
5.0 on 5.0
Filing a fresh case will be futile now in the light of the injunctions which have been issued against you by the court. You should file an appeal against the judgment of the lower court. The appeals court can reverse the decision of the lower court.
Ashish Davessar
Advocate, Jaipur
18088 Answers
447 Consultations
5.0 on 5.0
Hi, you have to file a suit for deceleration and possession  to declare that you are the absolute owner to an extent of  encroachment land.
Pradeep Bharathipura
Advocate, Bangalore
4104 Answers
133 Consultations
4.3 on 5.0
1) you can request court to restrict pathway to 2.5 m as originally provided for

2) you have to take plea that pathway had been encroached upon and width further increased 

3) as far as first road is concerned it should be mentioned that it passes through your land 
Ajay Sethi
Advocate, Mumbai
23184 Answers
1218 Consultations
5.0 on 5.0
If the width of the road is specifically mention in the partition deed then you can recover the encroached property by filing recovery of possession suit.File proper counter to the both interim injunction petitions 
Ajay N S
Advocate, Ernakulam
1911 Answers
19 Consultations
5.0 on 5.0
1. Yes, certainly you can claim back the area of land of at least one road of the two roads passing through your land,

2. Get the survey done and contest the case filed by him fittingly,

3. You can also file a declaratory suit praying for declaration that you have the right to reclaim the land from one of the two roads.
Krishna Kishore Ganguly
Advocate, Kolkata
12092 Answers
229 Consultations
5.0 on 5.0
1. Contest both the cases with the Report of the Survey conducted by you and also the agreement by which 2.5 meters was agreed to be given to him to use as road,

2. Engage a local lawyer having expertise in property matters,

3. It is a good case to win.
Krishna Kishore Ganguly
Advocate, Kolkata
12092 Answers
229 Consultations
5.0 on 5.0

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