• Unregistered internal partitions, technical issues

Sir/Madam,

Requesting your advice on the following.

INTRODUCTION:

A jointly owned land dispute in which defendants changed their mind and willing to cooperate with plaintiffs, after defendants won the case.

SALIENT FEATURES OF THE CASE:

1) Joint land, owned by many brothers.. Land undivided internally, as per Jamabandhi.

2) Land was divided between the brothers in 1996, as per an internal map drawn by them, in an "out of court" agreement, but this internal division map was NOT REGISTERED in Jamabandhi. All six brothers signed the agreement, but the original cannot be found, only the photostat is available.

3) One brother then died, and his sons (X) sold some parts of the land without honouring the out of court settlement map mentioned in point 2. A sale deed was created and sale was registered in the Jamabandhi.

4) The five surviving brothers (Y) who's land portions, as divided as per the out of court settlement map mentioned in point 2, were adversely affected by the sale, then filed a case for permanent injunction on the sale deed mentioned in point 3. (Plaintiff=Y)

5) Defendants (X) spoke the untruth in court, and said there was no out of court agreement or map between their father and the rest of the brothers, and therefore their sale as mentioned in point 3, cannot be disputed by Y. Further Defendants added that their sale was valid as per Jamabandhi.

6) The court acknowledged that there was indeed an out of court settlement, and map, on the basis of some exhibits and site survey by court appointed Tehsildar, but rejected the plaintiff (Y) case on the basis of some technical faults with the case*, as well as the fact that the out of court settlement and map in point 2, was NOT REGISTERED in the Jamabandhi.

7) Defendants (sons mentioned in point 3, or X) are now willing to cooperate with Y, the plaintiffs, AFTER THE CASE IS OVER.

_________________________________________

*Comments by the court:

A) Plaintiffs Y only sought for "simplicator injunction" and no "declaration" was sought on the disputed sale deed mentioned in point 3, so the court said they were unable to provide injunction because of clause 41(h) of the "Specific Relief Act".

B) Out of court settlement is not registered, and case laws provided by plaintiff to support validity of out of court settlements are not applicable, and went against the plaintiff. Cannot accept the unregistered out of court settlement.

C) Original of the out of court settlement (point 2) was not submitted to the court, only a photostat.

__________________________________________

Questions:

Defendants X are now willing to cooperate with Plaintiffs Y, after plaintiff has lost the case as mentioned before in point 7.

How should the plaintiffs proceed in the future, in order that technical mistakes do not recur, which court to file the case in, what to write, under what section?

Can plaintiffs refile the case, from a fresh start, please do keep in mind that the defendants are now willing to cooperate with the plaintiffs.

In who's name can a fresh case be filed?

DECLARATION/JUSTICE SOUGHT BY COURT:

The court should declare the division map as per point 2 as legal and enforceable, and declare that the sale deed, as mentioned in point 3, is illegal, and then pass an order that henceforth in the future, the MAP prepared by the brothers in point 2, should be honoured and followed, at all times, for all purposes.

Please provide some insights and comments into the above mentioned.

Thank you.
Asked 9 months ago in Property Law from Faridabad, Haryana
Religion: Hindu
1) no need to file fresh case

2) you lost the case because original of partition deed was not produced 

3) deed of family settlement / partition was not stamped and regd hence in admissible in evidence 

4) you should enter into registered deed of family settlement or partition have it stamped and regd 

5)once court haS held that earlier partition deed is not enforceable said order would be final and binding upon parties  if no appeal was filed 

6) no fresh suit can be filed in respect of same cause of action . it would be barred by resjuidcata 
Ajay Sethi
Advocate, Mumbai
23364 Answers
1222 Consultations
5.0 on 5.0
How should the plaintiffs proceed in the future, in order that technical mistakes do not recur, which court to file the case in, what to write, under what section?

When you were required to do the things properly you just ignored them but now you are asking for section and act to do a normal partition.
If the defendant has agreed for a compromise, immediately arrange for a meeting of all the shareholders and mutually agree for proper partition of the existing properties into different schedules and allot each schedule of property to those entitled as per the mutually agreed terms, then get the partition deed registered by all the share holders having one copy each. Go for mutation of property and possess and enjoy the property.




Can plaintiffs refile the case, from a fresh start, please do keep in mind that the defendants are now willing to cooperate with the plaintiffs.

In who's name can a fresh case be filed?

There is no need of any case to be filed now when everyone agrees for an amicable settlement.  You may follow the steps suggested above. 
T Kalaiselvan
Advocate, Vellore
14151 Answers
127 Consultations
5.0 on 5.0
The main issue here is the sale deed mentioned in point 3. Can it be declared invalid, in light of this situation? That the "unregistered partition" between the brothers was not honoured during this sale?
Of course, whoever bought the land in this above mentioned sale, can have his money back (whatever amount he paid.)

Once the unregistered partition deed has not been recognised by court the subsequent sale deed on that basis loses its validity nd it can be declared as invalid by a court of law by filing a declaration suit.







This sale deed has upset the entire "unregistered partition" between the brothers, causing grave practical inconveniences on the land, that are difficult to explain in a short comment. 
It may be assumed that the fellow who bought portions of land through this sale deed will not co-oerate.
Have written the same thing in the section at the end, section named "Decleration/justice sought".

Filing a suit to declare the the sale deed as null and void or cancel the sale deed in the light fo the judgment in this regard by curt shall be a better option to this problem.

T Kalaiselvan
Advocate, Vellore
14151 Answers
127 Consultations
5.0 on 5.0
 1) court has not set aside sale deed made by legal heirs of brother because   you did not seek declaratory reliefs in suit and simply sought an injunction 

2) it is well settled law that suit simplicter for injunction is not maintainable 

3) you can file appeal against order passed by trial court but chances of success are bleak 

4) your best option is to purchase the said land from the purchaser 
Ajay Sethi
Advocate, Mumbai
23364 Answers
1222 Consultations
5.0 on 5.0
1. If the plaintiff and defendant are willing to settle their differences they they can execute a family settlement and then seek a consent based decree from the court on the basis of the settlement. The consent decree shall supersede the previous decree.

2. Get a flawless deed drafted by a lawyer.
Ashish Davessar
Advocate, Jaipur
18183 Answers
449 Consultations
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