• Seller fails to refund as per decree within 3 months in land case

Sir/ Madam 
The case is relating to  agricultural land , the facts are as under
1. Our uncle entered into a contract in 1970 to  purchase agricultural land measuring 21 acres  in Karnataka state for a consideration of Rs. 2,10, 000/- in all. 

2. The  amount was paid partly and entire amount was paid by 1975. the seller gave receipt for the same and handed over the possession of land in 1970 itself. 

3 Due to land ceiling the prevailing at that time the sale deed could not be executed. the seller had excess land to the tune of 56 acres. But my uncle's name was entered in the Records of rights as Cultivator of the land in 1975 on the application of seller to Assistant Commissioner.

4. in the year 1985  my uncle moved the local court  for  specific performance of the contract. by the seller.

5. in the year 1987 , my uncle gave general  power of attorney to my father and three  of his children's (  to my brothers and me) to  cultivate the land and to conduct the case.

6.The seller passed away and his legal heirs were brought on record. 

7. in 1997 the court ordered as under

"The suit in respect of plaintiff is decreed with cost as under;
The plaintiff  is entitled for a refund amount from the LRS of the deceased defendant. The LRS of the deceased defendants are directed to refund the consideration amount of Rs. 2,10,000, to the plaintiff . The said amount is directed to be paid at the interest of 18% pa from the date of respective payment made by plaintiff No 1 dated 22-7-70, 30-12-1970, 6-9-1972, and 14-10-72, and 12-8-75 as per the ex ps 8 to 12, till the date of order and further they are directed to pay the said sum at the 12% int pa from the date of the order till realization of the entire decreetal dues. The LRS are directed to pay the said amount to the plaintiff  within 3 months from the date of order. The relief of specific performance is refused. The plaintiff is in possession of the suit land. Hence the defendant may get the decree for possession.
Dated 4th July 1997					                                         Sd/-
Place: xxxxx      					                                       (Judge)

8 We  filed for stay and   appeal. stay got vacated in 1998 February, During the pendancy of appeal our uncle and  my father passed away. We  got a fresh GPA in the name of us ( my brothers and myself). from the legal heirs of our uncle.

9. in 2010 the LRS of Defendant  filed case for possession of land without paying the refund amount with interest as directed by the court.

10. in  April 2014 we withdrew the appeal case which was filed in 1997.

11. in  November  2014 our opponent gave a memo  to the court to deposit the  refund money with interest , which we opposed as it was barred by limitation
12. Court refused their memo as not maintainable under law.

Now  we request your considerate  advice on the  following:
1. The case for possession by our opponent is still pending in the same court which refused to  deposit the amount. Will the court reject their plea for possession as they filed case for possession  after 12 years and 5 months without paying the refund amount first.
2. if the case is rejected , do we get the land legally by way of adverse possession? as we are in possession of the land till now. or do we need to go again to court to get the land in our favour.
 3. what other advice you wish to give
Asked 7 months ago in Property Law from Bahrain
Religion: Christian
Hi, As per law you can't claim adverse possession of the property. Because disputed property though in your possession but it is subjected to litigation.

2. Secondly, the appeal is a continuation of the suit, you have challenged the lower court order in  the appeal for refusing to grant specific performance later in the year 2014 you have withdrawn the same.

3.  Defendant has to  comply the order of the court with in 3 months but they fail to do so now they can't act as per the terms of the judgement.

4. Now you have to contest the suit only based on the limitation as they have to file suit with in 12 years from the date of the judgement.
Pradeep Bharathipura
Advocate, Bangalore
4105 Answers
133 Consultations
4.3 on 5.0
1. It can not be presumed whether the Court will reject the petition on the ground of limitation or not since he may argue that for him the limitation will start from April,2014  when you had withdrawn the appeal,

2. The petition may not be rejected. The instant matter will not attract the provisions of adverse possession since the matter was sub-judice with in the last 12 yaers due to your appeal which you had withdrawn in  the year 2014.
Krishna Kishore Ganguly
Advocate, Kolkata
12131 Answers
233 Consultations
5.0 on 5.0
1) the court would not award defendant possession of land as he has failed to refund your uncle Legal heirs consideration paid with interest 

2) if the case is rejected you will have to move court to get land in your favour 
Ajay Sethi
Advocate, Mumbai
23339 Answers
1220 Consultations
5.0 on 5.0
1. He had failed to honour the court order to deposit the amount within 3 months. As a corollary thereto, the suit for possession is not maintainable now. Be that as it may, what the court will do cannot be foretold by me. 

2. If the case is dismissed you can continue to be in possession of the land but your title will remain unclear as the sale deed has not been executed.

3. You ought to have moved the higher court to challenge the judgment of the lower court in as much as it did not order specific performance of the contract. 
Ashish Davessar
Advocate, Jaipur
18183 Answers
449 Consultations
5.0 on 5.0
1. The case for possession by our opponent is still pending in the same court which refused to  deposit the amount. Will the court reject their plea for possession as they filed case for possession  after 12 years and 5 months without paying the refund amount first.

The time granted by court to deposit the amount or pay it to the plaintiffs is only three months from the date of decree, however owing to the pending appeal they may claim that they were not able to make the payment, since the appeal was withdrawn only during 2014, there is no question of the limitation which may bar the defendants  to file suit for possession.






2. if the case is rejected , do we get the land legally by way of adverse possession? as we are in possession of the land till now. or do we need to go again to court to get the land in our favour.

Even if their suit for possession is dismissed, you cannot claim title by way of adverse possession to the landed property which was in dispute till this date.
You may have to file a suit for declaring your title based on your long possession and other facts.


T Kalaiselvan
Advocate, Vellore
14138 Answers
127 Consultations
5.0 on 5.0
1) dverse possession can be used as a shield/defence but not as a weapon = Even if you are found to be in adverse possession, it cannot seek a declaration to the effect that such adverse possession has matured into ownership. Only if proceedings filed against you  and you iare arrayed as defendant that it can use this adverse possession as a shield/defence 

2) if owner files eviction suit against you then you can use adverse possession as defence as your family has been in possession for over 46 years of the land 
Ajay Sethi
Advocate, Mumbai
23339 Answers
1220 Consultations
5.0 on 5.0
The court has stated in its judgment that you are in possession of the property. So where is the occasion for you to claim possession?
Ashish Davessar
Advocate, Jaipur
18183 Answers
449 Consultations
5.0 on 5.0
1. This is your argument "They should have then waited till the verdict on appeal. No body prevented them depositing the refund money into the court as they did now in 2014". 

2. They may forward their argument that they were waiting for the case filed by you in the year 1997 to be disposed off but since it was continuing they had decided to file the suit for possession,

3. The Court will decide on the matter after hearing both the parties,

4. It is prudent  practice to consider opposite party (along with its logic)  as strong since it will make you careful to find adequate legal defense,

5. Considering own's logic and argument as final may e proved top be disastrous,

6. Collect different views about your case and prepare your defense.



 
Krishna Kishore Ganguly
Advocate, Kolkata
12131 Answers
233 Consultations
5.0 on 5.0
Hi, Since the matter of delay in taking possession of the property, it is very difficult to succeed in the Court of law.
Pradeep Bharathipura
Advocate, Bangalore
4105 Answers
133 Consultations
4.3 on 5.0

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