Can we sell the property?
Facts: (uttar pradesh)
1. X availed loan of Allahabad bank in 1982. A (father of X) & B were guarantors. X was unable to pay back the loan. Bank obtained a decree in 1990 'A' (father of X) died in 1992. auctioned the property of guarantor A in 1997. Since their was no purchaser of combined property so it was auctioned in two parts by Civil judge senior division. Part 1 was auction purchased by 'w' brother-in-law of X. Part 2 was auction purchased by QQ(us).
The aucton was confirmed and approved by court in 1997 itself and "sehmati-patra" of all heirs were taken. Sale deed is signed by court judge and registered in sub-registrar office for part-1 and part-2.
The proceeding of transfer of possesions for both part 1 and part 2 are still (yr 2016) pending in the court.
1998-2013 -> No Activity by anyone
2014 -> X alongwith heirs is residing in part -1 of the property and using part -2 as toilet with tin shed. W (brother in law of X) starts construction work in Part-1 of property. And shifts a rented shop in part-2 without permission of QQ (us). When confronted by us, X says that it is only a temporary arrangement and they shall shift back the shop once work is complete.
In the mean time (2016), on enquiry we find that X has mischievously mutated name of all heirs in Part-2 of the property in nagar palika property tax records. And wrongly shown boundaries in approval maps.
We(QQ) realize the cheating and apply for mutation of name in Part-2 of property in nagar palika.
On receiving notice, 'X' appears with a 'Civil Judge (Senior Division)' Stay order against themselves. Both parties are blood relatives.
Details of Stay Order:
1. A new party (KK) submits a maousiri patta document of year 1985 claiming ownership(not exact word..may be 'pattedaari' is correct word here.. )and possession of Part-2. The patta does not mention any boundary ..only area and arizi number, jamindaar and pattedaar details are mentioned. we contacted tehsil , which informed that the said land is on the bank of a pond and earlier was an encroachment .Later, on orders of DM, the maps of construction were allowed on this land. And the khasra and kahatauni show the name of heirs of lt. zamindaar in the records. The said land comes under Non-ZA land as per revenue records. But nagar palika has entered house number in property tax records.
2. The party (KK) makes party X and rented shop owner 'L' defendant in the case. Neither we (QQ) or court sale or sale deed is mentioned in it. We are not party in the case.
Due to this "stay" nagar palika refused to enter our name in property tax register, saying that matter is pending in the court.
As per nagar palika property tax records, father of 'X' had been residing on both part-1 and part-2 since 1975. The rented shop owner has bills of electricity in name owing to "house tax" receipt provided by X (after mischeveously entering his name in nagar palika records). Although their is no entry of rented shop owner in nagar palika records before 2014.
The part-1 of the property has been constructed into a two storey building even before possession proceedings are over.
We have already filed a caveat in high court. And objection in registry office.
Apart from this on 07th Aug 2016 , X further ercted a tin on our porperty (part-2) , of which we submitted an application to SDM. But no action was taken due to "stay order" of which we are not even a party.
Also, Civil Judge Senior Division is on medical leave from past one month due to which we have been unable to vacate this stay order and become party in their case. And its possible he will be on leave for a month more.
As per rules, we are not in legal possession of the property but owner of the same.
So, my questions are:
1. Can we sell the property?
2. How to vacate the stay order in absense of concerned judge?
3. Can we approach high court with a writ to vacate this order?
Asked in Property Law from Lalitpur, Uttar Pradesh
1) you are at liberty to sell your share in property if there is no stay against sale
2) if judge is on leave additional charge must have been given to another judge . you can make application for urgent reliefs to set aside stay order
3)you are at liberty to file appeal against order before HC
4. Since possession is not transferred to us by the Court, Can we become party in any other suit or approach high court?
5. If the possession of property is not transferred to us, the property shall be considered currently under whose possession? Court or Bank?
6. Can someone construct house whose transfer of possesion is pending?
Asked 8 months ago
1) you can make an intervenor application to be added as party to the pending suit
2) property is under possession of bank
3) no construction cna be carried out if possession not delivered
1. For what purpose is the caveat filed? Your grievance is that your name could not be mutated due to the stay order granted by the civil judge, so the remedy was to implead yourselves as a party to the suit and then apply to the court to vacate the stay.
2. If the stay order prohibits the sale of property by you then it cannot be sold unless the stay is vacated by the court. You will not be able to construct anything in view of the stay that is operating against you.
3. If the civil judge is on leave then you may apply to the Civil Judge (Senior Division) to assign the case to another judge. If this request is also turned down by the Civil Judge (Senior Division) then you may move the High Court through a writ petition for appropriate orders.
4. It is not clear from your query as to what is the nature of the suit filed against you in which the stay has been granted. Only after a perusal of the suit one can form an opinion on whether your legal interests will be served by simply impleading yourself as a party to the suit or a fresh suit is required to be filed by you.
On the basis of registered sale deed in your favor, if there is buyer willing to buy the property under litigation, you can go ahead with the selling of the property. The stay order is not against you and since you possess the original registered sale deed, you can proceed.
You have to first implead yourself as a party to the suit and then only you will have right to file petition to set aside the stay order.
Since the court will function with incharge judge, you may try to bring your petition before the incharge judge's sitting.
4. Possession is different from the injustice meted out to you.
Since you have purchased the property through court registration, you are the title holder having marketable title to the property.
You can approach the trial court itself with a petition to implead yourself as a party to the suit.
5. Why have you delayed taking possession of the property.
In fact the bank should have arranged to hand over possession to you by taking it from the debtor.
Now the possession is with the debtor.
6. You have to fight it out by filing a mandatory injunction suit restraining that someone from putting up any structure in the property that was purchased by you and for possession.