• Process of Stay Order

What is the process and estimate cost of applying for a stay order on a 40 sq yard vacant land (developed as a small garden with iron-fence) which some miscreants destroyed the plants and wanted to forecefully build a structure claiming it as their land. 

The land does not belong to anyone but it is next to my father's residence and he had taken care of it for the past 15 years as a small garden with fence and had been contemplating registering it in our name.
During this 15 years, no one has come forward with proper documents to claim it except some 9 years ago, when the same miscreants came forward claiming the land but when asked to show documentation never turned up. Now after my father's death 6 months ago, the miscreants have returned.

So want to know if I can apply for a stay order and go ahead with applying for registering the land. This will force any claimaint to respond through legal response rather than forceful trespassing which my widowed mother cannot handle as my siblings and I live out of the country. That way my lawyer can handle the issue in our absence.
Asked 3 months ago in Property Law from Canada
Religion: Christian
1) legal fees vary 

2) it depends upon lawyer engaged by you 

3) before you apply for stay take search in sub regsitrar office as to who is the owner of land 

4) you will have to implead the owner as party to the suit 

4) you can register land in your name only if owner sells the land to you 
Ajay Sethi
Advocate, Mumbai
23240 Answers
1219 Consultations
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1) you can claim adverse possession as defence as you have been in possession of land for 15 years 

2) on demise of original owner his legal heirs can move court and seek your eviction 
Ajay Sethi
Advocate, Mumbai
23240 Answers
1219 Consultations
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however this land does not belong to any one but it is appurtenant to your property and you have been enjoying it since last 15 years. you have legal right to get stay order through injunction. file a suit under order 39 of the code of civil procedure for stay. you have to prove that 
1.that land is appurtenant to your property, 
2.you have been enjoying for long time uninterrupted 
3.balance of convenience is in your favour 
4.if other person interfere in it then it may cause irreparable loss to you.
Shivendra Pratap Singh
Advocate, Lucknow
2752 Answers
41 Consultations
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on proving of those facts you will get stay order at the first hearing of the case. 
Shivendra Pratap Singh
Advocate, Lucknow
2752 Answers
41 Consultations
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So want to know if I can apply for a stay order and go ahead with applying for registering the land. This will force any claimaint to respond through legal response rather than forceful trespassing which my widowed mother cannot handle as my siblings and I live out of the country. That way my lawyer can handle the issue in our absence.

Though this landed property or vacant sit do not belong to your father, it as maintained by him for more than 15 years, however he never tried to obtain patta for this property nor had taken any steps to bring this property under his name.  Thus there is no documentary proof to prove that this land belongs to him or was under his possession for 15 years or more.
If you have any records to prove that this property was in your father's possession and enjoyment for the last 15 years or more, then you can file a permanent injunction or mandatory injunction suit against the miscreants who try to grab the land from you.
T Kalaiselvan
Advocate, Vellore
14026 Answers
127 Consultations
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A due diligence legal search in sub registrar office n Aug 2016, proved that the land does not belong to anyone. What if the original owner of the land has died long time ago and now maybe one of his many heirs being aware of the land ownership situation has informed the miscreants to posses the land.

On the basis of records for possession and enjoyment of the property by yor father and as his legal heirs you can apply for patta for the land and also to transfer the same to the legal heirs of your father. After obtaining the patta you may apply for mutation of revenue records and also taxation formalities. 
This will ensure the property to be in your possession as a lawful owner.
If somebody is claiming the rights, let them file a suit before court and prove their title to take possession after court's decision. 
T Kalaiselvan
Advocate, Vellore
14026 Answers
127 Consultations
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1. Somebody must be the owner of the land or it must be land the title of which vests in the government. If and only if it is govt land then you can file a suit for injunction to restrain the miscreants from usurping the land.

2.  The land can be registered in your favour only if the registered owner executes a sale deed in your favour. You cannot register the land in your favour.

3. At first, file a RTI to the revenue department to ascertain if the title of the land vests  in the government or not and then only go to court. 
Ashish Davessar
Advocate, Jaipur
18102 Answers
448 Consultations
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1. If the land is not a Govt. property, then certainly it belongs to some one. Find out from the Registrar in whose name title of the said piece of land stands,

2. Even if your father has taken care of the land for 15 years, it's title is not conveyed in his name without registration of a valid deed of conveyance,

3. Find out who is the real title holder and file a suit against him claiming adverse possession of the said piece of land and along with the said suit, file a petition under order 39 Rule 1 & 2 praying for an order restraining the actual owner and also the said miscreants to enter in to the said property till the disposal of the suit,

4. You shall have to establish your right title or interest on the said piece of land to justify its occupation by you and no body is bound to show you their/his title to you if you yourself do not have a valid title of the said piece of land.

5. So, first try to create a valid title on the said land by adverse possession claim.

6. Engage a local lawyer having expertise in this field to deal with the matter.

7. The cost of filing the suit and stay petition may cost you any thing in between Rs.40 K to Rs.80 K. depending on the quality of the lawyer you shall engage.
Krishna Kishore Ganguly
Advocate, Kolkata
12113 Answers
231 Consultations
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1. There must be a title holder of the land,

2. In case he is deceased, his legal heirs will get its title and not you.

3. Create your claim of title on the property first on the ground of adverse possession as suggested in my earlier post..

4. If you can not establish your right title or interest on the said piece of land, you have no locus standii in the matter and can not continue to occupy the said piece of land.
Krishna Kishore Ganguly
Advocate, Kolkata
12113 Answers
231 Consultations
5.0 on 5.0

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