Adverse possession/appln. o.7 r.11 cpc
Naresh Kudal
(Querist) 29 August 2013
This query is : Resolved
we filed a suit u/s 34 of specific relief act taking plea of adverse possession. Opposite council moved an application of Order 7 Rule 11 CPC stating that plea of adverse possession can be taken as defense only and no suit is maintainable for declaration of title under adverse possession.
Language of section 34 specific clearly gives right to file such a suit, can anybody tell me some references relating to maintainability of the case.
Kuummaar AS
(Expert) 29 August 2013
In the absence of detailed facts available, it is suggested that you may go through the following link, which could be of some help to you:
http://kamrupjudiciary.gov.in/judgments%202013/dj/apr/title%20suit%20%20no.%20280-05,%2005.04.13.pdf
Raj Kumar Makkad
(Expert) 30 August 2013
There is no such law to which you want to get as the plea of the defendant is accurate.
Anirudh
(Expert) 30 August 2013
Dear Mr. Naresh,
If you are asking for specific performance, then you have to have some document (say agreement to sell etc.) to stake your claim and to compel the other party to perform his part of the contract.
But instead of basing your suit on any such valid document/agreement, you seem to have based your suit on the basis of "adverse possession". That means, you do not have any valid document with you.
The plea of adverse possession cannot be the basis for claiming any declaration of title. On the contrary, if anybody tries to evict you, then the party in possession can plead as a "defence" of adverse possession and that he cannot be dispossessed.
Therefore, prima facie, it appears that your suit is on shaky foundation. Your suit is not maintainable.
Naresh Kudal
(Querist) 30 August 2013
actually my suit is for permanent injunction with declaration of title on the basis of adverse possession. original owners of property tried to dispossess me forcefully and pushed me to file this suit. I have cause of action against them.
I could not tell my case in original query, sorry for that.
Kuummaar AS
(Expert) 30 August 2013
Kindly note that as per Order 7 Rule 11, where a plaint does not disclose a cause of action, it shall be rejected.
Anirudh
(Expert) 30 August 2013
What is the document(s) in your favour on the basis of which you seek permanent injunction?
Naresh Kudal
(Querist) 30 August 2013
I have water and electricity bills since 1990. I am operating a flour mill there and getting NOC form Municipal Corporation every year. Commissioner report completely favors me as showing my residence and flour mill there. In 1990 municipal corporation issued NOC on the basis of my possession.
Anirudh
(Expert) 30 August 2013
Since you are able to prove your physical possession of the property from 1990, you will be able to thwart any attempt by any from dispossessing you. Therefore your suit for permanent injunction is maintainable. However, you cannot seek declaration of title in your favour on the basis of such adverse possession. Worst comes to worst, you can give up the prayer for declaration of title, while maintaining the suit for permanent injunction. In this way, you can get the application u/o 7 rule 11 dismissed.
