Does law of limitation apply in my case below
Querist :
Anonymous
(Querist) 12 August 2011
This query is : Resolved
my mother died in june 1989 leaving a will , which has been probated through which i was bequeathed the fully unconstructed second floor of a house at new delhl, the elder brother the ground floor and the younger brother, the first floor.
the younger brother constructed in 1999, as per the tax imposed for this unauthorised construction by the MCD ,a room on the second floor without my permission. subsequently he added two rooms and was running a successful guest house thru use of these three rooms on the second floor.
the delhi high court has decreed after appoint a court commissioner for spot verification that the defendant , my younger brother, who has made this unaothorised construction give an undertaking that he shall use the second floor for no other purpose but residence and if the suit for possession is decreed in my favour , he shall pay me market rent as fixed by the court.
he has cited that he got the second floor in lieu of his share in lucknow property of the testator, incidentally the lucknow property was not owned by the testator but she was a tenant of the lucknow dev authority. this tenancy she passed on thru the will to me, the plaintiff, solely.
in the issues framed the defendant, younger brother has to prove that
1. there was an oral settlement
2. that the law of limitation applies in the present case.
now i want to know how the limitation law applies in my case the facts being tabled below
1. date of death of mother 13.06 1989
2. date i write to MCD for
mutation of property, GF to
elder brother, FF to younger
brother, how def and second
unconstruccted second floor
rights to me including notarsed
copy of will and death cert 26.05.92
3. date mcd responds to this
letter above seeking taxes due
for further action 05.08.1992
4. date i learn of the
unauthorised
construction of
room on second floor 15.06.99
5.dates i write to def
to remove cons and hand
vacant 30.06.99
possession
6. dateS i write to MCD to removeunauthorsed construction 16.8.99, 15.10.99, 12.10.99 etc
7. date from which MCD
imposes tax for unauthorsed
construction 01.04.99
8 date i file complaint with
PGC, Delhi against MCD for no
action to remove construtttion 01.01.2000
9 date PGC writes to MCD for
report on unauthorised cons 03.03.2000
10 date on which CIC passes
stricture against MCD for failing to
remove unauthorsed construction
on second appeal by me 15.07.99
11.Date i file a case at tis
hazari for permanent injunction
against def 15.03.2007
12. date i witdraw case with
liberty to file another on same
cause of action 31.07.10
13 date i file suit for
possession with high court
delhi 04.09.2010
14. date issues of limitation
and oral settlement framed
OPD 04.08.2011
MY QUERY IS :-
1.DOES THE SUIT SUFFER FROM ANY LIMITATION
DEFECTS.
2. ONE FAMILY MEMBER IS DEAD. EXCEPT FOR US THE TWO SURVIVING MEMBERS SHALL NOT TESTIFY IN FAVOUR OF EITHER ME OF THE DEFENDANT. IT IS ME VERSUS DEFENDANT.
THE WILL, PROBATED HAS PASSED THE TENANCY RIGHTS TO ME OF LKO PROPERTY SOLELY. THE LKO PROPERTY I REPEAT WAS NOT OWNED BY MOTHER WHO WAS A TENANT .
KINDLY GUIDE
VINAY KALA AUG 12,11
Raj Kumar Makkad
(Expert) 12 August 2011
1. No.
2. Tenancy rights of property in Lucknow cannot be equated with your ownership rights of second floor of Delhi property so it is better to get the vacation of this valuable property from your younger brother instead of accepting rent from him. None can challenge your right of tenancy qua the property of Lucknow s every one is admitting the will in question.
Querist :
Anonymous
(Querist) 12 August 2011
thanks sir,
i clafify the matter.
i have filed a suit for possession and it is only the court that has decreed on aug 4,11 that till such time the suit is decided and if it is decreed in my favour the defendant shall pay market rent to me . THE ORDER is dated aug 4, 11 and says the market rent as decided by the court.
some more points for your brilliant guidance.
the isssues framed are
IF SUIT IS BARRED BY LIMITATION OPD
WHERTHER THERE WAS AN ORAL SETT
LEMENT OPD
3. WHETHER THE PLAINTIFF IS ENTTLED
TO RELIEFS CLAIMED AND DAMAGES AND
IF SO TO WHAT AMOUNT
I HAVE SOUGHT POSSESSION , MANDATORY INJUNCTION AGAINST DEF, RIGHT OF PASSAGE, MESNE PROFITS ETC
AGAIN I CLARIFY THE SUIT IS FOR POSSESSION.
THE CROSS EXAMINATION OF WITNESSES IS ON SEP 20,11
SEEK SIR MOST EFFEECTIVE AND PRACTICCAL GUIDANCE.
REGARDS
VINAY KALA AUG 12,11
prabhakar singh
(Expert) 12 August 2011
i need nothing to add to opinion expressed by Mr. raj kumar makkad which i see as a perfect one.
As regards to your second query posted after his ANSWER IS ALMOST A REPEAT OF FORMER PERHAPS TO SEEK GUIDANCE TO CROSS YOUR OPPONENT ON DATE FIXED IN SPT.11,we can not advise unless we have gone through pleading of either side.BUT you need not worry there for, you must be having a lawyer to take care of those things in court.
