Execution procedure -how to?
RAJ
(Querist) 17 February 2014
This query is : Resolved
RESPECTED SIR KINDLY GUIDE ME
There exists a property inherited from the grandfather to my father and my two uncles.the property was given to three on separate schedule and the exact side measurements of the plots were not specified .In 1989 a house was constructed on the plot with active participation and consent of the brothers when their father was alive.
After around 14 years later to seek vengeance for some family dispute one brother approached the local munsiff court filing a suit that the my family members removed the survey stones on (2-9-2004) after when he tried to measure the land with officials for the construction of compound wall(20-8-2004) and .
The relief sought or his prayers were.
1.To allow the fixation of the boundary and to construct the boundary wall
2.Prohibitory injunction to restrain my family from trespassing into his property and obstruction to fix boundary.
the Oral testimony of defence and prosecution witnesses,the partition deeds,documents and the report by the assigned commissioner and surveyor,were scrutinized. The commissioner report tells the fact that there is a gross reduction in the area of the land as specified in documents and a part of our house lay on his share .the Munsiff found he paramount right to fix the boundary passed a judgement for compound wall by demolition of the building.
[(Even if his plaint did involve any prayer for demolition of building,recovery of possession or mandatory injunction for the demolition of the building that exceeds into his share.)]
An appeal memorandum is filed in the district court by us stating the lack of opportunity to produce documents,no side measurements in the documents etc.
Three points arise for the court
1.entitled to fix boundary by the process of court. 2.to construct boundary wall 3.to intervene the lower court order.
Cross examination of him made the facts certain to the court
1.He did not know that the properties were not demarcated when the settlement deed was executed.
2.He did not know total extent of land
3.He had no objection at the time of construction of the house in 1989.
4. He admitted about the reduction of land.
5.He told there were visible survey stones demarcating the property until 2-9-2004, when he said we removed the stones.
6.He also admitted the building was there in 2000
From the above facts it is clear that we have constructed the building in 1989 with his consent.
The judgement of Paravur Munsiff was found unwarranted in the case of demolition of the building projecting into the uncles property.
And district judge passed a decree to him to fix the boundaries of his plot with out affecting the building leaving an open space of 2 feet between the building and compound wall.
But my problem begins now.
Its an order for him, he has to go for the execution procedure.But he is not going for it as he has a reduction in his area.We also cannot go for EP sice we haven’t asked for a counterclaim to demarcate the boundary and construct compound wall.
Moreover he has started construction in his allotted plot without demarcating boundary as directed by the court.He also has taken possession of beyond the limits given in the order.
What legal step is to be taken from our side to stop the construction till the boundaty is demarcated by the court, and hence the construction of wall.Or can we go for EP.Is there any way to obtain a stay order for the construction.Is there any option with poloice as for the execution of this court order.Sir kindly enlighten me with the legal steps.
Yours faithfully
SOORAJ.S
ajay sethi
(Expert) 17 February 2014
contact a local lawyer . since construction has been carried out by uncle in flagrant violations of court order you can obtain a stay from further construction
R.K Nanda
(Expert) 17 February 2014
take help of lawyer.
RAJ
(Querist) 17 February 2014
Respected legal experts,how can i obtain a stay order in the property since there exists a judgement on the property which is not executed.Sir shall i have to file a new case on the property regarding the violation for a stay;(if so it will take a long time forit and by that time the construction will be over),or is there any immediate option based on the existing decree for sudden stopage of work until boundary laid and compound wall built.Please guide me sir.
Yours faithfully
Guest
(Expert) 17 February 2014
Your Advocate could very well state in the Stay Petition until the EP Orders are initiated and executed no further construction to be done and definitely the Stay would be granted.Consult your Lawyer
T. Kalaiselvan, Advocate
(Expert) 17 February 2014
You can also obtain permanent injunction against him restraining him from going ahead with his construction by encroaching your property and also seek for eviction (if he has occupied/encroached your property), consult your lawyer and proceed.
RAJ
(Querist) 18 February 2014
Respected experts, i express my sincere gratitude for your dedication and patience shown for my problem.Thanks a lot for your valuable time and precise guidance.I request all to share the knowledge of any new legal possibilty ,procedures to be done in this scenario from your vast experience.
Yours faithfully
Guest
(Expert) 18 February 2014
Thanks for the appreciation
V R SHROFF
(Expert) 18 February 2014
contact local lawyer..
RAJ
(Querist) 22 February 2014
Moreover he has started construction of his new house very well within his plot limits specified in the order without fixing the boundary as by courtorder.He is not executing court order.
QUESTIONS
(OTHER THAN THE OPTION TO FILE A NEW SUIT WITH PRAYER FOR EXECUTING THE COURT ORDER AND GIVING AN IA TO STOP THE CONSTRUCTION,TILL ORDER IS EXECUTED)
1.Is there any way by the process of court to make him to demarcate the boundary and build the wall immediately;and for the immediate stopping of construction within in his plot with the advantage of the obtained district court judgement? (Relevant sections and acts ,nature of prayers etc for effective and immediate court action)
2.What legal step is to be taken from our side to stop the construction till the boundary is demarcated and the compound wall built till the order is executed.
3.Is there any option for us to get a permission from court to fix boundary and build a wall by ourself (with a direction for the police ) as in the order for him;if he is not going to execute it.
3.Is there any way to obtain a immediate stay order for the construction.Is there any option for getting a direction from the court to the police to make him execute the order.?
Sir kindly enlighten me with the legal steps.
