Recover-of-possession
Sudama Prasad
(Querist) 13 September 2014
This query is : Resolved
my-grand-father-purchased-17-dhur-land-in-the-year1934and-sold-3-dhur-west-portion-to-laxman-prasad-in-the-year-1948.Remaining-14-dhur-was-partitioned-equally-among-his-sons(my-father-&-uncle)in1950-vide-patition-deed.my-father-got-western-portion-ie-at-eastern-boundary-of-3-dhurs-purchased-by-laxman-pd.on-oral-permission-of-my-father,laxman-prasad-occupied-another-2.5-dhur-out-of-land-got-by-my-father-and-constructed-house-in1980-amalgamating-this-area-with-his-3-dhur-purchased.now-laxman-pd-is-not-alive-and-his-son-has-demolished-the-old-house-and-atarted-new-construction-keeping-the-old-outer-wall-undemolished-to-evidence-advese-possession-on-our-2.5-dhur.he-is-not-agree-to-handover-possession-of-the-same-to-us.please-suggest-what-legal-recourse-available-to-us-to-get-possession
Anirudh
(Expert) 13 September 2014
You have to establish that the property i.e. land is still in your (i.e. your father's) name.
The 2.5 dhur was given as a brotherly concern on permissive/licence basis and neither as gift nor as conveyance. There is no registered document to evidence either gift or conveyance. In the absence of the same, the other party cannot claim ownership of the same. Adverse possession does not arise in the case of specific permissive use of land.
But you will have tough time in regaining possession. Further, you have to pay court fee on the value of the property since you are not in possession.
When you never raised a query or demand for return of the land when the old building was standing thereon, all of a sudden why do you want to have the land simply because the building has been demolished for raising new construction?
Dr J C Vashista
(Expert) 14 September 2014
Whether the partition deed was registered and possession of the western portion was retained by your father?
Has the partition deed been mutated in Revenue records?
If your father allowed/licensed Laxman Parshad,his brother to occupy some more land out of your father's, was there any written document for the same?
I agree with expert Mr. Anirudh, you will have to file suit for partition and possession, if Laxman's sons do not vacate licencesed portion owned by your father.
Sudama Prasad
(Querist) 14 September 2014
Partition-was-done-in-the-year-1943&1950-orall-vide-memorandum-ofpartition-which-was-confirmed-by-the-sub-judge-court-and-hnble-High-court-in-1957.Again-a-ppartition-suit-was-filed-by-the-legal-heir-of-my-uncle-in1982-which-&appeal-thereof-was-also-dismissed-confirming-the-partition-by-meats-&bound-as-asserted-in-our-WS.Hence-there-is-no-despute-reg-partition.My-father-consented-to-Laxman-Pd-after-partition-from-own-share.
Sudama Prasad
(Querist) 14 September 2014
As-the-old-building-of-Laxman-Pd-has-been-recently-demolished-&-he-is-intending-to-raise-new-construction-taking-the-2.5-dhur-our-land-also,,would-it-be-better-to-file-an-encroachment-suit-with-prayer-for-injunction-to-restrain-him-in-place-of-suit-for-recovery-of-possession.Please-avise.Further,the-land-in-question-is-dihbasgit-land-in-Bihar-which-comes-under--free-of-revenue-N0-mutation-required.
Many-thanks-for-above-two-replies.
Anirudh
(Expert) 14 September 2014
You said that there is a Eastern Boundary wall to your property and the 2.5 dhur of land falls outside the said boundary wall. In other words, the said 2.5 dhur of land is adjacent to the 3 dhur of land of the other party.
If that be so, how can you now say that there is encroachment? Especially when very cleverly the other party has not demolished the Boundary Wall?
Sudama Prasad
(Querist) 14 September 2014
keeping-in-view-the-comment-of-the-expert-mr-Anirudh-I-request-the-experts-including-Mr-Anirudh-as-what-suit-should-be-brught-by-me-&-what-pleadings-to-be-made-to-make-my-case-a-wining-one?
whether-I-should-take-recourse-of-CRPC144also-followed-by-civil-suit-so-as-to-stop-the-constructio-work-of-the-opponent-immediately?
Thanks-®ards
Raj Kumar Makkad
(Expert) 16 September 2014
You need to engage a local lawyer as we here provide only rough idea of the case and do not provide drafting facilities which includes line of defence and so on which you desire.
Dr J C Vashista
(Expert) 17 September 2014
I fully agree and stand with the expert advise of Mr. Raj Kumar Makkad and Mr. Anirudh. You have adequately been advised, nothing more to add.
However, you have to engage and consult local lawyer.
T. Kalaiselvan, Advocate 
(Expert) 20 September 2014
The author's query has been properly addressed by experts, if he is still under confusion, he may consult his own lawyer or any other lawyer for further opinions.
