Urgent matter ~~~ property matter in the court
Mohammed Rizwan Shaikh
(Querist) 20 October 2011
This query is : Resolved
Hi Experts,
Mr. A holds a land of 14 acres, the ingress, egress and regress is through Mr. B's property (CA to the Owner). Mr. A was enjoying the way since past 40 years. Mr. B blocked the way by constructing the wall and installing the Gate last year 2010. The 14 acre land is completely landlocked. Mr. A filed a suit against Mr. B (CA to the Owner) & BMC in the City Civil Court (Mumbai).
Mr. A had a Consent Term and order was passed in favor of Mr. A. with the original owner in the year 1988 and BMC was also a party in the same suit of 1988. The DP road was passing through Mr. A property connecting to Highway. It was agreed that unless and until DP is constructed, Mr. A would use the right of way from Mr. B's property.
City Civil Court rejected the Ad-Interim prayers, Mr. B's advocate gave false statement that the DP road has been handed over 10 years back and Mr. A shouldn't be enjoying the right of way. being aggrieved Mr. A filed AO and WP in High Court (Bombay).
In AO Hon'ble Court directed the lower court to expedite the matter within 6 weeks whereas WP was still pending in HC. Lower Court dismissed the Notice of Motion stating that the Advocate of Mr. A was not able to satisfy and the Suit is still Pending in the lower court.
In WP, Court directed Mr. A to file execution petition. Mr. A didn't file Execution Petition. BMC filed an affidavit and stated that the DP road would take 3 more years for the costruction. Later, WP was dismissed the petition and directed Mr. A to request BMC to complete the DP asap.
So now, there's nothing left in the HC, only the suit is pending in City Civil Court. Mr. A wants to continue the suit. So my question to you is...
1. By continuing the Suit, will Mr. A would get any kind of relief as the Notice of Motion has already been dismissed in the City Civil Court?
2. Any chances of winning the case?
3. Any kind of remedy left for Mr. A, apart from filing Execution Petition?
Please provide me with all the possibilities in the case.
Raj Kumar Makkad
(Expert) 20 October 2011
In the given facts, the chances for getting desired relief for A are very bleak however execution is available for him.
prabhakar singh
(Expert) 20 October 2011
In absence of any alternative way [if proved in suit]the easement of necessity warrants decreeing the suit,but what will emerge finally would much depend on either side of pleadings as well as evidence brought before the court and also on construction of DP road
as the same will become an alternative to necessity.
As you have asked solution apart from filing Execution Petition,i am not mentioning the same.
