Land encroachement
Querist :
Anonymous
(Querist) 08 December 2009
This query is : Resolved
Respected experts,
One of my neighbor while constructing encroached around 400sqft of my land in 1997. We approached the Police but they failed to stop him. So, we prayed for Cr.P.C. 144 at the Hon’ble SDM court, and it invoked. But they didn’t obey the order and continued with the construction. We approached Police again, but police again failed to stop them and only given report u/s 188 Cr.P.C. that opposite party has done construction during the period of section 144 of Cr.P.C. and asked us to file a criminal case. Since my retired father was here that time, he failed/unable to take this pain (he has a fear of court and also prefer losing land than to go to the court). Section 144 Of Cr.P.C. got converted into Section 145 of Cr.P.C and we prayed for the ejection of the encroachment. Suddenly a new development took place which is that the same neighbor lost his entire land in a money suit at Hon’ble Patna High Court to a third party in 1998(case was going on since 1974 between them, where the neighbor had lost everywhere), but the neighbor appealed to Hon’ble Supreme Court. In view of this development our lawyer suggested us to wait for the final judgment between them. His plea was that, if this neighbor loses there also, then he will be out of the scene and our problem will solved and if he wins then we will reopen/restore this case later. We attended till 1999 and after that we stopped putting attendance. The opposite party too stopped attending. So, in 2003 the Hon’ble Magistrate closed the case by writing remark that since no body is taking interest since a long period. Now the neighbor case is undecided and going on, also he creating a lot of nuisance. Now the local lawyers are saying that to file a civil suit for title and recovery of possession otherwise the neighbor will get the advantage of adverse law of possession. Now what should I do? Will the limitation comes in a way for fresh civil (Title) suit or shall we file application to restore the old case? What is the use rather significance of the report u/s 188 Cr.P.C which is in my favor? Also shall I wait for the judgement (between them) of Hon'ble Supreme Court, since if the erring neighbor loses there, my problem will be solved. Pls. advice. Thanks to all.
Regarding the reply I want to say that,
In a plot I have got 0.25 acre and my neighbor owns 0.08 acres. The suit which is pending before hon’ble supreme is not between us, it is between erring neighbor and a third party on different matter (specific performance of contract) since 1974 for the entire land of 0.08. If my neighbor loses there means third party will become my new neighbor, who is not litigant. Other thing is that Patna High Court has not made any order regarding my land or my problem. How come I become party at Supreme Court?
n.k.sarin
(Expert) 08 December 2009
when your neighbor encroached the land and start construction at that time you should approach the civil court and get injunction from the court for disputed land.Now civil court has no jurisdiction when suit is pending before the supreme court including your disputed land and Patna high court already made order regarding your land. I think you have only one option, file a application before the supreme court to become a party in the pending suit and got decide the matter full and final in your favor.
Raj Kumar Makkad
(Expert) 08 December 2009
You can file a civil suit for declaration, mandatory injunction and and possession and second option which sarin has told is also available before your to become a party to the pending appeal in SC and put your entire case therein so that a final verdict may be obtained therefrom.
S. Bharath
(Expert) 08 December 2009
I agree with these gentlemen, your remedy lies in civil court.
Querist :
Anonymous
(Querist) 08 December 2009
In a plot I have got 0.25 acre and my neighbor owns 0.08 acres. The suit which is pending before hon’ble supreme is not between us, it is between erring neighbor and a third party on different matter (specific performance of contract) since 1974 for the entire land of 0.08. If my neighbor loses there means third party will become my new neighbor, who is not litigant. Other thing is that Patna High Court has not made any order regarding my land or my problem. How come I become party at Supreme Court?
n.k.sarin
(Expert) 08 December 2009
if your land is not in dispute pending in the supreme court you must go to the civil court as advised by shri makkad jee.
Querist :
Anonymous
(Querist) 08 December 2009
As civil suit is costly, so, we were advised that section 145 has same effect that with title suit. Also I want to know that is there will be any effect of what happened at executive court u/s 144 and 145, also the relevance of report u/s 188, which is in my favor, but was too old of 1997. Thanks
