Partition suit /limitation
renuka
(Querist) 06 April 2013
This query is : Resolved
Sir,
There was partition among childrens for fathers property in sunni hanafi family,
One son got 20 acres of land as per partition deed in 1976, but actual land was 24 acres whcih not known to parties at that time, and he sold his 20 acres along with unpartitioned land of 4 acres which was belonging to the father in 1996 to a builder, Can we file a civil partition/ possesion suit after almost 20 years against the builder and the son who sold the excess land which was not in his share. Any limitation as property alenated 20 years back.
rgds
Renu
Raj Kumar Makkad
(Expert) 06 April 2013
There is no limitation for the partition of the joint property. The sale to the builder was made only 20 Acres but the possession erroneously was delievered for 24 Acres so the partition suit is maintainable at any time.
Nadeem Qureshi
(Expert) 07 April 2013
agree with expert nothing left to add
renuka
(Querist) 07 April 2013
Dear Sir,
There was partition among children for fathers property in muslim sunni family after the death of the father,
As per partition deed in 1976 which is registered, One son got 20 acres of land to his share in Survey No.16, but actual extent of land was 24 acres in that survey no.16, which was not known to parties at the time of partition in 1976, hence only 20 acres was registered in the name of the brother by his other brothers and sisters in the partition deed. ,
In the year 1995 the brother sold his share of 20 acres land along with excess unpartitioned land of 4 acres (which was belonging to the father) in 1995 to the builder,
Can we file a civil partition/ possesion suit now for the 4 acres of land which was sold illegally by the brother to the builder by making false records which was not known to parties till now, It came to our knowledge now after almost 18 to 20 years can we file a suit against the builder and the brother who sold the excess land which was not in his share.
Any limitation as property alienated 20 years back to builder the property is still in the name of same builder he has not sold to anyone yet,
As by making fraud/ false revenue records like adding excess land to his name in the RTC, the brother has sold the excess land to the builder in 1995
we have to file suit against only builder or builder and the brother, any limitation? / what type of suit we have to file civil partition / eviction suit ?
Thanks and regards
Renu
Devajyoti Barman
(Expert) 07 April 2013
if the land is already transferred to third party in the meantime, I do not see any result coming from partition suit.
Raj Kumar Makkad
(Expert) 07 April 2013
Your brother has sold only 20 Acres of land and not 24 as a seller cannot give better rights to which he holds. Erroneously the possession might have been handed over of 24 acres to which you should never admit. You shall have to plead that the builder is in illegal possession over 4 acres of the land which belongs to you and that possession has been taken by him recently so that he may not take the plea of adverse possession.
The builder has ownership of only 20 acres so you can very file this suit and no point of limitation is involved therein. You should not admit the possession of the builder of more than 12 years.
prabhakar singh
(Expert) 07 April 2013
What i find from your post that land allotted to your brother's share was 20 acres in survey no.16 but the actual area of survey no.16 is 24 acre.
In year 1995 your brother sold the 20 acres of his allotted share to a builder,who is still there and no other transaction has inbetween taken place.
BUT THE UNTOLD STORY BY YOU IS:
What you have not told is that after purchase builder must have gone for mutation of survey no 16,then his mutation must have taken place for only 20 acres as per sale deed,and not for all 24 acres area
of survey no 16.
In such a case those surplus of 04 acres would be still showing recorded in name of all or any of the parties or in name of father but never in name of builder.
The other thing not told is that has the builder raised any boundary over all 24 acres on the spot?or the land is as it was in past on sale date?
And also the next thing untold is that does builder cultivate or it is lying uncultivated?
And that surplus of 04 acres is in khatauni(7/12)of plot survey no 16 or in survey map.
In my view much of the decision for course of action would depend on these things.
Hence it would be better for you to consult a local revenue lawyer with all papers in the light of the facts highlighted by me.
Or you may even revert back here with answers to my queries for further discussion.
renuka
(Querist) 07 April 2013
Dear prabhakar Sir,
As i told sir there was a partition in 1976 among the family member after the death of father.
As per partition deed brother was entitled for only 20 acres of land, but illegally he has added additional 4 acres of fathers land into his name after the partition in 1976 and has converted the land from revenue to residential sites purpose in 1995 before selling.
Brother was entitled for only 20 acres as per partition deed in 1976, how can he get right for the remaining 4 acres of father land even though he has tampered with records illegally may be after partition deed in 1976.
whether other family members do not have any right in the 4 acre of land which was in their fathers name till 1975 ? When a person who does not have right for that particular land how can he be owner of that land if he is not the owner how can that sale be valid, what can be done now sir...
Rgds
renu
prabhakar singh
(Expert) 07 April 2013
When your brother has got recorded 24 acres of land in his name and has sold all to builder by 12 sale deeds of two acres each,and the builder has taken possession over all 24 acres and has got holle of the land converted from agricultural to abadi,you hardly have any case against builder as he shall plead bona fide purchaser for value,who he is in my view on the strength of the facts just revealed by you.
Devajyoti Barman
(Expert) 07 April 2013
You can file suit now for share in sale proceeds of the excess land.
renuka
(Querist) 08 April 2013
Dear Sir,
As i told sir there was a partition in 1976 among the family member after the death of father.
As per partition deed brother was entitled for only 20 acres of land, but illegally he has added additional 4 acres of fathers land into his name after the partition in 1976 and has converted the land from revenue to residential sites purpose in 1995 before selling.
Brother was entitled for only 20 acres as per partition deed in 1976, how can he get right for the remaining 4 acres of father land even though he has tampered with records illegally may be after partition deed in 1976.
whether other family members do not have any right in the 4 acre of land which was in their fathers name till 1975 ? When a person who does not have right for that particular land how can he be owner of that land if he is not the owner how can that sale be valid, what can be done now sir...
Rgds
renu
renuka
(Querist) 08 April 2013
Dear Sir,
In a sunni family, partition took place for fathers property in 1976
among his childrens.,
In a particular fathers property, For which we have the registration
paper of 1959 for a land in Survey no.16(24 acres) which the father has
purchased from a farmer in 1959,
From 1959 to 1975 revenue records(RTC) is showing 24 acres of land in
the name of my father till 1975.
After death of father in 1975, In the year 1976 partioned happened
between brothers and sister for fathers property, As per partition
deed which is registered in 1976 , One of my brother got this survey
no 16 land to his share but only extent of 20 acres the other 4 acres
missed out as nobody was knowing about excess land at that time in
survey no 16, then in 1977 brother colluded with revenue authorities
and as per partition deed even though he was entitled for 20 acres
only, he changed the ownership of 24 acres of land to his name by
bribing the revenue authorities, as can be seen in 1977-78 RTC it is
showing brothers name and extent is 24 acres, then when he sold the
land in 1995 he converted the whole 24 acres of land to abadi land and
sold to the builder. But builder will not purchase the land by seeing
the RTC (pani copy) he will surely ask for the registered deed and
builder has sure come to know that only 20 acres is registered to
brother not 24 acres and then also he has proceeded to buy the land
from brother in 1995.
Details in brief
In Revenue records from 1959 to --1975--Land is in fathers name extent 24 Acres.
In 1976 partition happened brother got only 20 acres to his share,
somehow 4 acres missed out.
But in 1977, brother has changed ownership of whole 24 acres of land
to his name instead of 20 acres by bribing the authorities without
taking signatures from other brothers and sisters.
In 1995 brother sold the 24 acres of land to the builder after
coverting 24 acres land from revenue to abadi.
How the builder can purchase the land without seeing the previous
register /sale deed / transaction on that survey no 16. Builder has
the knowledge that brother was entitled for only 20 acres of land even
though he has purchased the land.
We had no kowledge of excess land till now which brother had illegally added to his name in revenue records in 1977-78 and sold the land by converting it into abadi in 1995, CAn we file a civil suit now after 18 years against builder and brother (died survived by son) whether the suit bar by limitation
rgds
renu
prabhakar singh
(Expert) 08 April 2013
I do see you had rights but due to your inaction you have allowed time to runout for your cause of action.you told your brother got tose 04 acres recorded in his own name by colluding with revenue authorities.But builder's plea would be
that he is bona fide purchaser since he has bought from person recorded.
You are telling about partition in 1976,brother entitled to only 20 acre but was it written that land is 24 acre of his 04 would remain joint when you say father's name was on 24 acre.Why not this partition was arrived at after checking revenue records.?
In my opinion Right is there but right to file suit for any relief even for for share in sale proceeds of the excess land(as suggested by Mr. Barman) is time barred.
You can litigate for a dismissal ultimately.
