Please help!! property matter
Mohammed Rizwan Shaikh
(Querist) 06 October 2011
This query is : Resolved
Hi Experts,
Summary:
A person (Mr. A)holds 13 acres land in Maharashtra since 40 years, initially he took the said land on rental basis from the original owners of the land (Mr. B). He (Mr. A) entered in a Joint venture with a partner(Mr. C). (Mr. C) purchased the said 13 acres from (Mr. B) being the land in possession of (Mr. A), an Agreement of Sale was executed. JV was dissolved and a consent term was executed. (Mr. A) was holding another piece and parcel of land, decided to handover the same to (Mr.C) and in turn (Mr. C) executed a Power of Attorney in favor of (Mr. A) and (Mr. A) became the owner of the land. (Mr. A) failed to enter his name in revenue records. It was in the name of (Mr. B)
Few years back around 2006, (Mr. D) got in touch with (Mr. B) and purchased the 13 Acre land directly being the said land in possession of (Mr. A). (Mr. D) didn't even bother to take a search of the said land and its possession. Last month, (Mr. D) issued a Public Notice in the newspaper in respect of the said property (13 Acre) stating himself as the lawful owner.
(Mr. A) is now 82 years old and is very tensed and want to resolve the issue as (Mr. D) fraudulently purchased the land from (Mr. B) without any public notice before purchasing the said property.
Note:
1. Power of Attorney from Mr. C to Mr. A is only Notarized and not Registered. And, also its a Xerox Copy. Mr. A lost the Original.
2. Agreement of Sale between Mr. C and Mr. B is also only Notarized and not Registered. And, also its a Xerox Copy. Mr. A lost the Original.
Query:
1. What's the remedy to resolve this situation?
2. Xerox copy of Power of Attorney and Agreement of Sale will be valid in the Court?
3. What can be done in order to prove his Adverse Possession?
4. (Mr. A) wants to take Stay or Injuction on all the CTS No. in the 13 Acre land, is that OK and what are the chances?
5. What will be the adverse situation of he tries to take Stay or Injunction?
Experts, please treat this as a crucial matter and help me out.
prabhakar singh
(Expert) 06 October 2011
ORIGINAL OWNER WAS "B"
"A" GOT FROM "B" BUT HOW??UNTOLD!
1. Power of Attorney from Mr. C to Mr. A IS A WASTE PAPER NOT WORTH EVEN ITS COST.
2.SO IS ALSO THE Agreement of Sale between Mr. C and Mr. B.
NOW ANSWER TO QUERY::
2. Xerox copy of Power of Attorney and Agreement of Sale will be valid in the Court? ANSWER :NOT AT ALL
TO ANSWER Q.134&5 MORE APPROPRIATELY IT IS DESIRABLE THAT YOU SUPPLY THE INFORMATION BY WHAT AGREEMENT "A" TOOK FROM "B"????
WHETHER POSSESSION OF "A"WAS EVER RECORDED IN REVENUE RECORDS AS TENANT OF "A"OR OTHERWISE???
IF YES FROM WHICH PERIOD TO WHICH PERIOD??
ARE ENTRIES OF POSSESSION ,IF WERE RECORDED ,STILL CONTINUING IN NAME OF "A" AS TENANT OF HOLDINGS OF "B"
Mohammed Rizwan Shaikh
(Querist) 07 October 2011
Prabhakar ji,
Many thanks for your reply.
A got the land on rental basis from B and then C purchased it from B and C gave Power of Attorney to A.
No, the Possesion of A was never recorded in the Revenue Records. A's name doesn't appear on 7/12, it was of B untill 2006 and now its of D.
Prabhakar ji, A just holds the Possesion of the land. However, A had installed few Crushers on the land and even has an Electric Substation.
Can D file an eviction suit against A?
How far A can fight in order to claim his possesion and land which he has been holding it since past 40 years?
prabhakar singh
(Expert) 07 October 2011
NOW ANSWER TO QUERY::
1.3.4.& 5. All these questions are interconnected hence taken up togather.
To my knowledge as the situation in UP,where from i hail,is that while an injunction suit
for an agricultural land lies in civil court,the title declaration suit lies in Revenue courts.
I am not aware what position of a declaratory
suit of title is in Maharashtra,although i am well confirmed that injunction powers must be vesting in Civil Court there also.
Any way it should be understood that law of Evidence raises a presumption of correctness of entries in records of right about possession and title although the same is a rebuttable one by a party against whom it is raised.
But certainly in an injunction suit,those entries will serve prima facie purpose of a party in whose favor they are at the date of suit.So this factor is out weighing the case of "B" against "A" with regard to possession which is said to be 9 point in matters relating to land,hence exparte grant of interim injunction on suit date,in absence of entries in records of rights,in favor of "A"is a remoter possibility.As regards to factual possession of "A", a commission issued by court and any favorable report by him may bring the case back to balance,and a 'status quo' order to be maintained by parties may be passed but not any injunction against "B" in favor of "A" can be expected.
"A" can file a suit of title to declare his right based on adverse possession but in that case he shall and should not plead his consented entry over land as tenant but rather his allegation must be as of necessity of the case , that 40 years ago he entered into the possession of "B"'s land without his permission with all his hostility towards "B" and started to cultivate the land on his own and grew and shew crops and use the usufructs himself as of right and also for aid to his cultivation etc.has established crushers etc.[whatever there be found in this regard on the spot] alone well within knowledge of the owner "B"who has been silent all these years,hence the the title of "A" has become matured as owner against "B" and any sale by him to "D" is without right void and bogus in law as no possession on spot could ever be delivered by "B" to "D".
If in past 40 years any settlement of land by the state of Maharashtra has taken place then plea of adverse possession should be taken post to the date of that settlement otherwise a bar may be pleaded why records were not asked to be corrected by"A" by filing an objection during the course of that settlement.
Last but not the least pleading a case of adverse possession is not that tough as is its prove since court has to deprive a owner of his rights it declares such adverse rights against owners only in very strong probable cases where quality of possession is quite transparently proved and can not be over looked at all.
Any way suit like these in given circumstances may fetch 'some thing' in compromise depending upon the type of man by behavior is found"D"
ESTHERPRIYA
(Expert) 07 October 2011
Public notice is not at all an essential character for purchase of property.
