Request/query – boundary dispute: - applicable law points
RAJ
(Querist) 08 July 2024
This query is : Resolved
Respected Sir,
The synopsis of the property dispute is as mentioned hereafter.
In a joint property assigned with three adjacent shares for 3 brothers (my father and his two brothers) by a title deed which did not have any specific side dimensions for the separate plots except for the individual share areas mentioned. In 1989, My father, while the grandfather was alive constructed a house with the active participation and consent from my uncle in the plot. A portion of the house abutted and projected into uncles property as well.
However, later in the year 2004, my uncle filed a suit to fix his plot boundary in the munsiff trial court. Since our lawyer, suppressed the evidence proving the fact that we have been residing in the house for the past 25 years like building tax receipts etc. Trial court passed a decree and judgment directing my uncle to fix the boundary by demolishing the portion of the building which is allegedly encroaching into the plot.
So we went to the appellate district court in 2009, resubmitted the records (proving our period of long residence) which were not earlier marked; since the lawyer who represented us was bribed to not submit the evidence. Upon cross examination of my uncle, he admitted there were stones demarcating the boundary in 2000 and it was proved beyond doubt in the court that the house was constructed with his consent and he has filed the suit to fix his boundary, in order to seek vengeance on some family conflicts which started during the time.
So the district judge has passed an order to him to fix the boundary according to the commissioner advocates survey sketch which incorporated the total reduction in area of the land; with a 2 feet distance away from the existing building , further subject to the municipal laws.
During that time in 2014, my uncle without proceeding with the execution procedures for the order started constructing a house encroaching into our property, without complying to the panchayat building rules. So we filed an objection suit in 2014 to stay the construction in the munsiff trial court; which was granted to maintain status quo and later a judgment was issued to proceed with the construction only after fixing the boundary and constructing a compound wall.
Simultaneously, uncle has gone for a Regular second appeal in 2014 at Honorable High court of Kerala. After almost around 10 years on 2July2024, the high court has issued a judgement modifying the judgement passed by the previous district court, that he can construct a boundary wall as per the commissioner sketch; and need not leave any space (2 feet as specified in the lower court judgement) from the wall of the building; (without complying to or explicitly violating the municipal laws.)
Since the building wall has windows, ventilators and a 2 feet wide sunshade projecting from the building wall; Is it justifiable to not leave a space between the building and compound wall. The High court order can cause damage to the existing building, when a compound wall is constructed; due to the very close excavation and digging in close proimity of the old building foundation. It doesn’t give the minimum set back of 1m side spacing as specified in the Panchayat building rules. Moreover, such a boundary wall will be very next to the building wall so that we wont be able to open the windows and hindering the space for access and maintenance for the plumbing, electrical light, other utility connections, painting etc. on that side.
The only left option for us is to seek appeal in the Supreme court of India for rectifying the error in High court order; which cancelled the lower court granted 2 feet set back for the boundary wall from the existing building.(against the municipal or panchayat law)
Please provide me the guidance on the below queries.
1. Kindly provide the relevant legal aspects, clauses and points applicable in favour of us to protect the existing building by a 2 feet clearance set back.
2. Please provide any details on the similar of relevant cases to refer against.
3. Does the supreme court accept an appeal with a request to rectify the high court order in violation to the existing panchayat building rules.
4. Does any entries of easement act, 1882 be beneficial for us
5. Does the part 5 entry 64 of the schedule to limitation act 1963 beneficial to the building setbacks.
6. Does the panchayat building rules for a set back of 1 m of side be applicable to the new compound wall to be built
7. Does the section 25 of acquisition of ownership by possession, limitation act 1963 be relevant for seeking appeal.
8. Does the section 27 of extinguishment of right to property, limitation act 1963 by these years be capable of challenging the high court order to not leave 2 feet space.
T. Kalaiselvan, Advocate
(Expert) 08 July 2024
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