surendrababu (self) 28 July 2010

JOINT PASSAGE - ENCROCHED BY NEIGHBOR -

Guide me in the following Case?

My neighbor has purchased a house site in the year 1994. I have also purchased a house site from the same vendor in the year 2002 with a right over 16 ft widdth joint passage in between our sites. This right is clearly mentioned in my document. The vendor is the one and the same. My neighbour, in the year 2005 registered a rectification document from the same vendor as if the 8 ft widdth of the joint passage was sold in the year 2002., and sold out the remaining 8 ft widdth passage as if I do not require the joint passage. This was happened with out my knowledge. Now my neighbour has encroached the entire 16 ft joint passage and making constructions. Do I have no right over the joint passage? What is my legal possession ?

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9 Replies

S. Bharath (Advocate and Arbitrator Formerly Civil Judge) 28 July 2010

Prima facie, your case appears good in the sense, that your vendor could not have rectified the earlier document and then sold the 8 feet. You may seek removal of encroachment apart from exploring certain other remedies. Consult your lawyer.

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adv. rajeev ( rajoo ) (practicing advocate) 28 July 2010

you will have to file a suit for declaration and injunction seeking easementary right by way of prescrption.

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surendrababu (self) 28 July 2010

Thank you for your kind advose

Kindly advise me :

Can a same vendor has the right to rectify the document registered in the year 1994 on the pretext that the length and widdth of the plot mentioned earlier were wrong so he is making the rectification documet in the year 2005

surendrababu (self) 28 July 2010

Thank you for your kind advise

Kindly advise me :

Bhartiya No. 1 (Nationalist) 29 July 2010

He can do it unilaterally. Once, he sold the property, all the right interest title attached with the property get transfered to buyer and only buyer can make any changes.

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Bhartiya No. 1 (Nationalist) 29 July 2010

In the above posting instead of "he can do it unilaterally" read as ""he can not do it unilaterally", Once sold he has no concern redg that property, Also u check the rcital of sale deed is there anything he has got mentioed in his favour.

Also u may go thro' " The Transfer of Property Act, 1882"

Operation of transfer

8-	Unless a different intention is expressed or necessarily implied, a transfer of property passes forthwith to the transferee all the interest which the transferor is then capable of passing in the property, and in the legal incidents thereof.
	Such incidents include, where the property is land, the easements annexed thereto, the rents and profits thereof accruing after the transfer, and all things attached to the earth;

	and, where the property is machinery attached to the earth, the moveable parts thereof;

	and, where the property is a house, the easements annexed thereto, the rent thereof accruing after the transfer, and the locks, keys, bars, doors, windows, and all other things provided for permanent use therewith;

	and, where the property is a debt or other actionable claim, the securities therefore (except where they are also for other debts or claims not transferred to the transferee), but not arrears of interest accrued before the transfer;

	and, where the property is money or other property yielding income, the interest or income thereof accruing after the transfer takes effect.

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Bhartiya No. 1 (Nationalist) 29 July 2010

adv. rajeev ( rajoo )

practicing advocate

has advised (you will have to file a suit for declaration and injunction seeking easementary right by way of prescrption.) correctly and U may go by as per his advice as early as possible, since u have good case.

He is s greedy vendor.

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Deekshitulu.V.S.R (B.Sc, B.L) 29 July 2010

When you claim the passage is a joint passage which is mentioned in your document, you have to file a suit for mandatory Injunction to remove the encroachment or obstructions. If your neighbour is yet to start a construction file a suit for bare injunction and obtain interim injunction. No declaration is needed, since the same is already mentioned in you deed. There cannot be an unilateral rectification of a deed by any body.

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