problem in possession/use by purchaser
r.pratap
(Querist) 15 August 2015
This query is : Resolved
Sir
I want to sell my share in undevided share in land, I make sale agreement/sale , and purchaser goes for actual use of land and other co sharer creats trouble in possession/use.what the purchaser should do.partition suit who has to file and till then what will happen.Whether the purchaser will remain without using aftercpayment or what.
thanks sir, in advance,.
Advocate M.Bhadra
(Expert) 15 August 2015
Purchaser should file a suit for partition to take demarcation and possession. But co-sharer can file a suit for Pre-emption right. Property may back to the co-sharer. In both cases process is lengthy.
The right of Preemption is a right which the owner of an immovable property possesses to acquire by purchase another immovable property which has been sold to another person.
Basically this right is available to one so that a stranger is not introduced in neighbor or the family which may cause a hindrance to ones privacy.
r.pratap
(Querist) 16 August 2015
Sir
Thanks.Pre emption is ok.But , is it not that pre emption is applicable only on residences or on all land.and again if pre emption than the co sharer should come forward and pay.But what will happen till decision of the suit since he has paid the money.will the land remain idle, for which he has already paid.
Thanks.
Anirudh
(Expert) 16 August 2015
Dear Mr.Pratap,
You are right. Pre-emption is applicable to dwelling house of an undivided family and not to land.
Normally, the co-owner should have obtained partition and sold out his property to the buyer.
Instead, if the co-owner only sells his share to the buyer, then the buyer has to file a suit for partition and get his property.
Without such a demarcation, the question of the buyer entering the land and trying to use is unthinkable.
It is not clear whether the land is cultivable land. You have to clarify. The answer to that will raise several other questions.
r.pratap
(Querist) 16 August 2015
ANIRUDH .sir.
Thanks for such clear reply.i want to clarify that, land is cultivable , but I am not using practically only co sharer is using or giving to some body else on (batai)Ie sharing of crops etc. Not yet partitioned only entry of mutation in revenue land record , being inherited property, from my father after his death, my mother is also co sharer and she wants to release her share by renouncement in favour of my one brother , Kindly also clarify whether she can renounce by choice or renounce means only leave simply in favour of rest .
All heir without making gift , sale etc.we are hindu brahmin sir , thanks in advance.
Anirudh
(Expert) 16 August 2015
Is he cultivating on the entire land or only in his portion? If that be so, then you will be entitled to 1/3rd of the proceeds after accounting for the expenses involved.
If he is cultivating only in his portion (which I take it as 33% of the whole land or his portion of the share), then why can't you enter the other portion and make your cultivation. Initially, till actual partition takes place, in consultation with the Buyer, act as though you are still the owner and start cultivating. How can he object to that?
Your mother can release her share in rem i.e. without naming the beneficiary, or in personam i.e. in favour of your brother. She has both the options. It is her legal right.
In any case, it would be advisable for the buyer to immediately lodge a suit for partition. In the factual background, the suit will get resolved maximum within a period of 1 year. That is not a long period.
Rajendra K Goyal
(Expert) 16 August 2015
Agree with the advise from expert Anirudh.
r.pratap
(Querist) 17 August 2015
Anirudh sir.
I have understood.thanks a lot.But, sir. I will use on behalf of buyer, but if they start quarrelling , fight etc as relations are not ok.what proper action should I use.should I take help of village panchayat etc or police kindly guide me , if I can use , then why buyer can not use when he is in my shoes.
Thanks sir.
Dr J C Vashista
(Expert) 17 August 2015
Very well advised by expert Mr. Anirudh.
For subsequent eventuality (if & but) you can restore either of the option i.e., taking help from village panchayat for an amicable and peaceful family settlement and/or call the police.
The share and option of buyer is intact.
Anirudh
(Expert) 17 August 2015
Dear Pratap,
Nobody says the buyer cannot use.
Whether you use or the buyer use there is going to be objection.
The reason could be, nobody knows which part of the land belongs to you.
Since the other co-owner, according to you, has already cultivated in one part of the land (which can be presumed that he is treating it as his part) he cannot probably have any objection if you cultivate in the other part.
Even this is being objected to by him, not because you do not have any legal right, but through the years, you have not been cultivating and both of you do not enjoy good relations.
The problem got compounded because you sold your share, without getting the partition effected.
You can take help of village panchayat etc., police cannot be of any help. Nobody knows how effective the panchayat decision would be and whether the other co-owner would be abiding by the panchayat decision - or would agree before the panchayat but would not follow thereafter. It would have full of ifs and buts.
But the durable solution can be found only by filing suit for partition and obtaining the same. That should not take more than a year in the given facts. In any case, similar time would be taken whether one files the suit now, or later.
Can I know why you or the buyer is hesitating to approach the Court for partition?
r.pratap
(Querist) 17 August 2015
Anirudh sir
1.if I file case before revenue authority, I fear that they may take years, as it is difficult to settle , which part to whom, when there is no unanimity.
2.since last 20 year we were I was considering that use is common and no problem but now the things have changed, Since begining , I have not been given any thing , now for how many years I can take account an d how I wll prove there is no records of produce.
3.i have an general understanding thae use by one is use by allmin joint priperties, then in case of fight/quarrelling/disturbance why police/magistrste can not seize the place /or to whom revenue authorities will go on allowing use of joint land to specific co sharers.
thaks , this will be my final query.sir.
Anirudh
(Expert) 17 August 2015
I am sorry, I have given you appropriate answer already.
Instead of seeing things in proper perspective, you are living in your own world.
Who asked you to go to the Revenue Authorities?
I asked you/buyer to approach the Civil Court for partition of the property.
Guest
(Expert) 17 August 2015
Mr.r.pratap you are with LCI from 5th Aug 2015 and had Posted Almost 12 different Queries.Whether all these are your own Problems/Issues
Guest
(Expert) 17 August 2015
No Replies to Academic Query/ Time Pass Query
r.pratap
(Querist) 18 August 2015
Experts , sorry , if you feel like this, this is the problem and lot of retired persons suffer these things after retirement.However in such complex issue I will consult local lawyer.as things are not so precise.
Thanks.
