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Pritam Gupta (Teacher)     05 March 2014

How to counter forceful possession?

We live in an undivided property built by my grandfather. My father and his two other siblings have their own allotments in the premises as per an unregistered Family Settlement. However after my father's death, I was suppossed to get 50% of my father's allottments to stay as my father had died intestate and I have only one other sibling. However my other sibling by mere forceful possession has taken up the majority of my father's allotments about seven years ago, and also holding on to most of the other movable assets of my fatheras well. Though me and my other sibling had signed an unregistered Agreement for sharing our father's assets more or less equally, most of the conditions here have also been violated by this other sibling.

Consequently I had filed a partition suit to get 50% of my father's assets but this has proved to be a boomerang as my cousins have started to exploit it. There is now a big possibility that my father's usage area itself might go down from the present amount if I continue to pursue my partition stand. Also my other sibling has now produced my grandfather's Will and given it for probate and this talks against partition. By all understandings this present legal entanglement will take at least a couple of generations to disentangle itself.

So my question is that Can there be a way by which I can get 50% of my father's allotment in the premises to stay in the meanwhile. Though a partition case has been admitted by court but like I said I am unlikely to get any relief from this in my lifetime as various other angles are also opening up.  In fact I am thinking of withdrawing my Partition suit if possible due to its potential for exploitation by my cousins. Can the unregistered Agreement that was signed between me and m oyther sibling be enforced? Would a Specific Performance suit be appropriate for my case? Can I file for reimbursement say as per rental value for areas that this other sibling is holding on to  beyond his natural 50% right? Any other way to get my share in my father's movable assets as well without partition?



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 2 Replies

Biswanath Roy (Advocate)     05 March 2014

On the basis of your averments contained in your query I opine to file a declaratory suit in the District Civil Court claiming right title and interest over 50% shares in the property along with an injunction petition praying permanent, mandatory and temporary injunction against opposite party under Order 39 Rule 1 & 2 read with sec.151 C.P.C FOR AN ORDER UPON THE OPPOSITE PARTIES to refrain from using occupying and encroaching or otherwise upon your land or any portion thereof in any manner whatsoever or whatever.  Perhaps you were misguided for filing a Partition Suit.

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T. Kalaiselvan, Advocate (Advocate)     05 March 2014

@Pritam Gupta, in my opinion, it was your right  choice to go for a partition suit with the given situation wherein your other sibling was reluctant to give away your share as agreed upon, and also had been refusing to vacate from your share, again as your rightly opined that in view of the tributaries cropping up, it will take generations to get the legal issues to disentangle, it is better to sit and negotiate for an amicable settlement within yourselves so that you can reap the benefits now instead of someone in  your future generation getting it later on.  Any other legal proceedings in this aspect will be a mere waste of time, energy and money, think twice before your jump into any conclusion.

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