Advance file wrong case

Harvinder Singh (Querist) 24 May 2024 This query is : Resolved
I filed Property case in 2022 from free legal services but my advocate filed it incorrectly.
Firstly, they filed possession case instead of partition case.
Second, They mention a point in the case of possession that my mother orally gave the said house to me with love and effection.

Now due to point number 2, I cannot file a partition case as we already said in possession case that my mothe gave the hole Property to me with love and affection.
In partition case we demand for one third share as we are 2 brother's.

What can we do?

I don't want loss the possession of the house. As I am living in it. My source of income is from the rent I generate from the Property.

CS/1462/2022 registration no. Court. Civil court Jalandhar punjab

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Quick Summary

A user filed a property case in 2022 but their advocate mistakenly filed a possession case instead of a partition case. The initial filing also included a statement that the property was gifted, which now conflicts with the intention to file for a partition and claim a share. The user is concerned about losing possession of the property, which is their source of income, if they withdraw the current case. The advice suggests withdrawing the current suit with the court's permission to file a fresh partition suit and simultaneously filing for a temporary injunction to prevent eviction until the partition is resolved.

T. Kalaiselvan, Advocate (Expert) 24 May 2024
If the suit filed is incorrect and is going to solve no purpose, you may withdraw the suit and file a fresh suit seeking the correct relief with correct pleadings and particulars.

Harvinder Singh (Querist) 24 May 2024
But i also don't want to lose the possession of the Property till we solve the the division matter.

If I withdraw the possession, then other party might take over take the possession of the Property.

What can I do?

K Rajasekharan (Expert) 24 May 2024
As rightly suggested already by the learned expert, withdrawing the existing suit for possession, specifically mentioning that the withdrawal is for filing a fresh partition suit, and then filing a fresh suit for partition is the right way to proceed in this issue.

The other co-owners / co-sharers, having ownership of a portion of the property, have no right to enter the property right now when the property remains undivided, if it is still under your sole possession.

T. Kalaiselvan, Advocate (Expert) 24 May 2024
In the fresh suit you can file a temporary injunction petition restraining the defendant from forcibly evicting you and dispossessing you from the property till the disposal of the main suit

P. Venu (Expert) 27 May 2024
The issue has been exhaustively discussed at https://www.lawyersclubindia.com/experts/brothers-are-not-giving-my-share-759436.asp.

Anyhow, you can withdraw the suit with leave of the Court to file a fresh action. You can seek the temporary injunction as suggested, but there could be no definite opinion as to how the Court would apply its discretion in granting the interim relief.

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