(Querist) 23 November 2011
This query is : Resolved
My neighbor claim easement right in open area of my house/plot, where I am constructing portico (although, noticing his intentions I have already filed caveat). In the suite/plaint he said that – this area was always in his use and before him, it was always in use of the person from which he purchased it (total about 30 years). Although this is totally false. It is true that the area was open without any boundary wall as any one can walk there if come to this side or from along side passage, from a long time but neither in his possession nor in his use as general or necessity. He also said that portico will obstruct light and air reaching his house. However there is 4 feet wide passage (that is coming from back and meet the main passage at the end point of both plots/houses) exist between right side of my plot/house/portico and front side of his house (my front is in north and his front is in east). My portico will be in the front of little more than half width of his house’s front (and between the portico and his house’s front 4 feet open space will remain). I have submitted my written statements in the court. Next date is in December. Now in personal meetings/conversations he/plaintiff says – I just want openness of my front therefore you should construct your portico 2 feet back (according to his claim/plaint it should be 2 feet 6 inches back) and remaining part of open area is and will remain in your use, I have to do nothing there. I think these statements are contradictory from one point (always in his use) of his claim/plaint, therefore I have recorded it. My questions are –
1- How you see about the merit of the case for interim injunction.
2- Is there any importance/value of plaintiff’s contradictory statements that I have recorded, in my favor to avoid the interim injunction, if I produce these recordings before the court? If, yes then, when, how and at which stage it is better to produce it before the court.
3- One another fact I like to mention and his claim regarding this. The old house which I have purchased 6 years back and now reconstructing was in the ownership of three brothers. They did sale agreement with me. Two brothers had sale their share to me but third brother did not. Meanwhile he expired and agreement time barred. I contact his minor son’s legal guardian maternal grand mother and develop a consensus and get her consent for reconstruction of that share jointly with two third shares. Two third portion which I have purchased is at along side of the passage and my neighbor/ plaintiff’s front/side, and one third which is not purchased by me is at another side (not the front/side of plaintiff). My neighbor has mentioned in his plaint that one third share was not purchased by defendant therefore his registration of sale deed (bainama) of the house is zero. Is it right and what the means of his saying is? My lawyer has contended this point in written statement only by saying that – it is not concerned with plaintiff. My lawyer said to me that they have no right to raise any question about that. Follow the suggestions of the lawyer I have mentioned only the facts about two third and no word or reference is mentioned about one third portion in the written statement. Can these facts affect the case against me and will give the weight for interim injunction.
4- Can an affidavit from the 25 years old son of the one of the previous owner (both expired)from whom I purchased, that the open area was always in his family’s possession and use, will help to avoid interim injunction?
(Expert) 23 November 2011
no problem you can seek the injunction. if there is dominant and servient owners heritage contract subsists the relief is limited one. otherwise you can very well succeed the case.
(Expert) 24 November 2011
On facts stated i do not find your plaintiff have any easement claim against you.
If you succeed in raising the portico before filing of suit,he shall not be granted any injunction.Evidence you have can be used at stage of evidence.
Injunctions are granted on three primary considerations:a]plaintiff has prima facie strong triable case,b]the balance of convenience is in his favor,c] irreparable loss would caused if grant is refused uncompensated in quantum of money .
However an amicable settlement would not be bad as it is good have cordiality with neighbor.
(Querist) 24 November 2011
I succeeded in raising only pillars for portico but not the slab, after that police has stopped the work of portico portion. Other parts of the building completed.