mandatory injunction
sanjay sanjay
(Querist) 22 September 2010
This query is : Resolved
whether a permanent and mandatory injunction to demolish a portion of allegedly common wall between the 2 houses can be granted in a case when title deed of the property of the plaintiff does not contain the length and bredth of the property ( only area is mentioned in the power of attorney)? whether it is mandatory for the plaintiff to first establish that the said alleged wall is infact a common wall throguh oral and documentary evidence to succeed? Whether in such a case, suit can be decidied on the principle of common sense (or preponderance of probability)considering that two adjacent houses must have shared a dividing wall equally in case it is not mentioned in the documents of the plaintiff and defendent also failed to file any document proving his defence that whole wall is infact comes under his measurement? Whether the principle of estopple applies here considering plaintiff purchased the built in house having the said alleged common wall with the defendent only after the 16 years of the the purchase of the defendent? Please guide.
Kiran Kumar
(Expert) 22 September 2010
one point is that certainly the plaintiff will have to prove the fact that wall was common....and to prove this point plaintiff will have to clearly establish the dimensions of the property.
the decision can not be based merely on the basis of common sense, if there is some cogent evidence available to prove a particular fact.
Raj Kumar Makkad
(Expert) 22 September 2010
Even if no dimensions/measurement of the sides have been given in the registered sale-deed of both the parties even then as per their area under possession, it can safely be come to the conclusion of the areas of the plaintiff and defendant and accordingly the status of the alleged wall can be decided and a technical local commission say civil engineer can be got appointed for this purpose. I do agree with the opinion of Kiran also
sanjay sanjay
(Querist) 22 September 2010
what will the position if plaintiff choose not to get appoint local commissioner and instead files few photographs showing some unplastered portion of the said wall and complaints filed with the local police of the relevent period to show that construction was carried on the common wall? whether principle of estopple applies and whether it is not necessary for plaintiff to firs file suit of declaration alongwith injuntion to suceed?
G. ARAVINTHAN
(Expert) 28 September 2010
Even no Advocate Commissioner has been appointed in the suit for injunction without any other relief
pawan sharma
(Expert) 28 September 2010
SO, u may prove it before the court.
In criminal complaint the Principle of Estoppel is not apply buz it apply in the civil case, only.
