Injunction
sanjay sanjay
(Querist) 02 October 2010
This query is : Resolved
I purchased a house having ground and first floor in 1987 whereas the other Party (plaintiff)purchased similarly built adjacent house in 2003. The only difference between two houses is that pliantiff has only one room at ist floor and its back portion is vacant whereas i am having two rooms at first floor( one in the front and onein the back, the back one having lantern on the 9 inches common wall). The plaintiff has filed a suit for permanent and mandatory injuntion claiming that wall is common one and as such he has right on 4 and half inch common wall. Intially he did not file any title document to prove claim on the common wall but subsequently during cross exmn filed sale deed and power of Attorney which does not mention the length and bredth of property and only mentions the area of the property.It also does not give the detail of the construction. Plaintiff also did not agree to get local commissioner appointed to measure both properties. As a defendent I have claimed that whole 9 inches common wall as per the measurement comes in my area though I have also not filed my title document. By oral evidence I proved that i purchased the said property in 1987 and property is as it was at time of purchase. The lantern of the ground floor of both the house as well as front room at first floor is upon the said alleged common wall.What is the probabiulity of winning of this case.
s.subramanian
(Expert) 02 October 2010
Yes. You have a good case.
Devajyoti Barman
(Expert) 02 October 2010
It has a good merit if corroborated by enough evidence.
SENTHILKUMAR.S
(Expert) 02 October 2010
it is well settled that, burden to prove the case in a suit for injunction, both prohibitory and mandatory is on the plaintiff. The proof of mandatory injunction is more stringent. The plaint schedule property should be well identified and to be ascertained in a case for mandatory injunction. You have stated
"plaintiff has filed a suit for permanent and mandatory injunction"
whether there is prayer for prohibitory injunction is unknown. In Your case there is no measured Commission Report. therefore the subject matter is not identifiable or ascertainable. Plaintiff's Deeds are also silent on that point. No decree can be granted where the subject matter is Un-ascertainable. Burden is on the plaintiff to adduce evidence to identify the property, No decree can be granted where the subject matter is not identifiable or ascertainable. Don't allow the plaintiff to fill up this lacuna. Close the evidence and Argue well. There is every chance to dismiss the suit.
GOOD LUCK
sanjay sanjay
(Querist) 02 October 2010
whether the docrine of estopple is of any help as I purchased the property in 1987 whereas plaintiff came in picture only in 2003 by purchasing the adjacent house. Both the houses are as it were since the date of purchase. Is it not the responsibility of the plaintiff to get the house measured as per the title deed at the time of purchase of the same?
s.subramanian
(Expert) 03 October 2010
Yes. You are right. The purchase by you being much earlier in time,the same puts in a better and stronger pedestal than the plaintiff. This fact supports your case very much. Doctrine of estoppel does not arise at all.The failure of the plaintiff to measure the house at the time of purchase is against him.
s.subramanian
(Expert) 03 October 2010
When he has purchased the property and took possession of the house on the basis of boundaries and without measuring the same,he is bound by the boundaries and cannot claim anything in addition subsequently. You can rely on the doctrine of Falsa Demonstratia and contend that the boundaries prevail over the extent since the plaintiff has relied on the boundaries at the time of purchase. There are a lot of judgments in this regard of the Madras High Court to support your case.
Chanchal Nag Chowdhury
(Expert) 03 October 2010
The burden of proof is on the plaintiff as he is claiming. By what U have stated, U have a good case.
SENTHILKUMAR.S
(Expert) 03 October 2010
instead of estoppel try with acquiescence. long silence amounts to acquiescence. decisions are there. as per s.41 of Specific Relief Act, acquiescence is a ground for denial of INJUNCTION.
