09 October 2009
There were two brothers .both constructed their houses on the plot of land which they got as per their share.as the plots were on road side both brothers decided to construct the shops on the front portion of plots and they constructed their houses behind the shops.for the purpose of ingress nad egress both kept a common street by leaving 2 feet of land from each plot.in this way 2 feet of land was left on western side by one brother and 2 feet of land was left on eastern side .consequently rasta of about 4 feet com into existence. Both of them used rasta since 1965. Now what happened one brother who was living on western side of my client sold the plot along with his house to some one. In the sale deed there is no mentioning of street which is 30 feet long.the said purchaser again sold the land to someone.this 2nd purchaser now demolished the whole house and started saying that he is the owner of 2 feet of land which was kept for common passage and enjoyed by my client for last 40 years along with his brother. A suit for injuction was filed .status quo guaranted on the basis of lc report. Sir they preferred appeal against the status quo order. Sir please suggest me how to counter the argument that rasta has not been mentioned in the sale deed. Pls suggest other arguments also
10 October 2009
Mentioning regararding the rasta in the sale deed is not an important point. You have said that plaintiff has file a injunction suit, if it is bare injunction suit then suit is not maintainable, the nature of the suit ought to have been declaration and injunction. Have taken this contentnion in the written statement. If you have already filed a written statement then again file amendment of written statement taking the counter claim that " Defendant has got right over the suit property way of prescription, since more thatn 20 years he is using the suit way without any obstruction,peaceablly etc. Please refer easement act. U can take the above contentnon while arguing in an appeal.There are so many rulings are available on this point.