LIVE Online Course on NDPS by Riva Pocha and Adv. Taraq Sayed. Starting from 24th May. Register Now!!
The Indian Constitution Courses

Share on Facebook

Share on Twitter

Share on LinkedIn

Share on Email

Share More

Raghav Sood (Lawyer)     10 January 2010

civil suit for declaration

to all Ld friends my query is that i am dealing with a case

facts are: -

A in the year 1970 has filed a suit for reedemption against B

consequently the suit was decrred and the the Court in the year 1974 has passed preliminary decree of possession in favour of A and thereafter A has deposited the mortage money and the decree was made final on 20-6-1974. However the A has not applied for execution of final decree nor he got the possession as he has not applied for the same

The revenue record shows the B as  in possession as morgage  uptill date as wel B is in possession

thereafter the LR'S of A in the year 1996 has filed suit for declaration that they are owners in possession of the land in question and the entries in the revenue record are wrong illegal void in the Civil Court on the basis of that decree (1974)and B resisted the suit being not maintable as the it is hopelessly time barred secondly on the ground that A wanst to enforce the decree via suit which is not maintainble On the other hand it is also correct that limitation only bars the remedy but doesnt estingushes the right its only in ART 65 of Limitation but the previous counsel has not taken the plea of adverse possession

Can LR's A get the declaration from Civil Court

Waiting for esteemed sugestions



Learning

 19 Replies

Jayaraj (Proprietor)     11 January 2010

Respected Sir,

                        Myself Pramod here, i too have the same issues going through. So, once you receive an answer from our experts, kindly forward the same on to my e mail id at depramod@gmail.com

Once again thank you

 

Raghav Sood (Lawyer)     11 January 2010

no rep;ies uptill yet members i am waiting for replies


(Guest)

(1) Your query is not clear as to whether the suit filed is for redemption and possession or pure and pure only for redemption. However, even after A was successful in the Redemption Suit, he ought not to have left it without pursuing it with full force. He ought to have filed an Execution Petition against B. But your outcry that your earlier counsel did not take plea of adverse possession is not reasonable, since the meaning and scope of adverse possession have no application to the case at hand at all. LRs of A may atleast now try to get extension of time from the Court to file Execution Petition. In any event, B, the mortgagee has no legal title to live in the property as soon as the mortgage money said to have been paid by A in pursuance of the preliminary decree and obviously B becomes a trespasser. B lost his interest, right, charge over the mortgaged property and from your query it is apparent that he admitted the decree and not assailed it. Hence in all fairness, B should leave the property at once!

(2) The suit for declaration filed by LRs of A is a wasteful exercise, since A is already a discharged mortgagor and the status quo is maintained and secondly, B got back his mortgage money and where is the question of rivalry in claiming title to the property?

(3) If the court does not grant extension of time for filing E.P., then LRs of A may file a suit for ejectment against B claiming their title to the property coupled with the strength of the judgement and decree of the Redemption Suit.

subhash kumar (advocate)     12 January 2010

Dear, kindly clear the case

Subhash kumar, adv

N RAMESH. (Advocate Chennai. Formerly Civil Judge. Mobile.09444261613)     12 January 2010

//The revenue record shows the B as  in possession as morgage//

In case of vacant/barren lands, the possession is deemed to be with the owner. (as we are challenging the entries in revenuw records, it may not be taken onto account)

Further if the entries in the revenue records shows "B"s possession as mortgage, then "B" will never get title on the basis of principle/rule that  once a mortgage always a mortgage.

If "B" is found to be in possession, he will be treated as holding the land in trust for "A".

"B" can never take the plea of Adverse possession in view of entries in reveue records.

You have filed a suit for right relief, and in my opinion you have good chance.

Ask for any further clarification.

Raghav Sood (Lawyer)     12 January 2010

i am contesting on behalf of defendants N RAMESH. ji please enlight me in that respect that whether a time barred decree dated 20-6-1974 can be got executed through a suit for declaration where the plaintiffs have taken specific plea that they are owners in possession on the basis of that decree but infact the their predessor has never applied for execution of final decree nor any warrent of possession has ever been issued in any proceedings

and from the date of the final decree is'nt the possession of B is peaceful continous open hostile to the knowldge og A and his LR's

waiting for your esteemed reply sir

Nali Seshu Kumar (SOCIAL WORKER)     12 January 2010

in a suit of declaration the burden of proof on the part of plaintiff ,admittedly a brought the suit ,the parties has every power to brought the case of civil nature and the court has to power to take cognisance in your matter admitedly a has obtained decree for redemption but the very fact is silent whether the defendant withdraw the amount from the court or not ,coming to the point what is the status of final order of the court in 1996 declaration suit Ramesh sir correctly answered but the point is still silent what is the stand of the defendants in declaratory suit .any how the declaratory relief as launched by the lrs are not the suitable remedy you take the advantage basing on posssession and also raise the points for maintainability ,limitation and also raise another aspect u/s 53a of part performance as per t.p act .

Raghav Sood (Lawyer)     12 January 2010

u/s 53a of part performance as per t.p act . is not applicable and mortgage money has not been withdrwan by the defendants

N RAMESH. (Advocate Chennai. Formerly Civil Judge. Mobile.09444261613)     13 January 2010

please clarify as to

1. Nature of land, whether agriculture land or house site

2. Kind of mortgage whether usufructory or simple

Raghav Sood (Lawyer)     13 January 2010

nature of land barron land

simple mortgage

N RAMESH. (Advocate Chennai. Formerly Civil Judge. Mobile.09444261613)     13 January 2010

If it was simple mortgage, how the possession was handed over to "B"? Is there any recital that possession was handed over to B under the mortgage deed or under any other document?

Raghav Sood (Lawyer)     13 January 2010

sir it was simple mortagage and priliminary decree for possesion and direction for depoisting mortgae money of Rs. 542/- was drwan on 13-4-1976 in which direction was given to DH(A) to deposit the money in 4 months there after when the A depoisted the money and the decree was made final on 20-6-1974 . the document if any was not with me and even in preliminary decree no such document has been relied nor mentioned in the decree (however this fact cannot be raised as i can not go behind the decree) but important thing is that no warrant of possession was ever  passed as no execution of final decree was made to the court

Manjinder Singh Brar (Advocate)     13 January 2010

You have not made the facts clear

 

Raghav Sood (Lawyer)     13 January 2010

 

Sh.Manjinder Singh Brar pls tell me what facts are unclear 


Leave a reply

Your are not logged in . Please login to post replies

Click here to Login / Register  



Post a Suggestion for LCI Team
Post a Legal Query