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karthikeyan (lawyer)     20 March 2010

dispute reagrding boundaries, can petitioner get injunction

One filed an application for injunction to restrain his possession of a landed property, along with the said injunction application he also filed an application for appoinment of commissioner to fix the boundary stone for the same landed property. Can he get injunction. if not is there any rulings in this aspect.



 9 Replies

Devajyoti Barman (Advocate)     20 March 2010

The rules governing the laws of injunctions broadly revolves around three aspects - (i) prima facie case of the plaintiff, (ii) the urgency in the relif sought for and (iii) lilting of balance of convenience and inconvenience.

If in your case the property is in your possession and there is some prma facie material to show the dispute regarding boundaries then your case merits at least an order od status quo . No citation is required.

Gundlapallis (Advocate)     21 March 2010

Sir.. there must be a mistake of typing.. your statement is not in clarity.  "Injunction to restrain his possession of landed property..." Plz correct the sentence. 

From the material what can be suggested is you know as Mr. Devajyothi mentioned.. possession is important for obtaining an injunction order and a Commissioner cannot fix boundary stone.. in this case he can only take note of existing physical features and  conditions or even make local enquiry and report the same to the court - he is only extension of court's eye.  Plz correct me if i have not understood your querry properly.

Parag Modi. (Maharashtra.)     23 March 2010

Here I am given some citation on this point. Court commissioner can not be appointed to collect evidence, but if there is boundry dispute then Court may appoint commissioner.

Court Commissioner ---- Cannot be appointed to collect evidence. Sanjay Namdeo Khandare Vs. Sahebrao Kachru Khandare. 2001(1) All MR 653, 2001(2) Mh.L.J. 959, 2001(1) Bom.C.R. 800.

 

O. 26, R. 10 (a) --- Appointment of Court Commissioner --- Commissioner can be appointed only if there is any ambiguity in evidence produced before Court --- Commissioner cannot be appointed to collect evidence in support of a claim made by one party. After completion of evidence on both the sides, if it is found that there is any ambiguity in evidence adduced by the parties, then the Court may appoint a Commissioner for the purpose of clarification of such an ambiguity. Renuka Vs. Tammanna. 2007 (6) All MR ( Journal ) 29.

 

O. 26, R. 9 --- Encroachment --- Correct approach for ascertaining the area of actual possession --- Held, it is necessary that both the lands should be measured, exact dividing boundary line should be located and it can be found out whether the party, against whom encroachment is alleged, has excess land in possession. AIR 1995 Madras 274 and AIR 1999  Madras 390 - Ref. to Para 8. Mahohar Mahadeoral Pagrut Vs. Sunanda Ramdas Tharkar. 2008 (4) All MR 718, 2008(3) AIR Bom R 337, 2008 Bom. C. R. 4.

If property of opponent is adjoining to your property then above citation will apply other wise as per the below citation

Injunction can not be granted against true owner & in favour of trespasser or person in unlawful possession ---- Agricultural land gifted by father to elder daughter --- on her marriage younger daughter coming into permissive possession of land as agent of her elder sister --- No adverse possession claimed --- Stipulation in father's will in derogation of elder sister's ownership void --- younger sister not entitled to injunction against elder sister or alliance --- Transfer of Property Act Sec. 10. 2005(2) All M.R. 157.

Ask if any quary.

1 Like

ADVOCATE SRIDHARABABU (Advocate)     23 March 2010

ILR 2005 KAR 884->  SUIT FOR DECLARATION AND INJUNCTION - REQUIREMENT OF EVIDENCE - DUTY OF THE COURT - HELD - Unless the Court is satisfied with regard to material details in the light of the material evidence with regard to the identification of the property, no declaration and injunction can be granted.

Deekshitulu.V.S.R (B.Sc, B.L)     24 March 2010

Injunction presupposes possession of the prooperty. Fixing boundaries is only for purpose clarification. In a suit for injucntion question of possession of the suit property will be seen thoughy title enquiry pales into insignificance.

karthikeyan (lawyer)     29 March 2010

thank you sir, its very usefull.

karthikeyan (lawyer)     29 March 2010

sorry sir, you are correct, the type mistake is "to restrain the respondent from distrubing the possession" thanks a lot sir

Bhartiya No. 1 (Nationalist)     30 March 2010

Sir, can the demarcation of the northern boundary line of a plot with adjoining/adjacent plot(since problem is being faced in erecting boundary wall) be fixed by any civil court. Since revenue department is hopelessly corrupt from top to bottom. I am trying to get it done from revenue department since last 4yrs.

Sir, also in case encroachment found in fixing boundry line, how it can be ejected.

Regards and thanks to all.

SecretarySendaiConsumersCounci (Secretary Consumers Council)     12 December 2012

Sri. Sellappan make a unregistered sale agrement deed 0n 1994 from Ramanathan for 20200 sq.ft. land  without possesion.  He saled 2500+ sqr.ft. land to another party on 1997 by land owners signature and witness the sellappan.

the purchaser allowed to sellappan fo his house. But now the sellappn submite a petition  in the civil court for injungtion for his ownership


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