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Mallu Godigoudar   30 August 2017

Encroachment of site

Hi Advocates/Lawyers Sir ,
my mother in-law's site (22×99) has been encroached 7feet and we were went ask that encroached person and next day that guy went and files suit that permanent injunction of suit property.

Summery : He has 2Gunta (2400 Sq.ft) site adjacent to our site and intentionally he encroached 7feet into my in-law site and he files d case that, plaintiff(encroached person) narrates that : I have 2 guntas site in 15/2 servey no and In that site I have built house exactly within it (but actually didn't mentioned encroachment ) and he asked that permanent injunction of suit property , since our lawyer couldn't attend the case , case has been squashed .
now I have purchased the site where encroached into it .. Now , can I file suit against that guy who encroached into my site ??? and he is theat


Learning

 8 Replies

Yudhish Padman S (Advocate (Madras High Court) 9566217446)     30 August 2017

Dear Mallu Godigoudar,

You have stated that your neighbour encroached into your land and when you protested, he filed a suit for permanent injunction against you.  You had further stated that your neighbour, in his plaint, has stated that he owns a certain land and has built house in it and that he deliberately concealed about his encroachment into your land.  In this case, you obviously are the defendant.  When your counsel is absent, then the case would not be quashed.  Instead, you would have been set ex-parte and the decree will eventually be granted in favour of the plaintiff, i.e., your neighbour.  So, kindly check with your Advocate, the correct status of your case and revive your position therein.  Thereafter, check whether the Suit Schedule Property includes any of your property.  If yes, file a written statement along-with counter claim.  If no, file a separate suit against your neighbour praying for permanent injunction in which case, you may do it immediately.

Regards,
yudhishpadman@gmail.com, Advocate, Chennai.

Mallu Godigoudar   30 August 2017

Thank you very much for your time and ans !! now I'm sending xeroxed scan copies in WhatsApp ! plz revert me !

Yudhish Padman S (Advocate (Madras High Court) 9566217446)     30 August 2017

Dear Mallu Godigoudar,

I perused the documents you sent me.  You may attach your documents in this thread so as to enable my brother Advocates/Experts to express opinion in this matter.

Now, if you would read paragraph 4 of the judgment, you could see that the defendants had not filed any written statement or documents in support of their claim.  It means that the defendants were not set ex-parte.  The defendants had participated in the trial all along, but they chose to not contest the matter and hence, the case has been decreed in favour of the plaintiff, i.e. Smt.Kasturi.

Given that the matter was not properly contested in the trial itself, it is not advisable to go for an appeal.  Given the facts and circumstances of your case, you cannot file a fresh suit for permanent injunction since you are barred by doctrine of res judicata u/s.11 of C.P.C.  While so, the only way to remove their encroachment is by filing a fresh suit for declaration with mandatory injunction.  You will be required to pay a considerable court fee.  This is your last and only option.  So diligently follow your case.

Regards,
yudhishpadman@gmail.com, Advocate, Chennai.

Mallu Godigoudar   30 August 2017

Thanks you sir , now I have purchased that land , can file a fresh suite and get demolish the constructed building ??

Siddharth Srivastava (Advocate)     30 August 2017

Yes. You have to contest the case of Injunction filed by the encroacher after becoming the party and also can seek mandatory injunction and possession of encroached land in your counter claim to be filed in same pending case and in case of counter claim your shall be required to pay prescribed court fee. You can also file separate suit for seeking possession of encroached land.

1 Like

Yudhish Padman S (Advocate (Madras High Court) 9566217446)     30 August 2017

Dear Mallu Godigoudar,

Yes.  As aforementioned, file a suit for declaration with mandatory injunction.

Regards,
yudhishpadman@gmail.com, Advocate, Chennai.
1 Like

Mallu Godigoudar   30 August 2017

Thank you very much sir !!

Mallu Godigoudar   30 August 2017

Sir, will court order to demolish the constructed building once it confirmed with commission appointed to survey that sites and found encroachment in our site ??
and that encrocher (who encroached our site ) is threating us to harm us if we file suite . we fedup with his roudism and we want to demolish that building . plz give suggestion to streanthen the suit !!

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