Respected experts,kindly guide me There exists a property inherited from the grandfather to my father and my two uncles.the property was given to three on separate schedule and the exact side measurements of the plots were not specified .In 1989 a house was constructed on the plot with active participation and consent of the brothers when their father was alive.
After around 14 years later to seek vengeance for some family dispute one brother approached the local munsiff court filing a suit that the my family members removed the survey stones on (2-9-2004) after when he tried to measure the land with officials for the construction of compound wall(20-8-2004) and .
The relief sought or his prayers were.
1.To allow the fixation of the boundary and to construct the boundary wall
2.Prohibitory injunction to restrain my family from trespassing into his property and obstruction to fix boundary.
the Oral testimony of defence and prosecution witnesses,the partition deeds,documents and the report by the assigned commissioner and surveyor,were scrutinized. The commissioner report tells the fact that there is a gross reduction in the area of the land as specified in documents and a part of our house lay on his share .the Munsiff found he paramount right to fix the boundary passed a judgement for compound wall by demolition of the building.
[(Even if his plaint did involve any prayer for demolition of building,recovery of possession or mandatory injunction for the demolition of the building that exceeds into his share.)]
An appeal memorandum is filed in the district court by us stating the lack of opportunity to produce documents,no side measurements in the documents etc.
Three points arise for the court
1.entitled to fix boundary by the process of court. 2.to construct boundary wall 3.to intervene the lower court order.
Cross examination of him made the facts certain to the court
1.He did not know that the properties were not demarcated when the settlement deed was executed.
2.He did not know total extent of land
3.He had no objection at the time of construction of the house in 1989.
4. He admitted about the reduction of land.
5.He told there were visible survey stones demarcating the property until 2-9-2004, when he said we removed the stones.
6.He also admitted the building was there in 2000
From the above facts it is clear that we have constructed the building in 1989 with his consent.
The judgement of Paravur Munsiff was found unwarranted in the case of demolition of the building projecting into the uncles property.
And district judge passed a decree to him to fix the boundaries of his plot with out affecting the building leaving an open space of 2 feet between the building and compound wall.
But my problem begins now.
Its an order for him, he has to go for the execution procedure.But he is not going for it as he has a reduction in his area.We also cannot go for EP sice we haven’t asked for a counterclaim to demarcate the boundary and construct compound wall.
Moreover he has started construction in his allotted plot without demarcating boundary as directed by the court.He also has taken possession of beyond the limits given in the order.
What legal step is to be taken from our side to stop the construction till the boundaty is demarcated by the court, and hence the construction of wall.Or can we go for EP.Is there any way to obtain a stay order for the construction.Is there any option with poloice as for the execution of this court order.Sir kindly enlighten me with the legal steps.
Yours faithfully
SOORAJ.S
