sanjay sanjay (executive) 22 September 2010

Permanent and mandatory injuntion

whether a permanent and mandatory injunction to demolish a portion of allegedly common wall between the 2 houses can be granted in a case when title deed of the property of the plaintiff does not contain the length and bredth of the property ( only area is mentioned in the power of attorney)? whether it is mandatory for the plaintiff to first establish that the said alleged wall is infact a common wall throguh oral and documentary evidence to succeed? Whether in such a case, suit can be decidied on the principle of common sense (or preponderance of probability)considering that two adjacent houses must have shared a dividing wall equally in case it is not mentioned in the documents of the plaintiff and defendent also failed to file any document proving his defence that whole wall is infact comes under his measurement? Whether the principle of estopple applies here considering plaintiff purchased the built in house having the said alleged common wall with the defendent only after the 16 years of the the purchase of the defendent? Please guide.

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junaid ahmad (associate) 22 September 2010

hi...Your query is not cleraed u have not mentioned how did you purchase the prpoerty either by a reg. sale deed or otherwise.A property worth more than Rs. 100 can only be transferred by a registered deed. An agreement to sale in a prpperty worth more than Rs. 100 confers no right title or intrest in that property. You say that in ur title deeds, the measurement of property, is not mentioned but it is mentioned in power of attorney, Measurement in power of attorney are of no use. as power of attorney is not a title deed. It is a settled position of law that a plaintiff has to prove his case on his own strength without taking any advantage of defandant's weekness so, in ur case also, the plaintiff has to prove also that the wall was common. A wall between two houses may be common but it is not necesssary . If your case is nt concluded than before the pronuncement of judgement with the leave of the court you can produce additional evidence to prove your case :-

1. A contractor/building material supplier can be produced to say that he supplied the construction material of the wall on the order of your predecisor in titleand defendant andthey both paid for the material.

2.Some kaarigar/ mazdur can be produced who construct the wall on the hiring of your pre desiscor in title and defendant and they got payment fromboth of them.

3. A neighbour can be produced to say that he knows who got constructed the wall .

4. relatives or friends can be produced who were present or saw at the time pf construction of the wall.

5. If such persons or any of them are dead or not available than their descendents who are aware of these facts can be produced to witness.

Remember a decree or judgement can not be passed on the basis of assumptions and presumptions. Mandatory injuction are issued on the basis of cogant evidence.