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KhaderBasha (Business)     04 August 2017

Taking possession while the occupant has filed an appeal

Respected Advocates,

Situation : My cousin bought a piece of land with a 540sft room in it in 2011. The land was sold by the daughter in law of an old man to my cousin. The old man filed a case in district court saying he has purchased the land by his savings (govt.teacher aged 70 now) and his daughter in law (NRI) has eloped and hence give him the custody of the land. In 2016 Oct, the district court gave a judgement that the binami act is not valid in this case as he isnt a tax assesse nor he can afford that land with his savings.Moreover he couldnt prove as in how he paid the sellers initially. In short, its clear that he is a bogus claimant. My cousin tried to take the possession of the land unwisely using his brother who are teenagers, the situation back fired as one of the teenagers hit the old man's son who was trying to video shoot the possession attempt. The attempt was foiled and the old man filed an appeal.

I made my cousin to speak to a friend who is an advocate. This advocate advised that by managing the SHO of the areas PS, we can get the possession of the land. According to him, it doesnt harm or effect the appeal in progress. We have all the original documents, their mother link deeds in place, the mutation in the municipal corporation etc in my cousins name. Should it be OK if we proceed and take the possession by hook or crook ensuring no blood is shed? Will it be a contempt of court if we take the possession while the appeal is filed?

Thank you all for your valuable suggestions.

Thank you LCI for this wonderful forum.


 8 Replies

Siddharth Srivastava (Advocate)     04 August 2017

No. It is illegal. You have to follow due process of law to evict unauthorised occupant. 

1 Like

KhaderBasha (Business)     05 August 2017

Thank you Mr. Srivastav. I second your thoughts on following the legal way but we are looking for alternatives. The illegal occupant doesn't come for a settlement or a compromise. There was a temporary injuction order with the original suite which was squashed in Oct 2016, this means the injuction order is invalid too? If yes, then if we get the possession, will it be a contempt of court?

Thanks again



Siddharth Srivastava (Advocate)     05 August 2017

As such no contempt is made out.But if you take forcible possession then u/s.145 Cr. P. C. where the magistrate has power to restore the possession even if occupant is an unauthorised occupant or even if he is land grabber. If you adopt illegal means then it may invite several legal complications. Rest depends on your wisdom.

1 Like

KhaderBasha (Business)     05 August 2017

Thank you for your swift response Mr. Srivastav. Appreciate your contribution and knowledge in this area.

Stay blessed!!

Siddharth Srivastava (Advocate)     05 August 2017

It is section 145 Cr. P. C. which was wrongly typed as 45 Cr. P. C.

1 Like

KhaderBasha (Business)     05 August 2017

I'm aware as when I googled it, it was hinting on something else. Thanks for taking time for correcting the typo,.

P. Venu (Advocate)     05 August 2017

When the appeal is in pending, wait for the decision.

1 Like

KhaderBasha (Business)     05 August 2017

Thank you Mr. Venu. If at all the decision goes against the illegal occupant (as it did in case of original suit) will he be able to appeal again? What would be his further options?

thanks again,

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