There were three tenant s in a property. Each tenant has one room plus some front portion. It was joint property, otherwise. In portion A, there was room plus open area and a common staircase of three tenants. In portion B, there was one room and vacant area in front of the room. In portion C, there was room plus front portion with common toilet/bathroom of three tenants.
The landlady of this property herself lived to a different property away from this property. These three tenants were living in that property for more than 25 years or so. The landlady offered to sell each tenant their respective portion (room plus front portion). It was decided that each tenant will get his room plus front portion and whatever it was common (like common staircase in block A, and common bathroom/toilet in portion C) will merged in each portion, and each tenant will get his own staircase and toilet bathroom after purchasing his respective portion.
Accordingly, tenant in portion A, purchased this tenant room plus front portion. He made his own toilet bathroom in his front portion, and there was common staircase of three tenants, which ultimately fell into his portion and became his own property and subsequently he made the boundary wall to the left side of his property. Now there was portion B and C. Portion B was in the middle. In portion B, there was a room and some vacant front portion. The tenant of portion B, made a big room in front of his tenanted room, plus he constructed a toilet in the front portion (as he was also supposed to purchase his portion and he had to leave the common toilet/bathroom situated in portion C). Now, the tenant B was dilly-dally in purchasing his portion B, and he offered to the landlady that he wanted to purchased both his portion B and portion C, he wanted to give extra money (money what tenant C could pay) if portion C was also purchased to him. Though, the landlady refused and said, she will not deprive the right/need of tenant C. Ultimately, we purchased our tenanted portion C, which had one room plus some front portion with common bathroom/toilet (which was previously used by the three tenants).
The cause of action starts from here. In year 1996, we purchased our portion C via sale deed. Within 6 days or so, tenant in portion B sought a temporary injunction order from the district court that his tenanted toilet and bathroom falls in the portion of C, and hence a boundary wall should not be raised in between portion B and C, as his way to that common bathroom would get obstructed. Hence, we never could raise the boundary wall and a bathroom in our property (which was previously common) was still in the possession of that tenant (it should be noted that he claimed toilet and bathroom, and not only bathroom, while his own toilet was already in his portion C, which he constructed already before our sale deed).
Eventually, it was our bad phase of life that we could not present to the court to vacate this stay order. We had financial crisis, and some family problem regarding daughters marriages. In between, that tenant created a lot more trouble to us. He did not even allow to move a brick in our property, and every now and then he created panicky to us. He had politician link, good rapport with police, and all. However in the meantime, we renovated our property, and we made kitchen in the vacant area, and also we renovated the toilet (previously common toilet) and converted it to a guest room, adjacent to this was that bathroom, which that tenant had possession, which we did not touch. In the meantime, the landlord of that tenant made a complaint in MDDA to demolish a tin shed which was constructed by that tenant in portion B. Hence, after even that this case went to commissioner court, and then to high court Nanital, ultimately this tin shed constructed by that tenant in portion B was demolished, along with some portion of his toilet was also demolished, which was right at the portion, where our proposed boundary wall was to be constructed. The main reason of this complaint was to show in evidence that, there was already a toilet in portion B of that tenant and hence, his claim that he had no place to construct bathroom/toilet in his tenant portion (which he said in the court while seeking the stay order), was false. However, this MDDA report that he had illegal tin shed and a bathroom, was presented to the court, but our lawyer never followed up the case.
As the time went on, we changed three or four lawyers (unable to pay their day to day fee), but no lawyer presented to the court to vacate the injunction, and ultimately, it was ex parte decreed in favor or that tenant and we could not raise the boundary wall, and still that tenant was in the possession of that bathroom in our portion. We then appealed to the court to set aside this ex-parte decree, which however was rejected on the ground of limitation (appealed after stipulated time-frame, and also court deny the our ground of financial problem or any family problems. So, now, we were compelled to live according to the court judgment and according to ill-intention of that tenant.
The things started to change when one day we came to know that, that tenant had purchased (in 2004) his portion B of tenancy from her landlady. When, we read the sale deed, we found that, that tenant purchased the property by the name of his son (who is married and has two children), and also we read that it was clearly indicated in his sale deed/map that there ABCD portion he purchased and then east to property ABCD, there is pathway, and beyond that pathway is the property of ours. So, there was not that bathroom (which is still in his possession, and which is part of our property). We actually came to know about this sale deed just recently in year 2010, while it was made in year 2004. Immediately, we met with a reputed lawyer, and while the hearing on restoration application was going on, our lawyer presented the certify copy of that sale deed, and defended that that sale deed be considered as a document. But the court did not take the consideration of that sale deed and rejected our restoration application on the ground of time/limitation/not appearing in the court, already given enough time, etc).
After rejection of our restoration application, we made a fresh suit in the court seeking an injunction order praying that “defendant No. 1 to 6 (defendant No. 1 is the owner of the property as well as son of that tenant, and defendant No. 4 is that ex-tenant, rest are the family members) are to be restricted not to interfere in our “property C.” We presented sale deed of defendant 1, and we clearly mentioned and brought in the knowledge of the court that defendant No. 4 had an ex-parte injunction against us while he was a tenant and now that his son ( responded No 1) purchased the his father’s ( defendant No 4) tenancy, therefore being a family member, respondent No. 4 is not a “tenant nor a landlord,” and hence defendant 1 to 6, including defendant 4, have no right to interfere in our property. The court after hearing the trial, ordered for a temporary injunction ordering that respondent No. 1 to 6, will not interfere in the property of ours.
Now, respondent 1 to 6 have appealed in higher court against this injunction order. Only respondent No. 4 is pleading the case. He claims that he is still a tenant (only property has transferred not his tenancy), and he also claim that he still has ex-parte decree in his favor and hence he has all the right to use the bathroom which decreed by the court (however only “not to raise the boundary wall in front of the bathroom” was the order in that ex-parte order, which he yet had not raised since then). Also, he raised the point of “res judicata,” and some clauses regarding “limitation”). So, at the current time, respondent 1 to 6 have their application pending in the higher court to set aside the temporary injunction order passed against them. And at the current time, our situation is like to wait and watch and see what happen to that application. The respondent 1 to 6 are still coming to that bathroom, still using our land and property, still they have installed iron wire (to dry the clothes) from their property to the wall of our property (to the wall of that bathroom) obstructing our way to staircase. We have not moved to police, not filed any contempt of court case against them.
It is very important to tell that, respondent No. 4’s son-in-law is contesting the case as a lawyer, and in that higher court where they have appealed, there is ”Peshkar” who is real brother of that son-in-law, and therefore, we are hardly to get any justice from that court.
So, in lieu of the above, my quarries are:
1. Can we move to the police and seek their help to restrict respondent 1 to 6 not to come in our portion of property.
2. 2.Can we raise a temporary fencing (instead of boundary wall) to protect our property and to restrict the interference of respondents 1 to 6.
3. Can we go for contempt of court suit against defendant 1 to 6,as they are still interfering in our property and trying to do encroachment in our property.
4. Can now respondent No. 4 be considered as tenant (of that old landlady) as he claimed so in his plea. Is our statement that “he is not a tenant nor a landlord” is correct.
5. Does principal “res judicata” applies in favor of respondent 1 to 6.
6. What is relief and remedy from that that Peshkar in the appellate court who is relative of respondent No. 1 to 6, and he many time during our case in the court interfered and try to hostile our lawyer.
7. Can we move to the high court for any interim relief?
8. Is there any relief for the senior citizen in law our kind of situation to expediate the case?
9. Please post with suitable section/rule/law, to help us appropriately.
