Dear Sir/ Mam, Our parental property case started back in 2007 During this course of time I am taking legal advise from the respected advocated available on this platform and also since the start of the case we have all decisions in our favor whether its of the lower courts, ADJ, SDM (2 decisions), Commissioner (1), and the Hon'ble High Court (2 decisions) of our state. While we are going through this legal proceedings one of the share holder sold a portion of land whose 25% was recorded as illegal possession by the RI while allocating the land (Simankan in 2016) later on when the case was in SDM court the opposition party moved to the high court again and our advocate draw the attention of the court about this fact apart from the replied to the petition. The Hon'ble High Court passed an order in November 2019 for the dispute arising out of unlawful sale of joint parental property and dismissed the petition under Article 227.Taking that order to the SDM court the proceedings continued and the SDM gave the order to allot the purchased to take the land from the share of the party who sold the land to him from his allocated share. So to take the possession of our land after that decision we went to Revenue officer (Tehsildar) we requested them to remove the illegal possession of the purchaser from our share and to provide the possession of the share allotted to us and for that as per the advise of our advocate instead of filing execution we went to initiated our request under Article 250. After hearing both the parties the Revenue Officer stand with the order of SDM who took the High Court order in consideration while passing the order and instructed the RI & Patwari of our areas to complete the proceedings but when we went to the land the person who had illegal possession on our land gathered the local villager and didn't allowed us to take the possession then we again went with the RI and Patwari of our area who provided the possession of record. In the meanwhile the purchaser went to the High Court again to stop the proceedings which was dismissed by the court again. Now when they came back they filed stay application to the SDM which he denied as we already had filed the caveat then he again filed an appeal under Article 44 and in that he didn't mentioned the previous decisions of the High Court and claimed that all the decisions made were unlawful. So this was the brief of my case so far and now my questions are :- 1. Advise on Article 227 and 14 ? 2. Can a lawyer file a denial appeal in the SDM court against the order of Tehsildar who followed the order of the High Court ? 3. Since there is no stay given on their petion at the High Court against the order of the Tehsildar as well by the SDM under whose court the purchaser has filed a appeal so can we take the possession of our land since we have possesion receipt and Panchama submitted by the officals to the court which that appeal is in hearing and the next date of hearing is Oct 5th.
First answer received in 10 minutes.
Lawyers are available now to answer your questions.
An application can be filed in the high court under Article 227 against any orders of the subordinate courts to keeo them under check and within bounds of their authority.
You have tge orser in your favour and you don't have any interim or final orders against you. Under these circumstances you should immediately take possession.
1.227 is writ petition for infringement of fundamental rights.
2 no
3. Yes
Article 227 of the Constitution of India is to invoke Extraordinary Jurisdiction of High Court for seeking direction urgently on the issues of illegal activities against all the opponents including Government, District Administration and all culprits who engaged themselves in unlawful activities. You seek relief against unlawful activities being carried and caused by your opponents.
Article 14 is equality before law enforcement agencies and Courts of law which needs to be applied to each and every member of Society and citizens of Country equally without discrimination on the grounds of caste, colour creeds and religions that puts apartheid process agathe provisions of law.
Yes,Definitely appeal can be filed before Court of law or quasi- Judicial authority for hearings and it would be decided on merits and jargon of jurisprudence. You appeal is maintainable and legal it would be heard and continued otherwise dismissed.
In your case, lis- pendant principle would apply which refers no action against even trespassers without due process of law. You have initiated due process of law let Court and law enforcement agencies take proper action against the culprits under due process of law. Please do not indulge in any anti social activities which would put you and your case in doldrums and may jeopardize your life interest in the property.
You may keep filing Criminal charges against your opponents before the Police Station under whose jurisdiction your property is situated and seek externment proceedings against your your opponent before Dy S P and S P of District to put the peace and life of your opponents in unbearable condition of their living conditions by following 107 Cr. P. C 1973 and NCFIR.
You can take possession of your land as there is no stay order passed by court
2) you have good case on merits abd should succeed
1. Yes. Challenge thus proceeding or stay order if passed by a writ petition under article 226 and 14 of the constitution, not under 227.
2. Yes.
3. Yes. Keep your physical possession as before.
1. Article 227 states that higher court have supremacy over lower courts and article 14 give equality of law, means that everyone is equal in eyes of law.
1.Article 227 determines that every High Court shall have superintendence over all courts and tribunals throughout the territories in relation to which it exercises jurisdiction
Article 14 of the Constitution of India reads as under: “The State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India.”
What is the advise you require on the above articles?
Have you file any petition before high court on the above articles?
2. If the opposite lawyer files a counter denying the facts, it becomes your duty to point out the mistake or the mischief of that lawyer and nullify his claim, you cannot dictate a lawyer what to be done or not, he will adopt all measures to defend his claim.
3. Since there is no restriction on you to take possession of the property, you can very well go ahead to take possession
Dear Sir/Madam,
You are suggested that the lawyers work under the instructions of their clients to protect their best interests and hence your query to this effect that "Can a lawyer file a denial appeal in the SDM court against the order of Tehsildar who followed the order of the High Court " is being replied in the way that the it the person (purchaser) at default and not the lawyer. You are suggested to take possession of the your land by taking administrative help so that any untoward incident does not happen.
When the matter has reached the HC and HC decline the claim of purchaser, why are you worrying. Just file execution petition to recover possession.
Article 227 - superintendence of HC over all courts and tribunals - No application of article 14.
2. No appeal when SDM already passed the order in your faovr. No only appeal in HC.
You can recover possession.
under Article 227 of the Constitution cannot be called a writ petition. Article 14 provides for 'Equality before law and Equal protection of law' i.e. all alike should be treated equally by law and hence there should be equal subjection of law and law should treat everyone equally and law should protect them equally and should not discriminate.
1. No appeal cannot be filed before SDM against order of tehsildar which was passed as per order and directions of High Court.
2. Yes you can take possession of your land and if someone object for your possession you can make application before tehsildar for possession of your land.
Dear All, As per my concern mentioned above we are planning to go and take the possession of our land physically on the coming Friday and with all your advises it is clear that we take the possession but my concern here is :- 1. Since the next hearing is on Oct 5th so is it legally right to take the possession before that and can that hearing on the appeal can refrain us in any case/article to take possession. Please advise if possible if you can advise with some decision of SC regarding such issues would be really helpful for me in getting in discussion at that time with the SDM or the advocate of the opponent. 2. Someone said to me that although you have decisions in your favor and all but if you go to get the possession than since the purchaser of the land belongs to minority community so he can file a case against you under SC/ST act than in that case you will be in trouble. Please advise on this as well because these are the only possibilities that came to our attention that can refrain or obstruct in getting possession.
1. If there is stay then it will refrain you.
2. If he files any false case you need to contest it on merits
You can take possession of land before next date of hearing
2) it is true that purchaser may try to file false case against you but you should do video recording of entire incident
3) take help of police in taking possession of land
The statement made by you that you are going to take possession of your land physically indicates that you are doing something wrong and illegal. You may be charged with criminal charges with the accusation of taking forcefully possession without due process of law. The hearing of your case is on 5th October 2020.
The hearing would go against you.
Otherside may charge you under SC and S T Act for commission of serious issues and offence.
Under S C and S C Act ,No provisions for Anticipatory Bail.
Investigation by Dy. SUPERINTENDENT OF POLICE / ASSISTANT COMMISSIONER OF POLICE for allegations made by the Complainant.
Therefore we advice you wait till 5th October 2020 and take any action against your opponents with regards to taking possession or dispossession of land as per due process of law.
Dear All, We have already recieved the certified copy of the on spot panchnama and possession receipt by the RI of our area stating that they have provided us the possession of the land in as it is situation with no stay at the time at the time of giving the receipts on 9/13 and then the opponent hiding the facts mentioned in the HC order made last November and asked for stay on the decision of tehsildar but HC denied again. By taking possession I mean that since they do not have any stay over the order of Tehsildar who followed the decision of HC so can we go there and start the boundary wall work of our allotted share. Also can I file a writ of Mandamus or take any other suitable step in this case so that we can refrain the opponent to file any petition or appeal further in the lower courts because every time they file any appeal they intentionally misguide the official which consume a lot of time energy and money of us to attend such things with the only interest to delat the process.
You should in HC draw attention of court to fact that you have land in your possession
rely upon possession receipt
take the plea that appellant has suppressed material facts and not come to court with clean hands
If you have physical possession and records with you then Please do not mention that you are going to take the possession of land instead make a statement that you would start work in your land and would attend hearing fixed on 5th October 2020.
No need to file writ of Mandamus if you have obtained land under punchnama following due process of law.
You may file caveats application against your opponents before High Court, District Courts and revenue officers for objecting Ex- party hearings without hearing you in the present matter and issues concerning the land as described by you herein above.
What is Article 44 and Article 52 of Madhya Pradesh Land Revenue Act because while go through the opponent's appeal these two Article are highlighted over there and is their lawyer just focused on the current tehsildar order and didnt mention the orders and proceeding on the past on the basis of which the order of the tehsildar has been passed.Please advise on writ of Mandamus.
You cannot refrain the opponent from filing an appeal against order by filing writ in HC
2) article 44 deals with appeals
44. Appeal and appellate authorities.— (1) Save where it has been otherwise provided, an appeal shall lie from every original order under this Code or the rules made there under—
(a) If such order is passed by any Revenue Officer subordinate to the Sub-Divisional Officer, whether or not the officer passing the order is invested with the powers of the Collector—to the Sub-Divisional Officer;
(b) If such order is passed by the Sub-Divisional Officer, whether or not invested with the powers of the Collector—to the Collector;
(c) If such order is passed by any Revenue Officer subordinate to the Settlement Officer — to the Settlement Officer;
(d) If such order is passed by any Revenue Officer in respect of whom a direction has been issued under sub-section (3) of Section 12 or sub- section (2) of Section 21— to such Revenue Officer as the State Government may direct;
(e) If such order is passed by a Collector whether exercising the powers of Collector or Settlement Officer, during the currency of the term of settlement — to the Commissioner;
(f) If such order is passed by a Settlement Officer, whether exercising the powers of Settlement Officer or the powers of a Collector in connection with any settlement operation unless otherwise expressly provided— to the Settlement Commissioner;
(g) If such order is passed by the Commissioner or the Settlement Commissioner—to the Board.
(2) Save as otherwise provided a second appeal shall lie against every order passed in first appeal under this Code or the rules made thereunder —
(i) by the Sub-Divisional Officer or the Collector to the Commissioner;
35
(ii) by the Settlement Officer to the Settlement Commissioner;
(iii) by the Commissioner to the Board —
(a) if the original order has in the first appeal been varied or reversed otherwise than in a matter of cost; or
(b) on any of the following grounds and no other, namely :—
(i)
(ii)
(iii)
that the order is contrary to law or usage having the force of law; or
that the order has failed to determine some material issue of law or usage having force of law; or
that there has been a substantial error or defect in the procedure as prescribed by this Code,which may have produced error or defect in the decision of the case upon merits.
(3) An order passed in review varying or reversing any order shall be
appealable in like manner as the original order.
Dear Sir,
Your plan to take possession with the help of administrative authorities is quite perfect and the same is not going to affect your case pending. But, you are suggested to be careful because misuse of law and its provisions can be done by that person in respect of the SC/ST Act. In this regard, you are suggested to submit an humble application to police and other authorities regarding the threats extended by said purchaser and apprehension of false cases under SC/ST laws by him or his family. Also submit the copies of the said application and it is quite possible that the case will turn in your favour.
It is not Articles but sections 44 and 52.
Section 44 deals with transfer of pending matter before settlement Commissioner and 52 deals with stay of execution of order.
Sorry we can't advice you on the issues involved under the order of Tehsildar simplicitor because we do have the order of Tehsildar before us to review and advice you accordingly.
You can't make a move for every matter by invoking the writ of Mandamus before Hìgh Court seeking direction against the Government, Public Servants, individuals and quasi-judicial authorities, Judicial Authorities, Trial Court unless No efficacious remedy is available before you except invoking Extraordinary Jurisdiction of High Court under Articles 226 and 227 of India Constitution 1949.
We advice you to refrain from invoking Extraordinary Jurisdiction for asserting your rights of possession of property and land which has been already received by you under punchnama. Under the present situation and circumstance, your writ of Mandamus would become absolutely infructuas and will be dismissed at admission stage before the High Court.
My only concern is that we have already highlighted this fact in the HC that the shareholder has sold a part of land without anyone's concern and before the allotment of shares in the joint property whose case started in 2005 and the sale deed was made in 2014 and after the HC court order of November under Article 227 our HC advocate advised us to file execution but our lawyer who handled the case in all courts apart from HC asked us to file 250 against that party who purchased the land from one of the share holder in the past in order to remove his unauthentic possession from our land with and that too went in our favor as the SDM of that time passed the order after the HC court that since the seller has a share in the joint property so he has the right to share but since at the time of sale there was no partition among the original shareholder so he order the purchaser to claim the ownership of the purchased land from the area where the seller's share has been allotted on 10/01/2020 and the online records has been updated as well which shows the ownership of purchaser's share in the allotted share of the seller and not on ours but then due to corona we were not able to continue the proceeding right away and then back in June we reached to tehsildar who followed the SDM's order of Jan and HC and passed order on Aug 28 asking the revenue officials to give as the possession which they did as stated in my previous question on 9/13 and we have certified copy of the same and then we got to know that the purchaser has again filed a petition on 9/21 hiding the above fact. This all is happening with us since our share is next to the highway so the purchaser intentionally creating trouble for us by file un necessary appeal through his lawyer who was the lawyer of the shareholder as well who sold his land was was aware of all these activities right from the start on one way and give a feary call from the local on other side. So I asked for Mandamus.
Please explain what is 250 ?
You have mentioned it in your 11th line of last follow up question.
Please reply and file written statement in the petition of purchaser in 9/21 specifically drawing the attention of the presiding officer for the concealment of facts by the purchaser and seek dismissal of the petition with cost.
By 250 I mean that in follow up of HC order instead of filing execution our lower court advocate filed a case under article 250 to remove the unauthentic possession of the purchaser from our alloted share.
You should act as per your lawyers advice
he is familiar with facts of case and had guided you correctly
Act as mentioned herein above
Section 250 of Madhya Pradesh Land Revenue Code deals with an application for restoration of possession of land for survey.
What happened to case under section 250 of M P Land Revenue Code 1959 as amended up to the date ? What is the stage of the case ? Whether pending or disposed off?
If pending Please mention stage of the case.
If disposed off then Please discuss operative order.
Section 250 of Madhya Pradesh Land Revenue Code 1959 is an effective a d efficacious remedy a available to you for recovery of your land lawfully then why do you need to approach High Court invoking Extraordinary Jurisdiction under Articles 226 and 227 of Indian Constitution 1949 ?
Section 250 of Madhya Pradesh Land Revenue Code 1959 is an effective and efficacious remedy available to you under due process of law to acquire your land lawfully;
Then why do you need to invoke Extraordinary Jurisdiction of High Court under Articles 226 and 227 of Indian Constitution 1949.
Better go ahead and take possession if face any hard restrain than file execution petition.
Your advocate wrongly petition for removal of the unauthentic possession. Waste of money and time. Curt already ordered your title in the property.
Now can take possession. If any restrain , can call the police and file FIR.
1. As there is no restriction order to take possession of the property by any order, there is no legal infirmity in taking possession of the property.
However since the next date of hearing is posted on 05th Oct, it is advisable you wait for the completion of the hearing on the date to know about any outcome on that date.
2. They may not have any reason or grounds to object to you taking possession, but if they plan crookedly against you then they may try to put pressure on you by filing false cases on different grounds under SC ST (prevention of) atrocity acts.
You can take possession and start constructing the proposed boundary wall to protect encroachment of your property.
You do not have to approach court so soon with any case to prevent them from disturbing your possession.
Let them o to court where you can produce the copies of the orders given in your favor by high court, which will solve all the problems.
[44. Appeal and appellate authorities. - (1) Save where it has been otherwise provided, an appeal shall lie from every original order of a Revenue Officer competent to pass such order under this Code or the rules made thereunder-
(a) if such order is passed by any Revenue Officer subordinate to the Sub-Divisional Officer - to the Sub-Divisional Officer;
(b) if such order is passed by any Revenue Officer subordinate to the Deputy Survey Officer - to the Deputy Survey Officer;
(c) if such order is passed by the Sub-Divisional Officer - to the Collector;
(d) if such order is passed by the Deputy Survey Officer - to the District Survey Officer;
(e) if such order is passed by any Assistant Collector, Joint Collector or Deputy Collector to whom the powers have been conferred under-section 24-to the Collector;
(f) if such order is passed by any Revenue Officer in respect of whom a direction has been issued under sub-section (3) of section 12 - to such Revenue Officer as the State Government may direct;
(g) if such order is passed by a Collector or District Survey Officer -to the Commissioner;
(h) if such order is passed by the Commissioner - to the Board.
52. Stay of execution of orders. - (1) A Revenue Officer who has passed any order or his successor in office may, at any time before the expiry of the period prescribed for appeal or revision, direct the execution of such order to be stayed for such time as may be requisite for filing an appeal or revision and obtaining a stay order from the appellate or revisional authority.
(2) The appellate or revisional authority may, at any time direct the execution of the order appealed from or against which a revision is made to be stayed for such time as it may think fit.
(3) The authority exercising the powers conferred by Section 50 or Section 51 may direct the execution of the order under revision or review to be stayed for such time as it may think fit.
(4) The Revenue Officer or the authority directing the execution of an order to be stayed may impose such conditions or order such security to be furnished as he or it thinks fit.
(5) No order directing the stay of execution of any order shall be passed except in accordance with the provisions of this section.
The opposite lawyer has invoked the section 44 for filing the appeal and the section 52 has been invoked to to stay the orders of the Tehsildar till the disposal of the appeal.
You do not have to file a writ of mandamus for this.
You can file a counter to the stay application objecting to his application and also reply to his appeal stating that they have suppressed the fact of high court order hence both the appeal and the stay petition are not maintainable.
Since the new purchaser has preferred an appeal against the orders of the SDM, you have to give a suitable reply and file the same along with the copies of the orders passed by SDMN and the Tehsildar along with the copies of the orders of the high court.
You do not have to file a writ of mandamus and it is not maintainable hence it may not even be entertained by high court.
Hence you better confine to the contest of the appeal alone.
Since you have already got an order in your favor from the SDM an also from the Tehsildar in your favor on the basis of the high court order, you better don't get confused.
The orders in your favor is very clear hence you can proceed with the orders in your hand while challenging his appeal simultaneously.
Mandamus is proper remedy
You can take possession of your land and no need to wait for next date of hearing in High court.
Dear Sir/Madam,
You are suggested that you may file the execution case as well and the said case of 250 also in your favour. There are several judgments of High Courts and Supreme Court that the said sale and purchase become infructuous.
Dear All, Taking your advise we have gone to take the possession of our land as there was no stay from anywhere and there just an appeal that too hiding the fact that the order passed by tehsildar was the follow up of the order of HC. As you know that we decided to go and get possession this Friday since we have all the documents and decisions claiming the possession of the land but as per your kind advises we followed the due process of law we filed an application in the police station of that area explaining the matter and attaching tehsildar's order and panchnama and possession receipt provided by the RI we went today and as expected the purchaser party threatened us in counter arguments we asked them to provide them the stay if they have but they didn't and they misbehaved with my father saying that the case in under appeal is the SDM court then we called the police when the police came their behave changed and they started to beg in front of them saying that we purchased the land from one of the share holder and wanted us to allow to cultivate their soyabean crop which they knowingly croped just to refrains us from taking possession. Then we went to police station there the concerned authority asked them to provide the evidence which they didnt and we told that we already have docs with us and submitted you an application for the same that were expecting this to happens so they asked to gave in writing whatever happened at the site which we did and then they asked their officials to go again and check the crop status which the purchaser party is claiming and for which their officials submitted the report that due to heavy rains in the past there is hardly any chance of standing crop that can be cultivated and that too is not in the possession of the purchaser as per records. Please advise now because as per our discussion with advocate of our side, he stating he has not prepared the answers for that appeal and is not willing to go with us on 5th.
Dear All, We are following all the due process of law and here is a glimpse of it since the case started back in 2005 :- After the death of our maternal grand mother our maternal uncles and us total 8 parties filed a case for share and winning at every levels of lower courts and ADJ one of our maternal uncle who was the prime opponent at that time and was taking care of the land and cultivating it in the past went to HC in 2014 claiming that will of our nani nominated him the owner of entire land which the HC declined in their order of 2015 but since he severed her HC gave a share of her to him which came to conclusion that now the land will be divided in 9 shares 2 for him and one per party. Then we came back to tehsildar for allocating the share which he did and then we again followed the same process of fighting the case in SDM court and Commissioner who all agreed with the way the partition was done by tehsildar. Then our maternal uncle again went to HC challenging the allocation which again the HC denied and stand with the decision made by lower courts under article 227 in 2019. Our HC lawyer asked us to file execution but before that After HC 2019 order the purchaser filed application for namantran of the land for his share but since it came to us the tehsildar denied and SDM allotted them the share at the alloted share of the seller. Then our revenue court lawyer who was RI himself in the past advised for section 250 proceeding took place to detain him from our allotted share that too went in our favor as discussed above with not stay at that point of time in presence of revenue officials in the meanwhile the purchaser went to HC claiming for stay on order passed by tehsildar which HC denied again stating that to get the remedies from below first than he filed for stay in SDM under section 52 which SDM denied they he filed appeal saying that Tehsildar do not followed due process of law and hiding the facts again as mentioned above
Also throughout all these proceedings of 15 plus years whether in the lower court or in the HC our respective lawyers have drawn the attention in the respective courts that the one of the share holder who being the native of that area has sold a part of the share which in incorrect as it is a joint family property. And since one of our maternal uncle who passed away in 2012 and was a lawyer by profession as well has given a public notice in the newspapers as well at the very beginning at the start itself before share allotments informing one and all reading it especially for the locals that since it a joint family property and the case for the shares and its allotments going on so no sale to take place. Also at present 3 of the 8 shareholders including the shareholder who sold a part which is now being allotted to us with due process of laws on records are now left rest have sold their land as well and that party being local as well has taken possession. Today with the advise of our lawyer and as per the advise of the respected team of lawyers present on this platform we went to take the physical possession by following the due process of law and informed police in advance as there was no stay on Implementation of tehsildar's order under section 250 passed on 8/28 and who in his order mentioned all the previous orders of land including the HC and asked him to remove his illegal possession but the purchaser still refrained us. And now we are requesting our lawyer to attend the hearing of that appeal of Oct 5th but don't know why he is not taking it seriously and now after informing him all what happened today he is still telling us that he won't be able to attend the hearing. Really frustrated now because we are 150km away from our land site and it takes a whole day to attend the false claim proceedings from the purchaser even though he has been asked to remove his possession. Opponent asking to bring lawyer to justify today's incident and ans the appel of the claim
Please withdraw your application under section 250 of Madhya Pradesh Land Revenue Code 1959 if pending for decision because that application has become absolutely infructuas in view of your possession of land with you.
Please appoint some lawyer who may review your case papers and details for next course of action as per due process of law as we do not have all neccessary information, details and data before us to advice you legally with Assurance to take next steps.
You need to follow the due process of law. Presently following up HC proceedings willl be a good remedy
Your lawyer should prepare detailed reply in appeal
2) if courts are not functional then presence would not be required on next date
Engage another lawyer to appear on your behalf file detailed reply
it would affect your case adversely if court passes any adverse order
if lawyer does not appear you should attend court personally and produce possession receipt and other orders passed by court
Act as mentioned herein above
If your advocate is not cooperating then you may change the advocate instead of depending on him anymore.
The police have already obtained that the property is not in possession of the purchaser and the crops reportedly cultivated is not standing crop, hence you may put pressure on police to protect you to take possession of the landed property, or you can obtain an interim order from court seeking assistance of police while you are taking possession of land.
So you may follow the case through the SDM court regularly and also take steps to take possession of the property allotted to you.
Even now you can file an execution petition to execute the high court order by engaging the services of a different lawyer.
You can take NOC from the current lawyer and inform court that you would be engaging a new lawyer hence the case may be adjourned to some other date.
In the meantime you may engage another lawyer who is having more experience in this matter.
.
As you say there is no stay on Tehsildar's order regarding taking possession you should proceed to take possession. If any appeal is filed and you get the notice then you have to attend it. Once you have started s.250 proceedings you should stick with it till getting possession, side by side defend the appeal. Have the High Court specifically declared the sale deed of that "25%" null and void?
In the matter discussed above we are still not able to get the physical possession of our share. Moreover we have attended all the proceedings dated Sep 28, Oct 05 Oct 09 and Oct 12 respectively with our lawyer. Where our lawyer clarified the current SDM where the appeal has been filed under section 44 of MP land revenue act that the order of Tehsildar was in lieu of HC order and there is no questioning arising on hearing the appeal for its acceptance as the HC accepted the allotment of shares and the seller who filed Namantaran application back in 2019 got the part of his purchased share from the allotted share of the seller by the order of the SDM at that time back in Jan 2020 and the records have been updated and we have the kabja receipt as well. But still the SDM is hearing the case and the next date is of Oct 19 meanwhile during the past hearing the current SDM in verbal denied to give the opposition any stay whereas when we filed for the certified copy of the order sheet in that he has written that he has given until he made any decision on the acceptance of the appeal. So my question is :- 1. Can a SDM give temporary stay knowing all the above facts that we are requesting him to give as the physical possession of land which has been allotted to us by the HC order and also knowing that the opponent who purchased the land has been give his share of purchase in the allotted share of the seller and the opponent didn't filed any objection to it till now and is now demanding possession in the share on which he the purchaser or the seller has no right ? 2.Can we give the reference of the recent SC judgments regarding Adverse possession or is that applicable in our case ? 3. Can we make any kind of requests to the HC so that we can get the physical possession as early as possible because both my parents are above 60 years of age and I always have a fear of COVID when me and my father goes to attend the proceedings which are baseless ?
1. Only if there is no contrary direction of HC
2. It's a vast concept each case has different facts the case needs to be studied in detail. You can seek personal case study consultation for detailed analysis
3. Yes you can
SDM cannot give nay stay in view of HC orders
2) he cannot go against HC order
3) submit your written arguments wherein you enclose HC order
4) adverse possession is not applicable in your case . Stick to HC order
Unable to attach decisions pdf so here is the Glimpse of all orders in a sequence :- Order 1 :- Vywhar Nyayadish Warg 1dated 11/5/2010 when the shareholders demanded their shares and the person taking care of the property claimed the right on the whole which the court denied and order for partition in equal shares to the shareholders and to give the Grand mother's share to him as he was taking care of her and of the property. Order 2 :- Vywhar Nyayadish Warg 1 (Review) dated 27/8/2013 Challenging the above decision but was dismissed. Order 3 :- ADJ:- Challenging the above two decisions was dismissed. Order 4 :- HC Indore :- Case No 224/2015 order dated 7/4/2016 where HC stayed with the decisions of the lower courts and then partition was done. Order 5 :- Tehsildar's order after the partition was done and was challenged but he found it correct after viewing all the facts and findings in different appeals. Order 6 :- SDM denied and stand with the Tehsildar's order. Order 7 :- Commissioner Bhopal stayed with the decisions of Tehsildar and SDM. Order 8 :- HC case 9985/2019 where the court dismissed challenge made to partition. Order 9 :- SDM's order 10/01/2020 for Purchaser who applied for Namantaran which the tehsildar denied. Although he did not made his presence felt in the case since 2005 till 2019 even after partition and he also signed the Simankan of our allotted share back in 2016 made by RI where it's mentioned that purchaser had illegal possession on our share. SDM reviewing HC order of 2019 made Namantaran of purchaser in the allotted share of the seller and no objection was raised on it till now. Order 10 :- Tehsildar's order on our application under sec 250 of MPLRC to the purchaser to remove his possession. He filed for stay on Order 10 but SDM denied. We received receipt of possession. He went to HC hiding past orders. HC ask to seek remedy in lower courts. Then he filed appeal to SDM under Sec 44 whose next hearing is on Oct 19. Please advise.
My concerns is the purchaser was aware of the happenings of the case and still he did not interfered even he signed our Simankan knowing that just 15% of the land he purchased is in the share allotted to us. Our lawyer of HC or lower court in their hearings told the facts in discussion and in writing that the shareholder has sold a part of the land even while the decision of HC in 2019 where HC stands with the partition and share allotment made by lower courts was made. Now in Jan 2020 when the purchaser went for Namantaran he made us and the seller as parties in that matter and the SDM order for Namantaran of the amount of land he purchased from the seller at the allotted share of the seller and he did not filed any objection to it since Jan till now. And now when we took legal action to remove his illegal possession he is filing appeal in SDM court and now claiming that he has 100% possession in our allotted share. Even the surprising fact is the opponent lawyer is the same in all like he was there as an opponent when we were fighting case for our shares from our maternal uncle and now he is the lawyer of the purchaser and he is not considering the decisions made in the past not even the one of the SDM which went in favor of the purchaser as explained above. And as of today out of the 9 shares made in the past only the share of the person who sold the land to the purchaser and our share is still on our name rest have sold their shares to the other local landlords and the purchaser whose 85% purchased land which was in the share of others did not raised any voice during that sale and that party has possession of those shares as well. All the proceedings of the past was in lieu of the orders of the HC of 2015 and of 2019 but still we being refrained from taking physical possession of the share allotted to us. Is there is no remedy for people like us who are following due process of law and attending these kind of baseless appeals ?
It is necessary to peruse various orders cited by you
2) litigation is long drawn and expensive proposition
3) if any appeal has been filed you have to wait for disposal of appeal
4) you have to draw attention of SDM to HC orders
5) you should get physical possession
Act as mentioned herein above
Act as mentioned herein above
There is a remedy but it takes lot of time in india
Let the decision of the appeal come. No remedy to surpass due process. The purchaser at last may even go to the civil court for declaration of his title. But you may get the possession as soon as the present appeal is decided in your favour if there is not any stay.
1. The SDM can give a temporary stay on the matter till such time both the sides are heard, there is no legal infirmity in it.
2. The adverse possession plea has not been taken by you neither the high court has passed any orders based on adverse possession.
Therefore you insist and rely upon the high court judgment in your favor in the proceedings pending before SDM court.
3. You can file an execution petition to execute the high court order before an execution court instead of pursuing the case before SDM court.
Let the opposite party obtain stay on high court order, which is not possible.
The contents furnished in the subsequent post was already narrated by you in your earlier posts.
The fault in your side was that you failed to execute the high court order instead you have approached the tehsildar with an application under different provisions of law.
You had a clear judgment in your favor hence your approach to tehsildar on this appears that you are starting the process afresh once again, that is why the opposite party is playing all the games utilising the loopholes in the law.
Even now you can file an execution petition before an execution court to execute the high court order in your favor ignoring the fact that there is a case opening before SDM.
You are wasting your time by repeating your frustrations over this issue instead of taking proper legal action at right time.
Even now nobody stopped you from taking possession provided you got an order to take possession with the assistance of police through court ameen in execution petition filed before the execution court on the basis of the high court order allocating your legitimate share in the property.
On the hearing on Oct 19 we just got to know the new hearing date of Nov 2 and now there is again a twist in the tale, the opponent lawyer came and informed us that the purchaser has now filed a case in the civil court against the shareholders including the one who made the sale and those who purchased the share recently. It is under Sec 151 of MPLRC and whose hearing is on Nov 4th. Now, our lawyer advised us to take advise of our HC lawyer on how to proceed further and he suggested us to file counter claim on the hearing of Nov 4th. Sorry to bug you all over and over again but this platform where I can take help on : 1. Can you file and appeal or something in the HC for this and to help us in providing us the share asap. 2. What is counter claim and your opinion on this whether we should go for it or not ?
Have you been served with copy of case filed in civil court
2) after service file your detailed reply denying allegations made
3) no need to file appeal in HC against filing of case in civil court
4) it is necessary to go through case papers filed in civil court to advice further
1. If he has filed a fresh case then you may have to file a counter on the date of hearing provided you receive summons.
You cannot file any case against it in high court.
2. First you receive the summons and see what case they have filed afresh.
You don't go by oral or hearsay information.
Need to study the entire case for the same.
Counter claim is your claim against the plaintiff.
For further assistance contact me on
With respect to the matter discussed above will you please advise on the question below based on the major happenings after our last discussion :- 1. SDM has given stay under Sec 52 of mplrc acknowledging on his ordersheet that he has read the HC decision.So can he give stay after noticing that the share in question has been allotted to us as per HC order? 2. Can the proceedings of the SDM started on Sep 28 can be refrained from further hearing if a case under Sec 151 of mplrc has been filed in the civil court on Oct 19 and on the recent hearing of the civil court they have denied for stay from the civil court because the SDM was supposed to give order on the next hearing of Nov 23? 3. Can the opposition who is a third party in the can can file any case under Sec 151 of mplrc in a parental disputed matter and challenging the partition made and accepted by the HC? Please advise with some SC references or some section based response will be acceptable. Also tbe SDM has not taken any action on the opposition who do not stayed with the stay order and cultivated the crop? 4. We have given application after discussion with our HC lawyer that we don not want any further hearings and requested the SDM to give his decison on Nov 2nd hearing but the case in his court is still on.
1. The stay orders have been passed by the SDM s per proper provisions of law.
2. This would depend on the proceedings taking place in civil court separately to that of the proceedings before SDM.
3. The third party has a right to file any case which is enforceable in law, however the maintainability of the same will depend on the conduct and arguments made in favor and against .
4. You can ask your advocate to follow it up and seek for clarification from SDM court about this to throw light to your query.
1) you have to file appeal against impugned order
2) if any party is aggrieved by HC they have to file appeal against HC order before SC
3) act as per your lawyer advice
Dear All, Need your advise again and now for me it's really frustrating and it literally feels like laws in our country are meant to be taken broken by some way or the other with the help of the loop holes or are only meant for rich or people in power to refrain a common person to enjoy his/her rights. Here are the updates on the happenings so far after my last question :- The civil suit filed by the purchaser is still going on. On 20/11/2020 after consultation with our HC lawyer we asked our civil court lawyer to submit the reply along with an application under section 7 and 11 of CPC (I have no idea what is it for with respect to my matter discussed above) and since then we are just getting date after date and now they next date is of 27/7/2021 which is for final discussion and decision. In the meanwhile we tried to start fencing of our area multiple times but with the help of local goons the purchaser is refraining us to work on it and this is when we have filed a complaint against this action in the local police station. So here I am again with a hope that I can get a fully and final remedy for my issue. So will be please advise me on the below mentioned queries :- 1. How to tackle the proceeding from here on because now I firmly believe that these actions of filing appeal etc are only meant to refrain us from starting construction on our allotted share ? 2. Can anyone of you will be so kind as to give me some SC judgement which can be given as reference in the court proceeding from our end ? 3. What to do if we again get a date instead of a judgement ? 4. What steps should we take this time if we go for starting our fencing work again in case if we again get a new date and if the local goons threaten us to work ?
You cannot prevent defendant from filing appeals
2) litigation is long drawn and expensive proposition in India
3) you can seek expedited hearing if you are senior citizen
4) on account of Covid only urgent cases are being taken up by courts
5)hire your own security guards when you do fencing work
6) install CCTV cameras in your land
1. Since you have filed an application under Order 7 Rule 11 seeking to reject the plaint filed by the plaintiff for the reasons you relied upon in the said application, you may have to wait for the decision to be taken by the court in the date of hearing posted by you, without which you may not be able to proceed.
2. What is the grounds that you are asking for a judgment, without knowing the same a vague judgment cannot solve your problem.
3. Since the courts across the country have not resumed the normalcy, you may have to go by the court's decision i this regard.
4. The threats posed by goons is a different subject to that of the pending case in the court.
If the goons are indulging in illegal acts against you again then you may have to lodge a criminal complaint against them with the local police.
The same has been answered earlier. Pls do as aforesaid
Is my case falls under HUF Act 1986 and if so then will the Sec 22 (1) of the act which deals with the preferential rights of a legal heir is applicable in this case or if there is any clause/sec/act which can help us in settling out this case once and for all then please let us know. The reason for asking this question is because of the frustration we are going through as we are just getting dates after dates and nothing more than that so if the above will apply to our case then we will go for it. Please advise.
properties belonging to the family would be held within the family, to the extent possible and no outsider would easily be planted in the family properties. It is with this objective that a preferential right was conferred upon the remaining heirs, in case any of the heirs was desirous of transferring his interest in the property that he received by way of succession under the Act.
In this situation, in my opinion, the sec 22(1) what you have preferred may not be applicable.
If the courts are adjourning the matter every time, it is not a strange thing because almost all the courts in the country are doing so owing to covid pandemic restrictions imposed by supreme court on all the routine case are not of very urgent in nature.
You cannot avoid this situation.
I don't think so. It's better you follow up the HC case promptly