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What should I do when I have dispossessed forcefully?

Shivendra Pratap Singh

Advocate

13/06/2020

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I have purchased agricultural land by payment of full consideration. All the co-sharers of the land have executed the sale deed in my favour. I have had the land for thirteen years. Thereafter, the son of one co-sharer has dispossessed me forcefully. Then I applied to the sub-divisional magistrate under section 145 of the code of criminal procedure.

He ordered that the sale deed is void because the land is not partitioned. Thereafter he attached the property. The order of the sub-divisional magistrate caused me a great loss. Please help.

Question from: Madhya Pradesh

It seems from the facts of your case that the disputed land was ancestral property. All the coparceners had joint ownership and possession over the land. When you purchased the property you have paid consideration to all the coparceners.

The coparceners have the right to sell the ancestral property for the benefit of the family. Consent of all the coparceners is mandatory for sale of the ancestral property.

You have duly purchased this property from all the coparceners because you had paid consideration to all of them. Thereupon, they have signed the sale deed and did not oppose your ownership in the past thirteen years.

This is admitted fact and they cannot deny it in any legal proceeding. The sale deed is valid and duly registered under the registration act. Thereafter they dispossessed you forcefully on the wrong assumption of law.

You should file a civil suit

In the current scenario, you should prefer a civil suit before the competent Civil Court. You have had the land for thirteen years and dispossessed forcefully by a son of the previous owner. You had been in peaceful possession of the land during the period of thirteen years.

Therefore you should file a suit for declaration of title, recovery of property and cost of litigation. You have the legal right and title in the property and illegally dispossessed therefrom. Therefore, you are entitled to get a declaration of your right under Section 34 of the Specific Relief Act.

You have to prove the sale deed

All the previous owners had executed a valid sale deed and admitted your ownership for the last 13 years. They cannot claim their title on the land after such a long time. Their right is barred by the limitation. You should produce the attesting witness for proving of attestation of the sale deed.

According to Section 68 of the Indian Evidence Act, if a document is required by law to be attested, it shall not be used as evidence until one attesting witness at list has been called for the purpose of proving its execution.

So you have to prove the execution of the sale deed by evidence of the attesting witness. Thereupon you can use the sale deed as evidence in the civil suit. If you successfully prove the execution of the sale deed then it will be the conclusive proof of your ownership in the disputed land.

Where entire ancestral property is being sold by the coparceners then its partition is not mandatory. The opposite party is taking the plea that he has sold the disputed land without the partition. Hence, they have erroneously dispossessed you forcefully.

He said that the transfer of property is void in the absence of partition. He is not challenging the veracity of the sale deed. So that upon proof of the validity of sale deed the court will declare your title in the land.

The order of executive magistrate is not binding

The order of the sub-divisional magistrate passed under section 145 of the code of criminal procedure is not binding on the Civil Court. A competent Civil Court has the power to decide the title of parties. Section 145 crpc does not vest such a power in the sub-divisional magistrate. So the Civil Court will adjudicate the disputes based on evidence which you produce before it.

The executive magistrate can attach the property if he finds that parties fail to prove their right. This is preventive measures to avoid the breach of peace relating to the land dispute. The order of the sub-divisional magistrate is erroneous because he has decided the title without having the jurisdiction.

He has applied the wrong reasoning that partition of ancestral property is mandatory before the sale. However, he should have to consider the fact that the entire ancestor property has been sold.

You have not lost your title even after the forceful dispossession

More importantly, you have not lost your title in the property due to such dispossession from the property. The person who dispossessed you has no right in the disputed land. He has no evidence to prove that he is the owner of this disputed land. His father has sold the land and executed the sale deed.

He received the consideration of the disputed land and never challenged the veracity of the sale deed. These facts are in your favour and your right and title in the property are still valid.

You have enough evidence to prove your title in the property and get a declaration decree from the court. When the court declares your right no one can interfere in the enjoyment of the property. The court can also grant compensation for mental trauma and cost for the litigation.

shivendra pratap singh advocate

Shivendra Pratap Singh

Advocate

Practising lawyer in the High Court Lucknow. You can consult on Criminal, Civil, Matrimonial, Writ, Service matters, Property, Revenue and RERA related issues.

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