Anonymous
Asked September 21, 2016

Legal action for taking our property

  • 1 Answer
  • 711 Views

Dear Sir, My mother is widow and she has an property (Shop) at her name, she purchased in year 2002. As my father died in 1996, the shop purchasing idea was from my Uncle (Big brother of my Father) as he is having running business adjacent to that shop. My uncle idea was let's purchase this shop so he can also use this and run our home expenditure and later in future this shop will be good for children to open any business. There is no rent agreement, nothing, this was just on good will. He (my uncle) has 4-5 shops registered at his name in city and many other properties. Whereas my younger brother and mother don't have anything to run the home. We wants to get back that shop so my brother can do some small business for livelihood. But my uncle is not vacating that shop and asking us to do whatever we want to do. Just need to understand- how long such cases will run in court. Does this come under Rent Controller case? Any chances we can lose the case as well? Though the property registry at my mother name then on what basis my Uncle can run the case, will it be a short of Kabja on land

Answer 1

You can directly send a legal notice[1]to your uncle declaring your intention to initiate legal proceedings against him if he does not return the possession of your mother’s property. Simultaneously, if you think that such notice would not serve the purpose, you can also lodge an FIR against the wrongful possession by your uncle.

You may also approach the court under Order 20 Rule 12 of the Code of Civil Procedure, 1908 and S. 6 of Specific Relief Act, 1963.Under Order 20 Rule 12 of CPC[2], you may file a suit for the recovery of possession of your mother’s shop. This order also provides for compensation for mesne profits. As per S. 2(12) of CPC[3],  “mesne profits” of property means those profits which the person in wrongful possession of such property actually received therefrom, together with interest on such profits. In this case, your uncle may be said to be in wrongful possession of your mother’s shop from the day she withdrew her consent and forcefully continued to take possession of the shop. Hence, the amount earned by your uncle after such wrongful possession, may be recovered by you, along with interest, under this order of CPC.

Moreover, if it has not been more than six months of such wrongful possession by your uncle, you may also include S.6 of Specific Relief Act[4], which provides that if any person is dispossessed without his consent of immovable property, he or any person claiming through him may, by suit, recover possession thereof.

FIR is usually a fast remedy in such cases and court proceedings of such cases are also comparatively fast and rapid. However, there is no exact time frame that is practically followed for the execution. Legal notice in this case would probably serve the purpose as the fear of further legal proceedings usually deters a normal individual from continuing the illegal activity. The title deed being in your mother’s name makes your mother as the sole and legal owner and your uncle cannot legally encroach your property.

 

 

[1] Format available at: http://www.affidavitformhub.com/legal-notice-format/.

[2] Available at: http://www.lawzonline.com/bareacts/civil-procedure-code/order20-rule12-code-of-civil-procedure.htm

[3] Available at: http://www.lawzonline.com/bareacts/civil-procedure-code/section2-code-of-civil-procedure.htm

[4] Available at: https://indiankanoon.org/doc/1773715/

Agree Comment 0 Agrees about 5 years ago

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