Neighbour claims common area

My neighbour claims common area of our house. He is not letting us to sale our house either. Whenever some party comes to see the house, he creates an issue and claims common areas( such as latrine, chajja, stairs and angan). They are very disgusting and quarrelling people. Even they don’t have money to buy our house. They are also not letting us to sale our part of house. With this dispute, I am also not being offered good money for my house. We are thinking to shift to somewhere else and giving our portion on rent. But our neighbour will definitely make some construction work in common area. How to prevent my neighbour from constructing anything in common area when I will not be there and my portion will be on rent? Please help. How to proceed. Should I go to police or take legal action?

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First of all, you should have issued him with a legal notice instructing him to restrain from raising any structure in the common area as he has no rights to utilize the common area meant in common for all and such an action is illegal by law. After the stipulated time is given in the notice is over, and if he is not complying with the demand made, you may initiate legal process.

So you can file an injunction suit against the neighbor seeking the relief to restrain him from proceeding with the proposed construction in the common area. Order 39 Rule 1 of Code of Civil Procedure, 1908 contains circumstances in which temporary injunction may be granted. It may be granted by the Court when the property in dispute in a suit is in danger of being wasted, damaged or alienated by any party to the suit, or wrongfully sold in execution of a decree. Generally, before granting the injunction, the court must be satisfied with the following factors:

  1. Whether the plaintiff has a prima facie case?
  2. Whether the plaintiff would suffer irreparable injury if his prayer for temporary injunction is not granted?
  3. Whether the balance of convenience is in favor of the plaintiff.

Section 37 and 38 of Specific Relief Act, 1963 contains provisions relating to a perpetual injunction. Perpetual injunction restrains a party forever from doing the specified act and can be granted only on merits at the conclusion of trial after hearing both the parties to the suit.

So, you should file an injunction suit and obtain a permanent injunction restraining the neighbor from constructing any structure in the common area.

Answered on September 6, 2016.
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