There is an Illegal use of my boundary wall by my neighbor. My father built the 6 ft high 5" thick 60 ft long boundary wall before construction of our 2 storied building within my premises in the year 1990-91 when there was a narrow drain and one 3" thick small boundary wall of my neighbor was there.
After completion of our wall the neighbor breaks down the wall and assumes my wall as his boundary wall also. He also demanded plastering of the wall on his side but my father denied it. No problem arises till 2017. But in 2018 the neighbor built a shed on the vacant area between his house and my boundary wall. He drilled a number of iron hooks in my wall for erection of angles without taking my permission. Is this work legal or not ? Can my neighbor use my own wall for any construction ? What will I do now?
Asked from: Uttar Pradesh
Your neighbor is not allowed to use your boundary wall as if it were his own property. It is imperative that you take legal action against him to prevent him from drilling or damaging the wall in any way. As the owner of the property, you have the right to protect it from any unauthorized use.
To begin, you can send a legal notice to your neighbor asking him to stop using your boundary wall. If he continues to use it despite the notice, you should file a civil suit against him. Additionally, you can file a complaint with the sub-divisional magistrate under section 145 of the Code of Criminal Procedure (CrPC).
You can approach the local police station to take action under section 145 CRPC. Your neighbor's illegal use of your boundary wall may disturb the peace and tranquility of the area, and it is therefore essential that you take action. The police officer will prepare a report and send it to the sub-divisional magistrate, who will then take action under section 145 of the CrPC.
Under section 107 of the CrPC, the sub-divisional magistrate can ask your neighbor to provide a bond to ensure that he does not cause any harm to your property or disturb the peace and tranquility of the area. This bond is a legal undertaking, which if breached, can result in your neighbor being arrested and prosecuted under the relevant provisions of the law.
It is important to take swift legal action to protect your property and prevent your neighbor from using your boundary wall as his own. You have the right to take civil and criminal action to ensure that your property is safeguarded, and the peace and tranquility of your locality is maintained.
Question: My neighbour has built a single brick wall so whenever he drills or any repair carried out in his house oura privacy & peace is disturbed due to audible walls & whenever. In that single wall he has made the groove which has exposed my wall which he is using. He has built his stairs attached to my wall on the first floor. He has not constructed any parapet wall on his terrace required as per parameters so whenever his kids play, run, skate or cycle it has a huge sound in my bedroom which disturbs our peace.
Asked from: Punjab
You should file a civil suit for the permanent injunction. Your neighbour has no right to use your wall which may result in damages to your house. In that civil suit you must pray from the court to direct the defendant (your neighbour) to construct a separate wall.
You are also entitled for the compensation from your neighbour for any damages caused due to his illegal act. If the act of your neighbour is causing breach of peace or tranquility then you should approach the police for takin action against him under Section 145 crpc.
Question: My neighbour recently built their home without placing compound wall on their boundaries. Instead they are using our compound wall as their protection. Can I raise a complaint for the same?
Asked from: Puducherry
Complaining about your neighbor's use of your compound wall without permission is a valid course of action. You can file a complaint with the concerned Magistrate under Section 145 of the Criminal Procedure Code to maintain peace and tranquility. The unauthorized use of your property can be considered a violation of your property rights and may lead to disturbances in the neighborhood.
While it may be helpful to speak with your neighbor first and ask them to build their own compound wall, if they do not comply, it's important to take further action. Filing a complaint with the appropriate authorities can help to establish clear boundaries and prevent future disputes. Respecting each other's property rights is essential to maintaining a peaceful and harmonious neighborhood.
Question: Neighbouring plot owner has damaged wall compound of my house by digging mud with JCB 4 years before. Then another wall compound was constructed on same site in my plot 4 years before. Now neighbouring plot owner is again telling me after 4 years that wall compound is in his plot and forcing to remove wall compound again. What to do now.
Asked from: Maharashtra
First of all you should file an FIR for damaging your property and criminal trespass. He has damaged the wall compound without getting clear demarcation of the site. Therefore, without having clear boundary of the site he has started construction work. Thereby he has destroyed your property and forcing you to remove wall compound.
After filing of the FIR you should file a civil suit for permanent injunction to restraining him from interfering in your property. To maintaining peace and tranquility you may proceed an application to the Magistrate under Section 145 of the code of criminal procedure.
The Builder is not present at his place of residence therefore the summon has not been served upon him. How to file a complaint against a builder who is missing from his address? A complaint petition was lodged to RERA, ASSAM against Promoter vide Case No.RERA/ASSAM/COM/ in the month of Feb/2021 who ought to have completed construction of my building on 03-09-2016 as per MOU.
After 6 month when I inquired about the matter in RERA, Assam regarding my complaint, I was informed as they could not locate the concerned Promoter (Promoter had in the meantime changed his address). The matter is pending and could not take any action until they got the proper address. Why has RERA not exercised their good office to locate the concerned promoter?
It is the responsibility of the complainant to produce the address of the opposite party. You have to get the correct address of the builder and give it to the RERA authority. If the address is correct but the builder is missing from his address the RERA can serve the summons through a public notice published in the local newspaper.
Builder is deliberately missing from his address with the intention to fail the service of summons upon him. In this situation you should move an application to the rera authority for issuing a public notice and publish it into the local newspaper. Builder is cheating you because he is not is position to construct the flat within time.
The provisions of Real Estate Regulation Act 2016 empowers the rera authority to issue process against the builder or promoter to appear in the preceding before it. The rera has power to compel the opposite party to appear in the proceedings. You should furnish the correct address of the builder or promoter. The rera authority, thereafter, can use the force against the Builder to appear in the proceeding.
I want to file a case for the cancellation of probate. The district court has granted the letter of administration in the course of probate proceedings. The executor of the will did not make me a party in the probate proceeding. Therefore, I could not have had information about the filing of such a proceeding in the district court.
When a person files a civil suit for the permanent injunction thereupon, I get information about the probate. The aforesaid probate is false and frivolous. It has been taken by playing fraud on the part of the executor. Therefore, the judgement of granting the letter of administration is invalid. We are the owners of this property because our deceased uncle had granted us permission to make a residential flat on his property. The value of this property is very high because it is situated near the main city.
Therefore some builders and brokers are keeping their eye on this property. They have connived and made a clandestine deal with the executor in order to grab this valuable property. Can I file any civil suit for the cancellation of the probate?
You cannot file any civil suit for the cancellation of probate because it is barred by the limitation. Section 276 of the Indian Succession Act provides detailed procedure for filing a probate petition. If there is any defect in the procedure to get probate then you can claim its cancellation within the limitation period.
Period of limitation for cancellation of probate
The Indian Succession Act however, does not provide any period of limitation for the cancellation of probate. But Article 137 of the Indian Limitation Act regulates the period of limitation in this case. According to Section article 137 of the Indian limitation act there is a three years limitation period for filing a civil suit for the cancellation of probate.
You said that the executor did not make you party in the probate proceeding. In the probate proceeding you are not the beneficiary of the will therefore, you are not a necessary party. The court does not decide the rights of the party in a probate proceeding. Instead of it the court recognises the executor through the letter of administrator to execute the intention of the testator as mentioned in the will.
You were not parties in the proceeding. It does not give a ground for challenging the validity of probate. In Rukmini Devi versus Narendra Lal Gupta (1985) 1 SCC 144 the Supreme Court has held that if a party does not contest proceedings for grant of probate it cannot be permitted to question the validity of the probate by a collateral attack in different proceedings. The grant of probate is right in rem, therefore, it binds not only the person who are parties but also others who are not parties to the probate proceedings.
You can challenge the probate if your right in the property is defeated by the executor through the letter of administration or probate. In this situation, you can proceed under section 263 of Indian succession act for the cancellation of probate. No need to take a succession certificate from the district court under Section 372 of the Indian succession act only for challenging the probate proceedings.
However, there is a three years limitation period for filing a petition for the cancellation of probate. But you can take a plea for condonation of delay under Section 5 of the Indian limitation act. If the court finds that there is sufficient reason for not moving an appropriate petition within the prescribed time period, then the court will admit your case and will cancel the probate.
I have done an agreement for agricultural land 2 months ago and paid 20 lacs. That is ancestral property and the owner is 62 years old, now he has 3 sisters of which 2 are dead. Does the son of a deceased sister have any right in ancestral property? So now do we need the signature of the dead sisters' children will they have any rights?
The owner of land is ready to sell and there is no dispute towards the possession. Furthermore, the sons of the deceased sister are not living with the owner and they have never claimed any rights in the property. The owner's age is 62 but he is a sound mind. He wants some money to meet his medical expenses therefore he has decided to sell his land. The owner has no child and is currently living with his elder brother.
Can I purchase this land without the signature of deceased sister's son? This is an ancestral property and the owner is farming on this land without any dispute. villagers are saying that the owner has peaceful possession of the property and her sisters have never claimed any rights in the property.
In this situation there is no need to take signatures of the sons of deceased sisters. This was an ancestral property before the partition. After the partition among the legal heirs it became the self acquired property. and the owner has separate possession.
This property has already been divided among the legal hairs therefore the nature of the property has changed. Now it is a self acquired property..
Signature of deceased sister's son is not necessary
The provisions of Section 6 will not apply on this property because The property was divided before coming into force of the Amendment Act 2005.Before the Amendment Act daughter had no right in the ancestral property because they were not treated as coparcener in the joint Hindu family.
The facts of your case suggest that you can purchase this property without taking permission of other persons. The owner of this property has the exclusive right to sell this property. Owner of this property has a sound mind therefore he can execute the sale deed. The son of the deceased sister has no right or interest in this property therefore his signature is not necessary for effecting the validity of sale deed.
If this property would be in the joint possession of coparceners then the son of the deceased sister can claim partition of this property.
Related
I have a Twitter account and always post several information from sports. There is also a website on which I post some articles, blogs and other informative materials. All the materials belong to the sports. I want to know whether copyright issues in pre existing information available on the internet may create any trouble?
All this information is available on the internet and anyone can access it without any permission. I have posted that information on the Twitter account, website and on the blog without taking permission from anyone. If any person files a case against me for the infringement of copyright then can I protect myself?
When the information is available on the public domain anyone can use this for the personal purpose. You have a Twitter account and a website where you generally post information about the sports activities.This is not a commercial use of information which is easily and freely available on the internet.
You cannot claim ownership and the information which you gathered from the internet. Dissemination of this information on the Twitter account and website needs time, effort and research. You have done extensive research to collect information from the internet and put them in a single place. All this information which you published on Twitter and website is in a systematic order.
No copyright infringement in derivative work
Therefore, it is a recreation of information. It does not amount to infringement of copyright act. You should not worry about the infringement of copyright unless you do not claim that it is your own work or collection of data. If you want to protect yourself from any future litigation over the use of old data you can mention the source of information on Twitter and the website.
This is the most common and general practice in respect of use of other’s data in your literary work. In Eastern Book Company & Ors. v. D.B. Modak & Anr. AIR 2008 SC 809; the Supreme Court has held that:
A copyright law presents a balance between the interests and rights of the author and that of the public in protecting the public domain, or to claim the copyright and protect it under the copyright statute. One of the key requirements is that of originality which contributes, and has a direct nexus, in maintaining the interests of the author as well as that of the public in protecting matters in the public domain. It is a well-accepted principle of copyright law that there is no copyright in the facts per se, as the facts are not created nor have they originated with the author of any work which embodies these facts.
Eastern Book Company & Ors. v. D.B. Modak & Anr. AIR 2008 SC 809
In most of the cases the author uses pre existing information. Creation of new material by using the existing data is called derivative work. The copyright act protects the derivative work if personal skill, labour and capital is required in creation of derivative work. Dissemination of information on Twitter and websites however, using the pre-existing data does not infringe copyright act.
Question: Our village Sarpanch age encroached the public road and blocked the access of the main road. He is a very influential person and able to manage the police authority. Thereby he has stopped us from accessing the main road. How do I approach the public authority against such an encroachment of the village Sarpanch? Is there any procedure to file a complaint or civil suit against the village Sarpanch? The villages are facing a lot of trouble due to the conduct of sarpanch.
No one has the right to encroach on a public road and stop its access. This is an illegal act and the trespasser is committing an offence. It is the responsibility of the government to protect public property. Therefore, the code of criminal procedure has made procedures to prevent the public nuisance arising due to encroachment.
Section 145 of the code of criminal procedure empowers the executive magistrate to prevent any nuisance caused due to encroachment on public property. The magistrate and take a bond from the trespasser under Section 107 of the code of criminal procedure for keeping peace. The executive magistrate has vast power under section 145 CRPC.
You should move an application before the sub divisional magistrate or a Deputy Collector against such an encroachment. The SDM will call a report from the local police station about the incident. You can also register a case against the trespasser under section 268 of the Indian penal code for causing public nuisance.
Provisions of the Police Act also give power to the local police officer to prevent any kind of encroachment on public property. It is the responsibility of the officer in charge of the police station to see roads and streets are not blocked by any person. If a person has blocked the public road the police officer shall register a case against him.
Case laws
In Smt. Ramawati vs State Of U.P. and 2 Others 2015; The Allahabad High Court has held that public property belongs to the entire public and everyone has right to access on every inch of the public road. Nobody has the right to encroach or block public streets, roads or footpaths.
In Ahmedabad Municipal Corporation vs. Nawab Khan Gulab Khan [(1997) 11 SCC 121] the Supreme Court of India has opined that footpath, street or pavement are public property which are intended to serve the convenience of the general public. They are not laid for private use and indeed, their use for a private purpose frustrates the very object for which they are carved out from portions of public roads.
No one has a right to make use of a public property for their private purpose without the requisite authorisation from the competent authority. It would, therefore, be the duty of the competent authority to remove encroachment on the pavement or footpath of the public street obstructing free flow of traffic or passing or repassing by the pedestrians.
In Hari Ram vs. Jyoti Prasad and Anr. [(2011) 2 SCC 682]; the Supreme Court has held that Any act of encroachment is a wrong committed by the doer. Such an encroachment when made to a public property like encroachment to public road would be a graver wrong, as such wrong prejudicially affects a number of people and therefore is a public wrong. So long any obstruction or obstacle is created to free and unhindered access and movement in the road, the wrongful act continues thereby preventing the persons to use the public road freely and unhindered. Therefore, that being a continuing source of wrong and injury, cause of action is created as long as such injury continues and as long as the doer is responsible for causing such injury.
I have paid 10% of the basic amount to the builder for the under construction property which comes under Rera. The builder has issued me the allotment letter and receipts of 10% paid amount. Also we have submitted the signed BBA from our side to the builder but the builder is not able to register the same due to hold in registration by nagar nigam authorities. Can builders charge interest on default of payment when there is no agreement to sell? The developer has already issued the demand letter and expiry date to pay the rest of 40% payment. Also I have received the bank approval on the loan which i have submitted to the builder in advance. Question Kindly let us know whether a builder is eligible to charge interest or cancellation without registering the builder buyer agreement.
The builder has issued only an allotment letter and agreement to sale is still pending. According to Section 13 of the real estate regulation 2016 the builder shall execute an agreement to sale immediately after receiving advance payment. The builder however, cannot charge more than 10% of the cost of flat as an allotment fee.
Effect when the Builder does not execute an agreement to sell
If the Builder does not execute an agreement to sell then the flat buyer can cancel the allotment letter and demand refund from the builder. The will refund the amount without any deduction because there is a fault on the part of the builder.
You have submitted a builder buyer agreement to the builder and also have initiated proceedings for taking loan. If the Builder does not sign builder buyer agreement or execute agreement to sell then the bank can refuse to sanction loan. Consequently you will face financial losses and also bear mental agony.
There is no effort from your side hence, Builder cannot compel you to pay the remaining amount. He also cannot charge interest on the remaining amount in the absence of an agreement to sell. You should send a legal notice if he is demanding to pay the remaining 40% amount. In the legal notice you should reflect your intention that if he will not issue a builder buyer agreement then you will cancel the booking.
My stepmother is receiving the family pension and has all retiral benefits such as provident fund, gratuity etc. She is living a good life but claiming more money from me. I am a software engineer and currently in the USA. We are a very reputed family in our society. My mother died in 1984. thereafter my father contracted a second marriage. My stepmother is very greedy and plans to claim maintenance from me. I came to know this fact through my friends and family members. I want to know whether stepmother can claim maintenance when she is living a good life?
Asked from: Punjab
Your stepmother has sufficient means to maintain herself. She has received all retiral dues of your deceased father and has been receiving family pension. Therefore your stepmother is not facing any financial hardship. She is able to maintain herself therefore, she has no right to claim maintenance under section 125 of the code of criminal procedure.
Section 125 of the CrPC provides a right to maintenance to wife, children and parents. However, stepmother is entitled to claim maintenance from her stepson if she is childless and have no sufficient means to maintain herself. In your case your mother has sufficient means and she is not living in vagrancy. Consequently, cannot demand maintenance from you.
You did not mention that your stepmother has any real child or not. If she has a real child then the stepson is not bound to pay alimony. She can exercise her right to maintenance from her own biological son. You should not worry about the maintenance of your stepmother because in prevailing conditions she has no right to seek financial assistance from you. She is a financially strong lady and also receiving the family pension.
Whether stepmother is entitled for pension if she is not living with my father
Question: My father got a second marriage after the demise of my mother. My father was a lecturer in a college which comes under Maharashtra jurisdiction. Problem is that my stepmother has not lived with my father for 1 year but my father has been giving him some money because she is asking for it. My question is Whether stepmother is entitled for pension if she is not living with my father?
Asked from: Karnataka
If your father has mentioned her name as a wife in his pension papers then your stepmother is entitled for the family pension after your father’s death.
You cannot stop her from getting a pension because your stepmother is the legally wedded wife of your father. This is the rule of the family pension scheme. You cannot keep her away from the availing the benefits of family pension. But in certain conditions the widow (mother or stepmother) cannot receive entire pension.
It does not matter that she has not been living with her husband. She is a legally wedded wife and still holding that capacity, therefore, in that capacity she has the authority to receive family pension. That capacity does not cease to exist merely because she (wife) was not living with her husband.
My brother is accused in a murder case. He is innocent but the police have falsely implicated him in this case. The dying declaration of the deceased does not support his role in the murder of Ramnaresh Kushwaha. There is a contradiction in the dying declaration so I want to know what is the chance of conviction of my brother?
Dying declaration is an important piece of evidence under Section 32(2) of the Indian Evidence Act. The court can convict the accused on the sole evidence of dying declaration if it seems true. It is the duty of the prosecution to prove the dying declaration of the deceased.
You said that there are contradictions in the dying declaration. If there are more dying declarations than one then it may have some contradions and the court will check the veracity of dying declarations. In case there is only one dying declaration then contradion is not possible.
In the first sceneration the court may discard the dying declaration if the contradictions are major and significant. The court will reject the dying declaration and cannot convict the accused on such a dying declaration. Thus, the conviction will base upon the proof of other criminating evidence.
In case of minor contradictions the court will not reject the dying declaration. Because, the witness has the tendency to refine his statement.
Contradiction between dying declaration and other evidence
A dying declaration becomes contradictory if it does not get corroboration from the other independent evidence like post mortem report, evidence of eye witness etc. In this situation the court will not rely on the dying declaration but appreciate other evidence.
This is not a rule that the court will acquit the accused on the suspicious dying declaration. Whereas, the court will convict the accused if the prosecution has successfully proved the culpability of the accused. The prosecution can prove the guilt of your brother by other evidence. So, I can't say that the court will acquit your brother because the dying declaration remains disproved. There is a good chance that the court will convict the accused on the evidence other than dying declaration.
I’m working as an inspector in the food department. My post is inferior to the post of inspector in the supply department. Can the state government equate the two posts because there is a discrepancy between the salary and status. After ten years of service the one post becomes gazetted and the other remains the non-gazetted. We are facing humiliation due to change of status after ten years of service. So we have decided to get the same status and salary from the government. We will compel the government to give the same status to our post.
Our leaders will talk to the government on this issue and try to get equal status. I want to know if there is any legal hurdle to make both posts equivalent and do justice with the government employee. Please give some concrete materials to support our attempt to get equal status.
The state government has the power to equate two similar posts. This power is exclusively vested in the state government. It is an exclusive administrative power of the state government. You should approach the government with the relevant facts and enable the government to do justice.
Submit a representation
If the recruitment procedure and educational qualifications for both posts are similar then there is a good chance to get equal status. Thus you should prepare a representation and submit it to the principal secretary of the concerned department. You can also send the representation to the chief secretary of the state government. Mention these facts in the representation:
- Recruitment procedure is identical
- Similarities in duties and responsibility of officers holding both posts
- Cadres are same i.e. single post cadre with same salary at the time of initial joining
- There is a common rule for both posts
Above materials are necessary to strengthen your demand and to empower the state government to take quick decisions. Your matter comes under the ambit or purview of administrative jurisdiction of the state government..
In P. U. Joshi vs A. G. Ahmedabad (2003) 2SCC 632, the supreme court has held that it is ultimately the government to take an appropriate decision on the equivalent of posts.
Thus you should approach the state government as soon as possible. You should annex the relevant facts and grounds to show discrepancies in both posts. Thereafter, the government can equate the two posts. Without showing the impediments in the holding of posts you cannot get any relief from the government.
