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Tagged: Civil Procedure Code
October 2, 2017 at 8:14 pm #3108
To the learned advocates’ forum Tilak Marg,
My father and another purchased Patta land in the year 1982. While they are making layout the adjacent survey number which is a Government land. The district authority forcibly dispossessed my father and his friend and occupied on the pretext of said land do not falls in our survey number. The hapless landowners approached senior civil judge court in 1983 and the stay was granted subsequently. Though the district administration constructed a compound wall encircling our Patta land and doing government functions. In 1992 the final absolute decree was passed in favor of us with imposing costs on the JDRs/Government. JDRs appealed against the decree in the High Court, where the High Court commented that the JDRs/Government has no single scrap of paper to show that the land belongs to the Government and the appeal was dismissed in the year 2012. Even though the government filed SLP in the Honourable Supreme Court which was barred by limitation and dismissed. Original suit holders my father and another, their sons have died during the litigation period due to mental agony.Finally, we the heirs about 15 members have filed EP in the Senior Civil Judge Court in the year 2013 and an order was passed to the District Collector to put the decree-holders in possession of the land. But so far the District administration hasn’t handed over our land on the pretext of surveying the land. Since the litigation is dragging by the government and illegal enjoyment of our land. In this regard what are the remedies to be taken:
1) Can I file a Criminal case of Trespass against the Government/District administration?
2) At EP stage can I file for Mesne Profits and compensation?
3) If the property is not handed over by the JDRs. What are the further steps could be taken?
4) In the year 2016, we approached Hight Court and filed WP wherein show cause notice was issued to the RDO for not implementing the orders of the court and it is still pending.
Humbly we request to clarify and suggest any other remedies to be taken.We are almost all exhausted with the long-lasting litigation with the government over 35 years and we all became senior citizens. Thanks beforehand.
October 10, 2017 at 8:25 pm #3144
Dr. Ashok DhamijaAdvocate
Definition of “criminal trespass” is given in Section 441 of the Indian Penal Code:
“441. Criminal trespass.—Whoever enters into or upon property in the possession of another with intent to commit an offence or to intimidate, insult or annoy any person in possession of such property,
or having lawfully entered into or upon such property, unlawfully remains there with intent thereby to intimidate, insult or annoy any such person, or with intent to commit an offence,
is said to commit “criminal trespass”.”
It is clear from this definition that if a person who had lawfully entered into or upon a property, unlawfully remains there with intent thereby to intimidate, insult or annoy any such person, or with intent to commit an offence, that may also be within the offence of criminal trespass. Therefore, in my considered opinion, legally speaking, it may be possible to file a complaint of criminal trespass. However, it depends on the facts of each case whether it would be advisable to file such a complaint.
It may not be possible to claim any additional mesne profits and/or compensation at the stage of the execution petition. It has been held that held that till the final decree is passed, the court is empowered to grant the relief of mesne profits. Once the final decree is passed, thereafter it is not open to the court to grant the relief of mesne profits; the simple reason being that the final decree is the one which is to be executed. It is well known fact that the executing court cannot go beyond the decree which is being executed.
The execution court has sufficient powers to execute the decree, including attachment of property and sending the person concerned to civil prison. For example, see Order 21 of the CPC which relates to execution of decrees and orders. Since the Civil Procedure Code contains detailed provisions for execution and for disobedience of orders of court, usually contempt of court is not a good option in such a case and a contempt petition may not be accepted.
Unfortunately, the court proceedings are generally long-drawn and take decades nowadays due to huge pendency. But, since you have won your case in most of the stages, after some more patience, you should ultimately get justice. Of course, it is difficult to avoid delay.
Dr. Ashok Dhamija is a New Delhi based Supreme Court Advocate and author of law books. Read more about him by clicking here. List of his Forum Replies. List of his other articles. List of his Quora Answers.
October 11, 2017 at 9:36 am #3151
Sri Ashok Dhamija,
Tilak Marg Forum,
I am very grateful for your clarification of my issue. Once again I thank you for your service rendering to the needy people on legal aspects. Extremism, violence, and corruption are increasing in the country because of abnormal and lifetime delay in bringing justice. Several times, in my case my thoughts went to an extent of eliminating the wrongdoers who were responsible for illegal encroachment of our land, but being a responsible citizen and a family person I did not do so. Please do something to reduce the pendency of cases in the courts in the interest of justice.Thanks for your time, Sir.
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