Cases Pertaining to Properties

1. Urban immoveable property
2. Agricultural immovable property

Urban Immoveable Properties

Whatsoever is the nature of property whether it is residential or Commercial or industrial the cases regarding the same shall lie before the same court.

Cases Regarding Division / Partition of Properties

• Partition / Division of property between legal heirs where it is an ancestral property left by the grandfather etc. or property left by father / mother etc. after their death.
• Partition of property in the joint ownership either with relation or with stranger.
• Partition of property, holding as general attorney of the owner.
• Partition of property purchased in auction in possession of opposite party.

The Process and Procedure from Filing the Suit till Pronouncement of Judgment for Division / Partition of Urban Properties

Stage 1

The suit for division / partition of urban properties is to be filed in the court under the partition act as prescribed in civil procedure court for the disposal of such case.

For filing the above suit, relevant documents such as death certificate of the deceased,

Proof of ownership of the property such as sale deed or any other document of ownership issued by the competent Government department authorized to issue the same.

Documentary proof that the persons who are filing the said suit are the bona-fide legal heirs of the deceased being the rightful claimant of legal share in the suit property of the deceased.

Stage 2

• Issuance of Process / Notice etc. to the Opposite Party/Parties by the Court For their Appearance in the Case

The court, after receiving the case issues notice, postal service, courier service and service through process server authorized in this behalf to obtain presence of the opposite party in the court, in the case.

This process is issued by the court under the provisions of Civil Procedure Court. If the opposite party does not appear in the court after issuance of above process, the court repeats the same service for quite some times.

Once the court is satisfied that the opposite party is avoiding to appear in the court in response to the above process the court resorts to substituted service as per law.

• Substituted Service for Appearance of the Opposite Party

This is the service in which the court orders affixture of notice by the process server on the property in question and outside the residence/residences of the defendant/defendants or affixture at some conspicuous place in the same locality where defendant/defendants has/have his/their residence/residences so as to give information to him/them that a case is pending in the court against him/them if he does not appear, the court shall proceed against him/them ex-party if this service also failed to force the defendant/defendants to put his/their appearance in the case before the court. the court adopts last and final process for his appearance.

• Service of Defendant through Proclamation

As a last resort the court adopts last and final process for ensuring the appearance of defendant/defendants through Proclamation means publication of notice / information in some regular newspaper recognized by law informing the defendant that he or she should appear in the case pending in such court on such date otherwise ex-party proceedings shall be taken against him or her.

If the defendant does not appear despite proclamation he is proceeded ex-party, with the result that right of defendant/defendants to defendant the case is closed and then the case proceeds ex-party against the opposite party/parties.

More Difficulties and Problems and Delay which Might Occur in the Case at Preliminary Stage 2 

During the preliminary stage of the case in which the service of the defendant is required more difficulties and problems can arise. Un-necessary delay occurs due to negative attitude of the defendant to remain absent from the court willfully to prolong the process despite knowledge of process for service issued by the court.

It is petty and deplorable that the court issues process of service one after the other at the expense of the suitor to acquire presence of the opposite party in the case but due to his mala-fide negative attitude and dilatory tactics the processes issued by the court failed completely as a result of which both money and time of the suitor are wasted for fault of his, without any penalty or damage to the defendant.

Although, it is shameful, but it is a reality that after completion of entire process when defendant is proceeded ex-party due to his non-appearance, he simply come to court with an application praying therein to the court to set aside ex-party proceedings against him giving simple reasons that he was not aware of the case pending in the court or takes plea that he was not served according to law.

The court becomes helpless and has to set-aside the ex-party proceedings against him.

Because the law and equity demand that the case should be decided on merit therefore, on the basis of this consideration of law supported by Judgments of Apex Courts (High courts and Supreme Court), the court become helpless, has no other option except to set aside the ex-party proceedings against him permitting him to participate in the proceedings for decision on merit.

Mala-fide and dilatory tactics only prolong the case un-necessarily which is painful and troublesome, wastage of time and monitory resources, tantamount to depriving the suitor to get relief in time or within the target time, the suitor has assessed and calculated for himself.

At this preliminary stage, it is also general and routine to prolong the case of the opposite party after appearing in the case causes delay by filing appeal or revision in the next higher court against the order passed by the court.

Some times in appeal or revision before the next higher court the proceedings before the trial court are stopped till the final disposal of appeal or revision, which again takes time for its disposal.

Apart from the above said tactics the opposite party, after appearance in the case, prepares false, fictitious and forged documents by fraud which the party files in the court along with their reply. So these are also the tactics which adds to the delay in the disposal of the case.