Property matter
2 years ago
We are living in ground floor.We have dispute in court with the first floor owner regarding preemption to purchase first floor ,illegal construction in top floor owned by him and easement right. Can first floor owner sell his first floor in between court case?
He may, however, render proper legal advice without reviewing the files of such action in the absence of a Stay Order. It's also important to know where the case is in the process and whether the first-floor owner is contesting it. Let us know if you require any clarifications.
Thank you!
A.Dear Sir,
Pre-emption right is only available to co-parceners.
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Right To Joint Possession And Right of Pre-emption
There are two views in this matter. The purchaser has no right to joint possession of the property compelling partition. He can sue all other coparceners for that purpose. [32]
If the vendee has obtained possession, the other coparceners can get him ejected by a suit. All that the purchaser is entitled to in such a suit is a declaration that he is entitled to the share of the coparcener against whom the decree has been passed.
The Bombay High Court has a different approach. It gives some discretion to the court in the matter of ejectment of a stranger purchaser. In Bhau Laxman v. Budha Manku [33] the court laid down three rules:
First, if a purchaser stranger of the undivided interest of a coparcener in a joint family property is out of possession, he should not be given joint possession with the other coparceners but should be left to his remedy of a suit for partition.
Secondly, on the other hand if the purchaser has obtained possession of the property, a coparcener who has been excluded may obtain joint possession with the purchaser.
Thirdly, the purchaser in possession need not be ejected in a suit for recovery of possession brought by an excluded coparcener. The matter should be decided on merits because he is not a trespasser. In a suitable case he may be declared to be entitled to hold (pending partition) as a tenant-in-common with other coparceners.
The issue came to be discussed by Supreme Court in M.V.S. Manikayala Rao v. M. Narasimhaswami [34] . The court held that it is well settled that a purchaser in such a case cannot claim to be put in joint possession with the other coparceners. He has only the right to ask for general partition of the joint property.
I could have explained more if background is known to me.
Please give me FIVE STAR if satisfied by my answers.
Advocate Sinjari Bandyopadhyaya
Responded 2 years ago