Property disputes come in many forms. Examples include individuals litigating the ownership rights of a property (land title), the location of the ownership line that separates them from one (land boundary), one’s right to use the land of another (easements), or even riparian or littoral boundaries.
Determining the interests and locations of each parcel when litigating property disputes often requires an extensive search of the Public Record for survey maps, survey plats, survey field notes, and property deeds.
Once the deeds, descriptions, and maps have been found and analyzed, modern technology such as total stations and Global Positioning Systems (GPS) allow the surveyor to accurately retrace the property boundaries.
Property law is the area of law that governs the various forms of ownership and tenancy in real property (land as distinct from personal or movable possessions) and in personal property, within the common law legal system. In the civil law system, there is a division between movable and immovable property. Movable property roughly corresponds to personal property, while immovable property corresponds to real estate or real property, and the associated rights, and obligations thereon.
The concept, idea or philosophy of property underlies all property law. In some jurisdictions, historically all property was owned by the monarch and it devolved through feudal land tenure or other feudal systems of loyalty and fealty.
Though the Napoleonic code was among the first government acts of modern times to introduce the notion of absolute ownership into statute, protection of personal property rights was present in medieval Islamic law and jurisprudence, and in more feudalist forms in the common law courts of medieval and early modern England.
The property in respect of which an order of injunction can be passed must be the property which is directly in dispute in the suit and no other property, nor where the property in dispute is indirectly affected. In order to obtain an order of injunction relating to an immovable property, it must be distinctively specified so that it can be clearly identified. To obtain injunction the applicant must have subsisting interest in the property in dispute. Where the defendant is in possession of the suit property claiming title, he can be allowed to change the nature and character of the property if it does not diminish the value of the property and he can make construction on the property at his own risk and he cannot be restrained. One cannot get an injunction to restrain a man who is alleged to be a debtor from parting with his property.
Injunction in specific performance suit
Contract of sale does not create any title to the vendee and hence a transferee under a sale deed cannot be restrained from enjoying possession of the property at the instance of a person claiming to have a previous agreement of sale in his favour. Defendant in a suit for specific performance may be restrained from transferring the suit property and making construction thereon by a third party during the pendency of the suit. However, it has been held that in a suit for specific performance an order of injunction restraining alienation is unnecessary as s.52 of the Transfer of Property Act is an adequate safeguard.
Favour by making the construction and the court would not in equity order demolition of the construction. The Appellate Division subsequently distinguished those cases and held that a cosharer cannot be permitted to go on making construction where he is possessing land in excess of his share. In Hashem Ali v. Begum Nurjahan, 9 MLR the Appellate Division held that the principle that in urban area no cosharer should be restrained by injunction from making construction is not applicable where the very right to construct is based on a deed which is tainted with fraud. Where a co-owner inducted a tenant in the premises without the consent of the other co-owner and the tenant runs a workshop without permission and license from Municipal Corporation, the court may restrain the tenant from running a workshop in the premises.
Where the stranger purchaser files a suit for permanent injunction in respect of an ejmali property and sought temporary injunction, it was held that if temporary injunction results in giving possession of a part of an ejmali property held by the members of the same family to a stranger, then it should not be granted without first specifying the land; a stranger transferee cannot be put in joint possession of an ejmali property with the family members as such procedure would be inconvenient and lead to breach of peace. A purchaser-plaintiff has no right to put a restraint by way of injunction upon other cosharers in specific possession to enjoy their share the way they think best.
Waste, damage, alienation: An injunction can be granted if there is a real danger of the subject-matter of the suit being wasted, damaged or alienated by any party to the suit. But a mere allegation is not sufficient; there must be proof of actual or reasonably apprehended danger of such waste, damage or alienation. The question as to what constitutes sufficient danger depends upon facts and circumstances of each case. It is necessary to show some overt act towards alienation of the property such as negotiation or offer for sale should be alleged and proved.’
Wrongful sale of property- in execution of decree
An injunction may issue to restrain a party when the property in suit is in anger of being wrongfully sold in execution of a decree. Thus no injunction can issue restraining execution of a decree of eviction as in cannot be said that the property is in danger of being wrongfully sold in execution of the decree.” Where a part)- obtains a decree in execution of which the property was being sold, the judgment-debtor cannot get an injunction in a suit filed by him for declaration that the decree was not binding on him as the decree-holder has a right to execute the decree until the decree is set aside.” But where A obtains a decree against B and attaches or otherwise proceeds against a property belonging to C and C thereafter files a suit for declaration of his right thereto and prays for temporary injunction, an injunction may issue as this is a case of wrongful sale of the property in execution of a decree. A decree which prima facie appears to be illegal or void can be construed as causing injury and the court can issue injunction restraining its execution. In granting injunction restraining sale in execution, the court should exercise its discretion cautiously and wisely and see that the machinery of the court is not used for fraudulent purpose. A court is not debarred from passing the order of injunction restraining a party from executing a decree merely because the decree is of a court of superior grade.
Removal of property to defraud creditors
An injunction can be granted to restrain a threatened disposal of movable or immovable property in fraud of creditors. It can be granted even in a suit for money where the court is satisfied that the defendant threatens or intends to remove or dispose of his property which is wholly outside the scope of the suit. The plaintiff, of course, will have to prove by definite evidence the threat or intention to remove or dispose of the property to defraud the creditors.
The court should always be cautious and slow in interfering with the functioning of elective institutions and should be watchful not to allow abuse of the process of the court by persons who want to nullify the result of an election with the aid of an interim order of the court.