If you are stuck in such a situation, here is what to do.
Mr. Ajay and his brother, Mr. Vinod, jointly invested in and constructed a four-story residential building on a plot of land they co-owned in the city of Anandpur. Upon completion, they decided to divide the floors among themselves. As part of this division, a formal agreement was drafted and signed by both brothers. The agreement stipulated that Mr. Ajay’s family would take the top-floor unit, which included exclusive rights to the attached terrace, while Mr. Vinod took another valuable floor. The remaining two floors were also divided between them as per their mutual understanding.
Recently, a dispute has emerged. Mr. Vinod is now challenging the agreement and demanding joint ownership of the terrace. He has expressed concerns that Mr. Ajay might sell the top floor along with the exclusive terrace rights to a third party. Furthermore, he is worried that if the local municipal corporation were to permit the construction of an additional floor in the future, Mr. Ajay would unfairly receive the sole benefit of that development right due to his exclusive control over the terrace. This disagreement has strained their relationship and created a legal conflict over the interpretation of their original signed contract and the rightful ownership of the building’s terrace.
Advice in such cases
Review the Partition Deed/Agreement: The most crucial piece of evidence is the written agreement signed by both parties. The terms and conditions mentioned in this document will be the primary basis for resolving the dispute. Check if it clearly mentions exclusive or joint ownership of the terrace.
Examine Building Sanction Plans: Review the building plans that were approved by the municipal authority. These plans might sometimes demarcate common areas versus private areas, which can support your claim.
Attempt Mediation: Before escalating to a full-blown court case, consider mediation through a neutral third party or a senior family member. A mutually agreeable solution can save time, money, and the relationship.
Consult with Lawyer: The very basic and important step to start is talk to Lawyer / advocate. You should not hesitate in paying his consultation fee i.e. might be in range of Rs. 10,000 to 50,000 depends case to case. He is helping you in this situation of come out. He is expert in the domain and can help you explain the procedure which you might have never explored. A good lawyer can get the issues resolved much faster than you think.
Applicable Sections of Law
Property disputes of this nature are civil matters and are primarily governed by the following statutes:
The Transfer of Property Act, 1882: This Act governs the transfer of property between living persons. Its principles will apply to how the rights to different parts of the building, including the terrace, were divided and transferred.
The Indian Contract Act, 1872: The agreement signed by the brothers is a legally binding contract. The validity, interpretation, and enforcement of this contract will be determined under this Act.
The Specific Relief Act, 1963: This Act allows a party to approach the court to enforce the terms of a contract. One can also file a suit for a ‘declaration’ of one’s rights or an ‘injunction’ to prevent the other party from interfering with those rights.
The Registration Act, 1908: If the partition or division was documented in a deed, its registration under this Act gives it strong evidentiary value in court.
If you are the complainant
If you are in Mr. Vinod’s position (the one challenging the exclusive ownership), here are the steps you can take:
File a Suit for Declaration: You can file a civil suit in the appropriate court, asking for a declaration that the terrace is joint property.
Seek an Injunction: Along with the suit, you can file an application for a temporary injunction to prevent your brother from selling the property or creating any third-party rights over the terrace until the court decides the matter.
Gather Evidence: Collect all documents, correspondence, or witness testimonies that suggest the intention was for the terrace to be a common area, despite what the agreement might say.
Consult with Lawyer: The very basic and important step to start is talk to Lawyer / advocate. You should not hesitate in paying his consultation fee i.e. might be in range of Rs. 10,000 to 50,000 depends case to case. He is helping you in this situation of come out. He is expert in the domain and can help you explain the procedure which you might have never explored. A good lawyer can get the issues resolved much faster than you think.
If you are the victim
If you are in Mr. Ajay’s position (the one whose exclusive ownership is being challenged), you should take the following steps to defend your rights:
Defend the Suit: Once you receive a summons from the court, you must hire a lawyer to file a written statement defending your claim to exclusive ownership based on the signed agreement.
Rely on the Agreement: Your primary defense will be the written and signed contract that explicitly grants you exclusive rights to the terrace. Argue that the other party is now going back on a settled and agreed-upon division.
File a Counter-Claim: You can file a counter-claim for a permanent injunction to restrain your brother from interfering with your peaceful possession and enjoyment of the terrace.
Consult with Lawyer: The very basic and important step to start is talk to Lawyer / advocate. You should not hesitate in paying his consultation fee i.e. might be in range of Rs. 10,000 to 50,000 depends case to case. He is helping you in this situation of come out. He is expert in the domain and can help you explain the procedure which you might have never explored. A good lawyer can get the issues resolved much faster than you think.
How the police behave in such cases
Ownership disputes are civil in nature, and the police have a very limited role. They will not decide who owns the terrace. Their involvement is restricted to preventing a “breach of the peace.” If an argument escalates into threats, assault, or an attempt to forcefully take possession, the police may intervene by registering a non-cognizable report (NCR) or, in serious cases, a First Information Report (FIR) under relevant sections of the Bharatiya Nyaya Sanhita (BNS). However, for the core issue of ownership, they will invariably advise both parties to approach the civil court.
FAQs people normally have
Is a terrace always a common area?
Not necessarily. While terraces are often common areas in large apartment complexes, in smaller, privately constructed buildings, the ownership depends entirely on the agreement or deed between the co-owners.What if the agreement was not registered?
An unregistered partition deed concerning immovable property has limited evidentiary value and cannot be used to prove title. However, it can sometimes be used for a collateral purpose, such as to show the nature of possession. A registered document is always legally superior.Can one brother stop the other from selling his floor?
No, one co-owner cannot stop another from selling their legally owned, distinct share of the property unless there is a specific clause in the agreement that gives a “right of first refusal” to the other co-owner.
What evidence is required?
To succeed in court, you will need strong evidence, including:
The original signed agreement, partition deed, or memorandum of understanding that details the division of the property.
The registered title deeds of the land on which the building is constructed.
Sanctioned building plans from the municipal authority.
Photographs or videos showing possession and use of the terrace over the years.
Witnesses who were present when the agreement was made and signed.
Any correspondence (emails, letters, messages) between the parties regarding the property division.
How long will the investigation take?
This is a civil litigation matter, not a police investigation. The duration of a civil suit in India can be lengthy. A suit for declaration and injunction can take anywhere from 3 to 10 years to be decided by the trial court, depending on the complexity of the case, the court’s caseload, and the tactics employed by the lawyers. This timeline does not include potential appeals to the High Court and the Supreme Court, which can add several more years to the process.
Advocate Sudhir Rao, Supreme Court of India