Property litigation in India-Thelegalbank

What is property law?

Property law is the field of law that directs what people own. It’s the area of law that says who can own land and individual items, how they can use them and with what limitations. Property law refers to both real property and personal property. Ownership and use of the property is a range of law that affects everyone in society. Property law is also an essential part of estate law, family law, and municipal law.

What Is Property Litigation?

Property litigation is a field of law that trades with disputes relating to the property of all types.

Property litigation typically includes settling disputes between property owners and their tenants, but can also include a wide range of other matters concerning the ownership of residential, commercial, industrial, and agricultural property. In other cases, property investors and owners may engage the services of a lawyer when they need legal help; for example, for drawing up contracts, or simply for obtaining advice in order to stop future disputes or problems.

• Corporeal and Incorporeal Property -

   (I) Corporeal Property - 

          Corporeal property is the right of ownership in real things. Corporeal property is regularly visible and tangible. Corporeal property can be seen by senses. It can be seen or touched that is like A House, Land, Car, Bike, etc.

Corporeal property may be divided into 2 parts- 

1. Movable Property and Immovable property. 

2. Real Property and Personal Property 

   (II) Incorporeal Property - 

           The incorporeal property also asked intellectual or conventional property. it covers all those valuable benefits which are preserved by law. Incorporeal property is intangible. It cannot be perceived by Senses that are like Patents, Copyrights, Trademarks, etc.

Incorporeal property is divided into two classes- 

(a) Jura in re propria Over Material things (patents, copyrights, trademarks, GI, etc)

(b) Jura in re Aliena encumbrances, whether up material or immaterial forms, for example, Lease, Mortgages, and Servitude, etc.

1. Movable property and immovable property-

(a) Movable Property - 

Movable property is one, which can be carried from one place to a different place with human trials.

 (b)Immovable Property -

According to the General Clauses Act, 1897 "Immovable property comprises land, benefits arising out of the land and things connected to the earth or forever fastened or anything connected to the earth. Section 3(2) of the Transfer of Property Act 1882 describes the immovable property as "immovable property does not involve standing timber, growing crops or grass. The movable property comprises corporeal property which is not immovable.

2. Real property and Personal property-

(a)Real property -

The real property covers all rights over land with such interests and exceptions, as the law has deemed fit.

(b) Personal property -The law of personal property covers all other proprietary rights whether they are in rem or in personam.

• Public property and private property

 (a) Public property-

Public property is held by the public as such in some governmental capacity. Public property is used as a specification of which are Public Juris and therefore, are regarded as being owned by the public. The whole state or the community and not limited to the domain of private person or that which refers to a state or political constituents like provinces etc.

 (b) Private property -

 The private property is that which is owned by an individual or some other single person.

• The Litigation Process:-

When alternative dispute resolutions don’t get the wanted result, litigation is the last left option for reaching a resolution. In accordance with Civil Procedure Laws, the “overriding objective” of litigation is to deal with cases in a just way, in a way that limits expenses and guarantees the parties concerned are ready to participate on an equal basis.

Pre-Trial: Proceedings are indicated when a candidate files a claim form. This document covers basic information about the case and the parties involved. Another document, called the “particulars of claim” is filed with the claim form or as a individual document. The particular claim is a document that includes extra factual and legal information about the case. In some cases, certain specific items must also be added. For example, if the claim is made in relation to breach of a leaseholder contract, a copy of the contract must be covered.

Property litigators can help candidates complete claim forms and details of claim requirements, and determine what supplemental information must be combined with the documents.

Trial: During the trial, each party has the opportunity to declare their case, and present witnesses and/or evidence to back up their statements. Each part of the evidence and each witness must be relevant to the case at hand. In civil cases, the burden of proof lies on the applicant to prove their case, and the standard of proof is defined as a balance of probabilities, meaning that the defendant is more likely than not to be responsible.

A litigator is a necessary part of civil court proceedings in cases where a claimant or defendant chooses to obtain representation. Litigators argue in court on part of a candidate or defendant, explaining evidence, questioning witnesses, and stating the facts as they are known to the client. If a claimant or defendant chooses to express themselves, a litigator may still be retained to give legal advice.

Post-Trial: Court-judgements are no self-enforcing, meaning that the courts do not implement the judgments it gives. As a result, claimants who win their case may seldom need further legal advice in order to settle a dispute to their satisfaction.

Depending on the details of the case and the outcome, a claimant has a number of options they can pursue to ensure the judgment is enforced, and a property litigator can provide advice on the various options and help plan for solutions such as attachment of earnings, or third-party debt order.

A claimant or respondent who doesn’t achieve their desired outcome can, in some circumstances, lodge an appeal, and therefore proceed to retain the services of a litigator.

• Legal Aid for Property Disputes:-

While most property conflicts do not qualify for legal aid, some classes of residential disputes may be acceptable. Eligible disputes are limited to those where a resident is uncertain or faces homelessness. Examples involve:

• A resident who is at risk of losing their home
• A residential rental occupant who is at risk of dispossession
• A residential rental tenant residing in a home where their health or security is at risk

Business, company, and partnership law are prohibited, which means that matters relating to the commercial and industrial property are not eligible.

In addition, matters relating to conveyancing are not available for legal aid.

Legal aid for property disputes is subject to the same rules and laws as legal aid for any other object: there are different levels of legal aid available, and the kind of legal aid a person can get depends on the nature of their legal dilemma, as well as their assets and earnings.

Pecuniary/Monetary Jurisdiction:-

The monetary jurisdiction of the court distributes the court on an upward basis.

At present the monetary jurisdiction of the courts is as follows:-

• Suits amounting to Rs.1 - Rs.20, 00,000 cases before district courts.
• Suits over and above Rs. 20,00,000/- suit before High Courts.

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It is very important to note that the amount of financial jurisdiction is different for all High Courts. This limit is determined by respective High Court Rules.

In many states, the High court has no monetary jurisdiction. All civil suits go before District Courts, and the only appeal rests before the High Court.

Territorial Jurisdiction:

Territorial Jurisdiction divides the courts regularly.