Methods to Deal With Wrongful or Illegal Possession Of Property In India

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 Property is considered to be the most valuable thing. For most people, their immovable properties would constitute a large portion of their personal wealth. Across the board, Real Estate has been considered as a “safe” form of investment for many years now, leading to many individuals owning multiple properties apart from the one's they actively occupy. This being the norm, one must know about the different ways in which the legal system can be used to protect their properties from being taken over by others illegally.

Indian laws divide properties into two major categories , namely:

a) Movable Property, and 

b) Immovable Property

The Indian Registration Act contains a definition of immovable property, which is as follows:

“Immovable properties includes land, buildings, hereditary allowances, rights to ways, lights, ferries, fisheries or any other benefits to arise out of land, and things attached to the earth, but not standing timber, growing crops, or grass.”

Wrongful possession of a property means a situation where a person who is not the rightful owner of the property, occupies it via malafide and wrongful means by creating false documentation, coercion or by force. The words “Wrongful possession” means:

(i)    A person can possess with false documents, also

(ii) A person can own a property by means of coercion.

The word “coercion” as mentioned above makes reference to a situation wherein a person could acquire a property forcibly, meeting the requirements of the definition stated below

Coercion, as defined under Section 15 of the Indian Contract Act, 1872, is as follows: “Coercion” is the committing or threatening to commit, any act forbidden by the Indian Penal Code (45 if 1860) or the unlawful detaining, or threatening to detain, any property to the prejudice of any person whatever, with the intention of causing any person to enter into an agreement.

A common issue faced by NRIs is this- since they do not reside in India for extended periods of time, the property they own would usually be let out to tenants. In some cases, these tenants do not vacate the premises when asked to, causing trouble.Additionally, there may exist certain of complications when it comes to an NRI owning property in India when it comes to payment of taxes in relation to such property. 

The term adverse possession refers to a legal principle that grants title to someone who resides on or is in possession of another person's land. The property's title is granted to the possessor as long as certain conditions are met including whether they infringe on the rights of the actual owner and whether they are in continuous possession of the property. In India, if a person is in possession of a particular property, for an extended period of time (12 years), then the person will be entitled to claim ownership of said property, even without having any title to the same.

There are situations, where there may be some confusion regarding the distinction between the meanings of possession and ownership. Possession refers to the physical custody, control or occupancy of any object. In the case of Immovable Property where the owner is not the person who is in possession of it, it means that there is a person residing in the property, that is owned by/belonging to another person, for a temporary purpose, and can be asked to vacate the premises when the contract expires. Some examples are care takers, tenants. It is important to note that mere possession does not equate to ownership. A property may be owned by a person who has allowed another person to take possession of his property based on certain conditions (a rental agreement). The owner of a property, however, is one that has the title to said property. 

Ways to prevent a property from getting illegally occupied:

The best way to regain control of your property is by going to the court and asking for justice, and not to simply waive off your right. Civil remedies are easily available,the plaintiff must personally appear before the court, and one can be gain better control of the situation by appointing a competent lawyer. Various legal remedies are available under Indian law so as to enable the dispossessed to regain possession of properties and to protect themselves from any third parties that may attempt to trespass or illegally interfere with the peaceful possession of the property

Since people can face any issues some of the methods of avoiding a property of getting illegally acquired are as follows:

1. Prevention is better than cure: This means that, the owner should make sure that all the documents regarding the  tenancy are in order, properly signed, and that both parties to the contract are aware and informed about the existence and the terms of such contract. Also, the owner should make sure that there is a distinction of status between the owner and the tenant. The owner should make sure that no acts are committed by the tenant to acquire the property illegally. Also, the owner should make a point that the tenant is another person after a certain number of years to avoid any claims of ownership under adverse possession norms..

2. Actual Legal Measures: 

a. Section 5 of the Specific Relief Act, 1872 is as follows:

 A person entitled to the possession of specific immovable property may recover it in the manner provided by the Code of Civil Procedure, 1905 (5 of 1908)

b. Section 6: Suit by a person dispossessed of immovable property: 

(1) If any person is dispossessed without his consent of immovable property otherwise than in the due course of law, he or any person [through whom he has been in possession or any person] claiming through him may, by suit, recover possession thereof not withstanding any other title that may be set up in such suit. 

(2) No suit under this section shall be brought – 

(a) after the expiry of six months from the date of dispossession or;

(b) against the Government

(3) No appeal shall lie from any order or decree passed in any suit instituted under this section, nor shall any review of any such order or decree be allowed. 

(4) Nothing in this section shall bar any person from suing to establish his title to such property and to recover possession thereof, 

Under Section 6 of the Specific Relief Act, 1872, a person dispossessed may recover his right merely by proving previous possession and subsequent non consensual dispossession.However, the relief granted to a person under sections 5&6 of the Specific Relief Act has nothing to do with the title to the property, it is merely a possessory remedy. However, Section 6(4)

Section 145 of the CrPC (Criminal Procedure Code) lays down the procedure where dispute concerning land or water is likely to cause breach of peace.

A person who realises trespassing or illegal dispossession can file a written complaint with the police against it.A written complaint can be sent to the Superintendent of Police (S.P.) of the district where the property is situated by way of registered post or by visiting the concerned police station.

In case the Superintendent of Police fails to acknowledge the complaint, a personal complaint in the concerned court can be filed through an advocate and the case can then be followed through a Special Power of Attorney when the owner cannot make his presence in the court.

Limiting your rights:Provisions on adverse possession are made under the Limitation Act, 1963. In the case where an owner does not assert his rights over his property for an extended period of 12 years, a squatter may acquire legal rights to the property. The prescribed period in such cases for government-owned properties is 30 years.

(i) To claim his ownership, this squatter has to prove that has occupancy of the property has been uninterrupted for the entire period. You cannot break the period into halves.

(ii) He will also have to prove that he has been the sole occupant of the property. There cannot be under provisions of the law multiple claimants.

(iii) The squatter will also have to let his intentions know to the owner, with an element of hostility into his action. Starting reconstruction work, for instance, would amount to a squatter’s attempt to claim ownership. However, he is not liable to inform the original owner about his intentions. This means the entire responsibility of monitoring the movements of another occupant lies on the original owner.     

There is an exception to this rule. Adverse possession cannot take place in cases where the original owner is a minor, of unsound mind, or is serving in the armed forces.

This would make it seem as though the Limitations Act encourages hostile possession of property, while unreasonably punishing the right owner. However, this recent Supreme Court verdict changes that line of thought. 

Orders of the Supreme Court of India :In the case Dagadabai v. Addas, the Supreme Court ruled that a person seeking to obtain a title to a property that has been in his/her possession for a period of 12 years or more uninterruptedly, would first have to acknowledge the ownership of the original landlord in order to be able to file a case for adverse possession so as to challenge the original owner’s title. The suit filed by the “squatter” must have the original owner as a party to it..

“The true owner has to be made a party to the suit to enable the court to decide the plea of adverse possession between the two claimants,” the Supreme Court order by a Bench composed of Justices R.K. Agarwal and A.M. Sapre.

“It is only thereafter and subject to proving other material conditions with the aid of adequate evidence on the issue of actual, peaceful, and uninterrupted continuous possession of the person (squatter) over the suit property for more than 12 years to the exclusion of the true owner with the element of hostility in asserting the rights of ownership to the knowledge of the true owner, a case of adverse possession can be held to be made out,” the order read.

"This article is written by Ms. Kinkini Chaudhuri, you can reach out to her at kinkini1007@gmail.com."

"Special thanks to Ms. Nehha Rukhana for editing this article."