Illegal possession of property: How to deal with it?

Among the many land related cases in India, illegally occupied property make up for a large number. One of the reasons for this is huge value that properties have. This article details on how can a landlord prevent illegal takeover of his land and steps he can follow in case he is a victim.

Table of Contents

What is legal property possession?

As long as the occupant has the owner’s permission to use the premises, the arrangement would have a legal validity. That is why properties are offered on rents to tenants under lease and licence agreements, under which the landlord provides the tenant with limited rights to use his property for a specific time period. Inhabiting the premises after this timeframe, would amount to illegal possession of property by the tenant.

What is illegal property possession?

If a person, who is not the legal owner of a property, occupies it without the owner’s consent, it would amount to illegal possession of the property.

Ways in which people illegal occupy a property

Disputes over boundary

If two parties disagree over boundary markings, it’s a case of illegal encroachment. This can also be because of outdated property surveys, absence of clear boundary markers or wishful illegal occupancy.

Adverse possession

If the tenant continues to occupy the property for a period exceeding 12 years, even the law will enable him to continue with the possession of the property. This is known as adverse possession in legal parlance. In case an owner does not stake his claim over his property for 12 years, a squatter can acquire legal rights over the property. Provisions on adverse possession are made under the Limitation Act, 1963.

Documents required to claim adverse possession

Property tax receipts
Utility bills
Maintenance records
Neighbours’ testimonials
Proof that the owner is aware of the uninterrupted possession.

According to a Supreme Court ruling on April 25, 2024, a Bench held by Justices Abhay S. Oka and Ujjal Bhuyan mentioned that to claim ownership through adverse possession, a person should prove:

Property’s valid owner’s identity
Owner’s awareness that that property was in uninterrupted possession exceeding 12 years
The person should also include details in the complaint that adds information to adverse possession claims.

Fraud transactions

This wrongful ownership is done by forging of legal documents. This has to be settled by taking legal action as not only you also the legal heirs to your property will get affected because of this theft.

Squatters

When a plot of land is left vacant for a long period of time, squatters take advantage of this and stake claim. Once settled, they refuse to budge from the area.

How can owners prevent illegal possession?

Property owners have to deal not only with outside entities but also keep an eye on their tenants to ensure that their property does not fall prey to any fraudulent activity. Here are some precautionary measures to avoid this:

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How to protect your land from illegal possession?

Mentioned are options to protect land from illegal possession.

Get a boundary wall constructed

This is true particularly in case of plots and land parcels. This has to be done, irrespective of whether the owner lives close to the location or not. This is especially true, in case of non-resident Indian (NRI) plot owners.

Mount a warning signboard

Apart from the fencing, you must also guard your private property with a no-trespassing signboard. The signboard must clearly mention that this is a private property belonging to you and that action will be taken against trespassers.

Construct a housing unit

A housing unit when constructed minimises the scope of interference from land sharks.

Reasons why properties of NRIs fall prey to illegal possession

They don’t reside in these properties and would end up giving access to manage the property to others- like relatives, friends etc.
Since most times others are managing, they use or abuse the property as there is no one to monitor them.
Absence of rental agreements with tenants is the tipping point for illegal occupation of a NRI’s property.
With owner of the property not attending regularly to it, the land becomes an easy catch for house grabbers or land mafia.

How to solve land encroachment?

There are a few ways in which land encroachment can be solved.

Mutual agreement

Talk to the person who has encroached the land with the intervention of a third party. You can negotiate and get possession of the land.

Sell the land

In case the person who has encroached the land is there to stay, you may explore the option of selling your piece of land as a whole to him.

Rent the land

In case the person is not keen on buying but wants it for some time, you can explore the idea of renting him a part of your land so that he doesn’t encroach on your property.

Safeguarding property for Non-Resident Indians (NRIs)

Non-resident Indians (NRIs) often face challenges in managing and protecting their properties in India due to geographical distances and legal complexities. To effectively safeguard your assets, consider the following strategies:

1. Engage professional property management services

Hiring a reputable property management company can ensure the upkeep and security of your property. These firms offer tenant management, property maintenance, rent collection, and legal assistance.

2. Utilize online legal services

Several platforms offer virtual legal consultations, connecting NRIs with qualified Indian lawyers who specialize in property disputes, documentation, and compliance. These services provide convenience and accessibility without the need for physical presence.

3. Maintain updated documentation

Ensure all property-related documents, such as title deeds, tax receipts, and utility bills, permits, zoning approvals etc. are upto date and securely stored. Digital copies should be maintained for easy access and sharing when required. Presence of these documents will make it difficult for unauthorised people to claim illegal ownership on the property/land. Review the property documents regularly to ensure that the ownership maintenance records are perfect. In case of a legal case, having all documents will make for a strong case to win.

4. Monitor vacant properties

There are people who may not want to rent out their property in case they are not staying in it. Instead they keep it vacant so that it can be of personal use. It’s recommended to monitor all vacant properties and make sure that it is visible to other people (in the neighbourhood) as well. By constantly monitoring, squatters or unauthorised people will not try to occupy the space. Also, by regularly maintaining the property and its periphery, owners make a statement that the property is protected and is monitored

5. Appoint a reliable local representative

Granting Power of Attorney (PoA) to a trustworthy individual allows them to manage property affairs on your behalf. It’s crucial to draft a clear and specific PoA to prevent misuse.

6. Conduct regular property audits

Schedule periodic inspections to assess the property’s condition and address any unauthorized activities promptly. Some property management services offer real-time status updates and site visit representations.

7. Leverage technology for surveillance

Install security systems, such as CCTV cameras that can be monitored remotely. This deters potential encroachers and provides real-time surveillance.

8. Stay informed about legal rights and obligations

Familiarise yourself with Indian property laws and state-specific regulations to ensure compliance and protect your ownership rights. Consulting with legal experts can provide clarity and guidance.

What to do if someone occupies your land in India?

Mentioned are some options that a landowner can explore if his land has been illegally occupied by land sharks.

Compensation
Civil Court remedies
State centric methods

Compenstation

As mentioned above, sometimes, negotiation and offering compensation will convince people who have illegally occupied a property to exit it. This may help one get their property earlier than going for long legal battles where you may also spend a lot of money. This is an option if you have detected very early that your property has been illegally occupied and both parties mutually think that it is best to settle at a midway and resolve the issue.

How will you arrive at what compensation you want to give?

Assess the compensation: Based on the value of the property, the owner has to arrive at what compensation will be right to resolve the illegal ownership dispute.

Negotiation: This has to be then negotiated with the illegal occupants and fair amount has to be reached on.

Agreement: Once agreed, an agreement has to be signed between the two parties stating the terms of vacating the property in lieu of taking the compensation.

Legal proceedings in case of illegal possession of the property

A legal notice serves as a formal communication to an individual or entity, indicating the sender’s intent to initiate legal proceedings if a specific issue—in this case, the illegal possession of property—is not resolved amicably. Issuing such a notice is a crucial preliminary step in property disputes, as it demonstrates the aggrieved party’s commitment to reclaiming their rights and provides the recipient an opportunity to rectify the situation without court intervention.Mentioned are the steps to follow.

Understanding the specific relief act

The Specific Relief Act 1963 is an Indian legislation that provides remedies for enforcing individual civil rights. When monetary compensation is inadequate, it offers reliefs, such as specific performance of contracts, injunctions, and declaratory decrees.

Identifying the appropriate relief

Before initiating legal action under the Specific Relief Act, it’s essential to determine the specific relief sought. Common remedies include:

Specific performance: Compelling a party to fulfil their contractual obligations.
Injunctions: Court orders restraining a party from performing a particular act.
Declaratory decrees: Declarations that affirm parties’ rights without ordering any specific action or awarding damages.

Consulting with a legal expert

Engaging an experienced civil lawyer is crucial. They can assess the merits of your case, advise on the appropriate relief, and guide you through the legal process.

Drafting the plaint

The legal process begins with drafting a plaint, which is a formal written complaint outlining the facts of the case, the relief sought, and the legal grounds for such relief. The plaint should include:

Particulars of the plaintiff and defendant: Full names, addresses, and descriptions.
Facts of the case: A detailed account of the events leading to the dispute.
Cause of action: The legal basis on which the claim is founded.
Relief sought: Specific performance, injunction, or any other relief under the Act.
Verification: A statement verifying the truthfulness of the facts mentioned, signed by the plaintiff.

Filing the suit

The plaint is filed in the appropriate civil court having jurisdiction over the matter. Jurisdiction is determined based on factors such as the location of the property in dispute or where the defendant resides or conducts business.

Payment of court fees

Court fees are payable upon filing the suit, varying based on the nature and value of the relief sought. The court staff can guide the exact amount.

Serving summons to the defendant

Once the suit is filed, the court issues a summons to the defendant, notifying them of the legal action and requiring their appearance in court. Proper service of summons is essential for the case to proceed.

Defendant’s written statement

The defendant must submit a written statement responding to the plaint, addressing the allegations and presenting any defences. This document is crucial for framing the issues to be adjudicated.

Framing of issues

Based on the plaint and the written statement, the court frames specific issues that need resolution. These issues guide the proceedings and focus on the disputed facts and legal questions.

Evidence and trial

Both parties present evidence supporting their claims and defences. This includes witness testimonies, documents, and other relevant materials. The court examines the evidence to ascertain the truth.

Arguments

After the evidence is presented, both sides make oral arguments summarising their positions and interpreting the evidence in light of the law.

Judgment and decree

The court delivers its judgment based on the pleadings, evidence, and arguments. If the court finds in favour of the plaintiff, it issues a decree granting the specific relief sought, such as ordering the defendant to perform their contractual obligations or restraining them from a particular act.

Execution of the decree

If the defendant fails to comply with the court’s decree, the plaintiff can initiate execution proceedings to enforce the court’s order. This may involve seeking the court’s assistance in implementing the relief granted.

Appeal

Both parties have the right to appeal the court’s decision to a higher court if they believe there has been an error in the judgment. Appeals must be filed within a specified time frame and require substantial grounds.

Purpose of a legal notice in property disputes

The primary objectives of sending a legal notice for illegal possession include:

Demanding restoration: Formally requesting the unauthorized occupant to vacate the property and restore possession to the rightful owner.
Initiating dialogue: Encouraging an out-of-court settlement to avoid prolonged litigation.
Establishing a legal record: Creating documented evidence of the owner’s efforts to resolve the matter, which can be advantageous in subsequent legal proceedings.

Key components of the legal notice

A well-drafted legal notice should encompass the following elements:

Details of involved parties: Full names, addresses, and contact information of both the sender (property owner) and the recipient (illegal occupant).
Description of the property: Comprehensive details of the property in question, including its address, dimensions, and any pertinent identification numbers.
Statement of ownership: Clear assertion of the sender’s legal ownership, supported by references to relevant documents like title deeds or sale agreements.
Nature of illegal possession: Explicit account of how the recipient has unlawfully occupied the property, including dates and circumstances.
Legal grounds: Citation of specific laws and statutes that the recipient’s actions violate, such as provisions under the Indian Penal Code or the Specific Relief Act.
Demand for action: Unequivocal request for the recipient to vacate the property within a stipulated timeframe, typically 15 to 30 days.
Consequences of non-compliance: Notification that failure to comply will result in legal action, including filing a civil suit for eviction or damages.

Illegal possession of property: Legal provisions

Several legal provisions support the issuance of a legal notice in cases of illegal property possession:

Section 5 of the Specific Relief Act, 1963: Allows a person entitled to the possession of specific immovable property to recover it through legal action.
Section 6 of the Specific Relief Act, 1963: Permits a person dispossessed of immovable property without consent and otherwise than in due course of law to file a suit for recovery within six months of dispossession.
Section 145 of the Code of Criminal Procedure (CrPC): Empowers an Executive Magistrate to intervene in disputes likely to cause a breach of peace concerning land or water, facilitating preventive action.

Illegal property possession: Steps to follow if legal notice is ignored

If the recipient fails to comply with the demands outlined in the legal notice within the specified timeframe, the property owner may proceed with the following actions:

Filing a Civil Suit: Initiate legal proceedings for eviction, recovery of possession, or damages in the appropriate civil court.
Criminal Complaint: Complain with the local police under relevant sections of the Indian Penal Code, such as Section 441 (criminal trespass).
Injunction Application: Seek a court order restraining the illegal occupant from creating third-party rights or causing further harm to the property.

Precautions and considerations

Accurate Information: Ensure all details in the notice are precise and verifiable to avoid challenges to its validity.
Timely Action: Prompt issuance of the notice can prevent the illegal occupant from claiming adverse possession, which may arise if they occupy the property openly and continuously for a statutory period.
Professional assistance: Rely on legal professionals to navigate the complexities of property law and enhance the notice’s efficacy.

State-specific legal remedies for illegal property possession in India

Various states have put separate remedial agencies in place to deal with land grabbing and property fraud cases. While the Indian Penal Code (IPC) and the Specific Relief Act provide a general legal framework to address illegal property possession across India, several states have enacted specific laws and established dedicated bodies to tackle this issue more effectively.

Uttar Pradesh

In Uttar Pradesh, for example, you can approach the Anti-Land Mafia Task Force. You have the option to register your complaint at jansunwai.up.nic.in/ABMP.html

Telangana and Andhra Pradesh

Both states have implemented the Land Grabbing (Prohibition) Act to curb unlawful land-grabbing activities. This legislation defines land grabbing, prescribes stringent penalties, and establishes special courts to expedite related cases. Victims can file complaints directly with these special courts for swift redressal.

Karnataka

Karnataka has constituted the Anti-Land Grabbing Special Courts under the Karnataka Land Grabbing Prohibition Act. These courts are empowered to take suo moto action against land grabbers and provide relief to affected property owners. Property owners can approach these special courts to file complaints and seek restitution.

Tamil Nadu

The state has established Special Cells within the police department to address land-grabbing complaints. These cells are responsible for investigating allegations and taking appropriate legal action against offenders. Victims can lodge complaints with these special cells for prompt investigation.

Maharashtra

Maharashtra addresses property disputes and illegal possession through its existing legal framework, including the Maharashtra Rent Control Act and the Maharashtra Land Revenue Code. While there isn’t a dedicated anti-land grabbing law, property owners can seek relief through civil suits and by approaching local law enforcement agencies.

West Bengal

The state has provisions under the West Bengal Land Reforms Act to deal with unauthorised occupation and illegal land transfer. Affected individuals can file complaints with the Land Reforms and Tenancy Tribunal for resolution.

Delhi

In the National Capital Territory, property disputes, including illegal possession, are addressed under the Delhi Rent Control Act and the Transfer of Property Act. Victims can file civil suits in appropriate courts and seek police assistance when necessary.

Illegal possession of property IPC sections applicable in such situations

Section 441

This section defines criminal trespass. “Whoever enters into or upon property in the possession of another with intent to commit an offence or to intimidate, insult or annoy any person in possession of such property, or having lawfully entered into or upon such property, unlawfully remains there with intent thereby to intimidate, insult or annoy any such person, or with intent to commit an offence, is said to commit ‘criminal trespass’.”

Section 425

This section deals with mischief. “Whoever with intent to cause, or knowing that he is likely to cause, wrongful loss or damage to the public or to any person, causes the destruction of any property, or any such change in any property or in the situation thereof destroys or diminishes its value or utility, or affects it injuriously, commits ‘mischief’.”

Section 420

This section deals with cheating and dishonestly inducing delivery of property. “Whoever cheats and thereby dishonestly induces the person deceived to deliver any property to any person, or to make, alter or destroy the whole or any part of a valuable security, or anything which is signed or sealed, and which is capable of being converted into a valuable security, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine.”

Section 442

This section deals with house trespass. “Whoever commits criminal trespass by entering into or remaining in any building, tent or vessel used as a human dwelling or any building used as a place for worship, or as a place for the custody of property, is said to commit ‘house-trespass’.”

Section 503

This section deals with criminal intimidation. “Whoever threatens another with any injury to his person, reputation or property, or to the person or reputation of any one in whom that person is interested, with intent to cause alarm to that person, or to cause that person to do any act which he is not legally bound to do, or to omit to do any act which that person is legally entitled to do, as the means of avoiding the execution of such threat, commits criminal intimidation.”

What is the punishment for land encroachment?

Under IPC’s section 447, anyone who is found guilty of land encroachment will be fined Rs 550 and also face imprisonment for up to three months.

Housing.com POV

Owing to the sheer worth of property, flats and land often become subject to unlawful occupation. One of the chief reasons for this is lack of seriousness from the landlord’s side. To safeguard yourself from becoming a victim of land grabbing, you should follow a multifaceted approach that will prevent encroachment and understand why there is a chance of illegal possession of property. After this also, if someone has occupied your land, use legal recourse to tide over the issue. Remember, by following basic steps while renting a house and visiting your property regularly will ensure that you keep the land sharks at bay.

FAQs

Who can claim adverse possession?

A person who is not the original owner, can claim adverse possession of a property, if he has been in possession of the property for a minimum of 12 years, during which the owner takes no legal effort to evict him.

What is possession in property?

Possession refers to the act of gaining or exercising physical control or custody of the property.

What is the transfer of possession?

A transfer of possession refers to a change or lapse in the possession of an asset.

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