Complete Guide on your Property Rights

In a layman’s language, the terms ‘ownership’ and ‘possession’ often get confusing. People usually think both these terms mean the same when actually there is a major difference between the two. While ownership means having exclusive rights, which together are known as a title, and control over one’s property; possession refers ‘to have’ or ‘to occupy’ anything or any object so as to control, and sometimes, use it.

For the owner, it is not necessary that they have possession over their property i.e., they might not be residing in that property or not using the same. At such instances, a very common issue that arises is that of wrongful possession of the property.

Now, it is clear as crystal that a person having ownership without possession enjoys no fruits borne by their property. Thus, for every person owning a property, it becomes really crucial to know about all the consequences of any inaction on their part which may lead to wrongful possession of their property.

Wrongful possession of a property

Any property can be wrongfully possessed today by a person who does not have righteous ownership of the property by adopting the means of either using false documents or through the use of force or coercion. One can understand this through the example of a tenant who illegally occupies the property and refuses to abandon the same. Here, the tenant can be held liable for having the wrongful possession of that property as they’re clearly infringing the landlord’s rights over that property.

There are numerous examples of a situation where such illegal possession is made by people and thus, creating havoc in the lives of those actually who righteously own the property.

Getting wrongfully possessed property back

The law protects the subjects from such grievances through a meticulous procedure. This involves:

1. Sending a legal notice to the person having wrongful possession of the property.

2. Claiming the title of the owner in court under Section 5 of the Specific Relief Act,1963.

3. Proving previous possession followed by subsequent dispossession to recover the right over property under Section 6 of the Specific Relief Act.

4. Filing a criminal complaint against the wrongful possessor under Section 145 of the CrPC.

5. Filing a private complaint with the under a special power of attorney.

Other remedial ways for preventing the wrongful possession of one’s property are as follows:

1. Justifying the status of the occupant who actually has the possession of the property is a great preventive measure. This can be done via appointing a caretaker for the concerned property as well as preparing well organized and maintained tenancy contracts.

2.  The occupancy of the property must not be exposed to illegal dispossession and this can be prevented by regulating the occupancy from time to time. Lengthy retention of the possession of one’s property by the same person leads to such consequences.

3. The owner must not leave their property under anyone’s occupancy for more than 12 years as the Supreme Court’s ruling in a case mentioned that the owner cannot challenge the occupier’s ownership rights if they themselves didn’t take any action against illegal possession for a period of 12 years.

A very common and recurring issue of wrongful possession of the property is seen in the case of NRIs. This is due to the following reasons:

1. Possession of the property at all the times is not possible for NRIs as they do not reside in those properties.

2.  No regular visits can be paid by them so as to keep an eye on the situation of the property or to handover the property to any caretaker or any acquaintance.

3.  Moreover, due to lack of supervision by the owner, many disputes arise even when the property is handed over to friends or relatives for a longer period of time as they begin assuming that they own the property.

4. Unregistered or faulty agreements are a major loophole to illegal possession of the property.

5. Land mafias are always in search of occupying such non- visited sites or those without any caretakers or tenants.

Proving the prior possession of the property by an NRI can be a very tiresome process. There are some ways in which these situations can be avoided.

How can an NRI avoid illegal possession?

1. Public notification: In the case of inheritance of a property by a new owner, the proper public notification must be issued and put up in any official gazette or a local newspaper. The copies of such notifications must 

2.  Documentation: Documents such as the title deeds or the sale agreement, must be duly arranged by the owner. Any need for modifications to the documents must be done there and then. Moreover, the water and electricity bills, the municipal taxes and such payments must be paid on time and their respective receipts must be kept safe.

3. Fencing: A boundary wall or a notice board stating the right to property and ownership can be put up at the vacant plots.

Conclusion

The ownership and possession of a property is a valuable asset for anyone and when these rights are violated, agitation and confusion is justified to be witnessed. However, it is advisable that at such instances, one remains patient and be open to negotiations with those who have encroached their property. Many a time, it is seen that these issues are tackled more appropriately and faster through direct and patient negotiations. However, it is always advised to have such negotiations and talks under legal guidance so as to prevent further fallacious outcomes. Sometimes, people tend to opt illegal means so as to get their property evicted as soon as possible. Such measures are highly probable to land one into more troublesome and gruesome consequences. 

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The author of this beautiful blog is Advocate Diggaj Pathak having an experience of 11 years in handling property related matters from his experience he wants to share this beneficial information for the individuals having any issues with respect to the property matters.