• Can I get file a case for adverse possession

My father(say donee) married one of the three daughters of his paternal uncle( say Donor). My father uncle gifted his share in his ancestral property lands as registered gift deed in 1958.My father`s uncle(donor) has one elder P1 and 2 younger brothers(P3,P4).
we have joint pattas with hiers of P1,P3,P4.
Let em explain you what is Joint pattedar system (exists only in erst while Nizam state)
** I and other share holder have inherited 10 acres each. I will have 10 acres in possession on the land separated by metes and bounds so will be other share holder. but on records 5 acres in my 
possession will be on my share holder name in pattadar column and i will he hissedar and like wise 5 acres of other share holder will be on my name in pattedar column and he will be hissedar 
column. and we will get Pattedar passbook also for 5 acres only for which I am in Pattedar and Hissedar columns in the land records. **

After the death of my fathers uncle in 1964, my father got mutated the land on his name in 1964.. 

Heirs of P1,P3,P4 have turned hostile to us and are not agreeing for transfer of Joint patta lands with mutual consent so that we will get clear title for the land we are in possession.Just a 
statement before the MRO(Tehsildar)for change of names in the pattedar and Hissedar columns of the Pahanies is required as the lands are already partitioned long back ans separated by metes and bounds, so that we will get passbooks and title deeds for the actual land we are in possession.But instigated by some people with vested intrests they are not agreeing for a mutual consent. there are no land disputes per say about the boundaries or extent of land but only grudge on us as we made well and want to pull us down.

My father name had been coming in pahanies(1A Form) right from 1964 to 2009 after my father died the land got transfered to my name from 2010 to till date. We are in possession of the land (both hissedar and pattedar) till date doing cultivation.

I have few queries which you could kindly explain,
Q1:Can file a case for adverse possession in the court as it is more than 12 years that we are in possession offically in the land record pahanies (1A Form).
Q2: If yes, what are the chances of winning?
Q3: Do we need any witness evidence also apart from the land records?
Asked 7 years ago in Property Law
Religion: Hindu

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6 Answers

1) you cannot claim ownership by adverse possession on the ground that you are in possession of the land in dispute for sufficiently long period ie over 12 years

2)t he plea of adverse possession is available only as a defence to the defendant.

3) adverse possession can be used as a shield and not as a sword.

4) it is a settled that no declaration of title can be sought on the basis of adverse possession.

5) even if the plaintiff is found to be in adverse possession, it cannot seek a declaration to the effect that such adverse possession has matured into ownership.

Ajay Sethi
Advocate, Mumbai
95197 Answers
7607 Consultations

5.0 on 5.0

1. Please note that the ground of adverse possession is taken as a plea of defence . On its basis not fresh case can be filed. However you may file a suit for declaration as regards its possession.

2. If your hostile and peaceful and continuous and open possession over the proeprty is proved then the claim of the original owner will surely fail.

3. Yes, you must produce witnesses to show your possession apart for documentary evidence,if any.

Devajyoti Barman
Advocate, Kolkata
22920 Answers
497 Consultations

5.0 on 5.0

Hi

Strengths:

1) Your advantage is that you are having the title deed, enjoying possession and the factum of you being in possession is reflecting in Pahani.

2) Title Deed - It appears that your father's paternal uncle has already gifted his share in his ancestral property lands as registered gift deed in 1958 in your father's name and hence you have a Valid Title deed. it also appears that the Gift Deed has NOT been challenged since 1958 by P1,P3 and P4.

3) P1, P3 and P4 cannot challenge the Gift Deed (if at all they were to challenge, they should have challenged the Gift deed within 3 years from the date of Gift Deed) and hence the Gift deed holds good during your father's life time and his successor's who derive title from the Gift Deed.

4) Possession- Your father was legally in Possession of the properties (vide pahani) since 1964 and subsequent to your father's life time the pahani has been mutated in your name since 2010.

Your apprehension:

5) It is sad that you inspite of you having the valid title and possession, you are unable to get your patta passbook mutated in your name as P1, P3 and P4 are NOT forthcoming for mutation in Patta by Mutual consent

Answers to Your Query:

6) You can file a suit for declaratory title and Possession (since you have been in possession from 1964 onward's and Win your claim for declaratory title.

7) Assuming you claim Adverse possession(actually you are in full possession in accordance to law), you will WIN the case 100% as land title deed(gift deed) continues to be in your father's name since 1958.

8) Your pahani is the best documentary evidence for possession which proves your father being in possession of property from 1964 and subsequent to his life time, you being in possession of the same.

9) However if any of your worker/ family member can testify in the court that you have been cultivating your land for more than 12 years,your winning chances will increase from 100% to 200%.

Please refer to Judgment of Andhra Pradesh high court in G. Satyanarayana vs The Government Of Andhra ... on 28 April, 2014 wherein in addition to the points mentioned in my reply, the High court has supported your claim of possession as follows:

In the absence of proof of patta, the right of a person in possession supported by multiple registered sale transactions needs to be considered. Both under the ancient Hindu and Muhammadan laws, the land was not vested in the King. Possession has always played an important part in all systems of jurisprudence . Under the Hindu system, possession, however brief, is necessary for a perfected title. As between title and possession, the former predominates, unless the latter is hereditary. A person who claims under title must, when it is disputed, prove it. Just in some way title can be acquired by possession, it can be lost by adverse possession of another and the effect of such adverse possession is that the latter keeps the property as his own. Possession lawfully obtained, prima facie, raises a presumption of ownership in the absence of evidence rebutting such presumption. Possession, however short, will raise that presumption and a long possession is not only evidence of title but is a good and valid title by itself.

Hope this information is useful

Rajgopalan Sripathi
Advocate, Hyderabad
2173 Answers
394 Consultations

5.0 on 5.0

1. Better to file suit for a declaration before the Honourable Court instead of adverse possession. Since you are having sufficient record and from the year 2010 onwards your name reflecting phahanies. 2. being ancestral property and you got the land by inheritance there are really good and lot of chances to win the case, 3. You have to file family tree be dealing detailing how you acquired the property from your predecessors. all the revenue records, the course records pertaining to Nizam period shall be filed before the Honourable Court.

Lakshmi Kanth
Advocate, Hyderabad
446 Answers
15 Consultations

4.7 on 5.0

daughters of D2 have no right on said property as uncle had executed gift deed in favour of father

2) gift deed cannot be set aside unilaterally

3) you need court orders to set aside gift deed

4) declaratory suit will not create any retrospective rights on daughters of D2

Ajay Sethi
Advocate, Mumbai
95197 Answers
7607 Consultations

5.0 on 5.0

you will have to file suit to set aside passbooks and title deed issued in name of share holders fraudulently

2) contact a local lawyer

Ajay Sethi
Advocate, Mumbai
95197 Answers
7607 Consultations

5.0 on 5.0

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