• Claiming right by way of adverse possession

Dear Sir,
My Grandfather purchased a land in the year 1974 and a house was constructed and all family members(My grandfather, grandmother, my father started living in same house since 1975).. My father was the lone son and 4 buas. My Father got married to my mother in 1980 and was living in same property alongwith my grandfather. My Father died in 1986 and then my Grandfather gifted (by way of registered deed of gift) the entire property to 2 of my buas in 1988. In between the property is divided by brick walls into eastern portion & western portion in 1988 itself. 
My mother along with me are still living in the eastern(minor) portion of the house(property) and one of the bua is living in western(mazor) portion with the spoilt relationship between us.
- In the year 1989 my mother applied for electricity and a meter was installed in her name which was objected by my grandfather to the electricity board but my connection continued till date.
- in 1989 itself there was a police case by my grandfather of theft against my cousin brother living along with us.
- In 1991 my grandfather died and later my buas got their names mutated in municipal corporation in 1992 and the receipt is being issued in their name till date.
- We got constructed 2 temporary rooms in between and are still paying Electricity bill and using the house as our own without any physical objection.
My question is - 
Q 1) How can I claim my right over the property being gifted by my grand father?
Q 2) Can I claim Adverse possession over the same eastern portion of my occupation?
Q 3) What are the condition to meet the Adverse Possession? Am I meeting any of these in the ambit of Supreme Court latest Judgement?
Q 4) Can my buas still evict me by way of eviction suit ?
Q 4) What shall I do now? Kindly guide with legal remedy
Asked 4 years ago in Civil Law

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10 Answers

  1. The property purchased by grandfather in 1974 has become joint family property as all family members contributed in construction of house including your father.
  2. You are still living there therefore your right as joint owner of property is established and recognized by aunts.
  3. Property is transferred to buas before 1991 by way of registered gift deed.. Gift deed is executed without NOC from you father. That gift deed is not binding on you as it is joint property and father did not gave his NOC.

Advice:

  1. File a suit for partition and separate possession against all buas don’t make any mention of registered gift deed by grandfather.
  2. Let buas file gift deed in the Court, then challenge the gift deed as invalid since the all property is joint family property and grandfather cannot gift all the property to buas. Also claim that the gift deed is executed under threat and force by buas.
  3. Claim of adverse possession is not applicable to joint family property. You have right in the property as joint family member.
  4. Your buas cannot evict you. Mutation of buas name will not help them as it was don’t without NOC from father.
  5. Procedure for filing partition  suit is, issue lawyer’s notice  to all legal heirs seeking partition  and separate possession of property. After that file a suit in district Court for partition and separate possession. You will get your share.

 

 

Ravi Shinde
Advocate, Hyderabad
5125 Answers
42 Consultations

Once gift deed executed by grandfather your aunts are absolute owner of property 

 

2) in case aunt file suit for eviction take the defence of adverse possession as you are in open , hostile, uninterrupted possession for  over 12 years 

 

3) at present continue staying in the premises 

Ajay Sethi
Advocate, Mumbai
99775 Answers
8145 Consultations

Dear Sir,

1)The doctrine of adverse possession is defined under article 65 of the Limitation Act which specifies the time period of 12 years up to which a claim of title over the immovable property is applicable by continuous use of it.

2) The possession has to be adverse meaning without permission of the true owner.

3) As your grand father had by registered gift deed transferred the property, to your aunts, they are absolute owners.

4) You can claim right over the property if you have been living there against the wishes of the buas, the right of adverse possession is both a shield and a sword, ie you can also file suit for declaration and possession of the property as yours if you wish based on adverse possession.

5) Other way with you is to stay in continuous possession, and if the buas file case against you use adverse possession ad defense.

Thank you

 

Anik Miu
Advocate, Bangalore
11014 Answers
125 Consultations

1. If this property was gifted by your grandfather to your paternal aunt then it becomes their own property provided the transfer was done by a registered deed.

In that case you and your mother can be considered as an unauthorised occupier of the property.

2. The concept of adverse possession  is primarily based on three fundamental principles.

 Firstly, competing rights of ownership between the actual owner and the person taking care of the land. Right of person taking care of the land and making highest and best use of the land will prevail over the actual title holder of the land who does not take care of the land. 

 Secondly, the title of the land should not be kept in abeyance for a long period of time i.e. a situation should not arise in which the title holder of the land is not own. 

Thirdly, it is presumed that the actual title holder has abandoned his possessory rights if despite knowing that some other person is claiming hostile possession over his land but he chooses to keep quiet and not taking any action against the said person as provided under the law.

your possession satisfies all the above three conditions hence you can file a declaratory suit to declare your title by perfecting the law of adverse possession. 

3. 

The concept of adverse possession has been well settled by the judicial committee of the Privy Council in 1907 in Perry v Clissold  wherein it was held :-

"It cannot be disputed that a person in possession of land in the assumed character of owner and exercising peaceably the ordinary rights of ownership has a perfectly good title against all the world but the rightful owner. And if the rightful owner does not come forward and assert his title by the process of law within the period prescribed by the provisions of the statute of Limitation applicable to the case, his right is forever extinguished and the possessory owner acquires an absolute title. "

The decisions of the Privy Council though not binding on the Supreme Court but still the said decision was upheld by three judges of the Hon’ble Supreme Court in the case of Nair Service Society v K.C. Alexander.Thus it can be said that till date it is a good law, that if a person in hostile possession of the land though not being the true owner, becomes the absolute owner if the rightful owner of the said land does not come forward within the statutory period of twelve years as provided under the Limitation Act, 1963.

4. You can challenge the eviction suit if they file one on the basis of the documentary evidences in your support and merits in your side. 

5.  Apart from certain provisions of the Specific Relief Act, 1963 regarding the dispossession of a person without his consent from an immovable property the provisions of Limitation Act, 1963 are relevant in the cases of adverse possession of an immovable property.

You may file a suit to declare the title to your name based on the following lines:

However there is an exception regarding extinguishment of right under the Limitation Act, 1963 as provided under Section 27 which provides that in case the person has not taken any action for recovery of possession during the period of limitation then his rights get extinguished. So in a situation where a person does not take any action for recovery of possession of land within a period of twelve years as provided under Article 65 in Schedule I of the Limitation Act, 1963 his rights get extinguished and therefore the land is left in abeyance. But the law of adverse possession is based upon the principle that a land cannot be left in abeyance for a long time as already stated above. Hence someone has to be the owner of the land when the rightful owner has lost his rights once failed to take action as provided Section 27 of the Limitation Act. So in the said situation the person is adverse possession of the land becomes the rightful and absolute owner of the land as per Article 65. 

T Kalaiselvan
Advocate, Vellore
89977 Answers
2492 Consultations

Q 1) All the papers have to be analysed. Sale deed and gift deed. 

Q 2) You can claim Adverse possession over the same eastern portion because of number of years.
Electric meter in your name also with other address proof will be helpful along with construction.

Q 3) 12 years is the limitation.


Q 4) To evict, let them file eviction suit. Then you can defend the case.


Q 4) For now, no need to do anything.
But if possible, you can do more construction to add more room(s).
But that can initiate suit now.

Ankur Goel
Advocate, Bangalore
454 Answers

1. You may claim title by way of adverse possession by filing a suit for declaration.

2. To prove adverse possession it has to be proved that title of person claiming adverse possession is hostile to the title of true owner.

3. Your buas can evict you by filing a suit for recovery of possession as they have a clear title.

Ashish Davessar
Advocate, Jaipur
30840 Answers
981 Consultations

The property belonged to your grandfather and hence he had a right to gift it to anybody. Therefore i am sorry but you don't have a share.

The law of adverse possession only comes into play when a party who is asked to evict doesn't leave the property and says that it belongs to him. Now it is an established fact that it is not your property. You are living there. 

Rahul Mishra
Advocate, Lucknow
14114 Answers
65 Consultations

1, You can not claim right on the said property being gifted by your grandfather for want of any val;id gift deed.

 

2. Application filed claiming  Adverse Possession is  not entertained. If the title holder of the property files an eviction suit, you can contest it by filing written reply claiming Adverse Possession.

 

3. The condition to claim adverse possession over a property is that you are holding possession of the said property for more that 12 years against the explicit objection of  its title holder.

 

4. Yes, your Bua who was gifted your portion of the house can file an eviction suit against you which you can contest fittingly.

 

5. Under the given circumstances, negotiate with your Buas and get a title of a portion of the house conveyed in your name by registering a settlement/gift deed after paying her/them a token amount. If this plan does not materialise, claim adverse possession if your Bua files an eviction suit against you as suggested above.

Krishna Kishore Ganguly
Advocate, Kolkata
27703 Answers
726 Consultations

1. Since your grandfather had purchased that land , then that property was his self acquired , and he was having his right to gift to your bua 

- If that gift deed is registered , then you cannot claim right on that property , however after the death of grandfather you can challenge that this Gift deed was obtained by bua forcefully. 

2. Since there is already owner in possession of that property by way of gift deed, then you cannot claim on adverse possession. 

3. No you cannot claim on adverse possession 

4. If, Bua filed an eviction petition , then can contest.

Mohammed Shahzad
Advocate, Delhi
15814 Answers
242 Consultations

You need to give indication of the property being hostile to the legal heirs for adverse possession. Claiming the same in adverse possession is tedious work. 

In this case it's not adverse possession. You need to declare the possession of the true owner hostle I'm above case to claim for adverse possession. Ans only after 12 years of the same getting hostle you can perfect the title through adverse possession. 

They can file eviction suit against you but it's difficult to evict. 

 

Prashant Nayak
Advocate, Mumbai
34514 Answers
249 Consultations

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