Among the many cases that pertain to land in India, a large number are related to illegal property possession. Owing to the sheer worth of property, they often become subject to unlawful occupation by unscrupulous persons. Such entities also resort to forging of legal documents, to prove their wrongful ownership over a property. Between flats and plots, the latter are more vulnerable to unlawful possession, as it allows wider scope for illegal occupation.
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.
A squatter who is living in a property for an uninterrupted period of 12 years, can claim ownership through adverse possession.
Some ways in which the owner can avoid illegal possession, include changing tenants periodically, constructing a boundary wall for the property and hiring a caretaker.
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. 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 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.
A recent ruling by the Punjab & Haryana High Court also says that state can acquire land using adverse possession, adding that such cases were required to be treated as rare and exceptional.
How to deal with 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:
Make frequent visits
This goes without saying — unattended property of any kind, especially those situated at prime locations, would attract the attention of land mafia and criminals. While making proper arrangements for the physical safety of the property is of extreme importance (getting a boundary wall constructed, for example), making regular visits is equally necessary. Unless you have hired a trusted caretaker, regular personal visits are recommended.
Keep changing tenants
In view of the aforementioned legal limitation, it becomes important for a landlord to change their tenants from time to time. This is also why most landlords provide their homes for rent only for 11 months, and, subsequently, renew the rent agreement in case they are comfortable with prolonging the stay of their existing tenant.
Get a boundary wall constructed
Construction of a boundary wall is the first thing one has to do, in case of plots and land parcels. This has to be done, irrespective of whether the owner lives close to the location or not. Ideally, a housing unit must also be constructed to minimise the scope of interference from land sharks. Those living far from the location must put somebody in charge, to regularly visit the property, to ensure it remains free from illegal activities. While it may not always be a viable option, hiring a caretaker would also be a good way to avoid illegal occupation. 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.
Keep an eye on your rented property
This year, the media gave wide coverage to instances, where elderly landlords in Noida were forced to perform a sit-down front of their homes bag and baggage as a sign of protest, since tenants refused to vacate their properties. There is useful lesson for all landlords out there in that agony felt by the elderly couple. Tenant verification is not optional and the tenancy must be protected through registration of the rent agreement.
Even if you have found a fairly sensible tenant who has been regular with monthly rent payments and the upkeep of the dwelling, there is no reason to get complacent. Keep a close watch on your property and make your presence felt by making regular visits, without causing any disturbance to the tenant. In case the property is outside your city or country and making regular visits is not an option, hire someone or make someone in-charge, to perform your duties. You can never be too careful with property.
Legal action against illegal possession of property
Those who have been at the receiving end of an illegal activity, can seek relief under various provisions of the Indian law.
First, you should file a written complaint with the city’s superintendent of police (SP), where the property is located. In case the SP fails to acknowledge the complaint, a personal complaint in the court concerned can be filed.
You could also file a police complaint about the same. Keep a copy of the FIR safe for future references. The authorities will be obliged to take action under Section 145 of the Code of Criminal Procedure (CRPC).
You could seek relief under Sections 5 and 6 of the Specific Relief Act, under which a person dispossessed of his property may recover his right, by proving previous possession and subsequent illegal dispossession.
Various sections of IPC applicable in such situations
Section 441
This section defines criminal trespass.
What is 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.
What is 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.
What is cheating and dishonestly inducing delivery of property?
“Whoever cheats and thereby dishonestly induces the person de¬ceived 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.
What is house trespass?
“Whoever commits criminal trespass by enter¬ing 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.
What is 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.”
