What is Illegal possession and action against the Illegal owner?

By Aashima Kakkar

Possession, in law, the acquisition of either fair degree of physical control over a physical thing, like land or the right to regulate impalpable property, like a credit with the definite intention of ownership. With reference to land and chattel, possession could have started as a physical fact, but possession today is usually an abstraction.

A servant or an employee, as an example, may have custody of an object, but he does not have possession; his employer does, albeit he could also be thousands of miles from the thing he owns.

Illegal possession is a possession on which legal deterrent are imposed because the property is not lawfully possessed.

When broken into simpler words, Illegal possession or occupancy is that kind of possession which is acquired by unlawful or illegal means by the illegal tenant by producing false statements, documents or by coercion, undue influence, etc. Over the rightful owner of the property to illegally possess the property.

Among the various cases that pertain to land in India, an outsized number are associated with illegal property possession. Due to the sheer worth of immovable assets, 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 susceptible to unlawful possession, because it allows wider scope for illegal occupation.

Property is of two types:

  • Immovable property
  • Movable property

What is illegal property possession?

If an individual, who is not the legal owner of a property, occupies it without the owner’s consent, it might amount to criminal possession of the property. As long because 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 owner provides the tenant with limited rights to use his property for a selected period. Inhabiting the premises after this timeframe, would amount to criminal possession of property by the tenant.

It can be done through:

  • False documents being made to show the legality of the possession
  • Coercion of actual owners
  • Blind trust on the person taking illegal possession

Case law

  • Rajender Singh & Ors v. Santa Singh & Ors[1]

It is very difficult to look at the act of taking criminal possession of immovable property or continuance of wrongful possession, albeit the incorrect doer be a celebration to the pending suit, as a “dealing with” the property otherwise than by its transfer so on be covered by Section 52 of the Transfer of Property Act.

The prohibition which prevents the immovable property being “transferred or otherwise dealt with” by a celebration is seemingly directed against some action which might have an instantaneous effect, almost like or comparable that of transfer, except for the principle of legal action.

  • Gurudwara Sahib v. Gram Panchayat village Sirthala and others[2]

The Supreme Court held in this case, which was decided by a two-judge bench that, even if the Plaintiff is found to be in adverse possession of the suit land, it cannot seek a declaration to the effect that such adverse possession exists.

The Court’s observations contradict a number of Supreme Court and other High Court decisions. Now this case is being used as the basis of recent judgements.

  • Navalshankar Ishwarlal Dave And Anr v. State of Gujarat And Ors[3]

Section 2(h)[4] of the act defend “property grabber” means an individual who illegally takes possession of any lands not belonging to himself but belonging to Government, agency or the other agreements in respect of such lands or who constructs unauthorised structures thereon purchasable or hire or gives such lands to a person on rental or leave and licence basis for construction or use and occupation of unauthorised structures or who knowingly gives aid to a person for taking criminal possession of such lands of for construction of unauthorised structures thereon of who collects or attempts to gather from any occupiers of such lands rent, compensation or other charges by criminal intimidation or who evicts or attempts to evict any such occupier by force without resorting to the lawful procedure or who abets in any manner the doing of any of the above mentioned things.

Sec 2(1) defined “unauthorised structure” means any structure constructed in any area without express permission in writing of the officer of authority concerned under the enumerated provisions therein or except in accordance with the law for the nonce effective in such area.

Therefore, an individual who illegally takes possession of any lands not belonging to himself but belonging to Govt., agency or under the other agreement in respect of such lands or who constructs unauthorised structures thereon or enter into agreement purchasable or gives on hire or gives such lands or structures to a person on rental or leave or licence basis for construction or to be used and occupation of unauthorised structures or who knowingly gives aid to a person for taking criminal possession of such lands or for construction of unauthorised structures thereon or who collects or attempts to gather from any occupiers of such lands rent, compensation, or other charges by criminal intimidation or who evicts or attempts to evict any such occupier by force without resorting to lawful procedure or who abets in any manner the doing of any of the above mentioned acts or things may be a property grabber.

How to deal illegal possession?

Property owners need to deal, not only with outside entities but also keep an eye fixed on their tenants, to make sure that their property does not fall prey to any fraudulent activity.

This becomes extremely important to avoid adverse possession of the property by the tenant, which makes him eligible to say the property legally. Under the provisions of the Limitation Act, you will lose ownership over your property, if somebody else lives in it for an uninterrupted period of 12 years and claims ownership through adverse possession.

The person who lives in the property for a period of uninterrupted 12 years is also known as a squatter. The law defines adverse possession as a property’s hostile possession, which has got to be continuous, uninterrupted, and peaceful.

Case law

In the case of Poona Ram v. Moti Ram & others[5], the Supreme Court defined possessory title over a particular property as when a person is in settled or established possession of the property. The distinction between a possessory and a proprietary title is defined by Indian law.

According to Article 65 of Schedule I of the Limitation Act of 1963, an aggrieved person has 12 years to file a suit for recovery of possession of immovable property or any interest therein based on proprietary title (i.e., title bases on documents).

After 12 years of continuous possession, a person is said to have perfected his title to the property through adverse possession if he can demonstrate that his possession was peaceful, open, and continuous.

The limitation act also states that if no suit is filed within the 12-year period specified in Article 65, the person’s right to file a suit for possession recovery is forfeited. The practical effect is the extinction of the owner’s title in favour of the party in possession, who now has an absolute interest in the property.

This principle was well established by the Privy Council in 1867 in the case titled Gunga Govind Mundal and others v. The collector of the Twenty-Four Pergunnahs and others[6]

Legal action against criminal possession of property – immovable and movable

Those who are at the receiving end of a criminality, can seek relief under various provisions of the Indian law, being:

Section 145 of CrP.C

Firstly, you must file a written complaint with the city’s superintendent of police (SP), where the property is found just in case the SP fails to acknowledge the complaint, a private complaint within the court concerned are often filed. You could also file a police complaint about an equivalent.

Keep a replica of the FIR safe for future references. The authorities are going to be obliged to require action under Section 145 of the Code of Criminal Procedure (hereinafter as CrP.C).

The Executive Magistrate at any time after making the order under sub-section (1) of Section 145 in the Cr.P.C considers the case to be one of emergency, or if he decides that none of the parties was then in such possession as is referred to in Section, or if he is unable to satisfy himself as to which of them was then in such possession of the subject of dispute, he may attach the subject of dispute until a competent Court of Law has determined the rights of the parties thereto with regard to the person entitled to the possession thereof, attach subject of dispute under Section 146 of the Cr.P.C.

Section 145 is only intended to provide a quick remedy for preventing a breach of peace arising from disputes over immovable property by keeping one or both parties in possession.

This was held in the cases of Debi Prasad vs Sheodat Rai[7] and Krishna Kamini vs Abdul Jubbar[8]. Section 145 proceedings are quasi-judicial and quasi-administrative in nature, with the goal of preventing a breach of peace and maintaining tranquilly.

The Magistrate must be satisfied of two conditions:

  • There is a dispute over immovable property.
  • Dispute is likely to result in a breach of peace.

Section 145 requires him to pass a preliminary order under sub-section (1) and then a final order under sub-section (2) once he is satisfied with these conditions (6).

However, the threat of a breach of peace does not have to exist at the time the final order is issued. This was held in the cases of R. H. Bhutani Vs Miss Mani J. Desai & Ors.[9] and Rajpati Vs Bachan & Anr.[10]

Section 5 and 6 of Specific Relief Act, 1963 – related to illegal possession immovable property

The key word in the section 5 of the Specific Relief Act, 1963 is ‘title,’ which means that whoever has a better title is entitled to possession. It is possible that the title is one of ownership or possession.

Thus, for example, even if ‘A’ takes peaceful possession of land claiming it as his own despite having no legal title, he has the right to sue another who has forcibly removed him from possession because, while he may not have a legal title, he does have a possessory title.

It is a legal principle that a person who has had long-term continuous possession of immovable property can protect it by seeking an injunction against anyone other than the true owner anywhere in the world.

It is also a well-established legal principle that a property owner can only reclaim his possession through the legal system. It specifies that a possession suit must be filed in accordance with the provisions of the CrP.C.

Section 6 applies only if the plaintiff establishes that he is in legal possession of the disputed immovable property.

  • That he had been ejected from his home without his knowledge or consent, and without due process of law.
  • Within six months of the filing of the lawsuit, the defendant was evicted.

Both Sections 5 and 6 provide alternative remedies, but they are mutually exclusive. A person who has been displaced can reclaim possession under section 5 based on title, whereas a person who has been displaced can reclaim possession under section 6 by demonstrating previous possession and further wrongful dispossession.

In the context of section 6, possession refers to legal possession that can exist with or without actual possession and can be of any rightful origin. In a section 6 lawsuit, the plaintiff is not required to establish title.

Long-term peaceful possession suffices to establish actual possession. After the tenancy agreement expires, the tenant retains legal possession and cannot be evicted unless the owner obtains an eviction decree against him, according to K.K. Verma v Union of India[11].

The following are the objectives of section 6:

  • To prevent people from taking the law into their own hands (however good their title may be).
  • To provide a low-cost and practical remedy to a person who has been wrongfully deprived of immovable property.

Furthermore, where the grant of possession is purely gratuitous, the owner has the right to reclaim possession even if the person in possession is unaware of it. The only prayer that can be made in a suit filed under section 6 is for possession to be returned.

As a result, a claim for damages and a claim for possession cannot be combined. The proceedings against repossession are governed by Section 14 of the Limitation Act of 1963.

In the case A.N Paramkusha Bai vs. K. Krishna[12], a tenant was forcibly evicted by the owner, but he was also forcibly evicted. In this case, the Court held that a “tenant could institute suit for repossession immediately after being forcibly evicted,” but that “as soon as he takes forcible repossession, he becomes a trespasser and thus cannot be considered to be in lawful possession.”

Section 7 and 8 of the Specific Relief Act, 1963 – related to illegal possession movable property

The Specific Relief Act of 1963, Sections 7 and 8, contains provisions for regaining possession of specific movable property.

The following are the main components of section 7:

  • To begin, the plaintiff must have the right to possess the movable property. As explained in section 7, a person may be entitled to possession of a thing either by ownership or by virtue of a temporary or special right. A special or temporary right to possession may be granted to an individual by an act of the owner of goods (bailment, pawn, etc.) or by an act of the finder of goods (finder of goods enjoys special right to possession except against true owner).

Only those who have current possession of the movable property can file a suit under section 7. A person who does not have current possession of the movable property is ineligible to file a lawsuit under this section.

Illustration: To secure the loan he had taken, ‘A’ pledges some jewels to ‘B.’ Before he has the legal right to do so, ‘B’ sells the jewels to ‘C.’ Without paying the loan, ‘A’ sues ‘C’ for possession of the jewels. The case will be dismissed because he does not have the right to immediate possession of the jewels.

  • Furthermore, the property in question must be specific movable property, which means it must be ascertainable. The term “specific property” refers to the actual property, not a property that is like it. The specific movable property in dispute must be able to be delivered and seized. The plaintiff is not entitled to a recovery decree if the goods have ceased to be recoverable or are no longer in the defendant’s control.

Article 91(b) of the Limitation Act of 1963 establishes a three-year time limit for filing a lawsuit, beginning on the date the property is wrongfully taken or the possession becomes unlawful.

The provision relating to the liability of a person in possession but not as owner to deliver to a person entitled to immediate possession is found in Section 8 of the Specific Relief Act.

The following are the ingredients of Section 8:

  • The defendant has complete control or possession of the object in question.
  • This type of item is referred to as movable property.
  • The person claiming possession must be entitled to it right away; the defendant is not the owner of the item.
  • When the thing claimed is held by the defendant as an agent, or when monetary compensation would not provide adequate relief for the loss, or when determining the actual damage to the thing claimed is extremely difficult.
  • The plaintiff bears the burden of proving the fiduciary relationship under clause (a), and the plaintiff bears the burden of proving wrongful transfer under clause (d).

Illustration: If a retired priest has custody of the family temple’s idol, he is obligated to return it to the family because the actual damage is unquantifiable.

A person with a special or temporary right to present possession can bring suit even against the owner under section 7, whereas a decree under section 7 is for the return of movable property or the money value in the alternative, whereas a decree under section 8 is only for the return of a specific article.

A person leaving abroad leaves his furniture in the care of a friend in the case of Wood v Rowcliffe[13]. The friend is the trustee of the articles and is obligated to return them in the same condition as when they were given to him.

How can you avoid your immovable property from getting illegally occupied?

The best way to recover control and restore possession of your property legally goes to the court and posing for justice. Civil court remedies are easily available where personal appearances required within the court are often controlled by competent and chosen lawyers.

Legal remedies are available under the law to revive the possession of properties and even protect any third party trespassing or illegal interfering with the peaceful possession.

  • Prevention is best than cure

You should create true caretaker contracts and prepare well-defined tenancy contracts. In simple terms, you want to always define the status and/ or duty of the occupant having the possession of the property.

You must not let a person retain the possession of your house for an extended time. You ought to keep changing occupancy within the property to not let it get illegally dispossessed.

  • Actual legal measures
    • Under Section- 5 of the Specific Relief Act, an individual who is dispossessed of his property can get possession by title.
    • Under Section- 6 of the precise Relief Act, an individual dispossessed may recover his right merely by proving previous possession and subsequent illegal dispossession.
    • Section- 145 of the Criminal Procedure Code lays down procedure where dispute concerning land or water is probably going to cause a breach of peace.
    • A person who realizes trespassing or illegal dispossession can file a written complaint with the police against it.
    • A written complaint is often sent to the Superintendent of Police (S.P) of the district where the property is situated by way of registered mail or by visiting the concerned police headquarters.
    • In case the Superintendent of Police fails to acknowledge the complaint, a private complaint within the concerned court is often filed through an advocate and therefore the case can then be followed through a Special Power of Attorney when the owner cannot make his presence within the Court.

Conclusion

Illegal possession is a possession on which legal deterrent are imposed because the property is not lawfully possessed. If an individual, who is not the legal owner of a property, occupies it without the owner’s consent, it might amount to criminal possession of the property.

Property owners need to deal, not only with outside entities but also keep an eye fixed on their tenants, to make sure that their property does not fall prey to any fraudulent activity.

Because the Indian Contract Act, 1872 only provides relief in the form of compensation in cases of contract breach, the remedies provided by the Specific Relief Act become essential.

The plaintiff had no remedy for specific performance where the loss was not quantifiable and compensation in the form of relief was insufficient to compensate for the loss.

A person entitled to the possession of immovable property or having a special right to the possession may recover it through the legal process under the provisions of sections 5 and 6. Similarly, sections 7 and 8 give the person the power to reclaim possession of movable property.

  1. Rajender Singh & Ors v. Santa Singh & Ors 1973 AIR 2537, 1974 SCR (1) 381
  2. Gurudwara Sahib v. Gram Panchayat village Sirthala and others (2014) 1 SCC 66
  3. Navalshankar Ishwarlal Dave And Anr v. State of Gujarat And Ors 1994 AIR 1496, 1993 SCR (3) 676
  4. Section 2 in The General Clauses Act, 1897; Repeal: – [ Rep. By the Repealing and Amending Act, 1903 (1 of 1903), sec. 4 and Sch. III.]
  5. Poona Ram v. Moti Ram & others Civil Appeal no. 4527/2008 decided on 29th January 2019
  6. Gunga Govind Mundal and others v. The collector of the Twenty-Four Pergunnahs and others 11 M.I.A. 212
  7. Debi Prasad vs Sheodat Rai, ILR 30 All 41, 1908
  8. Krishna Kamini vs Abdul Jubbar, 30 Cal. 155, 1903
  9. R. H. Bhutani Vs Miss Mani J. Desai & Ors, AIR 1968 SC 1444
  10. Rajpati Vs Bachan & Anr, AIR 1981 SC 18
  11. K.K. Verma v Union of India AIR 1954 Bom. 358: ILR 1954 Bom. 950
  12. A.N Paramkusha Bai vs. K. Krishna AIR 2011 AP 165
  13. Wood v Rowcliffe (1844) 3 Hare 304: 64 RR 303

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