Adverse possession
Charanjit Singh
(Querist) 16 January 2013
This query is : Resolved
I have a shop in Nagpur for which I have won the case in 2012. We had given shop to one partner / tenant since 1968 due to health problems of my father . The partner kept one pan thela wala namely Gupta in the year 1969 with verbal consent of my father. In 1984 we filed a case for ejection & possession & ultimately won the case from SC in Feb 2012. When the Pan Thela wala was inducted our relation were good with our partner. Post 1981 legal proceeding started to evict the shop. That time in good faith we did not disturb / challenged the possession as it is occupying small portion of ( 3ft by 2ft) total area of 240 sq ft of whole shop. Since SC judgment has come in my favour, pan thela wala is scared to get evicted, he filed a case of adverse possession against us. Needless to add here that the shop was allotted to refugees from Pakistan in 1948 to my Grand father.
Whether he has got the right to claim under law of adverse possession though we have won the case for entire area of 240 sq ft. He is unofficialy paying ( rent)rsomething to our partner for to which I am not the party.
H.M.Patnaik
(Expert) 16 January 2013
Hi Charanjit,
From the facts disclosed in your query, it is clear that the litigation in connection with eviction has started from 1981 onwards and reached its finality at Sc level in Feb.,2012.All these period the tenant has not approached any court of competent jurisdiction seeking a decree for Adverse possession of the property concerned. In this background of the matter, in my opinion, the case filed by the tenant does not have any merit.
Besides, it is not clear what kind of Partnership arrangement you are talking about? In case , the property in question forms part property of any partnership firm,in absence of any specific term in the deed debarring the other Partner from letting out any portion of the said property,he is competent to receive rent on behalf of the firm.
Raj Kumar Makkad
(Expert) 17 January 2013
Nothing to add more as the wise advice has already been provided.
ajay sethi
(Expert) 17 January 2013
well advised by Mr Patnaik
Anirudh
(Expert) 17 January 2013
Dear Mr. Charanjit,
A person having adverse possession need not and cannot approach any court of law seeking declaration of title based on his adverse possession. However, whenever any person seeks to evict him from his possession, he can surely claim "adverse possession". At that time he can surely approach the Court of law, duly establish his "adverse possession" and seek stay against his eviction.
Therefore, the fact that the tenant has not approached any court of law between 1981 and 2012 will not affect in any way the merit of the case filed by the tenant. In fact, you should have arrayed him also as a party (when you know that he has been inducted by one of your partners/tenants) to the proceedings initiated by you. Therefore, you will definitely face some hurdles in getting your decree executed.
K.K.Ganguly
(Expert) 17 January 2013
Yes. I agree with Mr.Anirudh.The tenant can surely seek decree of Adverse Possession if there is any attempt to evict him.
H.M.Patnaik
(Expert) 17 January 2013
When the matter of eviction has travelled up to SC level for adjudication, it can not be said that the other party has not been made party to the dispute . Moreover as disclosed by the querist, the tenant in adverse possession of the property in question has not raised his claim in that line till the disposal of the matter in 2012.
Hence , if at all the other party raises a claim at a belated stage, it will be treated by the court as infructuous.
Raj Kumar Makkad
(Expert) 17 January 2013
Law of limitation is very liberal in such matters.
K.K.Ganguly
(Expert) 18 January 2013
The querist has not mentioned that the Panwalla was made a party in the suit against his Partner which went upto S.C.Rather it has been informed that his partner kept the Panwalla whose possession he also did not disturb. If that is so, then the said Panwalla can seek adverse possession only if there is an attempt to evict him.
Charanjit Singh
(Querist) 18 January 2013
Dear Mr. Ganguly,
I have posted more details for my case in the morning. Mr Makkad had opined on the same in the morning itself.
If possible you can kindly go through the same and give me fresh opinion.
By the way we had made party to pan wala as this pan shop has been given one corner of the the main shop. At that time nobody imagined that this Gupta Pan Mandir may also claim owner ship. In his plaint he is not saying that he is a tenant. He is silent about how he got inducted , he has attached Elect Bill, Corpn tax receipt etc with the plaint. He obtained elect bill in 2004. This has become a permissive arrangement from partner side . He also mentioned in the plaint that he was aware of the whole proceedings abount main shop.For the sake of your convenience I am also attaching full text below for ready referce ------
I have a shop in Nagpur for which I have won the case in 2012. We had given shop to one partner / tenant since 1968 due to health problems of my father . The partner kept one pan thela wala namely Gupta in the year 1969 with verbal consent of my father. In 1984 we filed a case for ejection & possession & ultimately won the case from SC in Feb 2012. When the Pan Thela wala was inducted our relation were good with our partner. Post 1981 legal proceeding started to evict the shop. That time in good faith we did not disturb / challenged the possession as it is occupying small portion of ( 3ft by 2ft) total area of 240 sq ft of whole shop. Since SC judgment has come in my favour, pan thela wala is scared to get evicted, he filed a case of adverse possession against us.
Whether he has got the right to claim under law of adverse possession though we have won the case for entire area of 240 sq ft. He is unofficially paying ( rent)something to our partner for to which I am not the party.
I am thankful to all esteemed lawyers who have replied to my query.
I have to add further here that the Pan thela in his plaint of civil suit is only saying that he is in possession since 1969 and he knows the about litigation going on and final decision about the main shop case. He is no where saying that he is a tenant of my partner or me. He is more worried about eviction of his portion of the ( 3ft X 2ft ) of Pan shop. Original Water bill & Electricity Bill still stands in my Grand Father's name. Pan thela has taken a separate Electric Meter in 2004 in his name as Gupta Pan Mandir and he is paying corpn Tax since 2001. The partnership between and my Grand Father / Father & main shop ( other than pan shop) was on Rs 5/- stamp paper that too unregistered proved in Bombay H.C. One more valid point which HC ( Hon.Justice Arun Choudhary ) mentioned in their order is that shop is earmarked for refugees from Pakistan and nobody else can be owner. Now Pan thela wala is claiming ownership by virtue of possession since 1969 & my father's innocence to the extent that one day this Pan thela wala may also claim ownership of his portion in the main shop of 240 sq ft. I think matter is more clear now. If still more details are required you can mail me on charanjit.khurana@gmail.com.
Further I am thinking aloud to take stand in court that being a Sikh , Pan, Tobacco, etc are prohibited as per our religion. I don’t know whether it is advisable to take such type of stand.
Charanjit Singh
(Querist) 18 January 2013
Dear Mr.Ganguly
Sorry there is a correction in second line which should be read as
By the way we had not made party to pan wala as this ------
Regards,
Charanjit
Raj Kumar Makkad
(Expert) 18 January 2013
Adverse possession cannot be claimed where there is permissive possession which has now been denied to him and he has filed the civil suit so there is no iota of merit in the claim of Gupta G.
Sudhir Kumar, Advocate
(Expert) 17 February 2013
riasing the issue of religiopn may be belated at thisstage. It is your father who allowed PAn thela. Argue on other facts which appear to be strong enough.
Sudhir Kumar, Advocate
(Expert) 17 February 2013
repeated zat http://www.lawyersclubindia.com/experts/Adverse-Possession-365656.asp
