Adverse possession vs agreement executed
lawyers friend
(Querist) 30 December 2014
This query is : Resolved
Hi Learned Law Experts,
We were staying in a property more than a century( year 1905) on the first floor , however in year Feb 2002 ,there was an agreement (duly notarized and witnessed )being done by the then Landlord (dead) with us ,which states that he will give us two flats on the third floor and also will also bear the costs of registration and other legal expenses.
On basis of that agreement we have left the first floor and the building was re-constructed up to third floor ,initially it was only ground plus one. We have moved to third floor in June 2002 and as per the agreement ,then landlord has given us two flats. Since then we are staying there in the capacity of owner by the virtue of the Agreement.
We have paid no rent sine 2002 and have all the government proofs( Electricity, Water bills, Telephone bills, Pan Card, Voter ID, Aadhar, LPG ,Kids School and DOB Certificates ,MCD House Tax receipts etc..) establishing our rights .
The issue here us that the Agreement was not executed as the Landlord kept us making fool that there is an Arbitration case going on the property in High Court hence till the case is solved ,he cannot do the Regisrty..we also believed as we were having relations with him / his family for more than a century. We also confirmed that a case was in proceedings in year 2004 .
However, now the landlord died in 2007 and his notorious son took a loan by mortgaging his flats and my flats in year 2009 ,2011 and 2013 Consecutively and became a willful defaulter, Bank got orders issues under SARFAESI to take the possession of my flats as the Landlord Son took a stay on his flat stating that my flats are sufficient to pay off the bank loan. The Order says that the "borrower will handover the possession to bank", however the possession is with us. Police, Court Receiver and Bank personnel are harassing us every now and then, we have provided them all our possession proofs including the Agreement ,still the tension is intact
He and Bank ,both filed a false affidavit in the court that the property is in physical possession of the borrower and no one else stays there.
Now, i need your expert advice to save my family and house from this problem and how can i get my Agreement executed/registered to establish myself as an Owner.
Someone says i should go for Adverse Possession as it has been more that 12 years we are staying with family in the flats and we can use the Agreement as an Evidence.. however some says this is not the right way and i should represent as a tenant.. Please advice whats remedies i have to establish my title and get relief.
This forum always gives right approach and right guidance, Your advice will be a life saver.
ajay sethi
(Expert) 30 December 2014
you ought to have filed an application before DRT to set aside order passed for taking possession of your flats . mention that you were in possession for more than 100 years and on redevelopment have been allotted 2 flats by builder .
alos file complaint of cheating , criminal breach of trust against the son as he must be fully aware that those 2 flats have been allotted to you by agreement of 2002
Rajendra K Goyal
(Expert) 30 December 2014
Whether both the flats were registered in your name as was agreed?
Consult local lawyer and show him all the documents.
lawyers friend
(Querist) 30 December 2014
Sir, that is the issue , there was no registration done,however we are in possession since June 2002 by the virtue of that agreement.
Kishor Mehta
(Expert) 31 December 2014
Sir,
[1] You can not take recourse to Adverse possession as you hold the flat by virtue of a written agreement.
[2] In absence of a registered agreeement of ownership, you can not claim ownership.
[3] You can claim tenancy by virtue of your possession of the flats and relevant evidences.
[4] For protection from eviction the applicable tenancy laws of your state will apply.
Good Luck,
Kishor Mehta
P. Venu 
(Expert) 31 December 2014
You may approach the DRT in terms of the provisions of Section 17.
T. Kalaiselvan, Advocate
(Expert) 01 January 2015
Approaching DRT will be next option available for you seeking relief from the present crisis.
lawyers friend
(Querist) 02 January 2015
ty for reply sir,what will my status to approach drt as tenant or owner and what was my further step for save my home.
Kishor Mehta
(Expert) 02 January 2015
Sir,
In order to be an owner of a property one needs proof of [1] either having paid the value of the property, having paid the stamp duty and registration charge for a registered agreement for that property, [2] or a valid gift deed duly registered in one's favour.
Simply having possession for a long period does not enable one to claim ownership.
In your case you have entered into a written understanding with the prevous landlord, hence you can not claim adverse possession, as the document is not registered its evidentiary value is open to challenge.
Please consult a local lawyer immediately in your interest.
Good Luck,
Kishor Mehta
P. Venu
(Expert) 02 January 2015
Section 17 enables any person to approach the DRT. the queriest is having a title to the property which is quiet discernible. The issues involved are quite unique with hardly any case laws to guide. The solution could emerge only through a judicial review.
Apparently, the Bank now stands in the footing of the landlord. The question is, is not the Bank bound to honour the obligations of the predecessor-in-title?
PRAKASH
(Expert) 04 January 2015
Sir, you have not specified the content of the agreement between you and your landlord.
further, you can claim adverse possession only against its owner if he files the case against you. Remedy of adverse possession is available only as you being the defendant.
Transfer of property Act requires compulsory registration of transfer of a immovable property.
Consult a local lawyer for quick action.
lawyers friend
(Querist) 04 January 2015
Ty for reply sir,
Please give your view in light of this judgment,Does it help me in any case.....
shwara Ganu Nimbalkar and Ors .. Appellants. Vs. Ananda Balwant Karnekar
"For all the above foregoing reasons our view is that the Statutory protection granted under Section 53A of the Act to a transferee in possession to continue his possession under an unregistered contract or instrument of transfer is not lost by lapse of time to file the suit for specific performance of contract for acquiring title if he satisfies the essential requirements of the said Section 53A of the Act and it is not incumbent upon him to file such a suit within time to protect his possession after the lapse of time. The law is therefore correctly laid down in Nana Saheh's case and not in Adinath's case."
Kishor Mehta
(Expert) 04 January 2015
Sir,
[1] The terms & conditions of the agreement with the landlord are important. However since this is not a registered document this can be successfully challenged.
[2] Section 53A of Transfer of Property act specifically mentions transfer for consideration: it states
"53A. Part performance.—Where any person contracts to transfer for consideration any immoveable property by writing signed by him or on his behalf........"
Please consult a local advocate and try to find an evidence of having paid the consideration in cash or kind for your flats.
Good Luck,
Kishor Mehta
Phani Kumar. D
(Expert) 05 January 2015
Sir,
As per your version, you have not claimed your property as per agreement (what you said). The agreement is not registered document. Hence specific performance do not arise in your case. Contact local advocate with all documents. Without going through the documents no body will give right advice.
