ADVERSE POSSSESSION WHAT IT MEANS, LIMITATION LAW
Querist :
Anonymous
(Querist) 22 October 2010
This query is : Resolved
DEAR SIR,
MY MOTHER WHO DIED IN 1989 BEQUESTED HER HOUSE IN DELHI IN THE FOLLOWING MANNER THROUGH A WILL DT APRIL 1989
GF OF HOUSE TO ELDER BROTHER
FF TO YOUNGER BROTHER
SF ON WHICH NOTHING WAS CONSTRUCTED TO ME.
I REPEATED THE SECOND FLOOR WAS JUST A FLOOR AND NOTHING CONSTRUCTED ON IT TILL HER DEATH.
THE WILL WAS PROBATED BY DELHI HIGH COURT IN 1995 AND I AM THE EXECUTOR OF THE WILL AS ALSO THE SECOND FLOOR OWNER.
THE MCD SINCE 1989 AFTER THE DEATH OF MOTHER CORRESPONDED WITH ME ALONE ON ALL MATTERS RELATED TO ARREARS OF TAX ETC FOR THE ENTIRE HOUSE. THERE ARE SEVERAL LETTERS IN THIS REGARD WITH ME.
THUS FROM 1989 TILL MARCH 1999 THE FLOOR REMAINED AS ONLY A FLOOR WITH NO TRESSPASS.I LIVE IN LUCKNOW AND THE HOUSE IS IN DELHI.
IN JUNE 1989 ON A VISIT THERE I LEARN THAT MY YOUNGER BROTHER WHO LIVES AND OWNS THE FF HAD CONSTRUCTED A ROOM AND A TOILET ON MY SECOND FLOOR.
I TOOK UP THE MATTER WITH THE MCD IMMEDIATELY AND ON AC OF MY REPORTING TOOK CONGNISANCE OF THE CONSTRUCTTION FROM APRIL 1,1999 AND IMPOSED A TAX ON UNAUUTHORISED CONSTRUCTION.
MY DOZENS OF LETTERS FOR DEMOLITION MET WITH NO RESPONSE . SUBSEQUENTLY I FILED AN RTI AGAINST MCD AND THE INFRMATION PASSED SEVERE STRICTURES AGAINST MCD STATING THAT IT A CORRUPT DEPT WHJICH DOES NOT ACT.
I ASKED ORALLY MY YOUNGER BROTHER IN JUNE 1999 ITSELF TO DEMOLTISH IT AND HAND POSSESSION.
I FOLLOWED UP THE MATTER ON PAPER VIDE REGD LETTER DT APRIL 2,2000 ASKING HIM TO HAND OVER PEACEFUL POSSESSION.
SUBSEQUENTLY HE ADDED THREE ROOMS AND IS RUNNING A SUCCESSFUL GUEST HOUSE ILLEGALLY.
FROM MAY 2000 I TRIED TO RAISE CONSTRUCTION ON SECOND FLOOR BUT HE OBSTRUCTED ME.
THIS FACT IS RECORDED IN HIGH COURT ORDER DT MARCH 28,2007 IN ANOTHER CASE FILED BY ELDER BROTHER FOR GETTING MUTATION DONE .
IN SHORT MY ATTEMPS TO GET PHYSICAL POSSESSSION AND DEMOLITION OF CONSTRTUCTION AND TO DELHI POLICE FOR SEALING OF ILLEGAL GUEST HOUSE ARE ALL RECORDED.
I HAVE FILED A SUIT FOR POSSESSION IN SEPTEMBER 2010 AGAINST YOUNGER BROTHER AND ALSO MADE DEDEHI POLICE AND MCD PARTIES.
IN RESPONSE TO THE SUIT THE DEFENDENT, YOUNGER BROTHER HAS STATED THAT SUIT IS TIME BARRED AND HE IS OWNER BECAUSE OF ADVERSE POSSESSION.
INCIDENTALLY THE YOUNGER BROTHER WROTE TO ME IN 2003 THAT HE WOULD LIKE TO SETTLE THE PROPERTY DISPUTE AND COME TO LUCKNOW.
AS SUCH THERE IS EVIDENCE THAT HE RECOGNISES THE DISPUTE ON PAPER AT LEAST TILL APRIL 2003.
MY QUERY
WHERE DOES THE MATTER STAND IN REGARD TO LIMITATION AND ADVERSE POSESSION
BESIDES THIS HE DOES NOT HAVE A SINGLE ARGUEMENT, I REPEAT THAT THIS IS THE ONLY DEFENSE HE HAS MUSTERED AND NO ANNEXURES AT ALL. IN CONTRAST I HAVE PRODUCE OVER 40 WRITTEN EVIDENCES ABOUT UNAUTHORISE CONSTRUCTION, RUNNING ILLEGAL GUEST HOUSE AND BEING IN POSSESION OF THE SECOND FLOOR.
REGARDS
VINAY KALA
OCTOBER 22,2010
R.Ramachandran
(Expert) 22 October 2010
When the possession of the defendant becomes adverse to the plaintiff, it is called 'Adverse possession'.
The Limitation prescribed in Article 65 of the Limitation Act, 1963 to retrieve such adverse possession is 12 years from the date when the defendant comes into possession.
Under Article 65 of the ACt, there is no need for the plaintiff to prove possession was with him for 12 years prior to the institution of the suit based on title. In such a case, it is for the defendant to establish that he was in possession for the statutory period i.e. 12 years.
In meeting such a defence, the principle that possession follows title will help the plaintiff i.e. the real owner.
However, if the plaintiff is found to have been dispossessed uninterruptedly for the statutory period of 12 years, then the presumption that the possession follows the title cannot be available to him.
However, in the instant case, you have been regularly protesting such a possession and as such the Court will ultimately come to your rescue.
Devajyoti Barman
(Expert) 22 October 2010
Yes. Mere possession for 1222 years uninterruptedly is not sufficient. The defendant will have to prove that the possession for all those years were in open hostility to the plaintiff. The onus upon the defendant to prove that the he was hostile to the title of the plaintiff for all those years and still the plaintiff did nothing of the last 12 years.
Kirti Kar Tripathi
(Expert) 22 October 2010
i agree with expert but remedy on the ground of adverse possession is available only to the defendant.
s.subramanian
(Expert) 23 October 2010
It is known as nec vi nec clan nec precario. The possession must be open,continuous and hostile. Then only a plea of adverse possession can succeed.
Querist :
Anonymous
(Querist) 23 October 2010
dear sir,
o
what does hostile mean.
my brother while possesssing the unaothorised construction from april 1999 wrote to me a letter in april 2003 stating that he wants to settle our property dispute.
this perhaps mean that the possession was not hostile?
please enaborate in simple english
what is open and continuous sir
a few comments here sir
regards
vk oct 23,10
Querist :
Anonymous
(Querist) 24 October 2010
what does it mean tosay posesssion is open, continuouis and not hostile
this has not been explained in reply to my question of adverse possession
vk oct 24
