What is adverse possession
vinaykala
(Querist) 14 April 2012
This query is : Resolved
dear sir,
please tell me in the simplest terms for a layman as to what is adverse possession and what are its characteristics
vinay kala april 14,12
Adv.R.P.Chugh
(Expert) 14 April 2012
A person is said to be in adverse possession - when he possesses the property adversely and hostility to the real owner - he denies the owner's title and sets up his own.
After a person possesses adversely to another and the real owner does not sue for possession for 12 years - his right to property vanishes and title is vested in person holding in adverse possession.
This was based on the idea that if a person is not concerned about his property - left by him in disuse - is deemed to have been abandoned - and person subsequently nurturing it should get the title.
Adverse Possession is something contrary to principle of integrity of property. How can 12 years of illegality turn into legality ! is what the SC says - how can crime (trespass) pay ?
Hence in recent times it is construed quite strictly - person claiming ownership by A.P is burden with an enormously heavy Burden of proving :-
i) Date he got into adverse possession;
ii) Was it nec-clam-nec-vi-nec-precario; Open/Hostile/Notorious and certainly not clandestine;
Hope the things are much clearer now !
Devajyoti Barman
(Expert) 14 April 2012
Buy a book form the market.
There are plenty of it available.
vinaykala
(Querist) 14 April 2012
what is simple english is meant by
open
hostile
notorious
vinay kala april 14,2012
V R SHROFF
(Expert) 14 April 2012
Shri Bharat is too good to explain you.
Guest
(Expert) 14 April 2012
Dear Vinay,
Why don't you come forward with your real problem than asking for clarification of individual terms, probably concerning with some document in your possession?
vinaykala
(Querist) 14 April 2012
dear dhingra sir,
my brother who has encroached on my property and running a guest house due to my absense has stated that he is the owner by adverse possession.
at the same time he says after the demise of mother who had willed me the property there was an oral settlement through which he got the property.
of course there is no oral settlment and my other brother out of 3 brothers has stated that there is no oral settlement and me, vinay kala continues to be the owner.
i have filed a suit for posession and am due for cross examination
my query sir is
1. is not a claim of adverse posession and at the same time stating that he got the property through an oral settlement between brothers amounts to a contradiction.
it can either be acquiring thru oral settlement or adverse posession.
both are inconsistent arguements, i feel sir.
pl do opine
vinay kala april 14,12
ajay sethi
(Expert) 14 April 2012
when did your mother die? why did you not apply for probate of will?
you trace your title to property on basi of will you should have got probate done
vinaykala
(Querist) 14 April 2012
dear sir,
it is probated will of the delhi high court , probated in 1995.
kindly respond to the query
mother died on june 13,1989
vinaykala
(Querist) 15 April 2012
i am waiting for a reply to my basic question with all facts quoted above
are not two claims, acquiring a property , the same one, through an oral settlement and another contention, through adverse possession contradictory?
kindly enlighten
vinay kala
april `5,`12
prabhakar singh
(Expert) 15 April 2012
As per law of pleading two contradictory pleadings can be raised by parties either as claim or as defence but obviously two contradictory cases can not be proved by adducing contradictory evidence as both of the cases shall go disproved.
Hence at the stage of evidence the party concerned who have taken contradictory pleas SHALL HAVE TO ELECT BETWEEN TWO CONTRADICTORY which one case it wants to prove>???
In your particular case I see you in a win win position unless your suit is time barred for recovery of possession.
You are right in your conception that precisely speaking adverse possession means
entry by hostile action against the owner that too within knowledge of owner,who remains silent for over a period of 12 years from the date such adverse entry is claimed.
vinaykala
(Querist) 15 April 2012
THANKS PRABHAKKAR BHAI
VINAY KALA
