Adverse position
imthiyaz
(Querist) 14 April 2013
This query is : Resolved
Dear Sir,
In a muslim family there was a partition in 1980 u can call it a conspiracy against sisters as brothers made use of illeteracy of sisters and taken their signatures on partition deed by saying lies, In that partition deed some of the brothers got a valuable revenue land of 40 acres but the actual land of father was 50 acres, but as they were in a hurry to execute the partition they did not look into the revenue records and got only 40 acres registered in their names in 1980 later they changed the records in tahsildar office for 50 acres by booking the authorities in 1981 without the knowledge of sisters, and this fact was not known to sisters till now, these cheaters brothers then sold this land to a developer in 1988 and the developer has is using the land as golf course, now the sisters have come to know in 2013 about their fathers land 10 acres which was left out in partition in 1980 but by fraud has been sold to builder by altering records.
Can these suffering sisters claim this property by filing a case against developer and brothers. whether adverse position comes in a way.
Rgds
Imthiyaz
ajay sethi
(Expert) 14 April 2013
obtain certified copy of partition deed from the registrar office . cross check wherein the lateration have been made whether sisters have appended their intials agianst the said alterations .
contact a local lawyer . if alterations have been fraudelently made sisters can challenge the same . the issue that would arise is what were the sisters doing for 33 years .
R.K Nanda
(Expert) 14 April 2013
contact local lawyer.
imthiyaz
(Querist) 14 April 2013
Sir, we have obtained partition deed copy from the registrar sisters have signed for only 40 acres there is no mentioned of excess 10 acres in the partition deed. As there was excess 10 acres in the revenue record in the name of father which the came to know after partition was done, the brothers felt if we ask for signatures for extra 10 acres from sisters they will get doubt hence they tampered the revenue records bribed and added that 10 acres also to their name,The extra 10 acres is added illegally after partition in 1981 to their names by the brothers and then sold off to developer in 1988. for 10 acres there is no signatures of sisters.
Advocate M.Bhadra
(Expert) 14 April 2013
The Law of Adverse Possession in India
The law of prescriptive rights is best summed up by the brocard, ‘nec vi, nec clam, nec precario’, indicating the acquisition of a right by prescription must be in circumstances that exclude ‘force, stealth or licence’. A prescriptive right is essentially one that is created by uncontested assertion of the right for a given period of time. The principle is based in many ways on a sort of estoppel in rem.
In India, the Limitation Act, 1963 is the legislation that governs the period within which suits are to be filed, with relevant provisions for delay, condonation thereof etc. The principle that pervades statutes of limitation at common law is that ‘limitation extinguishes the remedy, but not the right’ (See Venkatrama Aiyar J. in Bombay Dyeing v. State of Bombay AIR 1958 SC 328), this means that the legal right itself is not defeated, but only the right to claim it in a court of law is extinguished (This might sound technical, but assumes relevance in the context of cross-claims, set-off, etc.). [See, pg. 10, 193rd Report, Law Commission of India]
An exception to this general rule is the law of prescriptive rights, whereby the right itself is destroyed. Section 27 of the limitation Act, 1963 proclaims:
Section 27: Extinguishment of Right to Property
At the determination of the period hereby limited to any person for instituting a suit for possession of any property, his right to such property shall be extinguished.
This provision, when read with Articles 64 and 65 of the Schedule to the Limitation Act, 1963 establishes the law of adverse possession as it stands in India today. These two Articles both prescribe a period of twelve years within which the right to claim a particular property is extinguished, but the two differ in so far as the date on which such period of limitation begins to run.
Raj Kumar Makkad
(Expert) 14 April 2013
If this is a repeated query then I shall not provide its reply.
