The term “illegal possession” refers to any type of occupancy that is achieved by the illegal occupier via unethical or illegal methods, such as coercion, undue influence, or the production of false claims or documents in order to unlawfully occupy the property and dispense with the real owner. When it comes to Non-Resident Indian (NRI) property, there are many cases of trespassing and illegal possession. Since non-resident Indians are unable to regularly visit India to manage their holdings, they are easily targeted for unlawful possession.
The invasion or illegal possession of properties owned by non-resident Indians (NRIs) typically follows a routine operating procedure in which the Local Land Mafia, working with goons and powerful locals, takes advantage of government land record machinery to get unlawful possession, or Kabza, of properties owned by NRIs.
How is unlawful possession carried out?
• By an encroacher: This is the most frequent issue that NRIs deal with. Additionally, the intruders construct fake paperwork to guarantee his ownership of the land. After gaining ownership of the properties and obtaining the easement rights, these squatters push non-resident Indians (NRIs) to either sell them the contested properties at a discount or pay substantial sums of money to regain their legal rights.
• By former tenants/caretakers: A caretaker, licensee, or renter is someone who resides in a property with the owner’s consent. The property owner chooses whether to grant the second party permission to use the space, but when that individual refuses to leave and keeps the space against the will of the rightful owner, the occupancy is illegal. For these kinds of occupants, NRI property is the most appealing thing.
• By Co-owners: In the event that the property is joint in nature, the co-owners profit by assuming ownership of the whole asset without designating each other’s portion.
What does “possession” signify in law?
Actual care, custody, control, or management” of a restricted substance is what the law defines as possession. Whether you own something or not, possession refers to the actual control you have over it. Even though he is not the owner, the person in possession of the item nevertheless has certain legal protection from other parties. This defence is provided against any illegal acts of violence directed towards the individual in possession.
NRIs can take a number of safety measures to protect their properties from unauthorised use, including:
a. Preserving original documents close at hand: Safekeeping original documents such as a deed, WILL copy, jamabandis, mutation, original purchase documents, etc., is advised.
b. Consistent updating of official documents: NRIs should make sure that all necessary documents, including sale agreements, title deeds, jamabandis, and mutations in the land records department, are current. They should also save the invoices for things like water, power, and municipal taxes.
c. Boundaries and fencing: To deter physical intrusion and the sale of the property to a third party, the empty site should be bordered and a board stating the rightful owner should be erected.
d. Public notification: It may also be beneficial to publish a notice about the property in the neighbourhood newspaper and preserve it for later use.
a. Professional assistance: In exchange for a service commission, NRIs can enlist the aid of several businesses that specialise in property protection.
f. Neighbours: NRIs can stay updated on the state of affairs or goings-on on the property by maintaining contact with the neighbours.
g. Caretakers: Despite their extended possession, NRIs should be informed that caretakers are not allowed to purchase or own the property.
h. Tenancy precautions: Before renting out the property, appropriate care should be taken. NRIs can go through a proper verification process and create a sound agreement that mentions the provisions of renewal and termination. To safeguard the property, police registration might also be completed.
In the event that a property has been invaded, the actions listed below should be implemented
Under a number of Indian law statutes, NRIs who are having problems with unlawful occupancy of their properties may be able to obtain relief:
Legal notice are sendable
In the event of a disagreement over NRI property, the NRI or any individual designated by the NRI via a Special Power of Attorney may issue a formal notice through their Advocate, which must include the grievance and the requested remedy.
A civil lawsuit may be brought
A person who has been deprived of their property may obtain possession by title under Section 5 of the Specific Relief Act.
A person who has had continuous, long-term possession of real estate worldwide is legally able to defend it by requesting an injunction against any individual who is not the legitimate owner.
Furthermore, it is a well-established legal precept that a landowner can only get his possession back through the courts.
A person who has been deprived of their property may regain it under Section 6 of the Specific Relief Act by simply demonstrating that they were in possession of it before it was illegally taken away.
One can file a police report
The NRI or any person designated by the NRI via a Special Power of Attorney to act on his behalf may file a police complaint with the Superintendent of Police (S.P.) at the location of the allegedly problematic property.
If the Superintendent of Police disregards the complaint, an advocate may submit a personal complaint in the relevant court, and if the owner is unable to appear in person, the case may then be pursued through a Special Power of Attorney.
•CrP.C.Section145.
After making the order under sub-section (1) of Section 145 in the Cr.P.C., the Executive Magistrate may attach the subject of dispute until a competent Court of Law has determined the parties’ rights, or he may decide that none of the parties were in the possession of the subject of dispute at that time. If he is unable to satisfy himself as to which of the parties was in such possession, he may decide to treat the case as an emergenc.
In conclusion
Removing illegal possession from property is a multifaceted process requiring a comprehensive understanding of legal definitions, methods of unlawful occupation, and protective measures tailored for Non-Resident Indian (NRI) property owners. Illegal possession, achieved through coercion, fabrication of documents, or exploitation of legal loopholes, poses significant challenges for NRIs who often struggle to manage their holdings in India due to physical absence. This vulnerability makes NRIs prime targets for trespassing and illegal possession, with the involvement of local land mafias and influential individuals exacerbating the issue.
Unlawful possession typically follows a systematic procedure orchestrated by the Local Land Mafia, leveraging governmental land record machinery to unlawfully seize NRI-owned properties. NRIs must implement preventative measures such as preserving original documents, updating official records, and maintaining physical boundaries to deter unauthorized access. Additionally, seeking professional assistance and staying informed about property affairs through communication with neighbors can enhance security.
In cases of property invasion, NRIs have legal recourse available to them, including issuing legal notices, filing civil lawsuits, and lodging police complaints. The Specific Relief Act provides avenues for regaining possession through legal means, emphasizing the importance of demonstrating prior possession and seeking police intervention when necessary. Section 145 of the Criminal Procedure Code offers a prompt remedy for preventing breaches of peace resulting from disputes over immovable property.
In conclusion, addressing illegal possession of property requires a proactive approach that combines legal understanding, preventative measures, and timely intervention. NRIs must remain vigilant in protecting their assets and utilize legal avenues to address unlawful occupation effectively. By adhering to legal procedures and seeking appropriate assistance, NRIs can safeguard their properties and uphold their rightful ownership rights in India.