The origins of adverse possession can be traced back to the idea of land ownership being tied to its productive use. In ancient societies, the person who utilised the land to generate the greatest value was seen as the rightful owner, and their rights needed to be protected. However, this view is no longer applicable in today’s world, and the legal system must adapt accordingly.
In a landmark ruling in April 2019, the Supreme Court in the Mallikarjunaiah v/s Nanjaiah case held that mere continuous possession is not enough to support a claim of adverse possession. The possessor must also demonstrate that their possession is open, exclusive, and hostile, such that interested parties are aware of their claim.
NRIs are particularly vulnerable to adverse possession as they are often physically absent from their property, making it easier for illegal occupants to stake their claim. Under the Limitation Act of 1963, adverse possession can be established if the person with the title deed has not taken any action against the intruder and shown no interest in the property. In such cases, the possessor may enjoy judicial protection over the property. However, the legal system must evolve to address the flaws in the concept of adverse possession in today’s world.
Ways In Which NRIs Can Protect Their Property From Illegal Occupants:
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Document Management
- Proper documentation is crucial for NRIs to safeguard their property. Keeping records of title deeds, jamabandis, mutation/intkaal, original purchase agreements/sale deeds, and copies of wills (if applicable) can help establish and maintain ownership.
- It is important to keep copies of bills and taxes, including those for electricity, water, and telephone services. These tasks are relatively simple but can help avoid potential disputes in the future.
- Regularly updating all title deed documents with the revenue department is essential to ensure legal compliance and to minimize the risk of encroachment or adverse possession.
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Physical Measures
- One way to convey the impression that the land has a proactive owner and deter any unauthorized alterations is by erecting gates and fences.
- A commonly adopted practice to establish ownership is to place boards with the name of the owner and a legal warning against trespassing.
- Regular monitoring of the property is crucial for its protection. NRIs should consider hiring a professional or assigning this responsibility to a trusted family member, friend or legal representative to ensure that any unauthorized access or activity on the property is detected and addressed promptly.
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Power Of Attorney
- NRIs should assign power of attorney to a trusted individual to handle their property matters in India, as they are often unable to physically monitor the property on a regular basis. This is a crucial step in protecting their interests and ensuring that decisions can be made on their behalf by a qualified and trusted legal representative.
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Tenancy
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- NRIs should have a well-drafted tenancy agreement that clearly outlines the rules and regulations of the tenancy and protects their interests. Conducting a legal background check of potential tenants is a precautionary measure that NRIs can take. It is advisable to have a short-term tenancy agreement to avoid the possibility of adverse possession.
Due to the increasing number of property-related frauds, it is essential for NRIs to make informed decisions regarding their property and its occupancy. Seeking legal advice from property lawyers is a practical way to prevent such property disputes.
Civil litigation and property lawyers are capable of assisting NRI clients in various property matters, including illegal possession of their property in India, encroachment of property, and illegal and unauthorized sale or transfer of property.
Competent lawyers offer legal advice and solutions to NRIs in establishing their property title and protecting it from illegal occupants. These property lawyers assist NRIs in all legal matters, from litigations and negotiations to out-of-court settlements.
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