As NRIs the Indian diaspora are known for their industrious nature and persistence in pursuit of their dreams. But they run the risk of running into legal issues if they do not take due care of their assets back home. One such issue can be – having a property in India and which is in someone’s possession for more than 12 years while they are busy working hard overseas. It is true, in some circumstances (explained below), the person in possession can claim that property’s ownership based on the legal principle of ‘adverse possession’ against the NRI who is the actual owner.
This concept of adverse possession thus, needs to be understood in its right perspective.
There is a general misconception that a person in possession of a property for more than 12 years can claim its ownership. That is not the case. It depends on the type of possession he has had and how he came into the possession of the property. For him to be able to claim ownership, his possession has to be adverse possession. It should generally have the following elements present:
- The person coming into possession by force or otherwise without any right to hold such a possession adverse to or against the rights of the owner;
- The real owner is aware of that person being in possession of his property without his consent; and
- The fact of his adverse possession in violation of the rights of the real owner is Public knowledge.
Many NRIs have lost their properties due to adverse possession simply by either trusting people back home – who by virtue of the legal loophole of adverse possession – took advantage of the situation.
To make things worse, the legal principle of adverse possession has now been recognized by the Supreme Court of India to be a weapon of not only defence, but also of offence.
To explain in a layman’s language, prior to the Supreme Court decision of 2019 (Ravinder Kaur Grewal decision), a person who had been in adverse possession of the property for more than 12 years – could not be removed by the real owner. He could not go to court seeking a declaration from it to be declared the owner of property.
But in the 2019 judgement, the Supreme Court has said the principle can be equally invoked as a weapon of offence – if and when the person in adverse possession – wants to go to court – to seek a declaration claiming the ownership of the property against the real owners.
Clearly that has made things worse for those absentee owners who may have landed in troubled waters in relation to their properties back home.
This judgement of the Supreme Court has far reaching ramifications particularly for the Indian diaspora / the Non-Resident Indian (NRIs) living abroad and are absentee owners of their properties back home. In such cases sometimes the occupiers of the property, who even if were allowed to occupy and did not come into possession by force or against the consent of the owner, have acted mala fide and claimed to have been in adverse possession to claim ownership over such a property.
Therefore, after the 2019 Supreme Court judgement, all NRIs who are absentee owners of the property and whose property is in possession of someone else, must make sure that those in possession, must not be able to claim to be in adverse possession. It is highly advisable that if in doubt, must consult a lawyer as soon as possible.
If unsure, whether you have proper documentation to prove the type of licence or permit created at the time when the possession for the person to occupy the property was given, you should waste no time and see a lawyer.
Remember if someone is in adverse possession of your property in India, that person can not only continue to possess your property but also can use adverse possession as a weapon of offence and go to court to claim ownership of your property.
As a word of caution – as we have said ealier, unless you are absolutely sure – see a lawyer today!
This article was written by Rajiv Kataria and Ashok Jindal, practicing advocates of Delhi Law Chambers.
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