Steps to get back your property from illegal possession

हिंदी में पढ़ें
April 13, 2023
By Advocate Chikirsha Mohanty

Illegal possession is a possession on which legal sanctions are imposed because the property is not lawfully possessed. When broken into simpler words, Illegal possession or occupancy is that kind of possession that is obtained by unlawful or illegal means by the illegal occupant by producing false statements, documents or by coercion, undue influence, etc. over the rightful owner of the property so as to illegally possess the property.

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What are the ways in which illegal possession is carried out?

1.    When some random people falsify documents and illegally occupy the property by coercion (use of force). This illegal practice is common among some since they practice this as their profession. Regrettably, sometimes certain local authorities also assist these people in such unlawful practices.

2.    Such an illegal possession can also happen when a tenant refuses to vacate your premises. The most common defence used by tenants is that of adverse possession. It is advised to make a proper rent agreement before renting out your accommodation as well as acquire strong measures to avoid getting involved in such situations. These situations mostly arise when properties that are illegally occupied are left unsupervised by the caretakers, tenants with unspecified status, or properties that have been lying abandoned for years which directly makes them an easy target for such notorious people.

Adverse possession is when the rightful owner of the property loses his rights of ownership resulting from inaction on his part to get rid of a trespasser/ occupant within a statutory time period (12 years under Indian law) from his property. After the completion of the statutory limitation period for removing the trespasser/ occupant, the rightful owner is restricted from initiating any legal proceeding to gain back possession of his property and thus, allows the trespasser to acquire the title to that property by adverse possession.

The main aim of this article is to prove that ownership without possession is absolutely meaningless since you don’t get to enjoy the fruits of the property.


What are the reasons behind property belonging to NRIs falling prey to illegal possession and trespassing? 

The instances of illegal possession and trespassing are rampant in the case of property belonging to Non-Resident Indians (NRIs). The main reasons behind this are –

  1. They don’t reside in these properties and don’t have possession of their property at all times.

  2. They are unable to make frequent visits, so they end up giving possession/ control of the property to friends, acquaintances, and relatives.

  3. Apart from this, with time many of the occupants, relatives, and friends feel they own the place since there is no one to monitor and supervise the property.

  4. Oral and unregistered agreements with tenants/ caretakers are quite common resulting in illegal possession.

  5. Properties without caretakers and tenants which are not frequently visited by the owners themselves are a great catch for land mafia to trespass and occupy illegally.


What is the legal meaning of possession?

Possession means having actual control over an object/ thing, whether you own it or not. However, even the person with possession of the thing enjoys certain legal protection against third parties even if he is not the owner. This protection is given against any unlawful act of violence against the person in possession.

The rights of persons with possession come from the fact that the owner – NRIs, in this case- haven’t looked at these properties for years and they continue enjoying rights. Moreover, as mentioned earlier too, trespassers can forge documents making it difficult for them to be evicted.

Consult:  Top Property Lawyers in India

What are the provisions under the Indian Penal Code (IPC) relating to the illegal occupation of property?

The following are some of the IPC Sections pertaining to the illegal occupation of property:

  1. Section 436 - Mischief
    As per Section 436, if someone intentionally or knowingly commits mischief by using fire or an explosive substance to destroy a building that is usually used as a place of worship, human dwelling, or a property storage place, they will be punished with either imprisonment for life or imprisonment for up to ten years. Additionally, they may also be fined. Section 425 defines 'mischief' as when someone intentionally damages or destroys something that doesn't belong to them. They can also be charged with mischief if they know that their actions will likely cause harm or damage to someone or the public. The damage can be anything that reduces the value or usefulness of the property or affects it negatively. It doesn't matter if the person who committed the act didn't intend to harm the owner of the property. Mischief can be committed on property that belongs to the person who did it, or to other people. 

  2. Section 441 - Criminal Trespass
    As per Section 441, if someone enters someone else's property without permission and with the intention to commit a crime or to intimidate, insult, or annoy the person who owns the property, or if they lawfully entered but then remained unlawfully to intimidate, insult or annoy, or to commit a crime, then they are committing "criminal trespass." Section 447 prescribes punishment for criminal trespass as if someone commits criminal trespass, they can be punished with imprisonment for up to three months, or a fine of up to five hundred rupees, or both.

  3. Section 442 - House Trespass
    As per Section 442, if someone commits criminal trespass on a building, tent, or vessel that is being used as a human dwelling or a building used for worship or property storage, without permission, they are committing "house trespass." Even if only a part of their body enters the building without permission, it still counts as "house trespass." Section  448 prescribes punishment for house trespass as if someone commits house trespass, they can be punished with imprisonment for up to one year, or a fine of up to one thousand rupees, or both.

  4. Section 443 - Lurking House Trespass
    As per Section 443, if someone enters a building, tent, or vessel without permission and takes steps to conceal their entry from someone who has the right to exclude or eject them, they are committing "lurking house trespass." Section 453 prescribes punishment for lurking house trespass as imprisonment for up to two years and also fine.


How to remove trespassers from your property in India?

The best way to regain control and restore possession of your property legally is to go to court and ask for justice. Civil court remedies are easily available where personal appearances required in the court can be controlled by competent and chosen lawyers. Legal remedies are available under the law to restore the possession of properties and even protect any third party trespassing or illegal interfering with the peaceful possession.

1. Prevention is better than cure

You should create true caretaker contracts and prepare well-defined tenancy contracts. In simple terms, you must always define the status and/ or duty of the occupant having possession of the property.

You must not let any person retain possession of your house for a long time. You should keep changing occupancy in the property to not let it get illegally dispossessed.

2. Legal Remedies

Under Section 5 of the Specific Relief Act, a person who is dispossessed of his property can get possession by title.

Under Section 6 of the Specific Relief Act, a person dispossessed may recover his right merely by proving previous possession and subsequent illegal dispossession.

Section 145 of the Criminal Procedure Code lays down a procedure where a dispute concerning land or water is likely to cause a breach of peace.

A person who realizes trespassing or illegal dispossession can file a written complaint with the police against it.

A written complaint can be sent to the Superintendent of Police (S.P) of the district where the property is situated by way of a registered post or by visiting the concerned police station.

In case the Superintendent of Police fails to acknowledge the complaint, a personal complaint in the concerned court can be filed through an advocate and the case can then be followed through a Special Power of Attorney when the owner cannot make his presence in the court.

3. Other Steps

  • Keep changing tenants
    In view of this legal limitation, it becomes important for a landlord to change their tenants from time to time. This is also why most landlords provide their homes for rent only for 11 months and subsequently, renew the rent agreement in case they are comfortable with prolonging the stay of their existing tenant.

  • Get a boundary wall constructed
    Construction of a boundary wall is the first thing one has to do, in the case of plots and land parcels. This has to be done, irrespective of whether the owner lives close to the location or not. Ideally, a housing unit must also be constructed to minimize the scope of interference from land sharks. Those living far from the location must put somebody in charge, to regularly visit the property, to ensure it remains free from illegal activities. While it may not always be a viable option, hiring a caretaker would also be a good way to avoid illegal occupation. This is especially true, in the case of non-resident Indian (NRI) plot owners.

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What are some of the judgements by the Supreme Court on illegal possession of land?

  1. Ravinder Kaur Grewal v. Manjit Kaur
    In this recent judgment, the Hon'ble Supreme Court held a contrary position that a plaintiff can file a suit for the perfection of title by adverse possession. The question for consideration before the Court was "Whether Article 65 of the Limitation Act, 1963 only enables the person to set up a plea of adverse possession as a shield and such a plea cannot be used as a sword by a Plaintiff to protect the possession of the immovable property or recover it in a case of dispossession?"
    The Hon'ble Supreme Court in Para 59 of the Judgment held as follows "...In our opinion, the consequence is that once the right, title or interest is acquired it can be used as a sword by the Plaintiff as well as a shield by the defendant within ken of Article 65 of the Act and any person who has perfected his title by way of adverse possession, can file a Suit for restoration of possession in case of dispossession....". 
    The Hon'ble Supreme Court overruled the decision in Gurudwara Sahab Vs. Gram Panchayat Village Sirthala as well as the subsequent judgments of the Supreme Court which relied on it.

  2. Nair Service Society Limited v. KC Alexander
    In this case, the law of adverse possession as was judicially summed up by the Judicial Committee of the Privy Council in Perry v. Clissold was approved. In that case, it was observed that if a rightful owner does not claim his right against a possessor within a given time, his ownership right stands extinguished. the Limitation Act, 1963, lays down a limitation period of 12 years for the suit of possession of immovable property or any interest based on the title. The period for limitation for the government, however, is 30 years by virtue of Section 25 of the Act.

  3. Bhimrao Dnyanoba Patil v. State of Maharashtra
    In this case, it has been held that, unless enjoyment of the property is accompanied by adverse animus, mere possession for a long period even over a statutory period, would not be sufficient to mature the title to the property by adverse possession.

  4. Amarendra Pratap Singh v. Tej Bahadur Prajapati 
    In this case, the Supreme Court defined adverse possession as: “A person, though having no right to enter into possession of the property of someone else, does so and continues in possession setting up title in himself and adversely to the title of the owner, commences prescribing title into himself and such prescription having continued for a period of 12 years, he acquires title not on his own but on account of the default or inaction on part of the real owner, which stretched over a period of 12 years results into extinguishing of the latter's title."

  5. SM Karim v. Mst. Bibi Sakina 
    In this case, the equitable principle of nec vi nec clam nec precario (without force, without secrecy, without permission) was propounded wherein it was held that adverse possession must be adequate in continuity, in publicity and extent, and a plea is required, to show when possession becomes adverse so that the starting point of limitation against the party affected can be found.

What can a right competent lawyer offer you?

An advocate can provide full support, competence, and efficiency in court as well as clarity in legal representation to cope with all such cases. A great number of such dedicated and competent lawyers across the country are available to handle such matters even in the case of an NRI who might not be available to be physically present. You can also use LawRato's  Free Legal Advice  service to get free advice on your case from expert property lawyers.


These guides are not legal advice, nor a substitute for a lawyer
These articles are provided freely as general guides. While we do our best to make sure these guides are helpful, we do not give any guarantee that they are accurate or appropriate to your situation, or take any responsibility for any loss their use might cause you. Do not rely on information provided here without seeking experienced legal advice first. If in doubt, please always consult a lawyer.

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Comments by Users

Pravin Jiwane
Sisters can challenge the sale transaction in competent court and cancel the deed so far as sisters share is concerned

Reply by LawRato
Yes, such sale transaction/deed can be challenged in the competent court. However, the legal action that you should take depends upon the facts and circumstances of your case and it is best to consult a lawyer in order to understand the direction you should head in.
As per section 4 of Hindu Succession Act, 1956 every Hindu woman has full ownership right over any moveable or immovable property she possesses through acquisition. She may have acquired it before or after her marriage in any of the following ways: Inheritance, Partition, in lieu of maintenance or its arrears, Gift from any relative or non-relative, Purchase or prescription, Stridhana, etc.

Few months back my grand fathers property was sold, also they have not even taken signature of sisters they have not even given share of the property amount to sisters can you please advise

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Hari on May 07, 2023

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