Case for encroachment, how to defend if title deed incorrect?

784 votes

Although all the points mentioned by you above can constitute good defences, you should know that in a suit filed for encroachment I.e for trespassing, the court will not see whether the the plaintiff has successfully proved his title to the suit property. Instead the court will only focus on the fact weather the plaintiff was really in the possession of the property when it was trespassed on and whether the defendant encroached upon the property without the consent of the plaintiff.

Simply stated in a suit for encroachment or trespassing the issue before the court is not the title to the suit property but the "settled possession" of the plaintiff.

Now if you want to claim the property on which you have been alledged to have trespassed, you must claim it or the portion of it to which you feel you are entitled, by filing a suit in the court under Section 5 of the Specific Relief Act against the sad person claiming the property on the basis of your title. In this shoot the issue before the court will be the title to the property and not the settled possession. Thus even Where The other party is able to prove his settled possession the court will still find it in your favour if you are successfully able to prove your title to the property.

Advocate Nikhil Sabharwal LawRato

615 votes

It is pertinent to note that, for tracing the title of the property one need to look into the records of sub-registrar's office, the office of sub-registrar which lies within the vicinity of the location( jurisdiction)of the property. Further, one is required to check on whose name was mutation done and the name of the person reflecting in revenue records.

Advocate Abhishek Kumar LawRato