NRIs have their ancestral properties which include agricultural land, farmhouse, residential house and commercial properties in their native places in India. Usually, these properties of NRIs are either jointly owned or given to their relatives, tenants or some third party to take care of in their absence.
As the NRIs cannot frequent India to take care of the properties, in their physical absence, properties owned by NRIs are an easy target for illegal possession. The encroachment of land and properties owned by NRIs for investment purposes or inherited by them is usually a golden opportunity for the illegal occupiers.
As NRIs are far away from their native place, they should always ensure to safeguard their property and take preventive measures to avoid the issue of illegal possession of their hard-earned or ancestral property.
How encroachment or illegal possession of properties owned by NRIs take place: The standard modus operandi followed by Local Land Mafia in connivance with goons and local influential people is to fool Government land record machinery in case of Illegal Possession or Kabza of properties of NRIs.
- Fake Documents: Creation of the fake documents is a standard practice being followed in case of illegal possession.
- Tempered Documents: Original documents are tempered with to suit the needs of the illegal occupant
- Fake Identities: Illegal and fake occupants enact as Original NRI owners in front of government officials to get the illegal possession of the property.
- Tenant Occupancy: Means taking over the possession of property physically for more than the stipulated time or occupying the property without the knowledge of the Original NRI owner also constitutes Illegal possession. The tenancy laws in India make a person vulnerable to illegally possess the property even if it is unauthorized.
We, at Raj & Kanwar Legal Advisors India LLP, recommend preventive measures to avoid illegal possession of the property in India, Following can help NRIs to safeguard their properties
- Original Documents: Keep the original documents handy. Such as a deed, copy of WILL, Jamabandis, mutation, Original Purchase documents, etc.
- Regular Updation in Govt. Records: There should be the availability of original documents and all the requisite papers such as sale agreement, title deeds, Jamabandis, Mutation in the land records department. In addition to this, the NRIs should keep the receipts of municipal tax, electricity bills, water bills, etc.
- Fencing/boundaries: The vacant plot must be fenced and a board mentioning the ownership and the right to property can be put up. This step will prevent the physical encroachment and also selling the property to the third party.
- Public notification: The NRI owner can put up a notification of the property in the local newspaper and shall save it for future purposes.
- Professional help: There are various companies ready for the protection of property and it can be done in return for service commission.
- Neighbors: One should keep in touch with the neighbors to know about the current situation or activity on the property.
- Caretakers: The caretaker cannot acquire or possess the property despite his long possession.
Tenancy Precautions: There must be proper care taken before having a tenant to the property. The owner can go through a proper verification with a sound agreement mentioning the provisions of renewal and termination of the agreement. The police registration can be done to protect the property.
Recommended Steps to be taken if the property has been encroached:
- Police Complaint: The police complaint can be made with proper original documentation to the nearest police station of the property. In this matter, the Specific Relief Act, 1963 (Article 5 and Article 6) can provide back the possession to the actual owner.
- Negotiation: The negotiation can be done with the person who has encroached the property for out of the court settlement and it can be done with some legal advice.
- Legal Help: After the police complaint, it is beneficial to get in touch with some legal experts for the early repossession of the property.
Conditions where an illegal possessor can get legal right over the property
In the case of adverse possession under the Limitation Act, 1963, where the original owner does not claim the property for 12 years, the legal right of the property goes to the present owner.
To claim the ownership the illegal possessor has to prove the following:
- The possessor should prove that the property has been uninterrupted for the entire period and the time period cannot be divided into halves.
- He has to prove that he has been the sole occupant of the property.
- The squatter will have to let his intentions known to the owner. For example, if the squatter has started the construction work on the property it indicates his claim over the property.
We, at RK Legal Advisors, have a specialized team of property expert lawyers who have been assisting our NRI clients in handling property matters and disputes. Our objective is to ensure that our NRI clients get their rightful due on their property, whether through the route of Arbitration or out of court negotiations for an amicable solution and if need be we follow the route of aggressive representation in the court of law.