POSSESSION RIGHT OF PROPERTY

2BHK Apartments in Bangalore | Individual house for sale in Bangalore  | Plots for sale in Bangalore 

Possession in essence means holding an immovable property in possession with or without title of ownership. It is a continuous act of claiming exclusive use of the property as if the holder owns the property to which he may or may not be having right to ownership. Possessions are of various types. Adverse possession, symbolic possession, possession under an irrevocable power of attorney, possession under lien and possession under part performance of a contract are a few important ones.

A person in actual possession of an immovable property has certain right and interest in the property he is holding. The possessor has such a strong control over the immovable property that he can keep out others from occupying it. Unless otherwise proved possession may be taken for granted as title of ownership. Mere possession of an immovable property does not mean that the person is the real owner of the property.

Holding a property after a decree is passed for vacating it, even though enough time is given for vacating the premises, is wrongful and cannot be termed as permissive possession. Possession, occupation and ownership are not one and the same. Possession means not only physical possession (or constructive possession) of a property but also full control over it. Occupation means the right to hold and occupy a property. Ownership means lawful possession of a property, which may not come with actual property possession.

A landlord gives his agricultural land to a tenant for cultivation. Though the property is the same, the rights enforced are different. The landlord possesses the land without occupation and the tenant cultivates the land without possession. The mere right to cultivate does not confer the right of possession on the tenant. Similarly, in a mortgage, the tenant as the mortgagee is in actual physical possession of an immovable property and the landlord as the mortgagor is the true owner of the property. Here the mortgagee possesses the property without ownership and the mortgagor owns the property without occupation. Possession is temporary. Ownership is permanent.

Adverse Possession

Adverse Possession means a person possessing an immovable property, which is unfavorable, unhelpful or harmful to the interest of the rightful owner. Adverse possession is possession of a property by a person on his behalf or on behalf of some other person on which the true owner has a right to immediate possession.

If, however, the true owner does not enforce his right within the time limit stipulated in the Law of Limitation, the possession of the property becomes adverse to the true owner. The result is that the true owner not only loses his right, title and interest in the property but also cannot maintain a suit in a court of law.

Possession must be hostile in total denial of the title of the true owner. The Possessor must be in actual possession of the property under a claim of right. The property must be in his continuous possession and the people in the neighborhood must know that he has been staying on the premises peacefully and continuously for a long period of time and paying taxes in his name so as to show that the title of property is adverse to the true owner. It must be open and hostile enough for the interested parties to come to know of it.

A person, who exclusively holds an immovable property physically, openly, peacefully and without interruption by the true owner for a period of 12 years or more, is considered to have acquired the ownership and title of the immovable property by adverse possession. The expression adverse possession indicates a hostile or unfriendly possession, which is either expressed or implied in open denial of the title to the true owner.

Adverse possession is a one-sided act. Therefore, it cannot be documented. A person holding a property for a long time does not mean that title of the property is denied to the true owner. The possession turns adverse only when the rights of the possessor and true owner do not match. The person holding the possession of the land should hold the same on his own behalf or on behalf of some person other than the true owner, while the true owner all along has a right to immediate possession of the property.

Further the possessions to constitute adverse possession should be exclusive and actual physical possession. It is not at all necessary that the true owner should have actual knowledge of the adverse possession so long as it is open and the interested parties have knowledge of it. Also, it is not necessary that the person claiming the title of adverse possession should know who the real owner is. The mere possession of a property by a trespasser does not constitute adverse possession unless the same is accompanied by open assertion of hostile title.

Mr. A, who claimed to be a ‘thika tenant’ since 1966 was renting out the property to tenants. However, he had all along been claiming to be the constituted attorney of Mr. B. It was only since 1975 that Mr. A started depositing rent in his own name. Mr. A filed a suit in 1982 for permanent injunction seeking to restrain the owner from taking over the property from him. The court heard Mr. A’s case and held that Mr. A had been a trespasser on the property since 1970, but started asserting his rights only from 1975 and not earlier. The court held that the suit filed in 1982 was pre-mature, as by the time the suit was filed, Mr. A. had not been in adverse possession of the property for 12 years. I Hindu Joint Family, a member holding the family property cannot be adverse or unfavorable to other members of the family. All the family members treat the possession of the property by one member as possession by all family members. In the same manner the elder brother of the family collecting rent and revenue is not considered a hostile act against the other family members.

When a party accepts that possession of a property has been given on the basis of lease, mortgage, agreement to sell, the possession can never be adverse. A property does not become adverse if it is given under part performance of a contract. Possession of the property with the permission of the owner does not become adverse by a mere change in the mental attitude of the person in possession. Permissive possession never becomes hostile, till there is assertion of a hostile possession to the knowledge of the owner.

A person claiming right and title by adverse possession has to give concrete evidence to the fact that he had exclusive, peaceful and continuous possession of the property for a period of 12 complete years as prescribed in the Limitation Act. Title to the property by adverse possession must always be proved with bare facts.

Symbolic Possession

Symbolic possession of a property is given to he purchaser when an immovable property is sold in auction. In that event the third party in actual physical possession of the property must be kept informed.

Possession under an Irrevocable Power of Attorney

Under an irrevocable power of attorney, the attorney possesses the property and transacts it on behalf of the executor. The attorney signs and executes all documents and completes the transaction as if the executor himself personally did all the transactions. Sometimes, a creditor holds an immovable property against certain debts. This is known as possession under lien. The right to possession comes to an end when the owner of theproperty clears the debt. Generally, banks have a right to retain a property till the charges are cleared.

Possession as Part Performance of a Contract

Possession of an immovable property is also given as guarantee for part performance of a contract. A possessor of this kind of property will not have right or title in the property, but he will have the right to resist any attempt by the transferor to take over the property from his possession. In this case the right of the true owner of the property is also affected, since he cannot enforce his right after possession has been given to the transferee.

More,
2BHK Apartments in Bangalore
Site at Bangalore
Villa Houses in Bangalore
Apartments for sale at Electronic city
Individual house for sale in Bangalore 
Plots for sale in Bangalore
Flats purchase in Bangalore
House for rent in Bangalore
Apartments for rent in Bangalore
BMRDA Approved Layouts

Anekal
Bannerghatta Road

Devanahalli Road  
Electronic City
Hosur Road
Indira Nagar
Kanakapura Road 
Koramangala
Sarjapur Road
Vijayanagar
Whitefield