Land Kabza- What to do?

Land Kabza- What to do

Land Kabza means someone else has occupied the land of an actual owner. The problem is common with NRIs as they cannot visit the place frequently and the property is left unattended for a long time. Grabbing such properties is easy.

Legal Advice and good property lawyer always help: It is sensible to hire a property advocate for proper legal advice to prevent Land Kabza and to take timely legal action in case of encroachment.

Also Read: Share of a brother in deceased brother’s property

Here are the answers to certain queries that are often raised in this matter.

What is meant by land kabza?   

Land kabza means illegally occupying another person’s land by a person who is not legally entitled to the same. The Illegal occupation can be:

  • By Force – land mafias generally occupy the land abandoned by owners
  • By forging the documents of title – people occupy the land and also procure forged title deed in connivance with the local authorities
  • Tenants who refuse to leave

What precautions are required to prevent Land Kabza?

A.    Documentation

  • Property Documents: All property papers must be in order. A person who has invested and purchased any property or has acquired any property legally must ensure that the title deed describing him as the owner of the property is prepared and available with him.
  • Payment of charges: The owner must have paid all the electricity, water bills and other government dues for the property and must preserve the receipts as these all assist in defending the ownership.
  • Registration and mutation:  The owner must get the documents registered in conformity with the State Laws. Mutation of the property is also essential. Mutation means to inform the revenue authorities about the ownership of a property. Mutation is not one time process but has to be done regularly.

Rent Agreement: In case the property is on rent, a valid rent agreement with the tenant must be in place.

Also Read: Property rights of a wife after husband’s death

B.    General Precautions:

  • Regular inspection of the property: The owner must visit the land frequently. In case of NRIs, it is not possible to physically inspect the site regularly; therefore, they can manage the same through a family member or a friend. A caretaker can be appointed to do important tasks.
  • Fencing: In case of vacant plot or land, fencing should be there. Constructing a wall indicates that someone owns the property.
  • A signboard warning the trespasser:The signboard helps to know that someone owns the land and trespassers will be prosecuted.

What are the remedies?

Also Read: Division of property between brother and sister after father’s death

If the property is found to be the encroached, immediate action is required. First of all, the owner should ensure that he has got all the necessary documents proving his title/ownership with him and then:

  • Inform the local authorities –revenue department etc.
  • File a complaint with Police Authorities
  • File a complaint in the court
  • Negotiations also help in case the opponent has occupied the land inadvertently

Specific legal remedies:

  • Filing a civil suit u/s 5 or 6 of Specific Relief Act, 1963 for recovery of  immovable property
  • Executive Magistrate of the area takes action u/s 145 of the Criminal Procedure Code to prevent the breach of peace in case of property disputes.
  • Action for the offence of trespassing and illegal dispossession under Indian Penal Code

Prevention is always better than cure so it is advised that owners must ensure proper documentation and regular inspection of their properties.

When Caretakers Try to become Property Owners

When caretakers try to become property owners

In India the culture of leaving behind property as the responsibility of caretakers is an ongoing culture, especially in the case of NRI’s due to their living outside of the country for long durations. However, property possession is nine tenths of the law and that is something that provides for great merit in rightful claim over property. The reliance of individuals over their caretakers/servants/agents for the benefit and upkeep of their properties is increasing as the days are going by.

The Supreme Court in 2012 gave a decision for matters where the servants/caretakers/tenants etc. have tried to usurp the property of individuals and have tried misusing the justice system. There have been instances where these caretakers and tenants etc. in the absence of the real owners of the property have tried to claim rights in the property and have also refused to vacate and give up control over the property (on ground of 12 years of uninterrupted possession/adverse possession).

Although these claims are unjustified, but they have been known to delay the process of providing justice. In cases of Maria Sequeria v Erasmo Sequiria as well as Ramrameshwari Devi v Nirmala Devi it was held that a caretaker/servant/agents possession is not in his own capacity but is in the capacity of the rightful owner of the property.

The real property owner has a right to file for an eviction for the same.

In a case, the Supreme Court even held that since such frivolous matters cause a lot of costs to the individual who is the rightful owner, that individual has the right to demand restitution but since in the pertinent case, the appellant was a watchman who wouldn’t have been able to bear those costs, the Supreme Court dismissed the case with a fine of Rs. 25,000.

The Supreme Court has upheld principles like – the title of a property does not get acquired by an individual just because that individual was allowed to stay cost free, caretakers servants etc. do not acquire possession of property regardless of how long the stay, court protection can only extend to a person who has a valid rent/lease/license agreement.

The Supreme Court should be commended for this strong and ground breaking decision since this judgment upholds the rights of the actual property owners and safeguards them from the land grabbers.

Deferment of Possession – Trouble for Defaulters

Deferment of Possession

Today’s harsh reality coaches one to fight for what is theirs, even though the affluent and influential throw obstacles in one’s way. Buyers usually spend humongous amounts of money to buy something as essential as a house or even a piece of land for example, and yet, when upon contractual terms they are supposed to be given their lawful property, they are denied this right.

Various provisions of India’s civil, consumer or criminal law help in taking action against the seller in this case, such as sending a legal notice to the seller, and claiming refund of payment made to him along with interest/damages, as the case may be. In case of delayed possession of a house, the buyer may also claim the consideration that will be spent on buying or renting alternative accommodation. A consumer complaint may be filed against the seller under the Consumer Protection Act, 1986 for ‘deficiency of services’, especially since the landmark case of 1993- Lucknow Development Authority v. M.K Gupta- wherein remedy for all housing construction activity was construed under Consumer Protection Act. The International Consumer Rights Protection Council also lists numerous grounds for liability in Consumer Court, the prime one being ‘Delayed possession beyond stipulated time period’. Furthermore, a suit may be filed under the Indian Contract Act, 1872 for non-fulfilment of contractual liability.

Some prospect also lies in the recently introduced statutes. The Real Estate (Regulation and Development) Act, 2016 (RERA) makes it necessary to furnish details regarding completion and delivery of property, without which, the seller/agent may be held liable and fined or prosecuted. If delivery is not done on the contractual date, the entire money invested by the buyer, along with the agreed interest rate mentioned will be refunded under the act. One more option would be to exercise the arbitration clause, usually present in the builder’s agreements, that states a pre-mediated compensation in case of default by either parties.

Certain states do have specific provisions for their jurisdiction, such as a remedy under Section 8 of the Maharashtra Ownership Flat Act, 1963, in case there is a delayed possession of flats etc.

Remember always, that any problem can be solved. All we need to do is open our eyes to possibilities, and have some faith.

Does Consumer Has The Right To Damages And Recovery If Possession Is Delayed?

Delayed Possession

“A brand is no longer what we tell consumers it is, it is what consumers tell each other it is.”

Yes, the consumers must have the right to damages if delayed because delay in delivery of possession can cause the buyer losses which may also leads to defamation of the consumer as well as the buyer. So, it is the duty of the seller to make the losses good.

That is why there are some sections for the consumer’s protection:

Section 32 of Sales of Goods Act, 1930 says about the rules of delivery which includes the delivery of goods on time.

Section 57 and 58 of Sales of Goods Act, 1930 provides the damages for nondelivery and specific performance of the contract respectively.

This leads to ‘deficiency in service’ for which a buyer can file a consumer complaint under section 2(g) of CONSUMER PROTECTION ACT,1986 which defines the ‘deficiency’ means any fault, imperfection, shortcoming or inadequacy about the nature and manner of performance which is required to be maintained.

Section 49 and 50 CONSUMER CONTRACTS REGULATIONS, 2013 includes the terms of contract that the trader must perform the service and the liability for the breach of this term cannot be excluded.

PARDEEP NARULA VS. GRANITE GATE PROPERTIES (2016)

FACTS: The possession of apartment was not offered to the Complainant by the said date and the aforesaid deadline was later extended but being aggrieved by the said delay, the Complainant approached the commission against the builder.

HELD: The Builder had failed to complete the obligation to hand over the possession after construction till 31.1.17 and hence had to pay compensation in the form of interest with Rs. 10,000 as the cost of litigation.

JUSTIFICATION

Ongoing delay in the possession of the goods is one of the worst nightmares of a buyer.

It is justifiable to pay damages or recovery if possession is delayed to consumers in case of default by the seller’s side. So, whatever the reason may be, this delay not only causes a loss of money but also makes him/her feel depressed and frustrated and can put him/her through mental anxiety.

CONCLUSION

But still at last, there are certain things in such situation, the buyer can ask for compensation as law is always there to help you; you can claim indirect losses provided you must have a strong proof for it; refund rights etc.

“A CONSUMER IS NOT A MORON, SHE’S YOUR WIFE.”

FORCEFUL POSSESSION ON THE PROPERTY

Forceful possession on the property

Right of possession of property:

It is the right in the property irrespective of whether person is a temporary holder or long-term holder. The person with the right of possession usually has also the right to occupy and use it.  The word Possession is much wider in legal parlance and includes possession whether actual or constructive and in fact or in law. However, intention, consciousness or will is an essential ingredient of possession. It has a great significance under Indian law, as it acts as a good evidence as to title in rem except against the true owner.

There are cases where possessor and property owner are one and the same. For instance, by way of prescription i.e. when the peaceful possession of property is enjoyed continuously for a long time. Conversely, in case of a Trustee of the trust property, tenant of rented land, limited owner (women before enactment of Section 14 of Hindu Succession Act), an agent holding the property on the behalf of his principal, etc., possessor and property owner are two different persons and owner has an upper hand as he also possesses the right to dispose of the property.

Forceful possession and its punishments:

Forceful possession is different from criminal possession which involves holding of prohibited articles such as illegal drugs, firearms or stolen property. Protection is provided to possession both under civil (Torts) and criminal law (Indian Penal Code, etc.) against use of force.

Force, which is synonymous to violence, compulsion, power, duress, can be interpreted widely when suffixed with possession so as to include the following:

  • Theft under Section 378 of IPC i.e. taking movable property dishonestly out of the possession of any person without that person’ consent. It is punishable with imprisonment of up to 3 years or/and fine (Section 379). Imprisonment may extend to 7 years in case it is committed by a clerk or servant (Section 381).
  • Extortion as defined under Section 383 i.e. dishonestly inducing a person to deliver some property, etc. by putting him in fear of injury to his person or some other person. It is punishable with maximum imprisonment for three years or/and fine (Section 384).
  • Robbery under section 390 or Dacoity under section 391.
  • Criminal trespass under Section 441 involves entry into or upon property in the possession of another without his consent or continues to stay there after his consent ceases to exist. According to Supreme Court in the case of Laxmi Ram Pawar v. Sitabai Balu Dhotre, a person trespasses upon land if he wrongfully sets foot on it, rides or drives over it or takes possession of it or expels the person in possession…. The Court may provide relief in the form of injunction and damages or the person could be imprisoned to the maximum of 3 months duration or/and fine upto Rs. 500 (Section 447).