India must prevent the eviction of millions of forest dwellers, say UN experts

The Supreme Court of India in the landmark case of Toyota Jidosha Kubushiki Kaisha v. Prius Auto Industries Ltd. and Ors., observed that Toyota had no trans-border reputation in India. V. Whirlpool Corporation and Ors., while upholding the decision of the single bench and division bench of the High Court of Delhi recognized the principle of trans-border reputation in India. The reason to be mentioned for asking her to vacate is her default in rental payment and the property required for own use. Your husband should first issue a legal notice to her demanding the arrears of rent and also instruct her to vacate the premise and handover the vacant possession.

The Court’s sais that there is a strong demand for abolition of irrational, illogical and extremely harsh law for true owner of the property. Whilst the claim for adverse possession was unsuccessful in this instance, it is clear from the judgment that payment of service charge, or presumably any other rent, by the registered proprietor (at the request of the occupant no less) will not prevent a claim for adverse possession. Vaqar defended the 2018 claim on the basis that the flat was held on constructive trust for him and, in the alternative, he was entitled to be registered as proprietor of the property due to his 12 years’ adverse possession prior to October 2003. In recent times the Land Registry has made the process of claiming Adverse Possession and being awarded “title absolute” more difficult. Simply occupying or grazing the land will no longer justify the grant of title, instead the person in adverse possession must demonstrate commitment to own and utilize to the exclusion of all other the land intended to be claimed.

The residents in a declared settlement are, for example, still not eligible for formal sector loans because they do not own the land itself. While the trends explained above were observed in the study settlements, some authors have decried such unintended effects of SCB declaration, saying that it has no lasting effect on a settlement’s development. This, of course, is particularly true when the land is owned by private persons and therefore, relocation or land-sharing may be the only options). Significantly, Hemaji had never pleaded adverse possession in his suit and nor was an issue framed by the trial court with regard to the ownership by way of adverse possession. In the appeal against the said order, the appellate court held that Hemaji had failed to prove that the suit land was purchased by him and in the absence of crucial pleadings and evidence pertaining to adverse possession, Hemaji could not claim to have perfected his title by adverse possession. Hon’ble Orisa High Court held that, when a suit for declaration of right, title and interest over property on basis of adverse possession and plaintiff possessing property on basis of agreement for sale and there being no denial of title and rights of true owner.

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Mere possession without proof that same became hostile against true owner does not convert permissive possession into adverse possession8. The acquisition of land under the doctrine of adverse possession is recognized in all the civil and common law jurisdictions. However, there is no clear pattern as regards the length of limitation periods. Many squatters and encroachers also make it a point to cut a handsome settlement to restore the legal rights of the NRI owners or vacate the property.

The claim to rights and interests in relation to property on the basis of possession has been recognized in all legal systems. Uninterrupted and uncontested possession for a specified period, hostile to the rights and interests of true owner, is considered to be one of the legally recognized modes of acquisition of ownership. The prescription of periods of limitations for recovering possession or for negation of the rights and interests of true owner is the core and essence of the law of adverse possession. Right to access to Courts is barred by law on effluxion of prescribed time.

Human rights challenges

A disseisor will be committing a civil trespass on the property he has taken and the owner of the property could cause him to be evicted by an action in trespass (“ejectment”) or by bringing an action for possession. All common law jurisdictions require that an ejectment action be brought within a specified time, after which the true owner is assumed to have acquiesced. The effect of a failure by the true landowner to evict the adverse possessor depends on the jurisdiction, but will eventually result in title by adverse possession. Section 88[14] when read with Section 62A[15] of Australia’s Trade Marks Act, 1995 provides for the cancellation of the registration of a trade mark on the ground that the application was made in bad faith. This is a similar mechanism enabling rightful trade mark owners to challenge the trade marks registered by squatters.

V. Tejmeet Singh Sethi & Anr., passed an Order against the Defendants, who were found to be indulging in trafficking/hoarding of several well-known marks of different entities including those of the Plaintiffs. Rather than being put in refugee camps, people can seize the initiative and squat in their old communities, without aid groups clamping down on them. And these nascent communities — self-organized and temporary at first — can serve as the building blocks of new neighborhoods. The Office of the High Commissioner for Human Rights is the leading United Nations entity in the field of human rights, with a unique mandate to promote and protect all human rights for all people. The experts said many indigenous peoples in India have already lost their homes in the name of conservation, often to make way for tiger reserves.

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Sometimes the owners are also forced to sell the property or the land to the encroaches in a distress sale at rock-bottom prices. Nevertheless there is no justification whatsoever in allowing those who grab the land overnight by force with no bonafides getting the title by adverse possession. The owner property who may not be physically available to disrupt adverse possession may now be penalized. Therefore, there is need to strike a fair balance between competing considerations in the law of adverse possession. The Court considered whether a squatter who asked the owner of the property to pay the service charges due under the lease, could be successful in its claim for adverse possession. Personal property, traditionally known as chattel, may also be adversely possessed, but owing to the differences in the nature of real and chattel property, the rules governing such claims are rather more stringent, and favour the legal owner rather than the adverse possessor.

This promoted the finality of litigation and the certainty of claims.[10] Time would start running when someone took exclusive possession of land, or part of it, and intended to possess it adversely to the interests of the current owner. Provided the common law requirements of “possession” that was “adverse” were fulfilled, after 12 years, the owner would cease to be able to assert a claim. Different rules are in place for the limitation periods of adverse possession in unregistered land[11] and registered land.[12] However, in the Land Registration Act 2002 adverse possession of registered land became much harder.

How NRIs Can Protect The land From Illegal Possession in India?

But as mentioned above socioeconomic conditions in the country have major effect on decision making. The proceedings concerned a long running dispute between two brothers, regarding the ownership of a flat in Knightsbridge. The documents that you have preserved over the years, will now help make your case strong in the legal fight and judicial process. These are some of the most common ways in which your land or property can get grabbed. This happens more in cases where the land or the property purchased is left unattended for any reason.

Adverse possession is when the true owner of a property loses his/her ownership rights owing to inaction on his/her part to remove a trespasser within a statutory period from the property. After lapse of the statutory limitation period for eviction, the true owner is barred from initiating any legal proceeding to repossess his/her property and the trespasser acquires the title to that property by adverse/hostile possession5. Otherwise, the squatter becomes the registered proprietor according to the land registry. If the true owner is unable to evict the squatter in the two years following the first [unsuccessful] application, the squatter can apply again after this period and be successful despite the opposition of the owner. The process effectively prevents the removal of a landowner’s right to property without their knowledge, while ensuring squatters have a fair way of exercising their rights.

In terms of households, there are a total 893,000 households, of which 122,000 live in slums. About 83.3 percent squat on public land, and the remaining are on private lands [KSCB, 1990]. The slum population in 1993 stood at about 30 percent of the total city population. The Court proceeded to note the expanding jurisprudence of the European Court of Human Rights which had taken an unkind view to the concept of adverse possession and that courts around the world are taking an unkind view towards statutes of limitation overriding property rights.

Though the approach of classifying trade mark squatting as unfair competition is novel in comparison to the approach taken in India and other common law countries, the end result of combating trade mark squatters is still achieved. A more modern function has been that land which is disused or neglected by an owner may be converted into another’s property if continual use is made. Squatting in England has been a way for land to be efficiently utilised, particularly in periods of economic decline. Before the Land Registration Act 2002, if a person had possessed land for 12 years, then at common law, the previous owner’s right of action to eject the “adverse possessor” would expire. The common legal justification was that under the Limitation Act 1623, just like a cause of action in contract or tort had to be used within a time limit, so did an action to recover land.

Thus a disseisor need not build a dwelling on, or farm on, every portion of a large tract in order to prove possession, as long as their title does correctly describe the entire parcel. Understanding these processes helps in developing viable programmes and projects that identify the actors at the settlement level, as well as external actors who will initiate, enable and support such local and city-wide actions. Preconditions for the involvement of these actors have to be clarified, so that the intended effects can be realized. Such insights will help in paving the way for an integrated approach, which will avoid duplication or overlapping of developmental efforts, channelling resources where they are most needed. If you would like to share your experiences regarding the illegal possession of land or have any questions – add them in the comment section. This is because the tenancy laws are mostly tilted in favor of the tenants.

“Governments must seek free prior and informed consent from the indigenous people affected, ensure compensation is adequate and that any resettlement plans are determined through a process of meaningful consultation. Any eviction resulting in homelessness is a serious violation of human rights,” the experts warned. The law is considered as windfall for dishonest person who had illegally taken possession of the property.

The conditions necessary for the acceptance of a claim based on adverse possession have been laid down basically by way of Judge-made law. Several exceptions to the concept of adverse possession based on legal relationship between the title holder and the person in actual possession as well as the character of land are also recognized by law. Permissive possession or possession without a clear intention to exercise exclusive rights over the property is not considered as adverse possession2. After long standing criticism in relation to its trade mark regime which failed to curb trade mark squatting, recent developments in China have shown promise. Chinese courts exercising judicial proactiveness have ruled in successive cases that bad faith applications for trade marks would constitute unfair competition against the trade mark rights holder[16].

• You must obtain all necessary documents mentioned in point (4) above as soon as the deal goes through, the will is executed, or the probate court finalizes the inheritance.
• Adverse possession does not typically work against property owned by the public.
• The government must provide the necessary resources to conduct a transparent and independent review of the rejected claims and to ensure no indigenous peoples are aggrieved.
• The United Nations estimated in 2003 that there were one billion slum residents and squatters globally.
• Informal settlements in Latin America are known by names such as villa miseria (Argentina), pueblos jóvenes (Peru) and asentamientos irregulares (Guatemala, Uruguay).

No value at all could be given to such record on basis of which defendant wanted to prove plaintiff was born in particular year and his father was particular person20. Adverse possession – Not available to the defendant in a suit by plaintiff for recovery of possession, if he or his predecessor entered in pssession lawfully under an agreement and continued to remain in possession till the date of suit13. The judgement thus cannot be seen only from the perspective of the owner squatters rights india of the property or the possessor (Squatter) of the property but from total SOCIOECONOMIC FABRIC of the country. Make it a point to get all the documents, update all the records, and get them registered as soon as possible. You must obtain all necessary documents mentioned in point (4) above as soon as the deal goes through, the will is executed, or the probate court finalizes the inheritance. With proper and complete legal documents, it would be easier to repel encroachers.