Saturday 16 August 2014

POSSESSION RIGHT OF PROPERTY

Advocate S Selvakumar|Property advocates in Bangalore|Property lawyers in Bangalore

 Possession in essence means holding an immovable property in possession with or while not title of possession. it's endless act of claiming exclusive use of the property as if the holder owns the property to that he could or might not be having right to possession. Possessions are of assorted sorts. Adverse possession, symbolic possession, possession beneath a sealed power of professional person, possession beneath lien and possession beneath half performance of a contract are a couple of necessary ones.
 
A person in possession of an immobile property has sure right and interest within the property he's holding. The person has such a strong management over the immovable property that he will prevent others from occupying it. Unless otherwise proven possession could also be taken without any consideration as title of possession. Mere possession of an immovable property doesn't mean that the person is that the real owner of the property.

Holding a property when a decree is passed for vacating it, although enough time is given for vacating the premises, is wrongful and can't be termed as permissive possession. Possession, occupation and possession don't seem to be one and therefore the same. Possession means that not solely physical possession (or constructive possession) of a property however additionally full management over it. Occupation means that the correct to carry and occupy a property. Possession means that lawful possession of a property, which can not accompany actual property possession.

A landowner provides his agricultural land to a tenant for cultivation. Although the property is that the same, the rights enforced are completely different. The owner possesses the land while not occupation and therefore the tenant cultivates the land while not possession. The mere right to cultivate doesn't confer the correct of possession on the tenant. Similarly, in a very mortgage, the tenant because the mortgagee is in actual physical possession of an immovable property and therefore the landowner because the mortgager is that the true owner of the property. Here the mortgage holder possesses the property while not possession and therefore the mortgager owns the property while not occupation. Possession is temporary. Possession is permanent.


Adverse Possession
Adverse Possession means that an individual possessing an immovable property, that is unfavorable, unhelpful or harmful to the interest of the rightful owner. Adverse possession is possession of a property by an individual on his behalf or on behalf of another person on that truth owner incorporates a right to immediate possession.

If, however, truth owner doesn't enforce his right within the point in time stipulated within the Law of Limitation, the possession of the property becomes adverse to truth owner. The result's that truth owner not solely loses his right, title and interest within the property however additionally cannot maintain a suit in a very court of law.

Possession should be hostile in total denial of the title of truth owner. The person should be in possession of the property beneath a claim of right. The property should be in his continuous possession and therefore the individuals within the neighborhood should understand that he has been staying on the premises peacefully and endlessly for an extended amount of your time and paying taxes in his name thus on show that the title of property is adverse to truth owner. It should be open and hostile enough for the interested parties to come back to grasp of it.

A person, who completely holds an immovable property physically, openly, peacefully and while not interruption by truth owner for a amount of twelve years or a lot of, is taken into account to own nonheritable the possession and title of the immobile property by adverse possession. The expression adverse possession indicates a hostile or unfriendly possession that is either expressed or understood in open denial of the title to truth owner.

Adverse possession could be a one-sided actTherefore, it can't be documented. An individual holding a property for an extended time doesn't mean that title of the property is denied to truth owner. The possession turns adverse only the rights of the person and true owner don't match. The person holding the possession of the land ought to hold constant on his own behalf or on behalf of some person apart from truth owner, whereas truth owner right along incorporates a right to immediate possession of the property.

Further the possessions to represent adverse possession ought to be exclusive and actual physical possession. It’s not in the least necessary that truth owner ought to have actual data of the adverse possession farewell because it is open and therefore the interested parties have data of it. Also, it's not necessary that the person claiming the title of adverse possession ought to understand who the important owner is. The mere possession of a property by a intruder doesn't represent adverse possession unless constant is in the midst of open assertion of hostile title.

Mr. A, who claimed to be a ‘thika tenant’ since 1966 was dealings out the property to tenants. However, he had right along been claiming to be the established professional person of man. B. it absolutely was solely since 1975 that man. A started depositing rent in his own name. Mr. A filed a suit in 1982 for enjoining seeking to restrain the owner from taking on the property from him. The court detected man. A’s case and command that man. A had been an intruder on the property since 1970, however started declarative his rights solely from 1975 and not earlier. The court command 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 can't be adverse or unfavorable to alternative members of the family. All the relations treat the possession of the property by one member as possession by all relations. Within the same manner the elder brother of the family collection rent and revenue isn't thought-about a hostile act against the opposite relations.

When a celebration accepts that possession of a property has been given on the premise of lease, mortgage, agreement to sell, the possession will ne'er be adverse. A property doesn't become adverse if it's given beneath half performance of a contract. Possession of the property with the permission of the owner doesn't become adverse by a mere amendment within the cognition of the person in possession. Permissive possession never becomes hostile, until there's assertion of a hostile possession to the data of the owner.

A person claiming right and title by adverse possession has got to offer concrete proof to the very fact that he had exclusive, peaceful and continuous possession of the property for a amount of twelve complete years as prescribed within the Limitation Act.Title to the property by adverse possession should be proven with blank facts.

Symbolic Possession
Symbolic possession of a property is given to the customer once an immovable property is sold  in auction. In this event the third party in actual physical possession of the property should be unbroken conversant.

Possession beneath a sealed Power of attorney
Under A sealed power of attorney, the attorney possesses the property and transacts it on behalf of the fiduciary. The professional person signs and executes all documents and completes the dealings as if the fiduciary himself in person did all the transactions.Sometimes, a individual holds an immovable property against sure debts. This can be called possession beneath lien. The correct to possession involves A finish once the owner of the property clears the debt. Generally, banks have a right to retain a property until the fees are cleared.

Possession as half Performance of a Contract
Possession of an immovable property is additionally given as guarantee for half performance of a contract. A person of this sort of property won't have right or title within the property; however he can have the correct to resist any try by the transferer to require over the property from his possession. during this case the correct of truth owner of the property is additionally affected, since he cannot enforce his right when possession has been given to the transferee.

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