Can you get it vacated without going to Court if someone has occupied your property

OVERVIEW

Can you get it vacated without going to Court if someone has occupied your property?

A provision has been made under Section 5 of the Specific Relief Act to vacate the illegal possession of the property. However, in a property dispute, a stay should be taken first so that the occupier cannot build on that property or sell it.

Case: Poona ram Vs Motiram 2019

In Barmer, Poona Ram had bought some property from the Jagirdar in 1966, which was not a place. When a suit for declaration of ownership was filed for the property, the possession was with Motiram. Motiram could not show any document and the trial court ordered to evict Motiram in 1972 based on the map passed to build a house on the property. Moti went to the High Court, and the Rajasthan High Court overturned the decision. The owner had come to the Supreme Court against this.

  • The Supreme Court gave its essential decision on 29 January 2019 regarding illegal possession of the property. The Supreme Court, in its judgment, said that if someone has temporarily occupied the property and is the owner of that property, that is, the person in whose name that property is registered.
  • He can forcibly evict the occupier from his property. (Supreme Court regarding illegal possession of property) Even if he has been in possession for more than 12 years. For this, the property owner does not even need to go to Court because the court proceedings are needed only when there is a property without title, and the property is in permanent possession.
  • The top Court said there is no need for court proceedings to remove such occupiers. Court proceedings are required only when the untitled occupier has effective/settlement possession of the property, which entitles him to protect this possession as if he were the actual owner.
  • A bench of Justices NV Ramana and MM Shantanagoudar said in the judgment that when a person talks of possession, he has to show possession title to the property and prove that he is in effective possession of the property.
  • But temporary possession (sometimes giving up, taking possession, or keeping remotely in possession) does not give such a person any right against the real owner. The Court held that effective possession means such possession which has existed for a sufficiently long period, and the owner has been silent on this possession. But the temporary possession cannot prevent the authorized owner from taking possession.
  • The bench said that occasional possession or entry into a property that has not matured into permanent possession could be removed by the rightful owner and even use force if necessary.
  • The Court also rejected the contention of the occupier that the owner did not file a suit against the occupier within 12 years under Section 64 of the Limitation Act, 1963. The Court said that this time limit is applicable only in the case of effective/settlement possession and not in the case of temporary possession.

Right to vacate

  • The Supreme Court had said in this case that even after 12 years if you have the property title, you can vacate the property by force. There is no need to file a case in Court for this.
  • If the property title is not with you and it has been 12 years since you have been in possession, you will have to file a case in Court. The Specific Relief Act 1963 was made for the legal proceedings of such cases. A provision has been made under Section 5 of the Specific Relief Act to vacate the illegal possession of the property.
  • However, in a property dispute, it is better to take a stay first so that the occupier cannot build on that property or sell it. According to Section 5 of the Specific Relief Act, if any property is in your name, you have the title of that property.
  • If someone has illegally occupied that property, a lawsuit must be filed under the Code of Civil Procedure (CPC) to vacate it.

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