adverse possession
Tarun
(Querist) 09 December 2014
This query is : Resolved
How does the law take up adverse possession in the case of families, where possession may not be always hostile, but it can be absolute...
Devajyoti Barman
(Expert) 09 December 2014
give details if this is not academic query.
Tarun
(Querist) 09 December 2014
My father before dying made a will. In this will, he gave our current house to my younger brother. I was only given the front portion on second floor, but I was not given any right to construct at the back portion which was vacant. After his death, seeking that the shares were unequal, I looked to challenge the will. To avoid that, my brother gave me possession of the back portion and allowed me to raise construction.
Now, I have been living there for 30 years. Now he is claiming in court, that he had raised construction at the back portion and out of love and affection gave it to us.
In court, we tried to proove that we had a family settelment, but we failed to do so, as in the absence of evidence the judge was not convinced.
Even if we were not the owners, our possession was clear and absolute wih no dispute.
How can I use law of adverse possession to my advantage?
Is there any other way, on he basis of which, I may b able to put some strength in my case??????
Tarun
(Querist) 09 December 2014
My father before dying made a will. In this will, he gave our current house to my younger brother. I was only given the front portion on second floor, but I was not given any right to construct at the back portion which was vacant. After his death, seeking that the shares were unequal, I looked to challenge the will. To avoid that, my brother gave me possession of the back portion and allowed me to raise construction.
Now, I have been living there for 30 years. Now he is claiming in court, that he had raised construction at the back portion and out of love and affection gave it to us.
In court, we tried to proove that we had a family settelment, but we failed to do so, as in the absence of evidence the judge was not convinced.
Even if we were not the owners, our possession was clear and absolute wih no dispute.
How can I use law of adverse possession to my advantage?
Is there any other way, on he basis of which, I may b able to put some strength in my case??????
Devajyoti Barman
(Expert) 09 December 2014
Law of adverse possession applies to co-sharer also.
So in the suit for partition and possession you can take this plea subject to consideration of court.This is a good ground of defence.
Dr J C Vashista
(Expert) 09 December 2014
I agree with the experts, it is good ground.
Did your brother give the possession of vacant plot with some sort of agreement in writing or oral, in whose presence it was given and other related informations, which are missing in the circumstances, are vital to give further/proper opinion.
P. Venu
(Expert) 09 December 2014
It is important that you should be able to adduce evidence for the continuous, peaceful and open possession of the property for the last thirty years.
Anirudh
(Expert) 09 December 2014
It is not so easy to claim 'adverse possession' merely because you were in possession for nearly 30 years.
Adverse possession is one where one is in openly hostile possession of the property. In this case, even according to the querist he is in permissive possession, which his brother seems to have successfully establish before the Court.
ajay sethi
(Expert) 09 December 2014
agree with MR anirudh
Guest
(Expert) 09 December 2014
Different queries in Different Style being Posted by Same Author/Querist Creates the Doubt whether they are Genuine Or Just a Pass Time for Author.Whether he could say all the Queries raised by him are his own Problems.
Tarun
(Querist) 09 December 2014
Mr. Narsimha, with all due request this is not at all a pass time for me. Court proceedings are a first hand experience for me. The above facts are all genuine, that is the reason the queries are same.
By getting answers to these queries, we are saved from being misled. Regards.
Tarun
(Querist) 09 December 2014
There was no written evidence, only a oral settlement was there which he is now denying...
Tarun
(Querist) 09 December 2014
There was no written evidence, only a oral settlement was there which he is now denying...
Dr J C Vashista
(Expert) 10 December 2014
Consult your lawyer, you have adequatly been advised by the experts, FREE OF COST, now please stop this thread.
T. Kalaiselvan, Advocate
(Expert) 11 December 2014
The most suitable answer to your query has been given by our expert Mr. Anirudh, which I also endorse. This maybe treated as permissive possession hence perfecting the title by adverse possession will be a question, by balance of convenience tilting in favor of your brother, discuss with your lawyer for further course of legal action.
Biswanath Roy
(Expert) 14 December 2014
Possession over an immovable property are of various kinds. Its a typical question of variance in law. Adverse possession means the use and enjoyment of a real property with a claim of right when that use or enjoyment, is continuous, exclusive,hostile, open or notorious. It also bears the meaning of the detention or enjoyment of a corporeal thing with the intent to hold it as one's own. From the given facts in the subject query it appears that it is a case of "constructive possession" which means control or dominion over a property or in other words when a possessor holds title to a property and physically possesses part of it the law will deem the possessor to hold the constructive possession of the rest of the property described in the title. This is also termed in law as "possessio fictitia". Try to find out documents relating to the construction allegedly made by you on the back portion of your allotted title as mutually agreed upon in the deed of mutual settlement.
prabhakar singh
(Expert) 14 December 2014
The surprising fact for me in your case is not this that you failed to prove a rearrangement or a settlement against WILL
BUT RATHER THE FACT THAT COURT ACCEPTED YOUR
OPPONENTS PLEA THAT YOU GAVE THEM THIS CONSTRUCTION TO THEM OUT OF NATURAL LOVE AND AFFECTION.
Otherwise when you are introducing a case of family settlement against the will,then your entry is by consent and that demolishes the plea of hostile adversity required as an one of the element for claim of an adverse possession,that too between brothers.
The court ought to have accepted your plea of re settlement after WILL if your opponent admitted the fact that it was you who raised constructions in back portion against the dictate of the WILL. Circumstances here does speak of a resettlement.
Biswanath Roy
(Expert) 14 December 2014
One must look at the questions of the querist, which states as follows :-
Q.1.How can i use law of adverse possession to my advantage?
Q.2. Is there any other way, on the basis of which I may be able to put some strength in my case? Save answering these two questions other discussions are irrelevant.
prabhakar singh
(Expert) 14 December 2014
"In court, we tried to proove that we had a family settelment, but we failed to do so, as in the absence of evidence the judge was not convinced."
was the portion I addressed.
prabhakar singh
(Expert) 14 December 2014
Did he ask definition of adverse possession or of many different kinds of possessions?
Every body answers as he wants then why i cant?
Is there some one to rule others?
i write what i understand and do not claim my self to be only or always right.
prabhakar singh
(Expert) 14 December 2014
The case is decided rightly or wrongly and fresh suit is barred now,only appeal is the course to assail perverse findings.
Biswanath Roy
(Expert) 14 December 2014
First question of the querist relates to adverse possession so it was necessary to explain what the adverse possession means according to legal parlance, so that querist can understand its applicability in his case. Secondly, I INFORMED THE QUERIST THAT OTHER THAN ADVERSE POSSESSION THERE ARE SOME OTHER KINDS OF POSSESSION IN LAW. Because in his second query the querist asked other than adverse possession what are other ways on the basis of which he may be able to put some strength in his case. Sorry to say, in law nobody can claim himself to be only and always right as one may wrongly viewed because law is a vast ocean and we the legal practitioners are picking up pebbles from the sea shore of law.
