Eviction of Elder brother

Querist : Anonymous (Querist) 04 May 2010 This query is : Resolved
What course of action be adopted to take over vacant possession of one's residential property from elder brother who was residing with owner's deceased (July 2008) father without any right to continue in the property after death of father ?
Will any adverse possession hinder the process ?
How should the owner proceed about ?

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ESTHERPRIYA (Expert) 04 May 2010
you query is confusing what it means of owner's deceased father kindly put it in clear terms

R.R. KRISHNAA (Expert) 04 May 2010
A suit for Recovery of Possession under the Specific Relief Act is the remedy for you.

But first issue a legal notice.

niranjan (Expert) 04 May 2010
I agree with Mr.Krishna

Parveen Kr. Aggarwal (Expert) 05 May 2010
The query is confusing.

However, the reply is being given with the presumption that the dispute is between two brothers, the younger being owner and the elder being in possession of the property then, the younger brother can file a suit for mandatory injunction as the elder brother can be said to be occupying the premises as licencee. But service of a legal notice terminating the licence is better. In addition, mesne profits can be claimed after termination of the licence.

In such a case there is no question of adverse possession. Permissive possession can never become adverse.

Querist : Anonymous (Querist) 06 May 2010
Has permissive possession created any licence which is being advised to be terminated ?
Mesne profits - since when ?
Elder brother was residing with father since creation of the house and father having informed the owner that anybody living with him, would not be entitled to continue residing therein !
How is the law in favour of such elder brother ?

Parveen Kr. Aggarwal (Expert) 10 May 2010
Yes. Permissive possession means the owner has permitted the occupier to occupy the premises which is nothing but licence to occupy. Before initiating litigation, permissive possession or licence is to be terminated to show cause of action for filing of litigation.

Mesne profits can be claimed from the date the licence is terminated or the occupation turns into non-permissive.

Querist : Anonymous (Querist) 11 May 2010
Does it mean that the permissive occupation would not yield any mesne profit of compensation ?

Would a simple notice to vacate be sufficient without admitting his permissive possession ?

Could a standard draft of notice be advised