TENANT ABUSING POWER OF CONSTRUCTIVE NOTICE?
I bought a shop from Mr. Danish. However, at the time of purchase of the property, Mr. Vikram was staying as a tenant to Mr. Danish. When I asked Mr. Danish to ensure that Mr. Vikram vacates the premises before I purchase it, Mr. Vikram requested for 5 more days to shift his business to another place. I thought 5 days isn’t too long a time and therefore asked Mr. Danish to finish the formalities of sale. However, even after one whole month of having purchasing the property, Mr. Vikram did not vacate the premises. It has been 5 years since I’m trying to get rid of the tenant, Mr. Vikram. Mr. Vikram now tells me that he has been staying in the property for 30 years, though he only has proof of first quarter’s rent receipt from last year. I am in a fix. I want to know how can I get possession and occupation of my lawful property?
Keeping in mind the facts provided, we feel that the property could relate to either a successful or an unsuccessful claim of adverse possession in the disputed property.
Article 26 of the India Limitation Act 1963 states that only if a person is in possession of an immovable property for 12 years or more can the rule of adverse possession apply. The second requirement to claim adverse possession under Article 26 is that tenant needs to have openly asserted to the knowledge of the landlord/owner of the property that he has an adverse interest in the property. Following which he should have proceeded to enjoy the benefits claimable from the property undisturbed and undisputed by such landlord. If he has done so successfully without the landlord having attempted to contest such claim, the tenant’s possession upon completion of 12 years becomes adverse and he thereafter would be regarded as the legal owner of the property.[i]
Now, returning to your case. There could be two situations according to the facts provided. One, that your tenant’s claim of staying in the disputed premises for more than 30 years is true. If it is, you need to find out whether the tenant had openly asserted to the knowledge of the previous owner an adverse interest in the shop, whether the tenancy was legally entered in between the parties by agreement or rent receipts and whether he enjoyed the benefits which were claimable only on the basis of that interest. If the previous owner of the property (landlord) had not done so, then in all possibility the tenant through the operation of adverse possession under Section 26 of the Limitation Act claim legal ownership of the property. And the fact that he has not been paying rent, only strengthens his case. Failure to pay rent or violation of clause as per the agreement of tenancy frustrates the tenancy, if any. Therefore, vacating the tenant is not a viable option.
But it is not so easy to secure and declare adverse possession over immovable property. According to a Supreme Court judgment adverse possession can only be acquired if the tenant has taken measures and successfully contested his claim over the disputed property in a court of law. The Supreme Court in Amrendra Pratab Singh v. Tej Bhadur Prajapat[ii] has stated “The process of acquisition of title by adverse possession springs into action essentially by default or inaction of the owner”. It is assumed that the tenant has not acquired adverse possession during the tenancy with the previous landlord. So, after you purchased the property, the tenant needs to have claimed ownership over the property, and should have taken some action to prevent you and your mother in law from occupying the disputed property. If he has not done so, you stand a good chance to reclaim the property.
You could file a case of criminal trespass under S. 442 of Indian Penal Code where if the person is found by the court to have entered and remained in an immovable property without authority/illegally, he could attract a period of imprisonment which could extend to 1 yr or could attract compensation of 1000 rupees. Alternatively, you could also try to convince the tenant to enter into a leave & license agreement with you for the next 11 months. Put down all specifications in the contract and ensure that you mention in the contract that you want him to vacate the premises after 11 months. If he fails to do so, then you can seek his eviction as the landlord/licensor. Remember that to evict a licensee is much easier than a criminal trespasser.
[i] Bastacolla Colliery Co. Ltd. Vs Bandhu Beldar and Anr
[ii] 2004 (10) SCC 65,
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