Table of Contents
What is illegal possession?
When a person who is not the lawful/legal owner of a property, occupies that property beyond the agreement timelines and thus refuses to vacate the property,such possession is termed as Illegal Possession.
When a person who is not the legal owner of the property but obtains the possession of the said property by way of forged documents, such possession is termed as illegal possession.
What is Criminal Trespass?
Section 441 of The Indian Penal Code defines Criminal Trespass.
441. Criminal trespass.—Whoever enters into or upon property in the possession of another with intent to commit an offence or to intimidate, insult or annoy any person in possession of such property, or having lawfully entered into or upon such property, unlawfully remains there with intent thereby to intimidate, insult or annoy any such person, or with intent to commit an offence, is said to commit “criminal trespass”.
Difficulties faced by the NRI’s in case of illegal possession of their property.
➤ In the case of joint properties, it has been seen in certain cases that the possession of the entire property is taken by one of the co-owner/s without giving the share of the concerned NRI or without specifying the share of the concerned NRI.
➤In the case of illegal occupation by the tenant, it has been seen in majority of the cases that the NRIs who have given their properties on rent, face extreme difficulty in getting the property vacated as the tenant refuses to pay the rent or vacate the property.
➤In the case of illegal encroachment, it has been seen in certain cases that the possession of the property of an NRI is taken by the accused person by way of forging the documents of the concerned property.
Legal remedies available:-
➤In the case of joint properties, firstly a legal notice can be sent by the NRI through their advocate to the co-owner/s of the joint property to specify the share of each shareholder and thus get the property partitioned.
Secondly, civil suits can be filed in the civil court of competent jurisdiction. Different types of civil suits can be filed depending upon the nature of relief sought.
⧭ Suit for injunction.
⧭ Suit for possession.
⧭ Suit for declaration.
⧭ Suit for partition.
➤In the case of illegal occupation by the tenant, firstly a legal notice can be sent by the NRI through their advocate to the tenant for eviction and recovery of arrears.
Secondly, a civil suit can be filed in the civil court in whose jurisdiction the property in question is located.
⧭ Suit for eviction and recovery of arrears.
➤In the case of illegal encroachment, firstly a police complaint can be filed with the local police station against the accused person and also the complaint can be filed with the Superintendent of Police or Senior Superintendent of Police. This complaint can be filed by an NRI through his power of attorney or his advocate.
Secondly, if after the filing of the police complaint, no action is taken by the police against the accused then a Criminal Complaint can be filed by an NRI through his power of attorney or his advocate with the NRI COMMISION PUNJAB with a prayer for directing the concerned police officials to take legal action against the accused.
Thirdly a criminal complaint can be filed before the Magistrate. A complaint according to Section 2(d) of the CrPCis an allegation made to the Magistrate in writing or verbal form which mentions the offence committed by a person (whether known or unknown) and does not include a police report.
In layman’s language, it is simply the written allegations of the complainant and contains a summary of facts of the matter/case that he/she seeks to present before the judge, and the relief that he/she seeks for the same.
It is extremely important for the NRI’s to stay aware and vigilant regarding their properties and rights arising out of those properties. Timely inspection of the properties must be carried out by the NRI’’s themselves or through their power of attorney and in case of any illegality being carried out by any person wrt the concerned property, timely legal action must be taken.