How To Deal With Land Encroachment In India

Published on 08 Feb 2018 by Tushar

When you purchase a property or a land, you believe that the property belongs absolutely to you but you never know when that property will be trespassed or encroached by anyone. If a person is not paying regular attention to his property or if he does not stay in India, people tend to convert that property for their own use and enjoy all the rights of the owner except the title to that property. The legal remedy for eviction from such encroachment is incommodious and exorbitant.

What is an Encroachment?

In layman terms, an encroachment is when another person puts up a structure or takes physical possession of your land. It is an act in which a property is either used or interrupted by someone, who doesn’t have any right to that property. An encroachment may be either on a privately owned land or on a government land. You can talk to a property lawyer in India to know more.

What is a Trespass?

Trespass, in layman language, can be explained as disturbing a person or even entering into a person’s property by an unauthorized person without his consent. It is the physical interference of an unauthorized person into either a land or chattel or body of the aggrieved person. Trespass is an offence which is defined in the Indian Penal Code as well as in the Law of tort.

Situation of Encroachment in India

Property encroachment is a real and the most trending phenomenon in India and NRI’s are most prone to such encroachment.

There is no class divide when it comes to encroachments. From upscale residential colonies to slums to environmentally-sensitive zones, one can find squatters gobbling up the land meant for public use across India or even someone’s private property as well.

Big cities such as Mumbai, Delhi, Kolkata and Bengaluru have fallen prey to the illegal occupation of public land. If a trespasser sets a claim on your property you need certain documents to prove the title to the property in your favour.

Documents That Prove Ownership Of Property

  1. Title deed
  2. Original purchase agreement of the property
  3. Electricity, water and other bills in your name
  4. Mutation extracts

What to do if your Title Deed is lost or destroyed?

If your title deed has been misplaced or destroyed, then:

  1. You are required to file a police complaint as soon as possible.
  2. You should, then, issue a notice in at least two major local newspapers claiming ownership of that property.
  3. Make sure you obtain all the certified copies of such records i.e. police complaint, Notice in newspapers from their concerned authorities.

Measures to take to protect the property from being encroached or trespassed

  1. You should put a fence and a board around the outline of the property.
  2. If you are an NRI, you can also appoint someone on your behalf to do the fencing and monitoring in your absence.
  3. If you are keeping a tenant on the property, make sure to verify his details by the nearby police station.
  4. Apart from the verification of the tenant, you should definitely have a good tenancy agreement with him; otherwise, your tenant may convert the property to his own name in no time. A good documentation lawyer in India can draft a rent agreement for your property.
  5. You should not keep the tenant on the basis of how well you know him or by any reference, inquire about him before renting.
  6. If you have authorized another person by way of power of attorney to take care of your property, then that PoA should be well defined and there shouldn’t be any ambiguity.

Rights available to the owner of an Encroached Property

  1. The first and foremost action that any person is expected and authorized to take is to stop that person from taking over your property.
  2. The law grants every person the right to protect his property from any sort of encroachment and trespassing by third parties.
  3. Apart from this, the Indian penal code permits a person to cause grievous hurt or even kill that person to protect his property.
  4. Such grievous hurt or killing can be used only in necessary circumstances where it is justified to do so.

Legal Remedies Against Encroachment

  1. The first step that an owner is required to take place is to file a suit against such person who has encroached or entered into the property without your permission and claiming almost equal rights of enjoyment in it; either by conversing verbally or by way of barricading.
  2. An injunction is the order of a court which demands a person to either perform an act or refrain from doing an act.
  3. Injunctions are broadly divided into two types, temporary and permanent.
    1. A permanent injunction is passed as the final order restricting the defendant from doing any act.
    2. A temporary injunction is an injunction which is passed by the court to make sure no further act is done related to that property or work temporarily.
  4. After the filing of the application by the owner, the court asks the defendant to file their reply.
  5. After examination of the reply and the matter as a whole, the court may either pass the temporary injunction or the permanent injunction.

Apart from the right and ownership of the party, the owner can also claim damages caused to him during the time the property was being misused by another person.

  1. Damages are a means through which a person is supposed to get approximately what he has lost.
  2. There are certain injuries for which no damage or compensation is granted for what is lost but certain injuries can be compensated by a certain amount of money.
  3. If a stranger has trespassed or encroached any part of your property, then he is liable to compensate you in the form of damages.
  4. The amount of damage depends upon the loss which you have suffered. Damages are given for both physical as well as mental losses suffered.
  5. Though a mental loss is difficult to calculate, therefore the court goes through the intensity of the case and for how long the owner has been deprived of his property.

Legistify connects you with the best lawyers in India and top Chartered Accountants in India with simple telephonic conversation or email. Call us at 846-883-3013 or send us an email at [email protected] to get started.

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