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Introduction
In India there is a tendency to take possession of a property illegally, when the real owner is away from his property or could not take care of it on a day to day basis. Some examples of it are: a lessee or tenant who does not want to vacate the property even when the period of the tenancy is over (called Tenant at Will), a person who forged a Will and sits on the property based on that Will (see My Article dealing with this aspect),a trespasser who forces his way into your home when you are away and an encroacher who extends his property into yours.
Even when the owner of the property files a case in Court to take his property back, this trespasser or encroacher tries to delay the case for years. And why wouldn’t he: He is in occupation and will be in the occupation of the property till the case ends.
So, in India where a property case takes years for its completion, is the fate of the owner doomed? The clear answer to that is:No.
This will be the focus of this Article where I will explain as to how the owner can fail the designs of the person who is in illegal possession of the property by taking some simple steps. So let’s begin.
Brief Facts
B claimed that A gave his property to B through a Will. On this ground B took possession of A’s property and did not allow the daughter of A to enter the property.
But the Will was denied by A’s Daughter who claimed that Will is made illegally and hence has no meaning. So A’s property should go to the Daughters, which would have happened had there been no Will. In this case the Daughter will be called Reversioner of A. A Reversioner is a person onto whom the property passes on someone’s death. So, in the case of the death of the father or mother, their children will be the Reversioner.
So the Daughter asked for the property to be taken from B and given to her. So, what should she do to get her father’s property back?
Remedies
First of all the Daughter should file a case in the Court for the declaration that she is the daughter of A and entitled to his property as such. This is called prayer for “Declaration of the Title”
Secondly, the Daughter should ask for the possession of the property. This is called prayer for “Recovery of Possession”.
Thirdly, the Daughter should ask for the declaration that the Will is null and void and has no legal value.
These three remedies are important, but this Article is about the most important remedy which the Daughter should ask for: The Fourth relief i.e. the Daughter should ask for damages from B for use and occupation of property. This is called prayer for “Mesne Profits”. Before proceeding any further you can safely assume that Mesne Profits are equivalent to the rent of the Property.
But what are mesne profits and why the Daughter should ask for it?
When a person sits on your property, without having any right to possess it, you have the right to go to the Court and ask the Court to throw that person out. The person who is sitting on the property without any right is called a Trespasser or Tenant at Will (if he was earlier a tenant) or simply an Encroacher. We will use the general expression Trespasser in this Article for convenience.
Now, Trespassers are very shrewd people because knowing fully well that they are in possession of the property, they try to delay a case on this or that ground. Like in this case B is saying that he has a Will in his favour. Even if the Will is found forged after 5 years of legal battle it will be ensured that B do not have to vacate the property and he will enjoy it for these 5 years i.e. during pendency of the case.
So, for 5 years while you will be facing innumerable difficulties in fighting the case against the Trespasser, Tenant at Will or Encroacher which also includes arranging money for fighting the case, your Trespasser may simply put your property on lease which will ensure him not only finances for fighting the case against you from your own property but also extra income on which he can rely. In essence it can be said that the Trespasser is using your property against you.
So, there should be active effort at your end to stop the Trespasser from having any income from your property.
How to Stop a Trespasser from Using Your Own Property Against You
For this when you will file the case against your Trespasser, you have to first ask the Court for Mesne Profits till the date of filing the case. Let’s say you were living in Bengaluru and you also have a property in Delhi. While you were thinking that the Delhi property is safe and locked, someone on 01.01.2020 trespassed onto your property and started living in it. Only later you became aware that someone has encroached upon your property. So you filed a case in Court on 01.01.2023.
Now you must remember that you do not only ask for giving the possession of the Delhi property back to you but you must also ask for mesne profits for the period of three years i.e. 01.01.2020 to 01.01.2023. So, if you believe that the Delhi property could fetch a rent of Rs. 1 Lacs per month then you must ask Rs. 36 Lacs from the Trespasser (Rs. 1 Lac x 36 Months). These Rs. 36 Lacs is called Past Mesne Profits.
This is not the only step you should take. You must also ask for the mesne profits for the whole period for which you fight the case for getting your Delhi property back. So let’s say you fight the said case from 01.01.2023 to 01.01.2028 i.e. for a period of 5 years then you must ask for Rs. 60 Lacs (Rs. 1 Lacs X 60 Months). These Rs. 60 Lacs is called Future Mesne Profits.
But Why You Should Ask For the Past and Future Mesne Profits/Rent
Now consider the advantage of these simple steps you have taken. Earlier the Trespasser was only thinking that even if he loses the case after Five years he just have to hand over the possession back to you. He can enjoy the rent for the period of 8 years (i.e. 3 years before filing of the case by you and 5 years after filing the case) without any worries.
But now you have raised the stakes for him. If he loses he has to pay a sum of Rs. 96 Lacs to you when you win. Now he must be worried whether he should occupy your Delhi property or handover the possession to you?
Some Trespassers try to stretch the case by filing Appeals even if they lose. Like even if you win the case in the Court of Additional District Judge, the Trespasser will file an Appeal in the Delhi High Court just to delay the case and vacating the property.
But here is the catch. Even if the Trespasser files an Appeal in the Delhi High Court, he has to deposit the amount which he lost in the Trial Court, i.e. in the Court of ADJ, under Order 41 Rule 5 of Civil Procedure Code, 1908. So, even if he files an Appeal he has to deposit Rs. 96 Lacs in the Delhi High Court. this money you can withdraw from the Court and use Trespassers own money against him.
These provisions are very similar to Delhi Rent Control Act, 1956 where if the tenant even after losing the case in the Court of the Rent Controller retains the property and files an Appeal (called Rent Revision), he has to pay the rent equivalent to market value of the property before filing such Appeal.
Kindly appreciate the difference here. If you would not have asked for the mesne profits, then the Trespasser would have just stretched the Appeal, as he will be only liable to vacate the Delhi property if he loses. But now not only he have to deposit Rs. 96 Lacs into the Court but he also have to pay Rs. 12 Lacs every year to you till the Appeal is decided.
Always Ask the Court for Mesne Profits, Past and Future
You must ask your lawyer to pray to the Court for past and future mesne profits because if he does not do so the trespasser will have no fear of losing the case. In Mohd. Yamin V. Vakil Ahmed [1952 AIR 358] the lawyer did not ask for either past mesne profits or future ones, and hence the Court declined to give any mesne profits to the owner of the property, even when the Court held that the person is the owner of the property.
So, never forget to ask for at least past mesne profits, because even if you ask for past one, under Order 20 Rule 12 of Civil Procedure code, 1938 the Court can give you future mesne profits without even your asking for it. That’s exactly what happened in this case where the lawyer for the Daughter forgot to ask for the future mesne profits, but has luckily asked for past mesne profits. The Supreme Court held that if the past mesne profits have been asked for, the Court can give the owner future mesne profits also.
But as a lawyer I will suggest that you err on the right side of law and ask for both past and future mesne profits.
Conclusion
Encroaching on someone’s property is a dishonest act. It takes years for a person to build a home for him and to take that away from him is immoral. But in the world of law one have to be cautious as it is the not the immorality or dishonesty but the illegality of the act which the owner has to prove. Moreover he have to take steps which create fear in the mind of the trespasser or tenant at will or encroacher, so that he can stop harassing him and return his property to him.
I believe that this Article and the steps mentioned in it provide you with legal tools which will help you get your property back.
Parveen Semwal
Advocate, High Court of Delhi and Supreme Court of India