Illegal possession of NRI property in India: how to get it back, and by when

Illegal possession of NRI property: who is the occupant?

Clients usually start with "someone is in my flat". The legal answer depends on how that person got in. A licensee, a tenant, a relative let in out of kindness and a stranger who broke the lock are four different cases, with different forums and different clocks.

A co-owner living in the whole property is a different case again. In law one co-owner's possession counts as possession for all of them, so the usual remedy is a partition suit rather than eviction.

Section 6 of the Specific Relief Act: the six-month route

Section 6 protects possession itself. If you, or someone holding the property for you such as a caretaker, were in possession and were put out without your consent and other than by legal process, you can sue to be put back. The court does not decide who owns the property. It asks only whether you were in possession and whether you were dispossessed unlawfully within the last six months.

Because title is not tried, these suits move faster than ordinary property suits. There is no appeal from the decree and no review, though a revision lies to the High Court. The suit cannot be brought against the Government. And the losing occupant can still file his own suit on title later, because Section 6 settles possession, not ownership.

For an NRI the difficulty is the clock. Six months runs from the dispossession, not from the day you find out. If a caretaker reports a broken lock in month five, there is still time; in month seven there is not, and the case becomes a title suit. That alone is a good reason to have someone visit the property regularly.

A suit for possession of property based on title

After six months, or where the occupant came in with your permission, the route is a suit for possession based on your title, under Section 5 of the Specific Relief Act and the Code of Civil Procedure, 1908. It is filed in the civil court within whose limits the property lies. In Mumbai, a suit against a stranger goes to the City Civil Court or the High Court depending on value, while a possession suit against a licensee or tenant goes to the Court of Small Causes under Section 41 of the Presidency Small Cause Courts Act, 1882. Elsewhere in Maharashtra it is usually the Civil Judge, Junior or Senior Division, depending on value.

Ask for more than possession. Claim mesne profits, meaning the income you lost while kept out, which the court assesses under Order XX Rule 12 of the Code. Add a permanent injunction, and where the occupant has built something, a mandatory injunction to remove it. If boundaries are disputed, the court can appoint a commissioner to measure the land and report under Order XXVI Rule 9.

The time limits come from the Limitation Act, 1963: 12 years from the date the occupant's possession became adverse to you, for a suit on title (Article 65), and 12 years from dispossession, for a suit on earlier possession (Article 64). A contested suit usually takes several years. That is why the interim orders below matter so much.

Injunctions and court receivers while the case runs

A possession decree that arrives years later is worth little if the occupant has meanwhile sold the flat, let it out again or added a floor. So the suit is filed with an application for a temporary injunction under Order XXXIX Rules 1 and 2 of the Code. The court looks for a prima facie case, the balance of convenience and harm that money cannot repair. Clean title papers, a written licence or caretaker arrangement and a prompt application make all three easier to show.

If the order is disobeyed, Order XXXIX Rule 2A lets the court attach the occupant's property and detain him in civil prison for up to three months. Where the occupant is collecting rent or damaging the property, the court can appoint a receiver under Order XL to take charge of it; in Mumbai the courts often use the Court Receiver for this. And register a lis pendens notice as soon as the suit is filed, so that anyone buying from the occupant is bound by the result.

Can the police remove an illegal occupant?

Usually not, and it helps to know this before you call. The police can register a case of criminal trespass under Section 329 of the Bharatiya Nyaya Sanhita (earlier Sections 441 and 447 IPC), house-trespass under Section 329(4) (earlier Section 448), criminal intimidation under Section 351 (earlier Section 506) and, where papers were forged, the cheating and forgery sections. They will act on a fresh break-in. But they do not evict someone who has been in occupation for months and claims a right. That needs an order from a court or the Competent Authority.

A complaint is still worth making early. It fixes the date and the facts on an official record, discourages further damage, and becomes evidence in the civil suit. If the station will not register it, the escalation steps under the Bharatiya Nagarik Suraksha Sanhita, 2023 are set out in our post on NRI property fraud in India.

A caution about Section 164 BNSS

Where a land dispute threatens a breach of the peace, an Executive Magistrate can act under Section 164 of the BNSS (earlier Section 145 CrPC). The Magistrate protects whoever is found in actual possession, without deciding title. If that is the occupant, the order works against you, so these proceedings need careful handling. There is a narrow exception for a person forcibly dispossessed shortly before the police report.

Tenant refusing to vacate NRI property in Maharashtra

Most NRI flats in Maharashtra are let on leave and licence rather than on tenancy, and that choice pays off when the occupant will not leave. Section 24 of the Maharashtra Rent Control Act, 1999 requires a licensee of residential premises to hand back possession when the licence period ends. If he does not, the owner applies to the Competent Authority, which follows a summary procedure: the licensee cannot contest without first obtaining leave to defend. A written licence agreement is conclusive evidence of what it states, and the Authority will not hear claims from anyone who is not the licensee under it.

A licensee who stays on is liable to pay damages at double the licence fee until he is evicted. Heirs are covered too: if you inherited the flat from the person who granted the licence, you are the landlord for Section 24.

Two conditions make this route work. The agreement must be in writing, and Section 55 of the Act requires it to be registered; an oral or unregistered arrangement invites the claim that the occupant is a tenant, which can take you out of the summary route. And apply soon after the licence ends, before rent receipts or renewal messages muddy the record. Our leave and licence agreement drafting, from Rs 2,000, is written with Section 24 in mind.

Tenants, and property in other states

A true tenant under the Maharashtra Act can be evicted only on the grounds it allows, such as arrears of rent or the landlord's bona fide need. Those suits go to the Court of Small Causes in Mumbai, Pune and Nagpur, and to the Civil Judge elsewhere. Other states have their own rent laws, and some have adopted laws based on the Model Tenancy Act, 2021, with rent authorities and rent courts. The agreement and the state's current law decide the forum.

Adverse possession and NRI property: when the 12-year clock starts

Adverse possession is the fear behind most calls we get from NRIs about an occupied property. A person who holds property openly, continuously and in denial of the owner's title for 12 years can defeat the owner's suit, and can then even sue to protect that possession. Living abroad does not stop the clock.

But the clock does not start just because someone is living there. Possession that began with your permission, as a licensee, tenant, caretaker or relative let in free, is not adverse. It becomes adverse only when the occupant openly asserts a hostile title to your knowledge. A relative who has looked after the flat for 15 years has not acquired it by doing so. The person claiming adverse possession must prove when and how it turned hostile, and courts are strict about that proof.

Three things keep your position clear. A written caretaker or licence arrangement records that the occupation is permissive. A written acknowledgment of your title, signed by the occupant, starts a fresh limitation period under Section 18 of the Limitation Act, 1963. And only a suit filed in time stops the clock; a notice does not, though it is good evidence of when you objected.

Encroachment on NRI property that is vacant land

On open land the encroachment is often partial: a neighbour moves a fence, or a shed appears in one corner. Start with a measurement by the land records office, so the boundary is fixed by an official map rather than by argument. If the encroachment is recent, a Section 6 suit or a suit for injunction may be enough. If a structure has gone up, ask for a mandatory injunction under Section 39 of the Specific Relief Act to have it removed, with possession of the strip. The checks that prevent this at the time of buying are in our post on whether an NRI can purchase land in India.

How to remove an illegal occupant from property in India while you live abroad

Every step can be run from abroad. Your Power of Attorney holder files and signs as your recognised agent under Order III of the Code, and we appear for you. Give the holder a special PoA for this litigation, signed before the Indian mission or a notary with an apostille, and stamped within three months of reaching India.

Your own evidence is different. An attorney can depose only to what he personally knows, so facts only you know, such as how the property was bought or the terms on which a relative was let in, must come from you. Courts allow evidence by video conference on application, so a trip to India is often unnecessary, though each court decides for itself.

Gather these before the first consultation: the title deed and its index entry, the 7/12 extract or property card, tax and electricity receipts in your name, any leave and licence or caretaker agreement, messages with the occupant, dated photographs and a copy of any police complaint.

Settling with the occupant

Some occupants will leave for a payment, and paying can cost less than years in court. If you settle, make it enforceable: record it as a compromise decree under Order XXIII Rule 3 of the Code in a pending suit, with the money paid against handing over the keys. A private agreement the occupant later breaks puts you back where you started.

What to do next

1. Find out who is there and since when. A neighbour, the society secretary or a site visit, with dated photographs.
2. Collect the record. Title papers, the 7/12 extract or property card, tax receipts and any agreement with the occupant.
3. Send a legal notice. End any permission, demand possession and record the date of your objection.
4. Lodge a police complaint if there was a break-in, threats or forged papers.
5. Choose the forum. A Section 6 suit within six months, the Competent Authority for a Maharashtra licensee, or otherwise a title suit.
6. Apply for interim protection. An injunction, a lis pendens notice and, where needed, a receiver.

We handle these matters for NRI clients from Sanpada, Navi Mumbai, by phone, WhatsApp and video call, with papers exchanged by email. For property in Mumbai, Navi Mumbai and the rest of Maharashtra we file and appear ourselves, before the civil courts and the Competent Authority. For property in another state, we explain at the first consultation how the filing and hearings there will be handled and what that costs. See our NRI real estate legal services.