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Article Published in the Express Magazine Dated
March 25, 2001
General Attorney : Rajiv K. Luthra
A coconut tree in our compound fell in the
direction of the adjoining block of flats damaging
a grill and wall of a flat and also damaging a car
in the compound of that building. Since the
falling of the tree is an act of God, are the
occupants/owners of the first building, where the
tree stood liable to pay compensation for the
damage claimed?
R.V. Chandramouli, Chennai
A case of this nature would fall under the
liability arising from Tort. The dictionary and
legal meaning of tort is a breach of duty leading
to damage. The basic ingredients of torts are
injury and damage due to failure to observe duty.
A tort may arise from an act of omission or
commission. According to the Law of Torts, a
person who brings or has any hazardous material on
his land is under a duty to do what is reasonable
in all the circumstances to prevent the risk of
the known or foreseeable damage to the other
person or his property. Such person would be
liable in tort if he does not take the requisite
steps expected of him to prevent the reasonably
foreseeable consequences. Thus, if it is proved
that the coconut tree had weak roots and was
threatening to fall and the fall was not
stimulated by external factors and the owner could
be reasonably expected to foresee that, it would
be deemed to be a tortious liability. The remedy
for tort of this kind shall be pecuniary
compensation as award of damages for all the
losses/damages suffered as a consequence of the
fall of the tree.
I came to India in 1947 as refugee from
Pakistan and am now an Indian citizen. In 1957, I
was given a house by the government in Mumbai. My
friend and I partitioned the house and decided to
pay the amount of the house jointly at the time of
its auction. In 1962 when the auction took place
my friend purchased the property in his name and
took half of the amount from me. The documents
were with him and in his name. He reassured me
that all was safe and there never would be any
foul play. Now after so many years he wants me to
vacate the house. Can he do that?
K.R. Sharma, Mumbai
In case your friend files a suit at court against
you for vacating the house, it may be difficult to
prove your ownership or any other rightful
occupation of the premises without the appropriate
documents. Further, under section 4 of the Benami
Transactions (Prohibition) Act, 1988, you may be
prohibited to claim any right in respect of the
property since it may be considered as property
held in benami. But the fact that you have been
living there for many years may give you certain
rights on account out of adverse possession
against your friend. Adverse possession means
hostile assertion i.e. possession which is
expressly or impliedly in denial of title of the
true owner. Such possession must be actual,
visible and exclusive and continuous for over a
period of at least 12 years. However, a mere
undisturbed possession of land for any length of
time can never convey the impression that the
possession is adverse. Some courts have held that
the adverse use must be under such circumstances
that the person against whom it is being exercised
may be enabled to know about it and resist the
acquisition of the right before the period of
limitation has run. The burden of proof lies on
the party claiming adverse possession. He must be
able to prove that the possession and enjoyment of
the property has been as though he were owner. In
case you have been paying taxes as owner, the
entries in revenue records will assist in
establishing your case. Nevertheless you are
advised to consult a lawyer who can after
carefully examining all details and facts
determine whether you have a case for adverse
possession or not.
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