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‘Recovering Possession Of Property’ Prof. Santosh D. Bhosale
(..14 a..)
RECOVERING POSSESSION OF PROPERTY
(Ss. 5 to 8)
QUESTION BANK
Q.1. Discuss the remedies available to the person dispossessed of immovable Property
under the Specific Relief Act
Q.2.Under what circumstances can a person be dispossessed of immovable property?
When he can recover possession under Specific Relief Act?
Q.3. What is the summary and speedy remedy provided by the Specific Relief Act for a
party disposed of immovable property to recover possession? Can title also be
determined along with this remedy?
Q.4. What is the object of the summary remedy provided in S. 6 of the Specific Relief
Act?
Q.5. What is the scope of S. 6 of the Specific Relief Act?
Q.6. Distinguish between a suit under S. 6 of the Act and an ordinary suit for possession.
Q. 7.Distinguish between a suit under S. 6 of the Act and a suit based on title.
SYNOPSIS
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‘Recovering Possession Of Property’ Prof. Santosh D. Bhosale
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I.
Recovery of immovable property (S. 5&6):-
1)
Recovery of immovable property (S. 5):-
S. 5 of the Specific Relief Act provides that a person entitled to the possession of
the specific immovable property may recover it in the manner provided by the Code of
Civil Procedure 1908.
This section merely provides that a person entitled to the possession of a specific
immovable property can recover the possession by filing the suit in a Civil Court under the
Code of Civil Procedure. The object of the provision is to specify that a person cannot take
the law into his own hands to recover the possession of the Property to which he is entitled.
e.g. a person entitled to the possession of the specific immovable property may recover the
same by filing a suit for ejectment.
A suit under S. 5 is an ordinary suit under general law, and the plaintiff has to prove
that he has a better title than the defendant. The limitation for bringing suit is 12 years, i.e.,
the plaintiff can file suit within 12 years from his dispossession against the defendant for
his ejectment from immovable property.
2)
Suit by a person dispossessed of immovable property (S. 6):-
S. 6 provides a speedy possessory remedy to any person who is forcibly
evicted from possession of the immovable property. Such person or any other person
claiming through him- can recover possession of such property, irrespective of the question
of title to such property- if the following conditions are fulfilled:-
i)
ii)
Plaintiff should have been in possession of the immovable property.
He has been dispossessed of such property.
iii)
iv)
That the dispossession takes place without his consent.
That such dispossession was not made ‘in due course of law’.
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‘Recovering Possession Of Property’ Prof. Santosh D. Bhosale
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v)
However, this provision is not applicable to the Government. No review nor appeal
shall lie from any order or decree passed in a suit instituted under this section. But this
section does not bar any person from suing to establish his title to such property and to
recover possession thereof.
a)
Object of this Section:-
S. 6 is inserted to provide a quick and speedy possessory remedy to a person who
has been evicted from the immovable property without any lawful authority because
possession is prima facie proof of ownership.
b)
Essentials of this section:-
i)
Immovable property means:-
This term is not defined in the Specific Relief Act but is defined in the Transfer of
Property Act as:-
“Immovable property includes land, benefits arising out of the land, and things attached to
the earth or permanently fastened to anything attached to the earth”.
The question was whether it included only actual and physical objects or other
benefits arising from the land. Different high Courts answered that it also includes the right
to ferry, fishery, way, and collect rent, apart from the actual or physical object of specific
immovable property.
1
In Narbada Devi Gupta v. Direndra Kumar JaiswaI. (2003 AIR SCW 5861).
Facts- Suit for recovery of possession on allegation of taking wrongful and forcible possession — Respondent
stating himself to be tenant of suit premises and producing rent receipts thumb marked by original
landlady’ and signed by plaintiff (son of land-lady) on its back portion — Plaintiff admitting his signatures
on back portion of rent receipts — There was no further burden of proof on respondent to lead additional
evidence in proof of writing on rent receipts and its due execution by deceased landlady — Onus of proof
lay on plaintiff to explain how blank printed rent receipts came to be signed by him on their back
portions.
Held- No suit for recovery of possession is maintainable, because Plaintiff could not established his
forcible dispossession from suit premises.
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‘Recovering Possession Of Property’ Prof. Santosh D. Bhosale
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ii)
Otherwise than ‘due course of law’:-
‘In due course of law” means in the regular, normal process and effect of law. The
person is said to be dispossessed ‘otherwise than in due course of law’ if he is dispossessed
by another person, acting on his own authority without the court's intervention. Therefore,
a thing which is perfectly legal may still not be regular in the normal process. For example,
possession obtained through an officer of the court who is not authorised to act at that
discretion is not ‘in due course of law’.
Facts: The plaintiff is seeking recovery of possession of the property on the grounds that
the defendant unlawfully dispossessed him. The plaintiff produced oral and documentary
evidence in support of his possession plea.
Held:- That plaintiff is entitled to possession.
iii) Possession-
Possession must be actual and not constructive. For example, possession as a
custodian or as a servant is not judicial possession to entitle him to maintain a suit under
this section.
iv) Dispossession:-
It must be physical; actual mere interference in the right does not amount to
dispossession.
v) No suit against the Government:-
No suit can be filed against the Government under S. 6.
c) Difference between a suit under S. 6 and for the possession of the immovable property
in the Code of Civil Procedure:-
i) S. 6 does not bar any person (aggrieved) from suing (under the Code of Civil Procedure)
to establish his title to immovable property and to recover possession of such property;
such suit can be brought within 12 years from the date of dispossession.
However, under S. 6 of the Specific Relief Act, a summary suit can be brought
within 6 months from the date of dispossession. Mere proof of possession is enough for the
plaintiff to succeed in a suit, whereas, in an ordinary suit, the plaintiff has to prove title.
2
(AIR 2006 NOC 259 (Jhar.))
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‘Recovering Possession Of Property’ Prof. Santosh D. Bhosale
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ii) Under S. 6, the suit cannot be brought against the Government. No provision of appeal
or review against the order under this section exists. The only remedy in this case (of an
order under S. 6) is that the aggrieved person (against whom the order to restore possession
has been passed) is to file an ordinary suit on the basis of his title. Even if the defendant
had a better title, he should first surrender possession to the plaintiff and then bring his own
suit based on the title.
II. Recovery of Specific movable property (S. 7 and 8):-
1) Recovery of specific movable property (S. 7):-
S. 7 provides that a person entitled to the possession of the specific movable
property may recover the same in a manner provided by the Code of Civil Procedure.
This section has the following two explanations. Viz.
(a) A trustee may sue under this section for the possession of the movable property to the
beneficial interest to which the person to whom he is the trustee is entitled.
(b) A special or temporary right to the present possession of the movable property is
sufficient to support a suit under this section. In other words, the right conferred by S.
7 is not confined only to the owner of the specific movable property.
All that is necessary under this section is that the person should be entitled to
immediate possession of such Property. In a given case, he may be so entitled even without
being the owner thereof. It means that the relief would be available against the person who,
though is in possession of the Property, is not entitled thereto.
Illustration
(a)
A bequeaths land to B for his life, with the remainder to C. A dies; B enters the land,
but C, without B’s consent, obtains possession of the title deeds. B may recover them from
C.
2)
Liability of a person in possession, not as an owner, to deliver to the
person entitled to immediate possession (S. 8):-
Under S. 8, any person possessing or controlling a particular article of movable
property of which he is not the owner may be compelled specifically to deliver it to the
person entitled to its immediate possession in any of the following four cases.
a)
b)
c)
When the thing claimed is held by the defendant as an agent or trustee of the
plaintiff.
When compensation in money would not afford the plaintiff adequate relief for the
loss of the thing claimed.
When it would be extremely difficult to ascertain the actual damage caused by its
loss.
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‘Recovering Possession Of Property’ Prof. Santosh D. Bhosale
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d)
When the possession of the thing claimed has been wrongfully transferred from the
plaintiff.
Difference between S. 7 and S. 8:-
(1) Under S. 7, a person with the temporary or special right to possess the specific
movable property may sue even the owner. Whereas a suit under S. 8 is not
maintainable against the owner.
(2) Under S. 7, the suit may be for recovery of the specific movable property or, in the
alternative, for compensation. Whereas, under S. 8, pecuniary compensation is not an
adequate relief to the plaintiff for the loss of the article, and the relief prayed is for an
injunction restraining the defendant from disposing of the article or otherwise injuring
or concealing it or for return of the same.
(3) S. 7 provides general relief for the recovery of movables. Whereas S. 8 provides relief
in special cases (as mentioned above).
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