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This article is written by Anamika Mishra student of Faculty of law, University of Delhi.

Legal position : analysis and decision

Halsbury’s Laws of England the word “possession” is used in various contexts and phrases. However, traditionally, Possession is factual propinquity betwixt a man and an object, whereby, a man can factually possess an object that he does not even own. It is a de facto exercise in the claim to an identifiable property and a fellow to ownership. Possession is in fact what ownership is in right enforceable at law to or over the thing. Conclusively, In legal gesture, possession is nine points in the law. In Supt. and Remembrancer of Legal Affairs Case.

It was observed that “Possession”, implies a right to corpus and a fact of animus; the right to enjoy appreciated qua the right of property and the fact of the real intention. The term “Enjoyment” is the physical control over the property without any interference. Herein, as mentioned above, the right to property ( corpus possesionsis ) and the real intention to possess the property ( animus possidendi) are the requisites for stating the matrix of possession. In other words, Pictographically, the inner circle in the outer circle will be the fact of possession and the outer circle will be the fact of ownership. Ownership is a sum total of rights of possession, dispossession and even the right of the destruction of one’s own property. While Possession is In pari causa potior est conditio, That is, every man can keep what he has got, unless and until someone else proves to have a better title.

The legal position as summarised by the Honorable Supreme Court in Abdul Rahim v. S.K. Abdul Zabar regarding the requisites of attainment of Possession as under:

‘A person is said to be in possession of a thing or of immovable property, when he is so placed with reference to it that he can exercise exclusive control over it, for the purpose of deriving from it such benefit as it is capable of rendering or as is usually derived from it.’

Statutory discourse

This has been discussed at length in The Specific Relief Act of 1963( hereinafter, ‘SRA’). The fons et origo of this act is on the lines of Ex aequo et bono, that is, equity and good conscience. It is oriented with the Jurisprudential essence of the Jurist, Nathan Roscoe Pound, that is, the purpose of the law is to accelerate the process of social levelling, that is, the purpose is to balance the interest in the society at large. This is also termed as the doctrine of Social Engineering, wherein, the interest of society is harmonized in order to avoid conflict. The Jurisprudential essence of SRA is a mirror to Pound’s theory, inter alia, the substantive law does provide a remedy, that is, Ubi jus ibi remedium,  where there is a right, there is a remedy, but in order to do a balancing of interest, the SRA provides “adequate” remedy, id est, additional and independent remedies besides remedies provided under other contractual laws. 

Chapter I of Part II of the SRA provides for specific relief to recover possession of the property. Section 5 and Section 6 bestows the relief of recovery of possession of the immovable property. As per the provision under definition clause 26 of Section 3 of the General Clauses Act 1897 , “immovable property” shall include land, benefits to arise out of the land, and things attached to the earth, or permanently fastened to anything attached to the earth.

Section 5 of the SRA 

It is merely a declaratory provision that provides a right of relief to the party “entitled” to the possession of an identifiable property as regulated by Section 9 of the Code of Civil Procedure, 1908 ( hereinafter, ‘CPC’ ). Section 9 of the CPC is the gateway of civil litigation. If Section 5 had not been inserted in the SRA, still the party seeking relief could have sought the relief under Section 9 of the CPC. In terms of Section 5 of SRA, a suit for possession has to be filed having regard to the provisions of the Civil procedure Code.

The term “entitled” has a wide ambit. It covers both Ownership Title and Possessory Title.

Illustrative explication

Supposedly, Seller (A) owner of (X) property agrees to sell to Buyer (B). The sale deed is then Registered as per Section 54 of the Transfer of Property Act, 1882 and Section 17 of the Registration Act, 1908 . As a result, The Buyer is now ‘entitled’ as an owner to the said property and endowed with ownership rights, interest and title. The ownership title includes Possessory rights, Dispossessory rights, and even Destructory rights as well. It purports and operates to create, declare, assign, limit or extinguish any right, interest and title in the subject matter property. 

Supposedly, Mortgagor (A) lends money in lieu of his mortgaged property from the Mortgagee ( B) and provided him with the right to possess the subject matter property. This is a case of Usufructuary Mortgage. Herein, the Mortgagee will have the possessory rights, interest, title over the property until the money lend by the Mortgagor is recovered. The Mortgagor cannot dispossess the Mortgagee because his Possessory rights include the right to possession and dispossessing even against the owner who obstructs and dispossess the person in title of Possessory rights.

Section 5 has to be read with Article 64 and Article 65 of the Limitation Act, 1963 (hereinafter, ‘Act, 1963’)

Section 5 SRA read with Section 64, the Act 1963 provides for the situation wherein the party seeking relief is on the ground of Settled possession and not on title. The party seeking relief will not be allowed to raise his title at the outset rather he just has to prove his settled possession in the subject matter property within 12 years of dispossession. In a 2 Judge bench, judgment delivered by M.M Shantanagoudar J. in Poona Ram v. Moti Ram, 2019 Supreme Court emphasized on the essence of Settled possession, such possession which has existed for a sufficiently long period of time and has been acquiesced by the true owner and not a mere stray or intermittent act of trespass.

It must be an effective possession and title in such possession is superfluous. It is also well settled that even the owner of the property can get back his possession only by resorting to the due process of law. If the trespasser is in settled possession of the property belonging to a rightful owner, the rightful owner cannot interfere in his possession and dispossess him by taking law in his own hands but he has to knock the doors of Justice Mechanism by taking a due course of law. Since prior peaceful possession is per se proof of title, as mentioned under Section 110 of the Indian Evidence Act, 1872 (hereinafter, ‘IEA’), that is, possession to be prima facie proof of ownership and to prove otherwise, the burden lies upon the party claiming otherwise, herein, the law will aid who is dispossessed by injuncting even the rightful owner subject to the law of limitation.

Illustrative explication

Assuming, (A) gives his vacant property to his brother (B) to stay for time being. Afterwards, (A) dies and his son (C), now being the owner through intestate succession asks his uncle to vacate the said property given by his father to him. (B) refuses to vacate the property house and as a result (C) took the law into his own hands to dispossess him. In consequence, (B) files a suit under Section 5, SRA read with Article 64, Act, 1963 for recovery of possession of the immovable property on the basis of settled possession. Herein, since (B) was in settled possession of the subject matter property as given by his brother and defendant’s father, and was dispossessed, he has a right to claim the relief even against the owner on the ground of Settled possession and dispossession thereof. However, while filing the suit, the plaintiff (B) cannot raise title at the very inception, but after pleading settled possession, the defendant ( C) can raise his title, that is, of ownership through intestate succession, and then after the defendant raised his title, now the plaintiff can raise his ‘better title’ if any. If the defendant succeeds in proving his better title over the plaintiff’s pleading of settled possession, then he will certainly be able to get the suit dismissed.

The purpose policy is to prevent a person from using force and to dispossess without consent otherwise than in due course of law as given in East India Hotels Ltd. V. Syndicate Bank.

Section 5 SRA read with Section 65, the Act, 1963 is purely on the basis of ‘Title’, that is, Ownership or Possessory title. The moment parties become ‘adverse’ to each other, the right accrues upon the party to file a suit within a period of 12 years from the defendant being adverse to the plaintiff under this clause. Taking the example above, the moment (C) asks his uncle to vacate the property, and the uncle ( B) refuses to vacate, the parties become adverse to each other and right to recover possession accrues upon ( C) under Section 5, SRA read with Article 65, Act 1963. 

Section 6, SRA

Section 6 of the SRA is on the same lines. The Cause of action, that is, the legal right to possess and denial of such right is in a like manner with the provision of Section 5 read with Article 64 laid above. The only difference lies is in the fact that as per section 6, the question of title cannot be raised by either party. It provides for a summary proceeding and the idea behind is to provide an immediate remedy within 6 months limitation period to claim relief of possession to a person who has been dispossessed unlawfully by any person notwithstanding having a better title. The law does not allow a person to take law in their own hand and not take the road of due process of law. 

Herein, even if the person is in a casual possession, still the dispossession cannot be allowed without taking the recourse of law. A similar point was in Sopan Sukhdeo Sable v. charity Commr. The law will hand over the property to the plaintiff, herein being a casual possessor even if it belongs to the owner because he has dispossessed him unlawfully, without any relief of appeal and review. A Revision under Section 115 of the CPC can be filed in exceptional circumstances. However, the defendant has a right as per Clause 4 of Section 6, SRA to file a regular suit establishing his title ( Section 5, SRA read with Article 65, Act 1963 ) and in the event of his succeeding, he will be entitled to recover the said possession. As a result, the decree in the favor of the plaintiff will become inoperative. The law in order to do equity to one party will never do inequity with another party. Therefore, if the law provides for speedier remedy in case of dispossession even if the person has no title, the law also provides for the remedy in Clause (4) of Section 6 as no one will be allowed to acquire property if they were merely allowed to stay in the premises gratuitously or as a caretaker or as a relative etc.

With a combined and comprehensive reading of these sections, the genesis of the Specific Relief Act is more understandable, that is, (1) He who comes to court must come with clean hands; (2) He who seeks equity must do equity. And Equity follows Law. Equity must supplement the existing law to do complete justice. Therefore, in cases wherein, there is equal equity, the law shall prevail.


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