This article is written by Ashish Sharma of the Rajiv Gandhi National University of Law, Patiala who has discussed the recovery of possession of movable and immovable property with respect to the Specific Relief Act and Civil Procedure Code.
A large number of remedial aspects of the law have been taken care of by the Specific Relief Act of 1963. Generally, remedies are often provided by substantive law which defines the rights and duties. For example, the law of contract provides the remedy of damages for breach of contract.
Specific relief Act is concerned with civil rights and not penal laws, even civil law has to take care of certain rights, and these are tights to possession of the property. Property may either be movable or immovable. In this article, we will be discussing the provisions related to recovering of both movable or immovable property.
Recovery of possession of Immovable property
Section 5 and 6 of the Specific Relief Act, 1963 provide methods for recovery of possession of the certain specific immovable property. Section 5 of Specific Relief Act, 1963 provides that a person entitled to the possession of any specific immovable property can recover it in the manner prescribed by the Code of Civil Procedure, 1908 (5 of 1908).
Section 5 provides the manner for recovery of specific immovable property. It reads as, “A person entitled to the possession of the specific immovable property can recover it in the manner provided by the Code of Civil Procedure, 1908”.
The essence of this section is ‘title,’ i.e. the person who has better title is a person entitled to the possession. The title may be of ownership or possession. Thus, if ‘A’ enters into peaceful possession of land claiming his own although he might have no title, still he has the right to sue another who has ousted him forcibly from possession because he might have no legal title but at least has a possessory title.
It is a principle of law that a person, who has been in a long continuous possession of the immovable property, can protect the same by seeking an injunction against any person in the world other than the true owner. It is also a settled principle of law that owner of the property can get back his possession only by resorting to due process of law. It states that a suit for possession must be filed having regard to the provision of the Code of Civil Procedure.
Section 6 of the Specific Relief Act deals with the provision related to suit by person dispossessed of immovable property. It reads as,
“(1) If any person is dispossessed without his consent of immovable property otherwise than in due course of law, he or any person claiming through him, may by suit recover possession thereof.
(2) No suit under this section shall be brought-
- After the expiry of six months from the date of dispossession.
- Against the Government.
(3) No appeal shall lie from any order or decree passed in any suit instituted under this section, nor shall any review of the decree under this section is allowed.
(4) Nothing in this section shall bar any person from suit to establish his title to such property and to recover possession thereof.”
Section 6 is only applicable if the plaintiff proves:
- That he is in juridical possession of the immovable property in dispute.
- That he had been dispossessed of without his consent and without due process of law.
- That dispossession took place within six months from the date of suit.
Section 5 and 6 both give alternative remedies and are mutually exclusive. Under section 5, a person dispossessed can get possession on the basis of title, whereas in section 6, a person dispossessed may recover possession by proving previous possession and further wrongful dispossession.
Possession in the context of section 6 means legal possession which may exist with or without actual possession and with or without rightful origin. The plaintiff in a suit under section 6 need not establish title.
Long-standing peaceful possession of is enough to prove actual possession. In K.K. Verma v Union of India(1) it was held that after the expiry of the tenancy agreement, the tenant continues to hold juridical possession and cannot be dispossessed unless the owner gets a decree of eviction against him.
The objects of section 6 are as follows.
- To discourage people from taking the law into their hands (however good their title may be).
- To provide a cheap and useful remedy to a person dispossessed of immovable property in due course of law.
Further, it should be noted that where the grant of possession is purely gratuitous, the owner has the right to reclaim possession even without the knowledge of a person in possession. The only prayer in a suit under section 6 can be a prayer for recovery of possession. Consequently, a claim for damages cannot be combined with that for possession. Section 14 of the Limitation Act, 1963 applies to the proceedings against dispossession.
- K. Krishna v A.N Paramkusha Bai(2) In this case, a tenant was dispossessed forcibly by the owner but he himself get forcible repossession. The Court, in this case, held that “tenant could institute suit for repossession immediately when he was forcibly ousted, but as soon as he takes forcible repossession he became trespasser and therefore could not be regarded to be in lawful possession.
Recovery of possession of Movable property
Section 7 and 8 of the Specific Relief Act, 1963 contains provisions for recovery of possession of some specific movable property. Section 7 of Act with the head ‘recovery of Specific movable property’ provides that, “a person entitled to the possession of the specific movable property may recover it in the manner provided by the Code of Criminal Procedure, 1908 (5 of 1908).
Explanation 1: A trustee may sue under this section for possession of the movable property to the beneficial interest he is entitled.
Explanation 2: A temporary or special right to the present possession is sufficient to support a suit under this section.”
The main ingredients of section 7 are as follows.
- First, the plaintiff must be entitled to the possession of the movable property. A person may be entitled to the possession of a thing either by ownership or by virtue of a temporary or a special right as provided under explanation 2 of section 7. A special or temporary right to an individual may arise by either act of the owner of goods i.e. bailment, pawn etc. or not by the act of the owner of goods i.e. a person may be the finder of goods and finder of goods enjoys special right to possession except against true owner.
Only those persons can maintain a suit under section 7, who has the present possession of the movable property. A person who does not have present possession of the movable property cannot maintain a suit under this section.
Illustration: ‘A’ pledges some jewels to ‘B’ to secure for the loan he had taken. ‘B’ disposes those jewels to ‘C’ before he is entitled to do so. ‘A’ without having paid the amount of loan sues ‘C’ for possession of jewels. The suit shall be dismissed as he is not entitled to immediate possession of jewels.
- Further, the property in question must be specific movable property means that property should be ascertained or ascertainable. Specific property means the very property not any property equivalent to it. The disputed specific movable property must be capable of being delivered and seized. Where the goods have been ceased to be recoverable or are not in control of the defendant, the plaintiff is not entitled to a decree for recovery.
Article 91(b) of the Limitation Act, 1963 provides a period of three years for the filing of suit computable from the date when the property is wrongfully taken or when the possession becomes unlawful.
Section 8 of the Specific Relief Act, constitutes the provision related to Liability of a person in possession not as owner, to deliver to a person entitled to immediate possession. It reads as;
“Any person having the possession or control of 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 the immediate possession of, in any of the following cases:
(a) When the thing claimed is held by the defendant as the agent or trustee of the plaintiff.
(b) When compensation in money would not afford the adequate relief for the loss of the thing claimed.
(c) When it would be extremely difficult to ascertain the actual damage caused by its loss.
(d) When the possession of the thing claimed has been wrongfully transferred from the plaintiff.
Explanation- Unless the contrary is proved, the court shall in respect of any article of movable property claimed under clause (b) or clause (c) of this section, presume-
(a) That compensation in money would not afford the adequate relief for the loss;
(b) that it would be extremely difficult to ascertain the actual damage caused by its loss.”
The following ingredients must coexist in order to bring section 8 into operation:
- The defendant has full control or possession of the article claimed.
- Such an article is movable property.
- The person claiming the possession must be entitled to immediate possession;
- The defendant is not the owner of the article.
- The thing claimed is held by the defendant as an agent or when compensation in money would not afford adequate relief for the loss or when it is extremely difficult to ascertain the actual damage of the thing claimed.
Under clause (a) the burden is on the plaintiff to prove the fiduciary relationship, and under clause (d) also it is the burden on part of the plaintiff to prove wrongful transfer.
Illustrations: In case, where the idol of the family temple is in custody of a retired priest as he is bound to return it to the family because the actual damage is unascertainable.
Difference between Section 7 and 8
Under section 8 no suit can be brought against the owner, while under section 7 a person enjoying special or temporary right to present possession can bring suit even against the owner and under section 7 a decree is for the return of movable property or for the money value in alternative while under section 8 decree is only for return of specific article.
Wood v Rowcliffe(3): In this case, a person leaving abroad leaves his furniture under the care of his friend. The friend is the trustee of the articles and is bound to return them in the same condition when demanded.
The remedies provided by the Specific Relief Act become essential because the Indian Contract Act, 1872 provide relief only in the form of compensation in case of breach of contract. In the case where the damage is not ascertainable and where compensation in the form of relief is not adequate to the loss, the plaintiff had no remedy for specific performance.
Through the provisions of section 5 and 6, a person entitled to the possession of immovable property or having a special right to the possession may recover it through the due process of law. Similarly, section 7 and 8 empowers the person to recover possession of the movable property.
- AIR 1954 Bom. 358: ILR 1954 Bom. 950
- AIR 2011 AP 165
- (1844) 3 Hare 304: 64 RR 303