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RECOVERING POSSESSION OF PROPERTY[1]

Table of Contents

(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.

7. Distinguish between a suit under S. 6 of the Act and a suit based on title.

SYNOPSIS

Recovery of immovable property (S. 5&6)-

1) Recovery of immovable property (S. 5)-

2) Suit by a person dispossessed of immovable property (S. 6).

a) Object of this Section.
b) Essentials of this section.
i) Immovable property means .
ii) Otherwise than ‘due course of law’.

iii) Possession.

iv)
v) No suit against the Government.
c) Difference between suit under S. 6 and suit for the possession of immovable property in Code of Civil Procedure

II] Recovery of specific movable property (S. 7 and 8)-

Recovery of specific movable property (S. 7)-
Liability of person in possession, not as owner, to deliver to person entitled to immediate possession (S. 8)-

-Difference between (S. 7 and S. 8)-

I. Recovery of immovable property (S. 5&6):-

1) Recovery of immovable property (S. 5):-

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[2].

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):-

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) Plaintiff should have been in possession of the immovable property.
ii) He has been dispossessed of such property.

iii) That the dispossession takes place without his consent.

iv) That such dispossession was not made ‘in due course of law’.
v) The suit should be filed within six months from the date of dispossession[3].

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:-

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.

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’.

Gulbahar Shaikh V/s Sanjay Kumar Pandey[4]

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[5].

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.

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):-

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[6].

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[7].

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) When the thing claimed is held by the defendant as an agent or trustee of the plaintiff.
b) When compensation in money would not afford the plaintiff 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[8].
d) When the possession of the thing claimed has been wrongfully transferred from the plaintiff[9].

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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[1] मिळकतीचा फेरताबा घेणे [सम्पत्ती के कब्जे को खाली करके उसे फिरसे प्राप्त करणा]

[2] Manner of recovering possession prescribed by the Code of Civil Procedure-Possession of any specific immovable property may be recovered under the provisions of the Code by filing a suit for ejectment on the basis of title within 12 years of the date of dispossession. After a decree has been obtained actual possession may be recovered by executing the decree under Order XXI, Rules, 35 and 36. Under R. 35 where a decree is for the delivery of any immovable property, possession thereof is to be given to the decree-holder, if necessary, by removing any person bound by the decree who refused to vacate the property. Under R. 36 where the property is in the occupancy of a tenant not bound by the decree to relinquish such occupancy, the court shall order delivery to be made by affixing a warrant and proclamation by beat of drum notifying the substance of the decree in regard to the property.

[3] 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.

[4] (AIR 2006 NOC 259 (Jhar.))

[5] In Narbada Devi Gupta V. Birendra Kumar Jaiswar. (AIR 2004 SC 175).

Supreme Court Held- that tenant of premise cannot be called as having taken possession of the premise wrongfully and forcible (otherwise than ‘in due course of law’). Hence, S. 6 to evict him cannot be applied.

[6] Manner prescribed by the Code of Civil Procedure. The plaint for recovery of specific movable property must contain the particulars provided in Form No. 32 given in Schedule I, Appendix A, Civil Procedure Code. The usual decree will follow under Order 20, r. 10 which shall state the amount of money to be paid as an alternative if delivery cannot be had. This decree is to be executed under 0. 21, R. 31 by (a) the seizure of movable or share and by the delivery to the winning party, (b) by imprisonment of the judgment debtor or by attaching his property, or (c) by both.

[7] (b) A pledges certain jewels to B to secure a loan. B disposes of them before he is entitled to do so. A. Without having paid or tendered the amount of the loan, sues B for the possession of the jewels. The suit should be dismissed, as A is not entitled to their possession, whatever right he may have to secure their safe custody.

(c) A receives a letter addressed to him by B. B gets back the letter without A’s consent. A has such property therein as entitles him to recover it from B

(d) A deposits books and papers for safe custody with B. B loses them and C finds them, but refuses to deliver them, when demanded. B may recover them from C subject to C’s right (if any) under 5. 168 of the Indian Contract Act, 1872.

(e) A, a warehouse keeper, is charged with the delivery of certain goods to Z, which B takes out of A’s possession. A may sue B for the goods.

[8] वस्तूचे प्रतेक्ष न मिळाल्याने होणारे आर्थिक नुकसान मोजता येणार नसेल [जब इसके नुकसान से होने वाले वास्तविक नुकसान का पता लगाना बेहद मुश्किल होगा]

[9] Illustrations-

Of clause (a)- A, proceeding to Europe, leaves his furniture in charge of B as his agent during his absence. B, without A’s authority, pledges the furniture to C, and C knowing that B had no right to pledge the furniture, advertises it for sale. C may be compelled to deliver the furniture to A for he holds it as A’s trustee.

Of clause (b)- Z has got possession of an idol belonging to A’s family and of which A is the proper custodian, Z may be compelled to deliver the idol to A.

Of clause (c)- A is entitled to a picture by a dead painter and a pair of rare China vases. B has possession of them. The articles are of the special character to bear an ascertainable market value. B may be compelled to deliver them to A.