Recovery of possession of Immovable property

Introduction:

Section 5 and 6 of the Specific Relief Act, 1963 provide methods for recovery of possession of the
certain specific immovable property. As per Section 5, 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).

Object/ Importance

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.

It states that suit for possession must be filed having regard to provision of CPC. In Dadu v. Dayala
Mahasabh, since statue provides for applicability of code, there cannot be any doubt whatsoever that
all provision thereof shall apply.

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:

1. That he is in juridical possession of the immovable property in dispute.

2. That he had been dispossessed of without his consent and without due process of law.
3. 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.

Case law

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.

13. Rights of purchaser or lessee against person with no title or imperfect title.—(1) Where a
person
contracts to sell or let certain immovable property having no title or only an imperfect title, the
purchaser
or lessee (subject to the other provisions of this Chapter), has the following rights, namely:—
(a) if the vendor or lessor has subsequently to the contract acquired any interest in the property,
the purchaser or lessee may compel him to make good the contract out of such interest;
(b) where the concurrence of other person is necessary for validating the title, and they are bound
to concur at the request of the vendor or lessor, the purchaser or lessee may compel him to procure
such concurrence, and when a conveyance by other persons is necessary to validate the title and they
are bound to convey at the request of the vendor or lessor, the purchaser or lessee may compel him to
procure such conveyance;
(c) where the vendor professes to sell unencumbered property, but the property is mortgaged for
an amount not exceeding the purchase money and the vendor has in fact only a right to redeem it, the
purchaser may compel him to redeem the mortgage and to obtain a valid discharge, and, where
necessary, also a conveyance from the mortgagee;
(d) where the vendor or lessor sues for specific performance of the contract and the suit is
dismissed on the ground of his want of title or imperfect title, the defendant has a right to a return of
his deposit, if any, with interest thereon, to his costs of the suit, and to a lien for such deposit, interest
and costs on the interest, if any, of the vendor or lesser in the property which is the subject-matter of
the contract.
(2) The provisions of sub-section (1) shall also apply, as far as may be, to contracts for the sale or hire
of movable property.

17. Contract to sell or let property by one who has no title, not specifically enforceable.—(1) A
contract to sell or let any immovable property cannot be specifically enforced in favour of a vendor or
lessor—
(a) who, knowing himself not to have any title to the property, has contracted to sell or let the
property;
(b) who, though he entered into the contract believing that he had a good title to the property,
cannot at the time fixed by the parties or by the court for the completion of the sale or letting, give the
purchaser or lessee a title free from reasonable doubt.
(2) The provisions of sub-section (1) shall also apply, as far as may be, to contracts for the sale or hire
of movable property.

22. Power to grant relief for possession, partition, refund of earnest money, etc.—(1)
Notwithstanding anything to the contrary contained in the Code of Civil Procedure,1908 (5 of 1908),
any
person suing for the specific performance of a contract for the transfer of immovable property may, in
an
appropriate case, ask for—
(a) possession, or partition and separate possession, of the property in addition to such
performance; or
(b) any other relief to which he may be entitled, including the refund of any earnest money or
deposit paid or 1[made by] him, in case his claim for specific performance is refused.
(2) No relief under clause (a) or clause (b) of sub-section (1) shall be granted by the court unless it
has been specifically claimed:
Provident that where the plaintiff has not claimed any such relief in the plaint, the court shall, at any
stage of the proceeding, allow him to amend the plaint on such terms as may be just for including a
claim
for such relief.
(3) The power of the court to grant relief under clause (b) of sub-section (1) shall be without prejudice
to its powers to award compensation under section 21.

Case Law

 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.

Rabi Sankar Dutta & Ors vs Bijoy Krishna Seva Samity & Anr on 27 November, 2019

17. It is submitted by Mr. Ghosh, learned Counsel for the respondent that the appellants were never
in possession of the suit property. It appears from the plaint that trouble between the parties arose on
31st January, 1995 when the respondent-club fixed some banners and festoons over the suit property.
It is also alleged in the plaint that on 18th August, 1995 the respondent-club encircled one side of
the suit property by a pucca boundary wall with iron rod fixed thereon. The suit was filed on 25th
August, 1995. So, from the very beginning of institution of the suit the plaintiff was not
in possession over the suit property. In order to substantiate his contention, he refers to the cross-
examination of PW1 Smt. Kalpana Dutta where she admitted fixation of banners and festoons and
construction of fencing around the suit property by the defendant-club. Thus she submits that when
the appellants are not in possession of the suit property, a suit for declaration simpliciter
without recovery of possession is not maintainable.

19. In support of his contention, Mr. Ghosh first refers to a decision of the Hon'ble Supreme Court in
the case of Vinay Krishna vs. Keshav Chandra & Anr. reported in AIR 1993 SC 957. This decision is
on Section 42 of the Specific Relief Act which is in pari materia of present Section 34 of the Specific
Relief Act, 1963. In the said decision, it is held by the Hon'ble Supreme Court that declaratory relief
being in the nature of discretionary relief, the court will not grant mere relief of title without specific
plea for possession. On the self same issue, he also refers to another decision of the Hon'ble Supreme
Court in the case of Mehar Chand Das vs. Lal Babu Siddique & Ors. reported in 2007 AIR SCW
2024. In Union of India vs. Ibrahim Uddin & Anr reported in (2012) 4 WBLR (SC) 318, cited by the
learned Senior Counsel for the respondent, it is held by the Hon'ble Supreme Court that the courts
have discretion as to declaration of status or right. However, there is an exception that a court shall
not make any such declaration of status or right where the complainant-plaintiff being able to seek
further relief than a mere declaration of title, omits to do so. In this decision, the plaintiff was
admittedly not in possession of the suit property, but omitted to seek relief
for recovery of possession. The Hon'ble Supreme Court held that the suit for declaration not
maintainable.

21. To sum up, it is urged by Mr. Ghosh that the plaintiffs/appellants, though were out
of possession of the suit property, omitted to seek relief for recovery of possession. The appellants
already exhausted an opportunity to amend the plaint praying for recovery of possession. Practically
the appellants amended the plaint and included the prayer for mandatory injunction but omitted to
pray for recovery of possession of the suit property. Therefore, both the courts below held that
the suit was not maintainable. In view of such circumstances no substantial questions of law are
involved in the instant appeal and it should be dismissed on contest.

24. It is also contended by the learned Advocate for the appellants that the appellants as plaintiffs
have alleged that the defendant-club fixed some banners and festoons on the suit property in 1995.
Then they constructed fencing around one side of the suit property in the month of August, 1995. The
plaintiffs instituted the suit in 1995 itself. Therefore, the plaintiffs were not sleeping over their title.
Mr. Mukherjee has urged that an owner would be deemed to be in possession of a property so long
there is no intrusion. Till 1995, there was no intrusion or invasion over the possession or title of the
appellants in respect of the suit property. Therefore, the plaintiffs had no occasion to pray
for recovery of possession in respect of the suit property and incorporation of the prayer for
mandatory injunction by amendment of plaint ought to have been considered sufficient under the facts
and circumstances of the case to grant relief in favour of the plaintiff.
Reference:

Ashish Sharma of the Rajiv Gandhi National University of Law, Patiala (Article)

1. AIR 1954 Bom. 358: ILR 1954 Bom. 950

2. AIR 2011 AP 165
3. (1844) 3 Hare 304: 64 RR 303