Recovery of Posession of Property | Law of Contracts - CLAT PG PDF Download

 Introduction 

•  The Specific Relief Act, 1963 is a law passed by the Indian Parliament to provide remedies for individuals whose civil or contractual rights have been violated. It replaced an earlier law from 1877. 
•  The Act recognizes that simply declaring rights and duties is insufficient to protect life and property. Legal mechanisms are necessary to help individuals enforce their rights. 
•  The Act aims to ensure that there is a remedy whenever a wrong occurs. It primarily focuses on providing solutions for cases where a contract has not been fulfilled. 
•  The Specific Relief Act sets out two main remedies for parties involved in a contract that has not been performed: 
•  Specific Performance:  The affected party can ask the court to compel the other party to fulfill their contractual obligations. 
•  Monetary Compensation:  Alternatively, the party can seek financial compensation instead of insisting on the performance of the contract. 

 Recovery of Possession of Property 

 Understanding possession of property involves two key elements:

•  Corpus  : This refers to the actual power and apparent control a person has over the object. 
•  Animus  : This is the will to use the corpus, indicating the person's intention to deal with the property as they wish and exclusively. 

 Property can be classified into two types:

•  Immovable property (e.g., land and buildings) 
•  Moveable property (e.g., vehicles, furniture) 

 Immovable Property 

•  Immovable property, as the term implies, refers to things that cannot be moved. Legally, it encompasses land, the benefits derived from land, and objects that are either attached to the Earth or permanently fixed to something that is attached to the Earth, unless stated otherwise. 

 Movable Property 

• Movable property refers to any property that is not immovable, such as government securities and share certificates, but not money. It must be capable of being seized or delivered. 

 Types of Actions for Recovery of Specific Immovable Property

•  Suit based on title by ownership:  This type of suit is filed when the plaintiff claims ownership of the property. 
•  Suit based on possessory title:  This suit is based on the plaintiff's right to possess the property even if they do not have full ownership. 
•  Suit based on previous possession:  This suit is filed when the plaintiff has been dispossessed without consent, other than through due legal process. 

 Legal Provisions

•  The last remedy, based on previous possession, is outlined in Section 6 of the Specific Relief Act. 
•  The first two types of suits can be filed under the Code of Civil Procedure (CPC). 
•  Entitlement to possession  refers to having a legal right to possession based on ownership from which the claimant has been dispossessed. 

 Requirements for the Plaintiff

•  The plaintiff must demonstrate that they were in possession before the alleged trespasser took possession. 
•  In the case of  Ismail Ariff v. Mohammed Ghouse  , the Privy Council ruled that the plaintiff's possession was sufficient evidence of ownership against the defendant under Section 6 of the Specific Relief Act, 1962. 

 Principles of Title

•  The core principle is  'title,'  where the person with a better title is entitled to possession, whether through ownership or possession. 
•  A person in peaceful possession of land, even without legal title, has the right to sue someone who forcibly ousts them. 

 Protecting Long Continuous Possession

•  A person with long continuous possession of immovable property can seek an injunction against anyone except the true owner. 
•  The true owner can regain possession only through due legal process. 
•  A suit for possession must adhere to the provisions of the Code of Civil Procedure. 
•  In the case of  Dadu v. Dayala Mahasabh  , it was established that the Code's provisions apply to such suits without doubt. 

 Recovery of Immovable Property

 Section 6: Suit by Person Dispossessed of Immovable Property 

•  If a person is dispossessed of immovable property without consent and not through legal means, they can sue to recover possession, regardless of any other claims to the property. 
•  Lawsuits under this section must be filed within six months of dispossession and cannot be brought against the Government. 
•  There is no right to appeal or review any order or decree made in such lawsuits. 
•  Individuals can still sue to establish ownership and regain possession of the property. 

 Understanding Possession in Section 6 

•  Possession in this context refers to legal possession, which can exist with or without actual presence and regardless of how it was obtained. 
•  The plaintiff does not need to prove ownership; long-term peaceful possession is sufficient to demonstrate actual possession. 
•  In the case of  K.K. Verma v Union of India  , it was determined that a tenant retains legal possession even after the tenancy agreement ends and cannot be evicted without a court order. 

 Objective Of Section 6 

•  To prevent individuals from taking the law into their own hands, regardless of how strong their claim to the property might be. 
•  To offer an affordable and effective legal remedy for individuals who have been wrongfully dispossessed of immovable property. 
•  The section aims to safeguard parties who have been illegally dispossessed by denying the dispossessor the advantage of proving a superior title to the disputed land. 
•  Section 6 is intended to impose an additional restriction on illegal dispossession, aligning with the Limitation Act, and preventing individuals from evading its provisions through unlawful actions. 
•  When a suit is filed within the specified time frame, even the rightful owner of the land is barred from demonstrating his or her title. 
•  In cases of purely gratuitous possession, the owner retains the right to reclaim possession without the knowledge of the possessor. 
•  Suits under Section 6 only allow for the recovery of possession, and claims for damages cannot be combined with possession claims. 
•  Section 14 of the Limitation Act, 1963, is applicable to dispossession proceedings. 
•  In the case of K. Krishna v A.N Paramkusha Bai, a tenant who was forcibly dispossessed by the owner could sue for repossession immediately after being ousted. 
•  However, if the tenant resorted to forcible repossession, he became a trespasser and could not be considered in lawful possession. 

Difference between Section 5 and 6

 Who can seek the relief? 

•  The recovery of possession under the law is mandated to be sought after by the person who has been dispossessed. 
•  He or any person claiming through him has been given the power to file a suit in the respective section. Thus the person who should be removed should the one having a juridical possession over the property. 
•  It cannot be the father or uncle of the person who would have been removed from the property. 
•  Also, it cannot be a servant or the appointee who has been removed. 
•  Similarly, a trespasser, who took forcible possession of the land, cannot claim relief under this section. 
•  But, if his or her possession has been for a long time and has been peaceful, anterior and accomplished, he or she cannot be ousted or disposed of except with the due recourse of law. 

 Representative 

•  The section is very clear giving a right to sue even to the representatives of the person removed. 
•  The law has recognized the heirs as the representatives and entitled to sue for recovery of immovable possession. 
•  The reason is that the possession is a heritable right that is available against all expects the true owner. 
•  This character of being the representative is also extended to a Mohammedan widow. 
•  It is because when she enters the property of her husband in lieu of dower debt, she gets a heritable right and her heirs can also retain the possession till the debt is paid. 

 In  Tilak Chandra Dass v. Fatik Chandra Dass  ,  The contours of this section are very limited since the court is empowered only to direct delivery of possession. It has no power to award damages to the plaintiff. The court therefore also cannot direct the defendant to pay to the plaintiff the cost of removing the hut and filling up of excavations. 

 No Appeal 

•  Under the section, neither an appeal nor a review is allowed. However, if a suit based on title is incorrectly treated as one under this section, an appeal is possible. In the case of Narain Das v Het Singh, even a letters patent appeal from a single-judge bench of the High Court is allowed. If a suit involves a mandatory injunction and section 6 is not applicable, an appeal is maintainable. 

 Establishing Title 

•  The section allows a party to establish their title over a property and claim recovery, even if a suit under this section has been decided against them. The mention of title in such suits is insignificant. 
•  Courts generally assume that when possession is disputed, it follows title, as seen in the case of Dharm Singh v Hur Pershad Singh. 

 Recovery of Possession of Movable Property

 Overview

 Section 7 and 8 of the Specific Relief Act, 1963 outline the process for recovering possession of specific movable property. According to Section 7, a person entitled to a specific movable property can recover it as per the provisions of the Code of Criminal Procedure, 1908.

Explanation 1: A trustee can file a suit under this section for possession of movable property on behalf of the beneficiaries.

Explanation 2: A temporary or special right to present possession is sufficient to file a suit under this section.

 Ingredients of Section 7

•  Entitlement to Possession:  The plaintiff must have the right to possess the movable property, either through ownership or a temporary/special right. This could arise from actions like bailment or pawn, or through situations like finding lost goods, where the finder has a special right to possession against everyone except the true owner. 
•  Present Possession:  Only individuals with current possession of the movable property can file a suit under this section. Those without present possession cannot maintain a suit. 
•  Specific Movable Property:  The property in question must be specific movable property, meaning it should be identifiable or ascertainable. It refers to the exact property, not a substitute. The disputed movable property must be capable of being delivered and seized. If the goods are no longer recoverable or not under the defendant's control, the plaintiff is not entitled to a recovery decree. 
•  Limitation Period:  Article 91(b) of the Limitation Act, 1963 sets a three-year period for filing a suit, starting from the date of wrongful taking or unlawful possession. 
•  In the case of Chandu Naik and others v Sitaram B. Naik and another, it was determined that in disputes between private parties regarding possession of premises, the provisions of section 8 of the Act do not apply, and the Civil Court has the jurisdiction to handle such cases. 

 Understanding Movable Property

•  Movable property includes all types of property except immovable property. 
•  Examples of movable property include government securities and share certificates, but not money. 
•  For the purpose of legal actions, the property must be specific, capable of being identified, and able to be seized and delivered. 
•  Section 7 of the relevant legal framework allows for the recovery of specific movable property, meaning the actual items themselves and not their equivalent value. 
•  The items to be recovered must be specific, ascertained, and identifiable, and their nature must remain unchanged. 

 Who Can Sue Under Section 7? 

•  A plaintiff seeking possession must have a right to present or immediate possession or a special or temporary right to present possession, such as a bailee, pawnee, or finder of lost goods. 
•  A trustee can sue under this section to protect the beneficial interest of the beneficiary without needing to include the beneficiaries as parties to the suit. 

 Liability of Person Not in Possession/Not as Owner 

 Section 8 of the Act deals with the liability of a person who is in possession of a movable property but is not the owner, to deliver the property to the person entitled to immediate possession. This section emphasizes the importance of title over possession.

 Key Points: 

•  A person in possession or control of movable property, but not the owner, can be compelled to deliver it to the person entitled to immediate possession in certain cases. 
•  The court presumes that monetary compensation may not be adequate or that actual damages may be difficult to ascertain in specific situations. 
•  The Supreme Court has ruled that a lawful and registered owner does not need to prove specific details of dispossession if they can establish their title within the limitation period. 

 Specific Situations for Court-Ordered Delivery 

•  Defendant as Agent or Trustee:  When a defendant acts as an agent or trustee, they have a fiduciary responsibility. If they possess property on behalf of someone else, the court may order them to return the property to the rightful owner. 
•  Inadequate Relief through Compensation:  If compensating for the value of movable property is difficult, the court may order delivery of possession instead. This is common in cases involving unique items like disputed idols, where proper valuation is challenging. 
•  Unascertainable Actual Damage:  In cases involving items of special significance, such as antiques, artistic works, family heirlooms, or ornaments, the court presumes that actual damage cannot be easily determined. If the item has special value and lacks a clear market price, the court may direct the defendant to deliver it to the plaintiff. 
•  Wrongful Transfer of Possession:  If the defendant acquires property through fraud or if someone wrongfully transfers it, the court may intervene. For instance, if property is transferred from the plaintiff to a bailee or to a servant without the employer's consent, the court may order restitution.