Law and You > Corporate Law > Specfic Relief Act, 1963 > Recovering Possession of Property (Ss. 5-8)
List of Sub-Topics
- Introduction
- Recovering Possession of immovable Property (Ss. 5 and 6)
- Recovering Possession of Movable Property (Ss. 7 and 8)
- Conclusion
The provisions outlined in Ss. 5 to 8 of the Specific Relief Act, 1963, establish the legal framework for individuals seeking to recover possession of immovable property. These sections are designed to protect the rights of rightful owners who have been dispossessed or wrongfully kept out of their property. Recovering possession of property is a crucial aspect of property law, ensuring that individuals can regain their rightful ownership and prevent unauthorized occupation.
Sections 5 & 6 provide for the recovery of specific immovable property by a person who is entitled either as a owner or as a possessor. The object is to provide for a special and speedy remedy for dispossession.
Recovering Possession of immovable Property
Section 5:
Recovery of Specific Immovable Property:
A person entitled to the possession of specific immovable property may recover it in the manner provided by the Code of Civil Procedure, 1908 (5 of 1908).
Section 5 of the Specific Relief Act, 1963, lays down that a person who is dispossessed or has been wrongfully kept out of the property can file a suit to recover possession. The Section allows a person with a title (ownership or possessory right) to specific immovable property to recover it through the procedures laid out in the Code of Civil Procedure, 1908 (CPC), emphasizing that the one with the better title (even just possession) can reclaim possession from wrongful occupants, functioning as a right to recover possession based on rightful claim.
For example, if A owns land (has ownership title) and B illegally builds structure on it, A can sue under Section 5 to get his land back using CPC procedures under Order XXI, Rule 35 and 36.
Thus, the purpose of Sec.5 is to protect possession; to discharge people from taking the law into their own hands and thereby deriving any benefit; to put an additional restraint upon illegal dispossession, by depriving the dispossessor of the privilege of proving a better title to the property in dispute; and to prevent the shifting of the burden of proof by illegal dispossession. Section 5 is about proving title to get immovable property back, using standard civil court methods.
Three distinct actions could be brought for the recovery of specific immovable property:
- A suit based on the title by ownership under Section 5 of the Act,
- A suit based on possessory title under Section 5 of the Act; and
- A suit on the strength merely as previous possession, in the case of a wrongful ouster of plaintiff without his consent, otherwise than on due course of law under Section 6 of the Act.
Section 6:
Suit by Person Dispossessed of Immovable Property:
(1) If any person is dispossessed without his consent of immovable property otherwise than in due course of law, he or any person through whom he has been in possession or any person claiming through him may, by suit, recover possession thereof, notwithstanding any other title that may be set up in such suit.
(2) No suit under this section shall be brought—
(a) after the expiry of six months from the date of dispossession; or
(b) 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 any such order or decree be allowed.
(4) Nothing in this section shall bar any person from suing to establish his title to such property and to recover possession thereof.
Dispossession means, loss of physical possession, of the immovable property. Dispossession made legally through the order of the court is not the subject matter.
Section 6 deals with suits filed by a person who has been dispossessed of immovable property without their consent. It allows the person to claim possession and seeks to restore them to the position they were in before the dispossession via a speedy lawsuit within six months, focusing purely on possession, not title, meaning the actual owner’s claim is irrelevant in these specific cases; it ensures quick restoration to prior possession.
Ingredients of S. 6:
- Plaintiff is dispossessed of immovable property.
- The dispossession is without consent and not in accordance with the course of law (i.e., illegal eviction).
- Suit is filed within six months of dispossession.
The court only decides who was in possession and if they were illegally is dispossessed; title to the property is irrelevant. The property is restored to the plaintiff.
For example, If A forcefully removes B from his (B’s) rented house without a court order, B can file a Section 6 suit to get the possession back quickly, even if A who removed B claims to be the owner, as long as B were in lawful possession and dispossessed illegally.
The purpose of the Section is to provide immediate, summary relief to prevent people from taking law into their own hands and to ensure a person in possession isn’t easily ousted without proper legal procedure, regardless of ownership claims.
The remedy provided here does not bar any person from suing in a civil court to establish his title and to recover possession thereof under the civil procedure code. There is no review or appeal from the decision of the court. No suit can be filed against the State Govt. or Central Govt. under this section.
Difference between Section 5 and Section 6:
| Section 5 | Section 6 |
| Section 5 focuses on title; allows recovery even against the true owner if you have a better possessory right. | Section 6 deals with dispossession without consent (even by the true owner); focuses on restoring possession quickly, regardless of title. |
| The period of limitation is 12 years | The period of limitation is 6 months from the date of dispossession. |
Recovering Possession of Movable Property
Sections 7 and 8, deal with the recovery of possession of specific movable property.
Section 7:
Recovery of Specific Movable Property:
A person entitled to the possession of specific movable property may recover it in the manner provided by the Code of Civil Procedure, 1908 (5 of 1908).
Explanation 1.—A trustee may sue under this section for the possession of movable property to the beneficial interest in which the person for whom he is trustee is entitled.
Explanation 2.—A special or temporary right to the present possession of movable property is sufficient to support a suit under this section.
Property of every description except immovable property is movable property. For application of the section it must be specific i.e. ascertained and ascertainable capable of being seized and delivered. The remedy of recovery of specific movable property means the property itself and not its equivalent.
Section 7 of India’s Specific Relief Act, 1963, deals with the recovery of specific movable property, allowing a person entitled to possession of a particular item (like a unique painting, specific goods, or documents) to sue for its return, rather than just money, following procedures in the Code of Civil Procedure (CPC), and applies even if the claimant only has a temporary or special right to possession, like a trustee or someone with a temporary right to exhibit it.
For example, if A lent a unique antique watch (specific movable property) to B, who refuses to return it, A could use Section 7 to get the watch back, not just its cash equivalent.
To succeed under this section it is sufficient if the plaintiff seeking possession has a right to present or immediate possession or by way of special or temporary right to present possession i.e. of a bailee, Pawnee, finder of lost goods. A trustee can sue under this section possession of movable property to protect the beneficial interest of the beneficiary and it is not necessary to make the beneficiaries, parties to the suit.
Section 8:
Liability of Person in Possession, Not as Owner, to Deliver to Persons Entitled to Immediate Possession:
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 its immediate possession, 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 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;
(d) when the possession of the thing claimed has been wrongfully transferred from the plaintiff.
Explanation:
Unless and until 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 plaintiff adequate relief for the loss of the thing claimed, or, as the case may be;
(b) that it would be extremely difficult to ascertain the actual damage caused by its loss.
Just like the specific remedy in respect of dispossession of immovable property, provisions are made here to recover specific movable property. If a person who is not an owner is in possession of having control over specific movable property, he may be compelled specifically to deliver it to the person who is entitled to its immediate possession
Section 8 provides for specific restitution of immovable property. It empowers the court to order the return of the property to the rightful owner if it determines that the person in possession of the property is not entitled to it.
Conclusion:
The provisions related to recovering possession of property aim to protect the rights of individuals and ensure that they are not wrongfully deprived of their property. It allows rightful owners to regain possession and prevents unlawful and unauthorized occupation. In order to succeed in a suit for recovery of possession, certain conditions must be met. These may include establishing the prior possession, proving wrongful dispossession, demonstrating a valid title to the property, and complying with any procedural requirements set forth in the law.
The court has discretionary powers when deciding cases related to the recovery of possession. It considers factors such as the nature of the property, the conduct of the parties, the merits of the case, and the overall interests of justice before granting the relief. It is important to note that there may be certain limitations and exceptions to the recovery of possession. If successful in a suit for recovery of possession, the court may order the eviction of the unauthorized occupant and the restoration of possession to the rightful owner. In some cases, the court may also award damages or compensation for any loss or harm suffered due to the dispossession.