Recovering possession of specific property, Immovable or movable under Specific Relief Act
| Recovering possession of property under the Specific Relief Act is a fundamental aspect of civil law, ensuring rightful person regain control over their property, immovable or movable when unlawfully deprived. This article explores the key provisions regarding the recovery of possession of specific movable and immovable property under SRA. |
Specific Relief Act outlines seven categories of specific relief, including the recovery of possession of property, which falls under one of these categories. The recovery of possession of property is given in detail in Chapter 1 from sections 5 to 8 of the Specific Relief Act 1963. This chapter allows for the recovery of both immovable and movable property. Therefore, both types of property can be recovered within the provisions of this chapter.
A. Recovery of Possession of immovable property (Sections 5 and 6)
B. Recovery of Possession of movable property (Sections 7 and 8)
A. Recovery of Possession of immovable property (Sections 5 and 6)
Possession of immovable property can be recovered under two sections, Section 5 and 6.
Recovery of possession of immovable property under Section 5
According to section 5, any person entitled to the possession of specific immovable property can be recovered under the code of civil procedure.
Components of section 5
1. The person seeking recovery must have a title to the immovable property.
2. The property must be a specific immovable property.
2. If both above conditions are fulfilled then he can seek recovery according to the rules contained in the Code of Civil Procedure, 1908.
The primary objective of Section 5 is to ensure that any person does not make their own legal decision or resort to violence to reclaim possession, regardless of whether they hold the title or possessory rights. Thus, if someone forcibly removes them from their property, they are entitled to initiate legal action under these provisions.
Which suits are covered under section 5 -
1. Recovery of possession based on ownership (Proprietary Title) :
A person who is the owner of the immovable property always has the right to control its property. If someone forcibly interferes with their right to this possession of property, they can take legal action under this provision.
Nonetheless, as per Article 65 of the Limitation Act, 1963, the legal process for recovery of possession of certain immovable property or any rights associated with them must commence within twelve years when the possession of such immovable property becomes adverse to the plaintiff.
To recover possession under this Section plaintiff must prove his title to the immovable property, if he fails to prove the title court may not grant the decree of possession.
Example:- A is the owner of the property, and B illegally ousted him from its property. A may recover the possession of such property under this section.
2. Recovery of possession based on previous possession or on possessory title:-
Under this head, any person who has previously settled possession of the immovable property and anyone who dispossessed him from the property may recover it under section 5 of SRA. A wrongful possessor also may recover the immovable property, and have a right of an owner concerning all persons except the previous possessor or true owner himself of the property.
A regular suit for possession can be filed by the plaintiff by simply proving his previous settled possession. In such a suit, the plaintiff is not required to prove title. This suit is maintained under Article 64 of the Limitation Act 1963 & the plaintiff can recover possession within 12 years from the dispossession of the property.
Example:- A residing in a house who is not the owner, B who is not the owner, forcibly takes possession from him. A may recover possession from B based on the possessory title.
3. When the plaintiff becomes entitled to the property:-
When by any reason of forfeiture of immovable property or on any breach of condition of contract plaintiff becomes entitled to the immovable property he may recover such immovable property under Article 66 of the Limitation Act. However, the limitation period to recover such property is twelve years from the forfeiture incurred or when the condition is broken.
Example:- A enters into a lease of immovable property with B for 5 years. The lease agreement includes a condition that B must maintain the property in good condition and make necessary repairs promptly. B fails to maintain the property in good condition A on such breach of conditions of the lease, may terminate the lease and recover possession of the property.
4. Recovery of possession by the landlord from the tenant:-
landlord can regain control and possession of their rental property from a tenant who is either in breach of the lease agreement or has failed to vacate the property after the lease or rental agreement has expired.
According to Article 67 of the Limitation Act, 1963 Landlord may recover the possession from the tenant within the 12 years from when the tenancy agreement is determined.
Section 6 - Suit by person dispossessed of immovable property -
Section 6 provides a summary remedy to the person who has been dispossessed from the immovable property without his consent, and without following the due course of law. such remedy must be claimed within six months from the dispossession and after that, he cannot file suit to recover possession under this section. However, he has a remedy under section 5 of the SRA based on previous possession.
Ingredients of Section 6:-
1. A person must be dispossessed without his consent and without following the due course of law.
2. Suit under Section 6 must be filed within 6 months from the date of dispossession.
3. Suit under this section shall not be bought against the Government.
4. Appeal and Review shall not lie on any decision which is passed on a suit instituted under this section.
5. A person claiming under this section may set up his title and recover possession of thereof.
Who may file suit under Section 6 -
1. Person who dispossessed from the property
2. The person by whom the person dispossessed has been in possession of such property.
3. Any person claiming through the person dispossessed.
Essential Conditions to file suit under section 6 -
1. any person must be dispossessed of immovable property without his consent.
2. He must be dispossessed otherwise than in due course of law.
when the above essentials are fulfilled then above said person may file a suit to recover the possession.
1. any person must be dispossessed of immovable property without his consent.
The initial requirement for the plaintiff is to prove that he has legal possession of the Immovable property and the defendant has unlawfully acquired possession without his permission.
2. He must be dispossessed otherwise in due course of law:-
Another necessary condition for the plaintiff is that he must be dispossessed from the property without adhering to the legal process outlined. Thus, if the plaintiff is dispossessed from the property in violation of the law, he is entitled to bring a lawsuit under this provision.
In "Thomas Cook (India) Ltd. V. Hotel Imperial (2006) - Hon'ble Delhi High Court held that even a person in unlawful possession cannot be disturbed forcibly by the true owner taking law in his own hand. However, ejectment from settled possession can only be had by recourse to a court of law.
In "Maria Margarida Sequeira Fernandes v. Erasmo Jack de Sequeira (2012) SC" Due process of law means that nobody ought to be condemned unheard. The due process of law means a person in settled possession will not be dispossessed except by due process of law. Due process means an opportunity for the defendant to file pleadings including written statements and documents before the court of law. It does not mean the whole trial. Due process of law is satisfied the moment rights of the parties are adjudicated upon by a competent court.
3. Limitation period for filing suit under section 6:-
The time limit for initiating legal action under section 6 is 6 months. If a suit is brought forward after this period, it is usually not maintained unless there is a valid reason to excuse it, and the judge is convinced of this reason. The specific Relief Act is a special statute as defined by the term under section 29(2) of the Limitation Act. According to section 6 of SRA, it sets its own timeframe for initiating legal actions under it.
In "Charanjit Kaur v. Mukhtar Singh (2022)" Punjab and Haryana High Court observed in this case, the Plaintiff was dispossessed from the property on 28.04.2009 and after that, FIR was registered on dated 08.05.2010 in this regard. The suit was instituted on 02.02.2013 under section 6 which is much beyond the prescribed period of six months. Therefore high court dismissed the petition holding that the suit must be filed under section 6 within 6 months from the cause of action that arose.
4. No Appeal Nor Review :
According to section 6(3), appeal and review shall not lie on the decision given in the suit instituted under section 6(1). The suit under section 6 is of a summary nature and the inquiry made under section 6 is confined to finding out the possession and dispossession of the immovable property.
However, the remedy available to the party who fails to prove his case under this section is to file a regular suit establishing his title to the suit property also the remedy to file a revision is available to that party.
5. No bar on a person instituting a suit to establish his title and recover possession:-
Section 6, Sub-section 4 doesn't prevent anyone from filing suit regarding the title of an immovable property and recovering possession thereof even if a suit has been instituted under Section 6(1).
Difference between Section 5 and Section 6:-
| S. N. | Section 5 | Section 6 |
|---|---|---|
| 1 | A suit under section 5 file based on title either proprietary or possession title | A suit under section 6 file based on dispossession. |
| 2 | The limitation for filing suit under section 5 is 12 years. | The limitation for filing suit under section 6 is 6 months. |
| 3 | The suit under this section is a regular suit | Summary suit |
| 4 | A suit under this section may be instituted against the Government | Suit under section 6 shall not be filed against the Government. |
| 5 | Appeal or review shall lie on the decision of suit instituted under Section 5. | Appeal or review shall not lie on the decision of suit instituted under Section 6 |
| 6 | In a suit under Section 5, title must be proved by the plaintiff, title may be proved in defense also. | In Suit under section 6 previous settled possession must be proved. |
B. Recovery of Possession of movable property (Sections 7 and 8)
Recovery of movable property can be recovered under sections 7 and 8.
Recovery of specific movable property (Section 7):-
A person entitled to the possession of specific movable property may recover it in the manner provided by the Code of Civil Procedure 1908.
Explanation 1: 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 a trustee is entitled.
Explanation 2: A special or temporary right to the present possession of the movable property is sufficient to support a suit under this section.
Where a person has the right to possession of a particular movable property, he can claim it according to the rule contained in the CPC.
Essential Ingredient of Section 7 -
1. A person must be entitled to the possession of the movable property.
2. The property must be a specific movable property.
when the above conditions are fulfilled he can recover it according to the provisions outlined in the CPC.
Who is entitled to the specific movable property:-
To initiate a suit under section 7, the initial requirement is that the plaintiff must have a right to possession of a specific movable property. In this context, "entitle" refers to the right to possess the movable property. However, as explained in Explanation 2, this right could be either temporary or a special right to the current possession of the movable property. Additionally, the trustee also has a right to regain the possession of movable property as per explanation 1 of section 7.
the following persons are entitled to the possession of specific movable property.
- Owner of the movable property.
- Trustee
- A person having special or temporary right.
I. Recovery of Immovable property by owner:-
The right of the owner of the movable property to recover possession generally arises when the property has been unlawfully taken or detained by another person. As the rightful owner of such property has a legal right to recover possession if someone else has taken possession of movable property without consent or refuses to return it. Such owner of the property may by suit instituted under this section within 3 years recover the possession of such specific movable property.
Here are some instances and limitation period to recover the possession of movable property.
a. Recovery of property lost or acquired by theft, etc.
As per Article 68 of the Limitation Act, 1963 when the specific movable property is lost or has been acquired by theft or by dishonest misappropriation of property, the owner of the property may recover by the regular suit within three years.
b. Recovery of other movable property
As per Article 69 of the limitation act when the property is taken wrongfully from the plaintiff he may recover such property within three years from such property taken wrongfully.
c. recovery of pawned property
As per Article 70 of the Limitation Act when the property is deposited or pawned from a depositary or pawnee it may be recovered within three years from the date of refusal after demand such property.
d. Recovery of pawned property after sale
Article 71 of the limitation act to recover movable property deposited or pawned and afterward bought from the depository or pawnee for a valuable consideration may be recovered within three years from when the sale is known to the plaintiff.
Example:- A is the owner of the antique watch that he pawns to B due to his financial difficulty. Both agree on the terms of the pawn, that he redeem it within 6 months by paying back the principal amount and interest on it. afterward, the pawn period expires A is unable to redeem the watch within 6 months and the pawn broker sells the watch to C, who purchases it in good faith. However, after a few months, A knows about selling the watch to C. A may initiate legal proceedings to recover the possession of the Watch.
II. Recovery of movable property by Trustee:-
Trustee may sue under section 7 to recover the possession of the movable property, to the beneficial interest in which the person for whom he is trustee is entitled. Here trustee is entitled to the trust property to recover from the person who dishonestly takes away from his possession such property is for the benefit of the beneficiary of the trustee.
Example:- A is appointed as the trustee of the certain movable property created for the benefit of Z. B is an employee of steals one of the properties under trust and sells it to C. A may recover such property.
III. Where a person has a special or temporary right with the consent of the owner:-
If there is a bailment or pledge, the person holding the property (the bailee or pledgee) has special or temporary rights concerning the property. if any person wrongfully takes possession of the property, they are entitled to seek legal action to recover the possession of the property in the manner provided in CPC.
Example:- A pledges his bike to B to secure a loan. B is wrongfully dispossessed by C. B has the temporary or special right to this bike hence he can recover possession of the bike from C according to the procedure outlined in CPC.
The suit can be filed against the owner:-
If any person has a special or temporary right to the specific movable property and the owner dishonestly takes away the property the person may file a suit against the owner to recover such movable property.
Example:- A is the owner of the car gives the car for repair to B, after repairing A has taken possession dishonestly without paying money to B. B has the temporary or special right to recover possession of this car until A pays him for his repairs.
2. property must be specific movable property:-
another essential requirement of section 7 is that the property must a specific movable property.
In Jadu Nath, Dundpat, Shripati Sarkar and others v. Hari Kar and others (1908) it is held by the Calcutta High Court that specific movable property means the property that can be separated from the rest of goods.
However, it can be said that property that is determinable and ascertained which can be seized or identified or separated from the other goods are specific movable property.
Recovery in the manner prescribed by the Code of Civil Procedure, 1908:-
After fulfilling the above-discussed two conditions the plaintiff may recover the specific movable property in the manner outlined in the CPC.
Liability of person in possession, not as owner, to deliver to the person entitled to immediate possession (Section 8):-
when any person having the possession or control of a particular article of movable property, but of which he is not the owner, he may be compelled to deliver such article to the person entitled to immediate possession of such article. in the following case:-
if the person holding such article is the trustee or agent of the plaintiff
if the compensation in money is not adequate relief to the plaintiff
if it is extremely difficult to ascertain actual damages caused by its loss.
if the possession of thing wrongfully transferred to the defendant.
An essential ingredient of section 8:-
(1). The defendant must be in possession or control of a particular article.
(2). Such article must be movable property.
(3). The defendant must not be the owner of such article.
(4). The plaintiff must be entitled to the immediate possession of that article.
if all the conditions are fulfilled, then the plaintiff may file a suit for the recovery of possession of such article.
If all the above conditions are fulfilled, the Court may compel the defendant to deliver the possession in the following cases:
1. when the article is held by the defendant as trustee or agent of the plaintiff :
when the defendant is holding specific movable property as the agent or trustee of the plaintiff, the court may direct him to deliver that article to the plaintiff. In such a case, the plaintiff must prove the fiduciary relationship between him and the defendant. Here in such a case, trust means not only trust is created for the benefit of a third person but, also includes obligation in nature of trust as defined in section 2(c).
2. When compensation in money is not adequate:-
When the defendant holds specific movable property of the plaintiff and if a plaintiff proves that the monetary compensation is not adequate for the loss caused by the defendant, then the court may compel the defendant to deliver the possession of such specific movable property to the plaintiff.
However, in such cases court shall presume that compensation in money would not afford adequate relief to the plaintiff for the loss of the thing. It is a rebuttable presumption hence such presumption can be set aside when the defendant proves that the compensation in money is adequate to the plaintiff.
3. When it would be extremely difficult to ascertain damages caused by its loss.
When the defendant holds specific movable property of the plaintiff and if the plaintiff proves that it would be extremely difficult to ascertain damages by its loss, then the court may compel the defendant to deliver the possession of such specific movable property to the plaintiff.
However, in such case court shall presume that it would be extremely difficult to ascertain damages caused by its loss. It is a rebuttable presumption hence such presumption can be set aside when the defendant proves that the article is an ordinary article and it is not difficult to ascertain the damages.
4. When the possession of a thing has been wrongfully transferred to the defendant.
If the article is wrongfully transferred by the plaintiff to the defendant he can file a suit to recover such article from the defendant. In such a case plaintiff has to prove that the article is wrongfully transferred to the defendant.
Difference between suit under section 7 and section 8 :-
| S. No | Section 7 | Section 8 |
|---|---|---|
| 1 | A suit under section 7 may be filed against the owner of the movable property. | No such suit shall lie against the owner of the property. |
| 2 | Under section 7 suit may be filed for the recovery of specific movable property or compensation. | Under section 8 suit must be filed only for the recovery of specific movable property. |
| 3 | To recover possession under this section it is only required to prove special or temporary right to the property. | To recover possession under this section it must be proved by the plaintiff that he is entitled to the immediate possession. |
| 4 | Under this section, a suit shall be filed according to the rules contained under CPC. | suit shall be filed under section 8 of SRA. |
| 5 | Section 7 of SRA provides a general remedy. | Section 8 of the SRA provides a specific remedy. |
Conclusion:-
The provisions outlined in sections 5 to 8 of the Specific Relief Act, 1963 provide legal remedies for the recovery of both specific immovable and movable property. Sections 5 and 7 deal with the general remedy that can be claimed under the Code of Civil Procedure, while Sections 6 and Section 8 provide the specific remedy which must be claimed under this section of the Specific Relief Act 1963.
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