(Sections 5-8)
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).
When a person is entitled to the possession of specific immovable property he can recover the same by filing a suit as provided by C.P.C. He may file a suit for ejectment on the basis of strength of his title and get a decree for ejectment. Then he may execute the decree in accordance with the provisions of C.P.C. He cannot take law in his own hand and obtain possession of the property with force, even though he is entitled to the same. For example, if A agrees to convey some specific immovable property to B and also hand over the possession. B can file a suit against A requiring A to fulfil the promise and handover the possession. The requirement of law is filing of Civil suit rather than merely sending a notice demanding possession on by a letter sent by Registered Acknowledgment due.
East India Hotels Ltd. v. Syndicate Bank, 1992 Supp (2) SCC 29: Suppose A enters into peaceful possession of land claiming it as his own although he might have no title to it, still he can sue another who has forcibly ousted him from possession and who has no better title to it because A although he has no legal title, has at least a possessory title.
Prabha Manufacturing Industrial Co-operative Society v. Banwari Lal, MANU/SC/0412/1989 : AIR 1989 SC 1101: The Supreme Court held that a suit under section 5 is an ordinary suit under the general law and plaintiff has to prove that he has a better title. Further, specific performance can be decreed only against the executant of the contract having the right to dispose of the property in question.
Somnath v. Raju , MANU/SC/0399/1969 : AIR 1970 SC 846: Mere possessory title is good enough to maintain an action under section 5 of Specific Relief Act.
V. Rajeshwari v. T.C. Saravanabava, MANU/SC/1057/2003 : (2004) 1 SCC 551: A decision as to a specified part of the property in question may not constitute res judicata in respect of any subsequent proceedings about the entire property.
(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, notwithstanding any other title that may be setup 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 suit to establish his title to such property and to recover possession thereof.
Essential Elements.-Section 6 has following elements:-
(a) At the time of dispossession the possession of the plaintiff must be valid;
(b) The plaintiff must have been dispossessed of Immovable property without his consent;
(c) The dispossession must not have been made in due course of law;
(d) If at the time of dispossession, the plaintiff's possession was valid and he was been dispossessed without resort to due course of law, he may recover possession of specific immovable property notwithstanding any title that may be set up in the suit against him;
(e) In order to recover possession the suit must have been filed within six months of the date of dispossession;
(f) under section 6 suit to recover possession cannot be filed against the Government.
East India Hotels Ltd. v. Syndicate Bank, 1992 Supp (2) SCC 29 (36): The purpose behind section 6 of the Act is to restrain a person from using force and to dispossess a person without his consent otherwise than in due course of law.
(2) Yeshwant v. Jagdish, AIR 1968 SC 620: Due course of law it implies that right of the person affected thereby to be present before the tribunal which pronounces judgement upon the question of life, liberty or property in its most comprehensive sense, to be heard by testimony or otherwise and to have the right determination of the controversy by proof every material fact which bears on the question of fact or liability be conclusively proved or presumed against him.
(3) Ganeshmal v. Velaram, MANU/RH/0149/2000 : AIR 2000 Raj 76: If the plaintiff has been dispossessed of the property by an order of the Sub-Divisional Magistrate (S.D.M.) in proceedings under section 145, Cr. P.C. in which the plaintiff is not a party, the dispossession of the plaintiff is not in the due course of law.
(4) Mahabir Prasad Jain v. Ganga Singh, MANU/SC/0638/1999 : AIR 1999 SC 3873: It has been held by Supreme Court that a person seeking equitable relief under the specific relief Act, should come to the court with clean hands.
(5) Sukhjeet Singh v. Sirajunnisa, MANU/MP/0101/2000 : AIR 2001 MP 59: The tenant handover possession of premises to the landlord for marriage of former's son. The landlord failed to hand over the possession again to the tenant after his son's marriage.
It was held that even though the tenant may have been deceived later on but since he handed over the possession of his total volition, he could not claim the possession again under section 6 as the section was not attracted in this situation.
(6) K.K. Verma v. Union of India, MANU/MH/0102/1954 : AIR 1954 Bom 358: Possession here means legal possession which may exist with or without actual possession and with or without a rightful origin. Thus where a tresspasser is allowed to continue on the property and the owner sleeps upon his rights and makes no efforts to remove him, he will gain possession under section 6. The possession of a tenant after the termination of the tenancy continues to be a juridical possession.
(7) Express Newspapers (P) Ltd. v. Union of India, MANU/SC/0273/1985 : AIR 1986 SC 872: The Supreme Court reminded the Government that even where a perpetual lease for construction of an office block provided for the lessor's right of re-entry upon forfeiture of lease upon breaches of the condition of leases, the lessor would not have the right to declare such forfeiture all by itself and then take to itself to throw out the lessee either directly or through the summary procedure under the Public Premises (Eviction of Unauthorised Occupants) Act, 1971.
(8) Anathula Sudhakar v. P. Buchi Reddy, MANU/SC/7376/2008 : AIR 2008 SC 2033: Where the title of the plaintiff is under a cloud and the possession is not with him, the remedy in such a case in suit for declaration and possession with or without injunction.
(9) Sivam K. Jain v. Ram Mahajan, MANU/SC/7448/2008 : AIR 2008 SC 2101: Where the plaintiff fails to provide details of accrual of cause of action, the defendant's claims for part-performance and the payment receipts are admitted by the plaintiff. Suit for possession will be liable to be dismissed.
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 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.
Features
(1) This section can be attracted only when the plaintiff is entitled to the possession of movable property.
(2) The property must be specific.
(3) The recovery of possession can be made in the same manner as is provided in Civil Procedure Code.
Illustrations
(a) A bequeaths land to B for his life, with remainder to 'C'. A dies. B enters on the land, but C, without B's consent obtains possession of the title deeds. B may recover from C.
(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 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 with the consent of 'A'. A has such a property therein as entitled him to recover it from B.
State of Gujarat v. Biharilal, MANU/SC/0192/1999 : AIR 1999 SC 1999: There was an agreement between Biharilal and the occupants of land, in 1964 authorising Biharilal to cut and remove trees standing on certain land for a period of two years. The forest authorities did not grant permission to cut and remove the trees and the period expired. There was no fresh agreement between the parties, nor was the period of authority in favour of Biharilal extended. Biharilal filed a suit for declaration of his right to cut and remove the trees and also for the necessary permission to do the needful.
It was held that since the right in respect of the trees had already expired the suit field by Biharilal could not be decreed.
Standard Chartered Bank v. Andhra Bank Financial Services Ltd., MANU/SC/2534/2006 : (2006) 6 SCC 94: The substantive prayer in the plaint was for a declaration that the plaintiff were fully "entitled" to the suit bonds and certain reliefs which were founded upon this declaration. A suit for such a declaration would certainly be a title suit so far as the suit bonds were concerned. On dismissal of the suit, the appeal against it was brought on the footing that the plaintiff had fully proved its title to the suit bonds and the special court had erroneously held against the plaintiff. The court said that looking at the suit from any point of view, it could not be held that the suit was a mere declaratory suit, it had to be regarded as a title suit.
Article 91(b) of the Limitation Act, 1963 prescribes a period of three years limitation for the suit computable from the date when the property is wrongfully taken or injured or when the detainer's possession becomes unlawful.
Recovery of possession under Bailments.-If the bailee, who was in the possession of the goods, is dispossessed of the same, the suit for recovery of possession may be brought either by the bailor or the bailee against the third person interfering with the possession. Section 180, Indian Contract Act, 1872, makes the following provision in this regard:
180. Suit by bailor or bailee against wrong-doer.-If a third person wrongfully deprives the bailee of the use or possession of the goods bailed, or does them any injury, the bailee is entitled to use such remedies as the owner might have used in the like case if no bailment had been made, and either the bailor or the bailee may being a suit against a third person for such deprivation or injury.
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) where the things 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 things claimed;
(c) when it would be extremely difficult to ascertain the actual damage caused by its loss;
(d) when the possession of the things 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.
Illustrations
(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.
(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.
(c) A is entitled to a picture by a dead painter and a pair of rare china vase B has possession of them. The articles are of too special a character to bear an ascertainable market value. B may be compelled to deliver the idol to A.
Essentials
(1) The defendant should be in possession or control of a particular article,
(2) Such article should be movable property, rather than immovable property,
(3) The defendant should not be the owner of such article, and
(4) The plaintiff should be entitled to the immediate possession of such articles.
Jaldu Venkata Subba Rao v. Asiatic Steam Navigation Co., ILR (1914) Mad 1 (FB): The object to this section is to provide special remedy so that persons having the possession or control of particular articles of movable property: although not their owners may be compelled specifically to deliver them to the persons entitled to their immediate possession.
Possession in the foundation of the suit though a suit is not competent under this section against one who is the owner of the movable property. Possession and control of the defendant must therefore be clearly alleged in plaint and proved.
Kizhakkumpurath v. Thanikkuzhiyil, MANU/KE/0429/1998 : AIR 1998 Ker 244: There was oral and documentary evidence that the plaintiff was the owner of certain scheduled items and the defendants had trespassed into these items. The plaintiff was held entitled to recover those items from the defendants and also mesne profits or compensation as well.
The distinction between these two sections are as under:
(1) Under section 5 the plaintiff has to file a long-drawn regular suit for ejeectment whereas section 6 gives a summary remedy.
(2) Under section 5, claim is based on title while under section 6 the claim is based on possession and no proof of title is required and even a rightful owner may be precluded from showing his title to the land.
(3) The period of limitation in section 5 is 12 years while in section 6 it is only six months from the date of dispossession.
(1) Under section 8, no suit can be brought against the owner while under section 7 a person having a special or temporary right to present possession may bring the suit even against the owner of the property.
(2) Under section 7, a decree is for the return of movable property, or for the money value thereof in the alternative, white under section 8 the decree is only for the return of the specific article.
(3) A suit under section 7 is maintainable against even the owner of the property if the immediate right to possession vests in the plaintiff and not in the owner while under section 8 the suit is not maintainable against the owner.
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