Section 5 And 6 Recovering Possession of Immovable Property

Recovery of Possession of Immovable Property Under Specific Relief Act 1963

Is Specific Relief Act Exhaustive or Not?

The preamble of the act says: ‘An act to define and amend the law relating to certain kinds of specific relief.’

The lack of the word ‘'consolidate’ and the using ‘certain kinds of specific relief’ make it clear that there are other kinds of specific relief concievable which may not be covered by the act. Hence, the act is not exhaustive.

Date of enforcement

The Specific Relief Act came into force on 1st March 1964.

The Specific Relief (Amendment) Act, 2018 came into force on 1st October 2018.

This act extends to the whole of India.

Read Also: The Specific Relief Act 1963 Amendments

Section 2

In section 2, 2(e) says that all words used in the act that are not defined in SRA, 1963 shall have the same meaning as the meaning from the Indian Contract Act, 1872.

Saving Clause (Section 3)

This section says that no person is barred from claiming relief apart from specific relief under any contract. This act does not affect the operation of Indian Registration Act, 1908.

Section 4

Section 4 says that specific relief is to be granted only for enforcing individual civil rights and not penal laws. But this does not mean that when enforcement of a penal law is merely ancillary or incidental to the grant of specific relief, the court will not necessarily refuse it.

It is based on the fact that the real object of the Act is to protect the civil rights of a suitor or prevention of civil wrong to him.

Eg: imposition of an injunction (which is penal) on the publication of defamatory material.

Recovery of Possession of Property

Specific Relief Act, 1963 provides for different kinds of specific reliefs. They are:

1. Recovery of possession of property
2. Specific performance of contracts
3. Rectification of instruments
4. Recission of contract
5. Cancellation of instruments
6. Declaratory decree
7. Injunctions

We shall start with the first specific relief, recovery of possession of property. Recovering possession of property is covered under Section 5-8 of this act. Section 5 and 6 deal with immovable property, and 6 and 8 deal with movable property.

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.”

This section deals with action for recovery of possession of specific immovable property based on title. The term ‘specific’ immovable property means that the property must be identifiable.

The essence of this section is whoever has a ‘better title’ is a person ‘entitled to possession’. This claim can be on the basis of either a title coming from ownership or possession.

Eg:  If A has peacefully come into the possession of a land claiming at his own even though he may have no title to it, he can still sue someone who takes over his possession as A still has possessory title.

The suit under Section 5 is an ordinary suit under the general law and the plaintiff has to prove that he has a better title. After a decree has been obtained, it may be executed under Order XXI, Rule 35 and 36.

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, nothwithstanding any title that may be set up in such suit.

(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 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 recover possession thereof.”

Section 6 provides a special and summary remedy to a person dispossessed of immovable property. Here, the person dispossessed need not prove a better title. He simply has to prove previous possession and subsequent harmful dispossession.

The object of this section is to prevent people from taking law into their own hands, however good their title may be and to provide a cheap, useful and summary remedy to someone who has been forcibly dispossessed.

Essentials of Section 6

1. The person suing was in possession of the property. This possession is through juridical possession. ‘Juridical possession’ means legal possession which may exist with or without actual possession and with or without a rightful origin. Questions of title are ignored here.

In the case of Anima Mullick v Ajay Kumar Roy (2000), it was ruled that if the grant of possession is gratuitous (i.e. without consideration) the person will not be entitled to benefit from Section 6. (i.e. permissive possession, not adverse possession) The owner in these cases is entitled to take back possession even without notice.

2. The person must be dispossessed without his consent, i.e. forcible dispossession.
3. The dispossession must be of immovable property.
4. The dispossession must have been done otherwise than in due course of law. This section protects against forcible dispossession even against better titles.
5. Suit must have been brought within a period of six months from the date of dispossession.

Who Can File Suit?

Before the 2018 amendment, only two parties, i.e. the dispossessed person or the person claiming through him (as a representative) could claim. The 2018 amendment added ‘the person from whom the dispossessed got possession initially’ too as a party who can file a suit.

Even before the amendment, depending on the facts of the case, the courts had held a similar view on this right. In the case of Jadunath Singh v Biswanath Singh (1949), the Court held that a landlord who was in possession through a tenant, on the dispossession of his tenant becomes dispossessed himself and is, therefore entitled to seek his remedy under Section 6.

Further Clauses

Section 6(2) provides certain limitations on the section. No one can file a suit after six months from the date of dispossession. This condition is based on the maxim ‘vigilantibus non dormientibus jura subveniunt’ i.e. the law assists those who are vigilant of their rights.

Apart from the 6 month limit, one cannot bring a suit against the government either, even if it is based on forcible dispossession.

Section 6(4) says that this section does not create a bar on the person having the rightful title to bring a suit for recovery for such property later on. This section does not confer any kind of better title, but just protects against dispossession done without the due process of law. One can file a suit for recovery if he has a better title separately.

Section 6(3) says that no appeal lies in a decision in a suit under Section 6, nor any review is maintainable. Revision though can be preferred on various grounds. If the error is palpable (can be felt) and the remedy clear, the High Court can interfere in its revisional jurisdiction.

Distinction Between Section 5 and Section 6

There are two major distinctions between Section 5 and Section 6.

1. Under Section 5, one goes to the Court on the basis of title, whether it be ownership title or possessory title. One goes under Section 6 to recover the property from the person who has dispossessed you without due process of law.
2. Section 5 does not provide remedy in SRA itself and says that the procedure in CPC must be followed. Section 6 forms a supplemental remedy against forcible dispossession with a summary procedure and does not preclude the better title holder from filing a suit under CPC.

Also a suit based on possession alone, such as proving prior possession may be filed within 12 years of prior possession whereas a suit under Section 6 has a limitation of 6 months from forcible dispossession.

Both of these sections are mutually exclusive in their scope and give alternate and distinct remedies. A plaintiff though, depending on the facts, on failing under Section 6, may subsequently bring a suit under Section 5 to establish title and recover possession thereof.

Thus the SRA provides three actions that can be done for recovering specific immovable property. They are: Suit based on title (by ownership) ; Suit based on possessory title; and a Suit based on previous possession where the person has been dispossessed.

 

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