Recovery of Possession of Property

By | January 23, 2020
Recovery of Possession of Property

Recovery of Possession of Property resituates the possessory title of the rightful possessor in him or her once again through the equitable intervention by the court. There can be multiple ways depending upon the type of property if it is immovable or movable.  The manner provided in CPC is to be followed.

Introduction

Being one of the remedies that the Specific Relief Act 1963 (hereinafter “the Act”) provides for, recovery of possession of the property is one of the very important remedies for the litigant. Getting an entire property back in place of the usual money and damages is something which is the gift of equity to the common law.

After the incorporation of the demands made by the Law Commission of India[1] to amend the earlier law existing since 1877, the new law came in its current shape. This special remedy has been covered under Sections 5 to 8 of the Act.[2] It constitutes to be the Chapter I of the Part II i.e., “Specific Relief”, of the Act.

Possession

The term possession is not a mere occupation or actual use.[3] There are two eminent components of this concept:-

  1. Corpus – Actual power and apparent control over the object
  2. Animus – Will to avail oneself of the Corpus[4]

Hence there is a physical possibility of the person dealing with the property as he likes[5] and exclusively.[6] There are two types of property-

  1. Immovable Property

As the word suggests, it means what cannot be moved. But the legal definition is, unless something repugnant to the context, land, benefits arising out of the land, and things attached to Earth or permanently fastened to anything attached to Earth.[7]

  1. Movable Property

A property except immovable would be movable.[8] Examples would include government securities, share certificates but not money.[9] It should be capable to be seized or delivered.[10]

Recovery of Specific Immovable Property

Under Section 5 of the Act, the manner provided under the Code of Civil Procedure[11] is to be followed for recovering the specific immovable property. The example of such a suit would be, for instance, a suit based on the title by ownership or the one based on the possessory title.[12] It can be a suit for ejectment on the basis of title.[13]

Will of the Parties

Such matters would continue under the normal procedure prescribed under the Civil Law without any special treatment of the Act. But, the important word to note in this section is may. It means that the party concerned is free to bring an action under the Code of Civil Procedure.

Thus, in one of the cases, a non- occupant raiyat was disposed from his holding. The court held that he could bring an action either under the Act or ac action upon the title. It is clear that he has sufficient right and title upon his land as he is a tenant of the land. He can very well bring an action on his title and his remedy would not thus be restricted to what is provided in the Act.[14]

Summary Nature of Proceeding

When the party continues under the manner provided under the Code of Civil Procedure, the proceedings are of a summary nature and limited in their scope to find out the fact of possession within the period of six months preceding to the institution of the suit.[15]  This shows how the due process of law[16] would have to be followed before validly getting a title upon the property.

Suit by Person Dispossessed

Section 6 of the Act takes care of the people who are dispossessed without their consent and otherwise than the due process of law to be entitled to get the possession of the property back no matter how good the title of the dispossessor may be.[17] The action should also be brought in a prompt fashion, i.e. within 6 months from the act of dispossession.[18]

The basic premise on which the section is based is that even if the occupant of the property has no right to remain on the property, he or she cannot be thrown out except by recourse to law.[19] Hence, there is no regard to be paid to the question of the origin and the due process of law will decide the disputed rights.[20]

Fact of Dispossession

The remedy under this section can only be availed unless the plaintiff has been deprived of the actual possession.[21] But, the courts have gone one step ahead to cover even the dispossession of symbolic possession.[22] In one the cases, the court nazir himself gave to the decree-holder a symbolic possession and not actual possession thus the case could fall under the purview of this section.[23]

Suppose, a true owner of the land has re-entered upon his own land and that too without any sort of delay. Would you say that he has lost possession? The courts have been categorical in these terms. He would not be supposed to have lost the possession.[24]

There cannot be any dispossession by the act of God.[25] The absence of consent in the act of dispossession is very important.[26] Because of these ingredients, it has been held that ion the case of a developer taking off the construction work being done by the purchaser over the property, it would be termed as an act of dispossession.[27]

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.[28]

Thus the person who should be removed should the one having a juridical possession over the property.[29] It cannot be the father or uncle of the person who would have been removed from the property.[30] Also, it cannot be a servant[31] or the appointee[32] who has been removed.

Similarly, a trespasser, who took forcible possession of the land, cannot claim relief under this section.[33] 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.[34]

Representative

The section is very clear giving a right to sue even to the representatives of the person removed. The law has recognised 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 except the true owner.[35]

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.[36]

Recovery

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.[37] The court therefore also cannot direct the defendant to pay to the plaintiff the cost of removing the hut and filling up of excavations.[38]

The court also cannot order for removal of structures.[39] But, it is not true for all the cases since the court is on the other hand very well empowered to order the removal of obstruction by removing huts and structures that prevent the plaintiff from taking the possession.[40]

The essentials for the order by the court are that the property should continue to exist. It should not have been demolished by any act of the parties.[41] But this would definitely not apply in the cases when the defendant himself or herself has converted the property, for example from a shop to a house. In such cases, the court is very well empowered to pass a decree of recovery.[42]

No Appeal

Neither an appeal nor a review is permissible under the section.[43] But the courts have held that the appeal shall lie if a suit based on the title has wrongly dealt with as a suit based on this section.[44]

Even a letters patent appeal from the decision of a single-judge bench of the High court would be permissible.[45] If a suit is for a mandatory injunction and section 6 would not apply, the appeal would be maintainable.[46]

Establishing Title

The section specifically mandates that the party is not prohibited from establishing his or her title over the property and then claim the recovery.[47] This right exists with the person even if the suit against him under this section has already been decreed.[48]

The mention of title under the suit under this section is also irrelevant.[49] The court generally presumes that where possession is doubtful, the court holds that it follows title.[50]

Recovery of Specific Movable Property

Section 7 deals with the recovery aspects of the above-mentioned property.[51] The property should be ascertainable and ascertained to be specific.[52] This resonates with the English principle of detinue and would lie only against those articles that are capable of being seized and delivered up to the party entitled.[53]

The law is very similar to the effect as mentioned in the previous section 5. The Code of Civil Procedure would take care of the manner of recovery.[54] This section gives the right to the person to recover his or her personal belongings.[55] But, if the property no more remains recoverable, the remedy lies in compensation.[56]

Decree of the Civil Court

Since the person is being asked to follow the civil procedure, whenever the court has decreed the delivery of such property, the decree is also supposed to state the amount of money to be paid as an alternative, if the delivery cannot be made in any circumstances in future.[57]

The person, as in the case of immovable property, is not precluded from suing for value in spite of being entitled to the delivery of property.[58] Under this section, the court is fully empowered to order only for the value of the property and not for the delivery of the concerned property.[59]

Who can sue?

The locus standi is quite easy to prove since the law treats it sufficient to for the plaintiff to have a right to present or immediate possession only.[60] For the aspect of present possession, any special or temporary right would work, like bailee, pawnee, holder, finder of goods.[61]

This right would also extend to the trustee so that he or she can sufficiently sue the defendant so as to secure the beneficial interest of the beneficiary. It is also left necessary for the trustee to make the beneficiaries as a party to the suit.[62]

Liability of Delivery

Section 8 puts this liability with respect to recovery of movable property to the person entitled to immediate possession so as to provide a compulsion under the law and remove any sort of obstruction that may arise in securing the right of the entitled.[63]

Specific delivery can be ordered by the court in four specific situations:

Defendant is agent or trustee[64]

Wherever the fiduciary responsibility arises in respect of the possession of the property to the trustee, he is responsible for the return of the property to the rightful owner.[65]

Compensation, not an adequate relief[66]

The court is to presume the existence of this condition.[67] The proper valuation of the movable property is not always possible hence delivery of possession can be ordered like in the case of an idol in dispute.[68]

Actual Damage cannot be ascertained[69]

The court again presumes its existence. [70]This happens in the cases of antiquity, artistic productions, family relics, ornaments, heirlooms.[71]If the article is of such a special character to bear any ascertainable market value, the court may direct the defending party to deliver a particular article to the plaintiff.[72]

Possession Wrongfully Transferred[73]

It can happen when the defendant has obtained the property by means of fraud.[74] Another person can also wrongfully transfer the property.[75] An example can be when the property is transferred to baliee from the plaintiff.[76] It can also happen when the transfer is to a servant without the permission of his employer.[77]

Conclusion

These remedies that are provided in a serial order over the four sections namely, Section 5, 6, 7, 8 as discussed above together constitute to be part of the overall remedy of recovery of possession of the property.

Therefore, the parties if fulfilling the basic necessities as carved out above can be entitled to this equitable and magnificent remedy. The caution should be laid upon the ingredients and the pigeon holes where a particular case can be fitted.


[1] Ninth Report on the Specific Relief Act, 1877 1 (Law Commission of India, Ministry of Law, Government of India 1958).

[2] Specific Relief Act, 1963, § 5- 8, No. 47, Acts of Parliament, 1963 (India).

[3] Lala Bishumbhar Nath v. Nisar Ali, AIR 1932 Oudh 51.

[4] Sir Frederick Pollock et. al., Pollock & Mulla, The Indian Contract and Specific Relief Acts 1843 (Lexis Nexis 2013).

[5] Bahadur Chand v. Naina Mal, AIR 1914 Lah 370.

[6] Emperor v. Lallu Waghji, AIR 1919 Bom 39.

[7] General Clauses Act, 1897, § 3 (26), No. 10, Acts of Imperial Legislature, 1897 (India).

[8] Id. at § 3 (34).

[9] Bhubaneswar Bhattacharjee v. Dwarkeshwar Bhattacharjee, AIR 1921 Cal 77 (2).

[10] Netumprakkot Kumath Veetil Sankkunni Menon v. Nelumprokotti Kutmath Veetil Govinda Menon, AIR 1914 Mad 572.

[11] Code of Civil Procedure, 1908, No. 5, Acts of Imperial Legislature, 1908 (India).

[12] Sir Frederick Pollock et. al., Pollock & Mulla, The Indian Contract and Specific Relief Acts 1845 (Lexis Nexis 2013).

[13] Lachman v. Shambhu Narain, (1910) 33 All 174.

[14] Tamizuddin v. Ashrub Ali, (1904) ILR 31 Cal 647 (FB).

[15] Sanjay Kumar Pandey v. Gulbahar Sheikh, (2004) 4 SCC 664.

[16] Prataprai N. Kothari v. John Braganza, AIR 1999 SC 1666; Ram Chander Aggarwal; v. Hans Raj Banga, AIR 2003 NOC 109 (Del).

[17] Specific Relief Act, 1963, § 6 (1), No. 47, Acts of Parliament, 1963 (India).

[18] Id. at § 6 (2)(a).

[19] Krishna Ram Mahale v. Shbha Venkat Rao, AIR 1989 SC 2097; Lallu Yeshwant Singh v. Rao Jagdish Singh, AIR 1968 SC 620; Ram Rattan v. State of Uttar Pradesh, AIR 1977 SC 619.

[20] Abdul Majid v. Hanifa Bai, AIR 1951 Ajm 88.

[21] Sona Mia v. Prokash Chandra Bhattacharjya, AIR 1940 Cal 464.

[22] Kumar Kalyan Prasad v. Kulanand Vaidik, AIR 1985 Pat 374.

[23] Id.

[24] Emperor v. Bandu Singh, AIR 1928 Pat 124.

[25] Kally Churn Sahoo v. Secretary of State for India in Council, (1881) ILR 6-7 Cal 725 at 739.

[26] Shree Onama Glass Works Ltd. v. B Ram Harak Panday, AIR 1966 MP 282.

[27] Sudhir Jaggi v. Sunil Akash Sinha Choudhary, AIR 2005 SC 1243.

[28] Specific Relief Act, 1963, § 6 (1), No. 47, Acts of Parliament, 1963 (India).

[29] Sir Frederick Pollock et. al., Pollock & Mulla, The Indian Contract and Specific Relief Acts 1857 (Lexis Nexis 2013).

[30] Nritto Lall Mitter v. Rajendro Narain Deb, (1895) ILR 22 Cal 562; Sobha v. Ram Phal, AIR 1957 All 394.

[31] A Shanmugam v. Ariya Kshatriay Rajakula Vamsathu Madalaya Nandhavana Paripalanai Sangam,, AIR 2012 SC 2010.

[32] Shamdas v. Gurmukhsingh Ramsingh, AIR 1945 Sind 57.

[33] Amirudin v. Mahomad Jamal, (1891) ILR 15 Bom 685.

[34] Hem Chand Jain v. Anil Kumar, AIR 1993 Del 99.

[35] Govinid Dutta v. Jagnarain Dutta, AIR 1952 Pat 314.

[36] Zaibunnisa v. Nazim Hasan, AIR 1962 All 197.

[37] Tilak Chandra Dass v. Fatik Chandra Dass, (1898) ILR 25 Cal 803.

[38] Mdan Sinhg v. Taiyab Hussain, AIR 1990 Gau 85.

[39] Rahmatulla v. Moftzuilla, AIR 1915 Cal 687.

[40] Krishna Prasad Sinha v. Vikash Singh, AIR 2007 Pat 112.

[41] Ashok Kumar Chowan v. AG Anwar, AIR 2010 Kant 70.

[42] Madan Lal v. Ravi Kumar, AIR 2004 J&K 148.

[43] Specific Relief Act, 1963, § 6 (3), No. 47, Acts of Parliament, 1963 (India).

[44] Narain Das v. Het Singh, AIR 1918 All 214.

[45] Vanita Khanolkar v. Pragna M Pai, AIR 1998 SC 424.

[46] H Vedavyasachar v. Shivashankara, AIR 2010 SC 468.

[47] Specific Relief Act, 1963, § 6 (4), No. 47, Acts of Parliament, 1963 (India).

[48] Mg Lu Mg v. Maung Po, AIR 1914 LB 11; Ramdayal v. Saraswati, AIR 1927 All 526.

[49] Bai Dahi v. Amulakhbai Gambhirbhai Barot, AIR 1974 Guj 106.

[50] Dharm Singh v. Hur Pershad Singh, (1885) 12 Cal 38.

[51] Specific Relief Act, 1963, § 7, No. 47, Acts of Parliament, 1963 (India).

[52] Murugesa Mudali v. Jotharam Davay, (1899) ILR 22 Mad 478.

[53] Fadu Jhala v. Gour Mohun Jhala, (1892) ILR 19 Cal 544.

[54] Specific Relief Act, 1963, § 7, No. 47, Acts of Parliament, 1963 (India).

[55] Kamini Sahuani v. Purrav Chandra Sahoo, AIR 1987 Ori 134.

[56] Jaldu Venkatasubba Rao v. Asiatic Steam Navigation Co., AIR 1916 Mad 314.

[57] Code of Civil Procedure, 1908, O. 20, R. 10, No. 5, Acts of Imperial Legislature, 1908 (India).

[58] Bhonajee v. Saraswati, AIR 1924 Nag 176.

[59] Id.

[60] Patta Kumnari Bibi v. Nirmal Kumar Sinha, AIR 1948 Cal 97.

[61] White v. Morris, (1852) 21 LJ CP 185.

[62] Sathianama Bharat v. Saravanabagi Ammal, (1893) 18 Mad 266, 272.

[63] Specific Relief Act, 1963, § 8, No. 47, Acts of Parliament, 1963 (India).

[64] Id. at § 8(a).

[65] GJ Subbarayalu v. ARMAN Annamalai Chettiar, AIR 1945 Mad 281.

[66] Specific Relief Act, 1963, § 8(b), No. 47, Acts of Parliament, 1963 (India).

[67] Id. at § 8 Explanation (a).

[68] Specific Relief Act, 1877, § 11 Illustration (b), Acts of Imperial Legislature, 1877 (India).

[69] Specific Relief Act, 1963, § 8(c), No. 47, Acts of Parliament, 1963 (India).

[70] Id. at § 8 Explanation (b).

[71] Sir Frederick Pollock et. al., Pollock & Mulla, The Indian Contract and Specific Relief Acts 1872 (Lexis Nexis 2013).

[72] Falcke v. Grey, (1859) 4 Drew 651.

[73] Specific Relief Act, 1963, § 8(d), No. 47, Acts of Parliament, 1963 (India).

[74] Kartick Churn Shetty v. Gopalkisto Paulit, (1877) ILR 3 Cal 264.

[75] JW Seager v. Hukma Kessa, (1900) ILR 24 Bom 458.

[76] Shankar Murlidhar v. Mohan Lal Jaduram, (1887) ILR 11 Bom 704.

[77] Biddeomoye Dabee Dabee v. Sitaram, (1877-78) ILR 4 Cal 497.


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