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Under the law, three distinct actions could be brought for the recovery of specific immovable

property, namely
A Suit based title by Ownership;
A Suit based on possessory title;
A Suit based on the strength merely of previous possession, in the case of a wrongful ouster, i.e.
without following the due process of law, of a person without his consent.

Section 5:
I.

When a cloud is raised over a persons title and he does not have a
possession, a Suit for declaration and possession, with or without a

II.

consequential injunction is the remedy;


Where a persons title is not in dispute but he is out of possession, he has to

III.

sue for possession and consequential injunction;


Where there is merely an interference with a persons lawful possession or
where there is a threat of dispossession, it is sufficient to sue for an
injunction simpliciter. Anathula Sudhakar versus P Buchy Reddy AIR
2008 SC 2033 (2039).

In a Suit under this Section, the title of both the parties can be gone into and considered by the
court; but the possession claimed by the party should be juridical, which is recognized by law as
such. For example, a Servant or an agent may have possession of property against strangers, but
not against his mater or principal, for he holds on behalf of the latter. Sobha versus Ram Phal
AIR 1957 All 394.
Previous possession where it is juridical affords evidence of title and where the defendant is
a trespasser and the Plaintiff is in continuous and peaceful possession, he is entitled to
retain such possession.
It is not necessary that the person possessing should have actual physical contact.

Section 6: Suit by person dispossessed of immovable property:

This section was incorporated in the Act with a view to provide a summary, cheap and
useful remedy to a person dispossessed of immovable property, without following the due
process of law.
In a Suit under Section 6,
I.

the Plaintiff can aver only previous possession and dispossession by the

II.

defendant without following the due process of law,


within six month from the date of dispossession the Suit being brought and

III.

claim recovery of possession.


Any other averment or claim made by the Plaintiff will not be relevant for
decision of the Suit under Section 6 and the Court in such case should
ignore such irrelevant averments and claims and confines itself to the
averment of possession and claim for the recovery of possession only. Under
this Section the court can neither go into the question of title nor adjudicate
upon the issue of title. Babu Khan versus Nazim Khan AIR 2001 SC 1740
(1744).

If the Court finds that ingredients of Section 6 are present and are in favour of the Plaintiff, the
Court would decree his claim for ejectment of the defendant even though it be patent to the court
that the defendant is the owner of the immovable property. Thus a Landlord commits a trespass
when he forcibly enters upon the land in the possession of the tenant whose tenancy has expired.
Where a person holds possession under a grant resumable at will or in condition in favour of the
grantor and the latter exercises his right to resume and ousts the grantee, the grantee cannot claim
to proceed under this Section and recover his previous possession. As against third parties,
grantees possession is good, but as against the grantor it is precarious and does not give a legal
right so long as the exercise of the right of resumption remains a valid right. AIR 1964 SC 685.

Section 7: Recovery of specific movable property:

The goods that are to be recovered must be specific and ascertainable, and if the goods are
not so specific, the claimant can get only compensation.
In a Suit under this Section, it is not necessary that the Plaintiff should have been
previously in possession or the goods should have been removed from his possession. It is
enough to find the right, that he has acquired a right to present possession. Such right may
arise out of title, where the Plaintiff is the owner or it may be a special or temporary right,
which may have been granted by the owner or created by law. A special right to possession
when arising out of the act of the owner may take the form of a Bailment or a lien.
Property of every description which is not immovable property is movable property.

Section 8: Liability of person in possession, not as owner, to deliver


to persons entitled to immediate possession.
Specific performance of Contracts
Specific reliefs are by ordering a party to do the very act which he is under an obligation to do.
Obligation as defined under Section 2 includes every duty enforceable by law.
The aim and object of the law is and ought to be to enforce the promise according to its terms
and in the spirit of its intent, literally and liberally.
The whole doctrine of Specific performance rests on the ground that a man is entitled in equity to
have in specie the specific thing for which he has contracted, and that he is not bound to take
damages instead.

Contracts are to be fairly and liberally performed. Men are not suffered by law to depart from the
Contracts at their pleasure. Courts enforce, wherever they can, the literal performance of the
contract.

Section 9: Defences respecting Suits for relief based on Contract.

Section 10: Cases in which specific performance of contract


enforceable:
A Suit comprehensive, Suit for the Registration of the Sale Deed and for recovery of possession,
is not barred on the ground that a statutory alternative remedy of registration is available under
section 77 of the Registration Act. An Agreement for transfer of property implies a contract not
only to execute the deed of transfer but also to appear before the Registering Officer and to admit
execution thereby facilitating the registration of the document wherever it is compulsory. AIR
1999 SC 2958 (2961).

Section 11: Cases in which specific performance of contracts


connected with trusts enforceable.

Section 12: Specific performance of part of contract.

Generally speaking, court do not entertain jurisdiction in respect of contract which cannot be
enforced as a whole.

There is no principal of law that once there is part performance of the agreement, there has to be
decree of specific performance of such an agreement. Kishan Chand vesus Sita Ram AIR 2005
P & H 156 (164).

Section 13: Rights of purchaser or lessee against a person with no title or imperfect title:

Section 14: Contracts which cannot be specifically enforceable and specifically enforceable:

Section 15: Who may obtain specific performance

Section 16: Personal bars to relief: The conduct of the party applying for relief is always an
important element for consideration.

Section 17: Contracts to Sell or let property by one who has no title not specifically enforceable

Where the Seller to his knowledge, has not got what he contracted to sell, he has no equity to
enforce against the purchaser.

Section 18: Non enforcement except with variation:

The defendant may prove by evidence, oral or otherwise, that something has to be added to or
altered in the written contract, and then, if the Plaintiff seeks specific performance, he has to
submit to the variation.

Section 19: Relief against parties and persons claiming under them by subsequent title. This
section provides the categories of persons against whom specific performance of a contract may
be enforced.

Section 20: Discretion as to decreeing specific performance:

Section 21: Power to award compensation in certain cases.

The jurisdiction of the court to grant compensation as an apt and flexible instrument for doing
exact justice under diverse and complicated circumstances.

The damages in addition to or in lieu of specific performance can only be granted by the court on
the basis that contract is alive and subsisting and the Plaintiff is entitled to specific performance,
whereas the damages for breach of contract is awarded on the basis that the contract is dead.

The common law damages for breach of contract and the damages by way of specific relief u/s
21 of the Specific Relief Act, 1963 are totally different in nature and character. In a claim for

damages for breach of contract, the Plaintiff comes to the court with a case that the contract is no
longer subsisting AIR 1983 Cal 6 at 9.

The court has a free hand in the matter of the assessment of compensation, but the court is to be
guided by the principles specified in Section 73 of the Contract Act, 1872.

Compensation is given for any loss and damages caused by the breach to the promisee, the losses
which naturally arose in the usual course of things from such breach, or which the parties knew
when they made the contract to be likely to result from the breach of it. A person can only be
held responsible for such consequences, as may be reasonably supposed to be in the
contemplation of the parties at the time of making the contract. S.73 of Singhal and
Subramanyan contract; Hadley versus Baxendale (1854) 9 Ex 341.

A Seller of immovable property guarantees his title to the purchaser and when the purchaser is
evicted of the said purchased property, the purchaser is entitled to recover by way of damages the
value of the immovable property at the date of such eviction, and not merely the purchase money
he has paid. Nagardas versus Ahmed Khan, ILR 21 Bom 175 at page 185, per Farran CJ;
Rancchod versus Manmohandas ILR 32 Bom 165.

The obligations of Seller and the buyer of immovable property are set forth in Section 55 of the
Transfer of Property Act, 1888.

While proceeding upon the principle that the purchase money belongs to the vendor and the land
to the vendee, it can be said that the vendor may claim interest on this money and the vendee can
claim rent and profits of the land.

Where nothing appears to occasion the delay, the rule is that if the purchaser who on the face of
the contact is under the necessity of paying on a certain day, sets apart his money, and gives
notice that it is ready, interest stops from that time, provided it be shown that he made no interest
on it.

But a purchaser who takes possession before completion must pay interest on the unpaid part of
the purchase money. The act of taking possession is an implied agreement to pay interest. For, so
absurd an agreement as that a purchaser is to receive the rents and profits to which he has no
legal title, and the vendor is not to have the interest, as he has no legal title to the money, can
never be implied. Fludyer versus Cocker (1805)12 Ves 25.

A Court of Equity interposes only according to conscience. Birch versus Joy 3 HLC 565.

Courts can take judicial notice of rise in prices of land, when granting damages in a Suit for
specific performance of an agreement to sell land. Shantabai versus Manakchand AIR 1988
Bom 82, 88, 89 at para 11. (Sharad Manohar J.)

Compensation against subsequent purchaser: If the court comes to the conclusion that the
subsequent purchaser has colluded with the Seller defendant, to defeat the rights of the
purchaser, in such cases the court has powers to direct the subsequent purchaser to pay
compensation to the first purchaser. AIR 2002 Bom 408 (411).

Demand and refusal give the cause of action. Virasami versus Ramasami ILR 3 Mad 87.

Under Section 21, a Suit may be brought

For specific performance of the contract;


For specific performance of the contract and damages, in substitution of such performance;
For specific performance with an alternative claim for damages for breach of the contract;
For a decree for specific performance and in addition for a relief, the right to which arises out of
a contract, for eg, possession of the property which the defendant has contracted to convey.

Section 23: Liquidation of damages not a bar to specific performance:

Where a clause in the agreement provides that in case of the violation of the terms and conditions
of the agreement, the Plaintiff would be entitled to recover damages, it can be stated that it is
strictly a penalty clause for securing the performance of the contact. It only provides that if any
party violates the terms and condition of the contract, he would be liable to pay a penalty. This
would not mean that contract is not to be performed. AIR 2000 SC 191 (193, 194).

Where the parties themselves agree to the effect that it would be open to the Sellers either to
repay the money advanced under the agreement or to sell the Suit property, it would not be just
to grant relief of specific performance in such cases. AIR 1993 Kant 257 at 274.

Section 24: Bar of Suit for compensation for breach after dismissal of Suit for specific
performance:

Where the Suit for specific performance of a contract of sale by the purchaser who has paid part
of the sale price in advance, is dismissed on the ground that he himself was in the breach, his
subsequent Suit for refund of the amount paid is not barred. AIR 1945 Nag 67.

Section 25: Application of preceding sections to certain Awards and testamentary directions to
execute settlements.

Rectification of Instruments

The parties in question may have come to an agreement which is clear, valid and complete,
equitable and conscientious, but when they proceed to have this agreement set down in writing,
the expression actually employed may be such as does not convey the purport it was intended to,
with the result that the parties to the written contract find, that, in effect and in scope, it is very
different from what they had really agreed to.

Section 26: When instruments may be rectified.


An omission in a Regd Sale deed can be rectified under this Section 26. But if the parties
themselves execute a supplementary deed to rectify an omission in the original document, such
supplementary deed is not an extraneous evidence, Both the documens have to be read together.
Brij Lal versus kartar Kaur (1989) 1 LLR 622, 623, 624 (P&H).

Whenever a prayer is made for rectification of an instrument, the question to be considered is not
what the parties would have done, had they been able to anticipate subsequent developments, but
what was their intention at the time contact was made. If the parties have deliberately left out
something from the written instrument, that cannot be put in.

Recession of Contracts:

Where consent to an agreement is caused by coercion, fraud or mistake or misrepresentation, the


agreement is a contract voidable at the option of the party whose consent was so caused. On the
other hand where both the parties to an agreement are under a mistake of fact essential to the
agreement, the agreement is void.

A person who fails to obtain specific performance of a contract, may get it rescinded and
delivered up to be cancelled.

If the defrauded party chooses to sue, three remedies are open to him, namely
He may rescind the contract absolutely and sue to recover the consideration parted with upon the
fraudulent contract; or
He may bring an action to rescind the contract and in that action have full relief; or
He may retain what he has received and bring an action to recover the damages sustained.

An examination of this section shows that the relief of rescission may be asked for in respect of
contracts, whether in writing or not, wherever transfer of property Act is in force; and in respect
of written contracts only on other places, and it may be asked for in the following classes of
cases:
Voidable contracts;
Terminable contracts;

Unlawful contracts;
Void contracts.

Section 28: Rescission of contracts in certain circumstances where the specific performance for
the sale or lease of immovable property is decreed:

Section 29 and 30.

Cancellation of instruments:
In the matters of voidable contracts in writing, the powers of judicial rescission are co-extensive
with those of directing the cancellation and surrender of the instruments.

A forged instrument, so long as the forgery has not been judicially determined, may cause the
greatest mischief, and a court of equity will order its cancellation in anticipation. And it does not
matter that the Plaintiff is not a party to such a document, it does not embody a contract which
binds him personally.
Section 31: Where cancellation may be ordered.

Cases occurs where a written instrument, originally valid, becomes inefficacious by subsequent
events, such as, by satisfaction or payment, or other causes; and its existence casts either a cloud
upon the title of the other party or subject him to the danger of some future litigation; under such

and like circumstances, although the written instruments have become void, courts interpose to
prevent injustice or hardship and will decree a delivery and cancellation of the instrument.

Section 32: what instruments may be partially cancelled: the court is not bound to annul the
whole of the instrument impugned, but may in its discretion, allow a part of it to stand, if it is
evidence of different rights or different obligations.

Section 33: power to require benefit to be restored or compensation to be made when instrument
is cancelled or is successfully resisted as being void or voidable.

Section 34: Discretion of court as to declaration of status or right:

It is certainly for the interest of the State that this jurisdiction of the court should be maintained
and the causes of apprehended litigation, respecting real property necessarily affecting its use
and enjoyment, should be removed; for as long as they remain, they will prevent improvement
and consequent benefit to the public. It is a matter of everyday observation that many plots of
lands in our cities remain unimproved because of conflicting claims.

The section does not lay down as a rule, that any one who claims any interest in property, present
or future, may ask the court to give an opinion, on his title. ILR 8 Cal 761; it does not warrant
every kind of declaration but only a declaration that the Plaintiff is entitled to a legal character or
to any right as to any property, and it warrants this kind of relief only under certain special
circumstances. AIR 1916 PC 78; ILR 47 All 434;

Where a Suit is simpliciter for perpetual injunction under Section 38, on the basis of possession
only, Section 34 does not apply. Fabrica do Igreja versus Union of India (1995) 2 Cur CC 100
at 105 Bom.

A declaratory decree is not capable of execution as it does not require the judgment debtor to do
or not to do anything. No proceeding for contempt of court lies against the judgment debtor if he
ignores the decree, the decree holder can seek his remedy by Suit on the basis of the declaratory
decree. 1975 CrLJ 679 (P&H) (FB)

Section 35: Effect of declaration: The judgment passed under this Section is judgment in
personam and judgment in rem.