See PART Il Chapter 1 RECOVERING POSSESSION OF PROPERTYSee 5. RECOVERY OF SPECIAL IMMOVABLE PROPRTY 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). The essence of this section is ‘title’ i.e. the person who has better title is a person entitled to the possession. The title may be of ownership or possession. Illustration : 4 Aenters into peaceful possession of land claiming his own although he might have no title, still he has the right to sue another who has ousted him forcibly from possession because he might have no legal title but at least has a possessory title. 1 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 a civil suit rather than merely sending a notice demanding possession by a letter sent by Registered acknowledgment.Continued... i In order to succeed in a suit under Section 5, the plaintiff has to show that he is a person entitled to get possession before the alleged trespasser got possession. § It is a principle of law that a person, who has been in a long continuous possession of the immovable property, can protect the same by seeking an injunction against any person in the world other than the true owner. 1 Itis also a settled principle of law that owner of the property can get back his possession only by resorting to due process of law. It states that a suit for possession must be filed having regard to the provision of the Code of Civil Procedure. 1 The word “Entitled to possession” means having a legal right to title to possession of ownership of which the claimant has been disposed, Title to ownership is must. il The word “possession” is a combination of two words Corpus : Some actual power over the object possessed. Possessions : Physical Element Possidendi : Mental Element 1. Animus : Some amount of willContinued... a Adverse possession arises when a person who owns a particular property, allows a trespasser to occupy that property as a result of negligence. All trespassers must be evicted within a statutory period of limitation If an owner fails to remove a trespasser within the stipulated period, he/she will lose all ownership rights. This process is known as adverse possession. According to Section 65 of the Limitation Act 1963, the statutory period of limitation that is allowed for the possession of immovable property or any interest therein is 12 years (in the case of private property). For Government, State or public property, the statutory period is 30 years from the date the trespasser occupies the property. There are some circumstances wherein the limitation period is not taken into account when the statutory period is being calculated. For example, if there is pending litigation between the owner and the claimant; if the owner is not of a sound mind, is a minor, or if the owner is in the armed forces.6. SUIT BY PERSON DISPOSSESSED OF IMMOVABLE PROPERTY 1) Ifany 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, notwithstanding any other title that may be set up in such suit. 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. 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. Nothing in this section shall bar any person from suing to establish his title to such property and to recover possession thereof. Object 8) To discourage people from taking the law into their hands (however good their title may be). ll To provide a cheap and useful remedy to a person dispossessed of immovable property in due course of law. 2) 3 4)Continued... Essential : 1. That he is in possession of the immovable property in dispute. 2. That he had been dispossessed of without his consent and without due process of law. 3. That dispossession took place within six months from the date of suit. Possession is nine point of ownership.(Section 110 of IEA r/w Section 6 of SRA) fl The word "dispossessed" has not been used in the narrowly constricted sense of actual physical possession of immovable property; it would include within its sweep actual physical dispossession as well as violation of other forms of possession including symbolical possession duly delivered by law and violated by an aggressive trespasser.Continued... Even if person in possession is person other than one who dispossessed plaintiff, he would be necessary party Ql If persons who have been dispossessed are, in possession of the property, in question, they would obviously be necessary parties for recovery of possession in a suit under Section 6. However, if dispossession is done through the agency of some persons who have passed on the possession to other persons, the latter being in actual possession from whom recovery can be sought, would be necessary parties for claiming an effective relief under Section 6. The suit filed against those who are in actual possession for recovery of the immovable property under Section 6 can be effectively decided even in absence of the agents who have dispossessed plaintiff and transmitted the possession to the defendants. 2 =Continued... Possession voluntarily transferred not covered under section 6 It may be noted that Section 6 covers only that case where the plaintiff is unlawfully dispossessed of immovable property. If the plaintiff has himself voluntarily given possession he can not have recourse to Section 6. SUKHJEET SINGH vs. SIRAJUNNISA (AIR 2001 MP 59) the tenant handed over possession of premises to the landlord for marriage of his son. The landlord failed to hand over the possession again to the tenant after his son's marriage. i 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.Continued... He who comes into equity must come with clean hands { It is often stated that one who comes into equity must come with clean hands. MAHABIR PRASAD vs. GANGA SINGH (AIR 1999 SC 3873) i The Supreme Court held that a person seeking equitable relief under the Specific Relief Act, should come to the Court with clean hands. fi It was also held that the plaintiff was abusing the process of the Court and he did not come to the Court with clean hands. He was,therefore, held not entitled to any equitable relief under the Specific Relief Act.Continued... No suit for dispossession against the Government 1) When a person has been dispossessed of the immovable property by the State he can not bring an action under the Specific Relief Act. The plaintiff who was peaceably in possession was entitled to remain in possession and only the State could evict him. Thus, a suit for regaining possession under Section 6 can be brought against a private person and not the Government. Suit under Section 6 is an alternative remedy {| A suit to recover possession under Section 6 is an additional remedy which, by way of a summary remedy, can be availed within 6 months of dispossession . 1! This does not bar a person from suing to establish his title to such property and to recover possession thereof. Therefore, a person is not precluded from asserting his title and getting possession under the law, and such a suit may be brought even beyond six months after dispossession.Continued... Suit proceedings summary in nature a Where suit for restoration of possession of person dispossessed otherwise than in accordance with law was filed. Suit proceedings were summary in nature and no appeal had been provided against decree under Section 6. Remedy of unsuccessful party was to establish title in regular suit. Remedy of revision under Section 115, CPC was available but only by way of exception. In the instant case, High Court was in error in setting aside decree under Section 6 of the Specific Relief Act in exercise of jurisdiction under Section 115 CPC. after re-evaluating statements of witnesses. As such, the order of High Court ,was set aside and order was remitted to High Court for decision afresh in accordance with law.Continued... Relief under Section 6 of the Specific Relief Act is summary in nature and no appeal lies against it ) The Supreme Court reminded the courts below that proceedings under Section 6 of the Specific Relief Act were not appealable in the light of Section 6(3) of the Act. The said observation was made by the Supreme Court in JASWANT SINGH vs. PUNJAB AGRICULTURAL UNIVERSITY (SLP (C) 24044/2018) decided on 27.08.2018 The present matter was an SLP filed against final judgment and order dated 09-03-2018 in RSA No. 1319/2016 passed by the High Court of Punjab & Haryana. 8) In a succinct(#faa) order of dismissal of SLP, the two judge bench of the Supreme Court observed that it was surprising that in a suit under Section 6 of the Specific Relief Act, appeals have solemnly been filed and heard on merits.Continued... Section 5 and 6 both give alternative remedies and are mutually exclusive. §! Under section 5, a person dispossessed can get possession on the basis of title, whereas in section 6, a person dispossessed may recover possession by proving previous possession and further wrongful dispossession. NAIR SERVICE SOCIETY vs. K.C.ALEXANDER (AIR 1968 SC 1165) ISSUES 1. Can Section 5,6 be clubbed together in a single suit ? No, two causes of action cannot be clubbed.<> Continued... 2. If there was no suit filed within 6 months period under Section 6 then can a suit be filed on the cause of action of possession and dispossession subsequent to 6 months time ? The Court held that the cause of action under section 6 is different than cause of action under section 5. Therefore, if a person fails to file a suit within 6 months of his dispossession, he will not be able to file a suit under section 6 but he always get a regular remedy under section 5. 3. Whether a suit under section 6 bars a subsequent suit under section 5 ? No bar and even section 6(4) declares that such subsequent suit under section 5 can be filed.See Continued... Which one of the following claim as possession under section 6 : Tenant Section 116 of Transfer of Property Act - Tenant holding over Servant Forceably ejected Lessee sub lessee can also file Trespasser Mere trespasser can’t file suit under section 6 because his possession was not said to be lawful. A suit on the basis of title and possession under section 5 and 6 respectively can be filed by the owner or tenant against trespasser.Continued... ILLUSTRATIONS B pursuads A's tenant C to give the rent of the premise to B instead of A. Cana suit be filed under section 6 for recovery of rent ? is not a suit for possession. A and B are joint owners and A is in possession of property and A himself voluntarily give the possesion of property to C. Will this amount to dispossession ? No, because the joint owners was in possession in behalf of other co-owners and he has voluntarily relinquish the possession. In a suit under section 6 the plaintiff specifies in the plaint that he is the owner of such property. Will this render Section 6 applicable in the suit ? Under section 6, the court doesn’t conduct hearing on title of plaintiff and defendant. ae suit will not be rendered not maintainable but the court will not hear issue on title.<> Difference between Section 5 and 6 SECTION 5 Regular suit for ejectment Claim is based on title Limitation period - 12 years Appeal as a matter of right is available SECTION 6 Summary remedy Specific Suit Based on possession No proof of title is required Even a rightful owner precluded for showing his title Limitation Period - 6 months No appeal only revision.See PART Il Chapter 1 RECOVERING POSSESSION OF MOVABLE PROPERTYContinued... Section 7 and 8 embody the English Rules as to detinue. An action in detinue would lie only for some specific article of movable property capable of being recovered in species and of being seized and delivered up to the party entitled. A person can seek recovery of his personal belongings under this section. The cases in which movable property can be recovered in specie are given under Section 8. However if the goods have ceased to be recoverable the remedy lies in compensation7. Recovery of specific movable property. a 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. Section 7 provides for the recovery of movable property in specie i.e. the things itself. The things to be recovered must be specific in the sense they are ascertained and capable of identification. The nature of things must continue without alteration.Continued... Main ingredients of section 7 are as follows : . The plaintiff must be et ‘itled to the possession of the movable property. A person may be entitled to the possession of a thing either by ownership or by virtue of a temporary or a special right as provided under explanation 2 of section 7. A special or temporary right to an individual may arise by either act of the owner of goods i.e. bailment, pawn etc. or not by the act of the owner of goods i.e. a person may be the finder of goods and finder of goods enjoys special right to possession except against true owner. Only those persons can maintain a suit under section 7, who has the present possession of the movable property. A person who does not have present possession of the movable property cannot maintain a suit under this section.Continued... 2. a The property in question must be specific movable property It means that property should be ascertained or ascertainable. Specific property means the very property not any property equivalent to it. The disputed specific movable property must be capable of being delivered and seized. Where the goods have been ceased to be recoverable or are not in control of the defendant, the plaintiff is not entitled to a decree for recovery. To succeed under this section it is sufficient if the plaintiff seeking possession has a right to present or immediate possession or by way of special or temporary right to present possession i.e. of a bailee, Pawnee, finder of lost goods. A trustee can sue under this section possession of movable property to protect the beneficial interest of the beneficiary and it is not necessary to make theContinued... Illustrations : 1. A pledges some jewels to B to secure for the loan he had taken. B disposes those jewels to C before he is entitled to do so. A without having paid the amount of loan sues C for possession of jewels. The suit shall be dismissed as he is not entitled to immediate possession of jewels. 2. 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 them from C. 3. Areceives a letter addressed to him by B. B gets back the letter without A's consent. A has such a property therein as entitles him to recover it from B.Continued... Illustrations : 4. A deposits books and papers for safe custody with B. B loses them and C finds them, but refuses to deliver them to B when demanded. B may recover them from C, subject to C’s right, if any,under 168 of the Indian Contract Act,1872. 5. A,awarehouse-keeper, is charged with the delivery of certain goods to Z, which B takes out of A’s possession. A may sue B for the goods.Y of person in possession, not as owner, to deliver to persons entitled to immediate possession. 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- i) when the thing 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 thing claimed; (c) when it would be extremely difficult to ascertain the actual damage caused by its loss; (d) a the possession of the thing 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!Continued... Ingredients : ena = The defendant has full control or possession of the article claimed. Such an article is movable property. The person claiming the possession must be entitled to immediate possession; The defendant is not the owner of the article. The thing claimed is held by the defendant as an agent or when compensation in money would not afford adequate relief for the loss or when it is extremely difficult to ascertain the actual damage of the thing claimed.Continued... a) When the thing claimed is held by the defendant as the agent or trustee of the plaintiff the burden is on the plaintiff to prove the fiduciary relationship. WwooD vs. ROWCLIFFE (1844) In this case, a person leaving abroad leaves his furniture under the care of his friend. The friend is the trustee of the articles and is bound to return them in the same condition when demanded.Continued... b) When compensation in money would not afford the adequate relief for a the loss of the thing claimed. The articles of curiosity and antiquity, articles of family interest or those connected with events of family history falls under this clause. Examples : Family idols, tropy,cup won as a prize, Letters etc. cannot be represented in money to be given in damages. The Court in such cases enforces actual delivery. Illustration: In case, where the idol of the family temple is in custody of a retired priest as he is bound to return it to the family because the actual damage is unascertainable.Continued... c) Extremely difficult to ascertain the actual damage caused by its loss Q a The articles of rarity and curious workmanship such as a picture by dead painter, rare antique vase etc. fall under this clause. This clause applies to articles to unusual beauty rrety and distinction such as artistic production value of which is impracticable to access. Example : Box of jewels, family pictures, valuable paintings, certificate of title to govt. stock etc. Illustration : 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 them to A.Continued... d) When the possession of the thing claimed has been wrongfully a transferred from the plaintiff. Where there has been a wrongful transfer of possession and then can be claimed back for this purpose, the article may not have intrinsic value by reason of peculiar association, it may have obtained in the eye of value. It cannot exchange and all that necessary is that possession must have been transferred wrongfully by tort, circumstances. No property here could be pass. Fiduciary relation is not necessary.Difference between Section 7 and 8 Sars SECTION 8 Relief under Section 7 is of general nature. Relief under Section 7 is of specific nature. A suit to recover possession can be maintained A suit to recover possession can not be against the owner of the article. maintained against the owner of the article. Relief claimed is for possession and in alternate Relief claimed is for only delivery of specific for compensation equal to the value of property. movable property. Article 91(b) of the Limitation Act, 1963 provides a period of three years for the filing of suit computable from the date when the property is wrongfully taken or when the possession becomes unlawful.