WHAT IS THE SCOPE OF SECTION 5 & 6 REGARDING RECOVERY OF POSSESSION

Abstract

A person who is entitled to possession of a certain piece of real estate may reclaim it from someone else who is in possession of it but lacks a title or other legal rights, according to Section 5.

According to Section 6, someone can regain ownership of real estate from someone else who has taken it by coercion, fraud, or force. In cases where an individual’s contractual rights are restricted and damages cannot be quantified in monetary terms, or if damages are quantifiable in monetary terms but do not yield sufficient relief, the Special Relief Act of 1963 provides for such remedies. The person who suffered a loss because of the contract’s non-performance has the authority to sue under this act. The act’s Section 5 outlines how to regain immovable possession in accordance with the Code of Civil Procedure 1980. This act’s purpose is to enforce the party’s performance of the contract, not to award damages. In cases where damages are judged to be insufficient, the court of law will have the authority to issue an order under this act. This action falls under civil lawsuits instead of criminal ones. The article gives detailed information on the suit’s applicability, requirements, and filing authority under this clause.

Immovable property that has been taken from an unauthorized person can be reclaimed through the recovery of possession provisions. Specific relief: The sections provide the person who is entitled to possession with specific relief instead of general damages. No title or right: These sections apply when the person in possession of the property does not have a title or legitimate claim to it. Section 6 is especially relevant in cases where possession was acquired through coercion, fraudulent activity, or force. In summary, Sections 5 and 6 of the Specific Relief Act, 1963, provide a means of recovering real estate from unauthorized persons who have taken it under duress or who lack legal authority or title.

Keywords

Sections 5 and 6 of the Specific Relief Act of 1963, recovery of possession of immovable property, recovery of possession of movable property, recession of contracts, period of limitation, ownership, title, and the ability to file a lawsuit are all covered.

Introduction

The Specific Relief Act of 1963 has addressed many issues related to the law’s remediation. In general, remedies are frequently offered by substantive law, which establishes obligations and rights. For instance, damages are a remedy for contract violations under the law. The purpose of the Specific Relief Act is civil rights, not criminal laws; even civil law must protect certain rights, which are essential to property ownership. Both immovable and movable property are possible. We will talk about the provisions pertaining to the recovery of both immovable and movable property in this article. Initially adhering to the pre-independence law of common doctrine, the Indian parliament passed the Special Relief Act in 1963. The Law Commission’s ninth report on the act made the initial recommendation. The Specific Relief Act of 1877 was repealed by the act that was passed in both houses in 1962.

The Special Relief Act of 1963 is used to demand special performance of the contract, providing justice and sufficient relief, when the situation calls for more severe and substantial compensation than the contractual obligations and compensation that were initially available for the breach of the contract. All of India is covered by this act, except for the state of Jammu & Kashmir. Under this act, the court orders the contract to be performed in accordance with the terms and conditions that were initially agreed upon by the parties. rather than only receiving payment as compensation. In the following situations, the court may exercise its discretion to pursue relief under this act: There are no requirements or standards in place to determine the damages resulting from failure to fulfill the contractual obligation. Alternatively, when monetary compensation would not suffice to make up for the loss or offer sufficient relief. In order to pursue a course of action under section 5, a person must have a right that is violated. The plaintiff in a lawsuit brought under section 5 bears the burden of proof. Either possession or possessory title is at issue under Section 5. Section 5 suits may be filed in conjunction with either Article 64 or Article 65 of the Limitation Act. It takes 12 years to file a lawsuit under both articles. Idleness The law of specific relief falls into the second category when the legal category is separated into three divisions: rights, remedies, and procedure. The Indian Contract Act of 1872 provides for two options in the event of a breach of contract: the first is to seek compensation, and the second is Specific Performance, which requires that the terms of the contractual relationship that were initially governed by the Specific Relief Act be fulfilled.

Although it should only be done in the most exceptional circumstances, the court may also order restoration at the interlocutory stage of the suit in cases where there is prima facie and unmistakable proof of dispossession. When someone has the authority to bar others from property and only as a representative of another, and they intend to do so, they are in possession of that property. Prima facie proof of title to property ownership is possession. According to the ruling in Mustapha Sahib v. Santha Pillai, a property that has been taken away by someone with no superior right is entitled to be reclaimed by the person who took it, even if that takeback was for possession that lacked a title. The plaintiff needs to prove that he is entitled to possession to win, which means he needs to demonstrate that he was in possession before the alleged trespassers did.

Recovery of Possession of Immovable Property

Sections 5 and 6 of the Specific Relief Act of 1963 outline procedures for regaining ownership of particular immovable property. According to Section 5 of the Specific Relief Act, 1963, the Code of Civil Procedure, 1908 (5 of 1908) specifies the process by which a person entitled to possession of any particular immovable property may regain it.

Section 5 outlines the process for recovering certain real estate. It states that “A person entitled to the possession of the specific immovable property can recover it in the manner provided by the Code of Civil Procedure, 1908”.

This section’s main idea is “title,” meaning that the person with the better title is the one who is entitled to the possession. The title could refer to possession or ownership. Because he may not have a legal title but at least a possessory title, ‘A’ has the right to sue someone who has forcibly removed him from possession if he peacefully takes possession of land he claims as his own, even though he may not have a title.

A person who has owned real estate for a long time can defend it by requesting an injunction against anyone outside of the real owner. This is a legal principle. Another well-established legal principle is that the only way for the property owner to regain possession of their property is through the proper legal process. It stipulates that a suit for possession must be brought while taking the Code of Civil Procedure’s provisions into consideration.

A suit by a person who has been evicted from immovable property is covered in Section 6 of the Specific Relief Act. The text says,”

(1) Anybody who has immovable property taken away from them without their consent, other than in accordance with the law, may sue to regain possession of it or have someone else claim it on their behalf.

(2) No lawsuit under this clause may be filed.

once six months have passed since the date of the sale. Contrary to the government.

(3) No order or judgment issued in a suit brought under this section may be appealed, and no review of the judgment may be conducted.

(4) This section does not preclude anyone from suing to regain possession of the property and prove his ownership.

Section 6 only comes into play when the plaintiff can demonstrate:

That the contested immovable property is in his legal possession.

2. That he had been evicted without his permission and without following the proper legal procedures.
3. Within six months of the suit date, the dispossession occurred.

Both Sections 5 and 6 provide alternative remedies, but they are exclusive of one another. Section 5 allows a dispossessed person to regain possession based on title, while Section 6 allows a dispossessed person to regain possession by demonstrating prior possession and subsequent wrongful dispossession.

In the context of section 6, possession refers to legal possession, which can exist with or without actual possession and with or without a legitimate origin. In a lawsuit brought under section 6, the plaintiff is not required to prove title.

To demonstrate actual possession, one must have peaceful possession for a long time. In K.K. Verma v. Union of India, it was decided that the tenant retained legal possession of the property after the tenancy agreement ended and could not be evicted unless the owner obtained an eviction decree against him.

The following are the items covered in section 6.

1. no matter how impressive their title may be, from enforcing the law themselves.

2. offering a practical and affordable solution to someone who has been legally deprived of real estate.

Furthermore, it should be mentioned that in cases where possession is granted purely gratuitously, the owner may reclaim it even if the person in possession is unaware of it. In a suit under section 6, a recovery of possession prayer is the only possible prayer. As a result, a claim for possession and damages cannot be combined. The Limitation Act of 1963’s Section 14 governs the actions taken to prevent dispossession.

Recovery of possession of movable property

Regaining possession of certain movable property is covered by provisions in Sections 7 and 8 of the Specific Relief Act of 1963. A person entitled to possession of specific movable property may recover it in the manner specified by the Code of Criminal Procedure, 1908 (5 of 1908), according to Section 7 of the Act, which is titled “recovery of Specific Movable Property.”
First explanation: A trustee may file a lawsuit under this section to obtain the movable property to which he is entitled as a beneficial interest.

Explanation 2: A lawsuit under this section can be supported by a temporary or special right to the current possession.

Section 7 primary components are as follows.

Prior to anything else, the plaintiff must have the right to possess the movable property. A person may have a right to possess something through ownership or through a temporary or special right as described in section 7 explanation 2. Either the owner of the goods may grant a person a special or temporary right, such as a bailment, pawn, etc., or the owner may not be the one who finds the goods, in which case the finder has a special right to possession, except for opposed to the real owner.

The only people who can file a lawsuit under Section 7 are those who currently own the movable property. A suit cannot be maintained under this section by someone who does not currently possess the movable property.

For example, ‘A’ promises ‘B’ some jewels as collateral for the loan he obtained. Before he has the right to, ‘B’ gives those jewels to ‘C’. ‘C’ is sued for possession of jewels by ‘A’, who has not paid the loan amount. Since he is not entitled to immediate possession of the jewels, the suit will be dismissed.

Additionally, the property in question must be specific movable property, which means it must be determinable. “Specific property” refers to the actual property, not any comparable property. It must be possible to deliver and seize the specific movable property that is under dispute. The plaintiff is not entitled to a recovery decree if the goods are no longer recoverable or are not under the defendant’s control.

According to Article 91(b) of the Limitation Act of 1963, a lawsuit may be filed within three years of the date the property is unlawfully taken or the possession becomes illegal.

A person in possession but not as the owner is liable for delivering to someone who is entitled to immediate possession, according to Section 8 of the Specific Relief Act. It’s written as
“Anyone in possession or control of a specific piece of movable property that he does not own may be expressly ordered to give it to the person who is entitled to immediate possession of it in any of the following situations:

(a) When the defendant is the plaintiff’s agent or trustee and holds the object of the claim.
(b) When monetary damages are insufficient to provide sufficient redress for the claimed loss.

(c) When determining the precise harm resulting from its loss would be exceedingly challenging.
(d) When the plaintiff’s possession of the object under claim has been unlawfully transferred.
Explanation: The court will assume the following regarding any article of movable property claimed under clause (b) or clause (c) of this section, unless the opposite is demonstrated:
(a) That monetary compensation would not provide sufficient relief for the loss;
(b) that determining the precise harm brought about by its loss would be very challenging.”

Section 8 cannot be implemented unless the following conditions are met:

The claimed article is in the defendant’s complete possession or control. This type of item is considered movable property. The individual asserting possession must have the right to have it right away. The article does not belong to the defendant.

The object of the claim is held by the defendant in an agent capacity, or when monetary damages would not provide sufficient redress for the loss, or when it is exceedingly challenging to determine the precise extent of the object’s damage. It is the plaintiff’s responsibility to establish the fiduciary relationship under clause (a), and it is the plaintiff’s responsibility to demonstrate wrongful transfer under clause (d).

With the Right to File a Suit Under This Section

The recovery of property in specie—that is, the actual object—is covered in this section. To be specific, they must be able to be identified and cannot be changed or replaced.

Anyone legally in possession of the property, including bailees, pawnees, and people who find lost goods, has the right to take legal action against the defendant to reclaim the movable property.

Exception:

A lawsuit against the Indian government is not permitted by any of the sections pertaining to immovable and movable property. that under this act, no case of dispossession is maintainable.
Under this act, no one who has unlawfully or violently occupied a property is entitled to a lawsuit.

Case Laws

K. Krishna vs. A.N. Paramkusha Bai^{^[1]}:

This instance involved the owner forcibly evicting a tenant but then forcibly reclaiming the property. When the tenant was forcibly removed, the court ruled that he could file a suit for repossession right away. However, as soon as he took possession of the property, he became a trespasser and could no longer be in lawful possession.

Wood vs. Rowcliffe^{^[2]}:

In this instance, a person departing overseas entrusts his furniture to a friend. As the articles’ trustee, the friend is obligated to return them in the same condition upon request.

Sukhjeet Singh vs. Sirajunnisa^{^[3]}:

In the Sukhjeet Singh v. Sirajunnisa case, the renter voluntarily gave the landlord possession of the property so that his son could get married. But after the marriage, the landlord did not give back possession. In this case, the tenant cannot use Section 6 to reclaim possession, even if they were later duped, because the section does not apply when possession is transferred voluntarily.

Mahabir Prasad Jain vs. Ganga Singh:

According to the Supreme Court’s ruling in Mahabir Prasad Jain v. Ganga Singh, an individual requesting equitable relief under the Specific Relief Act must appear in court with clean hands. The tenant in this instance was being sued for possession, but he did not present proof of his tenancy. Instead, he filed several lawsuits against the landlord in a short amount of time, each with different accusations.

Since the tenant did not come to the court with clean hands, the court considered this behavior to be an abuse of the legal system. The tenant was therefore not eligible for any kind of equitable relief under the Specific Relief Act.^[4]

Vanita M. Khansalkar vs. Pranga M. Pai^{^[5]}:

The Supreme Court considered whether a Letters Patent Appeal from an order issued by a single judge to the Division Bench of the High Court is subject to the ban on appeals from orders issued under Section 6(3). The court decided that Letters Patent Appeals are exempt from Section 6(3)’s ban on appeals and revisions.

In conclusion, even though Section 6(3) forbids reviews and appeals of orders or decrees in suits brought under Section 6, it does not apply to Letters Patent Appeals in the particular circumstances described in the case.

Geeta Rani Paul vs. Dibyendu Kundu:

The Honorable Supreme Court ruled that if the plaintiff can demonstrate his ownership of the property, it suffices when he files a lawsuit for dispossession. Once the title has been established, it is no longer necessary to prove other details, such as being sold off the property.

N.P. Thirugnanam vs. Dr. R.J. Mohan Rao:

The Court holds that a decision regarding a specific performance act will be made in a case where it is observed that the plaintiff did not fulfill his end of the bargain or had no intention of doing so.

Prem Singh vs. Birbal^{^[6]}:

According to the Court’s ruling in this case, if a contract is valid, there is no question that it can be cancelled; if it is void ab initio, which means that it was never created in the first place, there is no cancellation option because it does not exist in the eyes of the law. A contract cannot be enforced if it does not exist.

Rudraprayag vs. Narsingh Rao:

The court decided that, regardless of how good their title may be, this should deter people from enforcing the law on their own.

Vali Mohammad vs. Ayodhya:

According to the court, a party who has been deprived of possession by another party within six months of its position should be given a prompt and comprehensive remedy through the Civil Court system, allowing them to contest the issue of their respective titles in a court of competent jurisdiction if they are advised to do so.”

Conclusion

Since the Indian Contract Act of 1872 only offers compensation as a remedy for contract violations, the remedies offered by the Specific Relief Act become crucial. The plaintiff had no recourse for specific performance in situations where the damage could not be determined and where relief in the form of compensation was insufficient to cover the loss. The study has clearly distinguished between the remedies offered by the Specific Relief Act of 1963 and the Indian Contract Act of 1872. He must be in legal possession of the property to be able to sue for its eviction; otherwise, the owner cannot. A lawsuit under this act may be brought by the party who suffered a loss as a result of the non-performance of the contract. This law offers relief in cases where the common compensation cannot be calculated or, if it can, does not adequately compensate for the harm. It revokes the clause that emphasizes contractual obligations being fulfilled over other options.

A person who is entitled to possession of immovable property or who has a special right to possession may regain it through the due process of law, as stipulated in sections 5 and 6. In a similar vein, the person can regain possession of the movable property under sections 7 and 8. To regain possession of the property, the plaintiff or anyone claiming through them may file a lawsuit under this section. It is crucial to remember that if the plaintiff willingly gave the defendant consent or transferred possession, Section 6 is not applicable. Instead of delving into the question of title, the section concentrates on proof of possession. People are not allowed to take forcible possession of any property in our nation of India, and even the property owner is not allowed to re-enter through coercion. An entitled person may request a decree of ejectment and recovery of possession against the defendant under CPC provisions order XXI, rules 35, and 36. Despite this, if a lawsuit is filed after 12 years, it will be considered adverse possession under the Limitation Act.

References

Ashish Sharma, Rajiv Gandhi University of Law, with respect to the Specific Relief Act and civil procedure code.
27^th October 2022, the voice of law under sections 5 and 6 of the specific relief act.
18^th October, 2023, specific relief act, 1963.
Kushi Sharma, 7^th August 2023, section 5 and 6 of specific relief act.
Aishwarya Agarwal, 8^th July 2023, section 6 of specific relief act.
Siddharth Gupta, law relating to recovery of possession of property.
Specific Relief Act, 1963.
Code of Civil Procedure, 1908.
https://blog.ipleaders.in/possession-recovery-movable-immovable/#:~:text=Section%205%20and%206%20both,possession%20and%20further%20wrongful%20dispossession.
https://www.drishtijudiciary.com/to-the-point/ttp-specific-relief-act/recovery-of-immovable-property
https://voiceoflaw.in/article/reliefs-under-sections-5-and-6-of-the-specific-relief-act
https://lawbhoomi.com/section-6-of-the-specific-relief-act/
https://www.lawaudience.com/difference-between-section-5-and-6-of-the-specific-relief-act-1963/

^[1] A.N. Paramkusha Bai vs K. Krishna And Another on 9 December 1999

Equivalent citations: 2000(4)ALD159, 2000(2)ALT341

^[2] Wood vs. Rowcliffe 1847

^[3] Sukhjeet Singh vs Sirajunnisa on 19 June, 2000

Equivalent citations: AIR2001MP59, AIR 2001 MADHYA PRADESH 59, (2000) 3 MPLJ 593 (2001) 3 CIVLJ 378, (2001) 3 CIVLJ 378

^[4] Shri Mahabir Prasad Jain vs Shri Ganga Singh on 5 October 1999

Equivalent citations: AIR 1999 SUPREME COURT 3873, 1999 (8) SCC 274, 1999 AIR SCW 3957, (2000) 1 TAC 542, 1999 (6) SCALE 370, 1999 SCFBRC 431, 2000 (1) ALL CJ 13, 2000 (1)

^[5] Vinita M. Khanolkar vs Pragna M. Pai & Ors on 28 November 1997

Equivalent citations: AIR 1998 SUPREME COURT 424, 1998 (1) SCC 500, 1997 AIR SCW 4415, 1997 (7)

^[6] Prem Singh & Ors vs Birbal & Ors on 2 May, 2006

Equivalent citations: AIR 2006 SUPREME COURT 3608, 2006 AIR SCW 3595, 2006 (5) AIR KANT HCR 271, (2006) 42 ALLINDCAS 84 (SC), (2006) 1 CLR 751 (SC)

Disclaimer: The materials provided herein are intended solely for informational purposes. Accessing or using the site or the materials does not establish an attorney-client relationship. The information presented on this site is not to be construed as legal or professional advice, and it should not be relied upon for such purposes or used as a substitute for advice from a licensed attorney in your state. Additionally, the viewpoint presented by the author is personal.