This article is written by MUSKAN KUNWAR, TRINITY COLLEGE OF LAW, PUNE, SY B.A. LL.B. during her internship at LeDroit India.
SCOPE OF THE ARTICLE
The present article focuses on the law relating to possession of property under Sections 5–8 of the Specific Relief Act, 1963. Firstly, it distinguishes between possession and ownership and then proceeds to discuss the law on specific immovable property under Section 5 and the summary relief for dispossession under Section 6. Thereafter, the article covers the law on movable property under Sections 7 and 8. The analysis primarily focuses on the relevant case law. Finally, the article concludes with the practical importance of the aforesaid statutes.
ABSTRACT
Possession lies at the heart of property law but, possession is often conflated with ownership. A person may possess property that belongs to someone else and a person may own the property but not possess it. The Specific Relief Act 1963 is the only legislation that contains special provisions for the remedies regarding possession. The Sections 5 to 8 of the Act provide remedies in relation to the immovable and movable property.
Section 5 provides the ordinary remedy for recovery of specific immovable property while, Section 6 provides a speedy remedy in case of dispossession of the immovable property in any manner other than as per law. Section 7 and 8 provide for the recovery of specific movable property. This article analyzes Sections 5 to 8 through relevant case laws. The main thesis of this article is that the aforesaid provisions not only provide remedies for protection of property but also serve to remind that possession is a protected right which can only be disturbed by law.
Keywords: Possession, Specific Relief Act, 1963, Immovable Property, Movable Property, Dispossession, Possessory Rights, Property Law
INTRODUCTION
Property disputes primarily entail differences concerning ownership but, the immediate issue that comes before the Court is usually about possession. It is essential to distinguish the concepts of possession and ownership because, in many cases, it is possible to possess property without owning it, and own the property without possessing it. The Specific Relief Act, 1963 provides remedies to recover possession of the property.
Section 5 and Section 6 relate to immovable property while, Section 7 and 8 provide remedies for movable property. The Specific Relief Act, 1963 provides protection for a person who possesses the particular property. The most interesting feature of the Section 6 is that it asks for no preliminary decision on the title to the property. The main purpose of this article is to highlight the relevance of these sections of the Specific Relief Act, 1963.
UNDERSTANDING POSSESSION
The Specific Relief Act, 1963 does not define possession. It is something which is generally considered to be control or physical custody over something. The possession can be corporeal that means possession of a thing and can also be incorporeal possession that means possession of rights over something. The possession is different from ownership of the property. This is because a tenant can have possession of the property but may not actually own the property.
The Supreme Court in Nair Service Society Ltd. V. K.C. Alexander recognized the value of possession and found that possessory rights are protected by law. This means that no one can dispossess another person of the property without going through the appropriate legal procedures.
SECTION 5 – RECOVERY OF SPECIFIC IMMOVABLE PROPERTY
Section 5 of the Specific Relief Act, 1963 provides a remedy to the person entitled to possession of specific immovable property. Such a person can approach the court to recover possession through the procedure under the CPC. Unlike Section 6, which focuses on unlawful dispossession, Section 5 mainly protects the rights of a person legally entitled to possession, such as an owner.
SECTION 6 – SUIT BY A PERSON DISPOSSESSED OF IMMOVABLE PROPERTY
Section 6 provides the remedy for a person who has been dispossessed of the immovable property in a manner other than as per law. The Section 6 provides that a person who has been dispossessed of the immovable property in manner other than as per law, can recover possession irrespective of any other remedy. Also Section provides that a suit for possession can be filed by the person who was in possession but, was dispossessed of the immovable property without consent and in manner not prescribed by law.
The Section 6, thus, covers both the cases where ownership was transferred by a fraudulent act, as well as by any other manner not prescribed by law. The Section 6 provides protection to a person who is deprived of possession of the property irrespective of title. Also Section 6 further provides that any suit under this Section will not challenge the ownership of the property, unless the ownership is being challenged by the person who has dispossessed of such property.
The requirements for filing a suit under the Section 6 are limited. The law provides that any person dispossessed of the immovable property can file a suit under Section 6 only if he satisfies the following requirements: the suit can be filed by a person who was in possession of the property; the possession was lost by him without his consent in manner not prescribed by law; and finally, the suit must be filed within six months of the date of dispossession.
The limitation period of six months for filing the suit under Section 6 is one of the most important aspects of the Section 6. According to the law, the six-month period is of sufficient period for taking legal action. The law also provides that a suit for possession under Section 6 cannot be filed against the Government. Furthermore, the law also provides that no appeal or review shall lie from a decree or order passed in a suit under this section.
It is also important to note that although a person who was dispossessed of the property in unlawful manner does not have the remedy under the Section 6 anymore, but he can still file an independent suit for recovery of possession. According to the Section 6(4), the person who is prevented from filing a suit under Section 6 can still file a suit for an independent action for recovery of possession of the property.
WHY SECTION 6 DOES NOT DECIDE TITLE
The Section 6 of the Specific Relief Act, 1963 primarily focuses on the right of possession and not the title. The possession is not a title but, it does provide certain rights to the person in possession. According to the law, the person in possession of the property can remain in possession of the property unless deprived of it in manner prescribed by law. Thus, a party who is in possession of the property can challenge any act of dispossession that violates the law.
The Section 6, however, does not provide a procedure for determining the ownership of the property. In Sanjay Kumar Pandey v. Gulbahar Sheikh , the Supreme Court of India discussed the law relating to Section 6 and highlighted the fact the a suit under Section 6 only investigates the legality of possession. The Supreme Court has observed that a suit for recovery of possession under Section 6 is a summary suit and it does not deal with complicated issues relating to titles to the property.
The East India Hotels Ltd. v. Syndicate Bank case law similarly highlights the legal position on the Section 6. The Supreme Court of India held that under the Section 6, possession of the property was the decisive fact and for the purpose of this Section a disputed title does not arise. The law under Section 6 does not permit a person to take possession of the property by force and it is essentially a law that protects a person against being dispossessed of the property unlawfully.
The Section 6 does not decide the title to the property. It does provide protection to a person against being dispossessed of immovable property unlawfully. Thus, while a person can be successful under the Section 6, it does not necessarily mean that such person will be successful in establishing the title to the property. Similarly, even if a defendant was entitled to possession of the property, he cannot defend a suit for recovery of possession under the Section 6.
The Principle Against Forcible Dispossession
A person cannot forcibly take possession of property, even if they claim a better title. In Rame Gowda v. M. Varadappa Naidu, the Supreme Court held that settled possession is protected by law and cannot be disturbed by force. Any dispute over possession or title must be resolved through due process of law, not self-help.
SECTION 7 – RECOVERY OF SPECIFIC MOVABLE PROPERTY
The Section 7(1) of the Specific Relief Act, 1963 provides that any person who is entitled to possession of specific movable property can recover it through the procedure prescribed by the Code of Civil Procedure, 1908. The Section 7 makes it clear that for the purpose of the Act, the ownership of the property is not necessarily an entitlement for possession.
There can be a legitimate entitlement for possession of a property even if the person is not the owner of the property. For instance, in case of a trust, a person other than the owner of the property can also have the rights of possession. Similarly, a person may also have the rights to possession of the property for a temporary period of time.
Thus, if a person rightfully acquires the property from another person but, a third person wrongfully takes away the property, the first person, who had a legitimate entitlement for possession can bring the appropriate suit to recover possession of the property. Thus, the Section 7 provides the remedy for such cases of movable property.
SECTION 8 – LIABILITY OF A PERSON IN POSSESSION, NOT AS OWNER
Section 8 of the Specific Relief Act, 1963 deals with the situations where the possession of the property by a person is not as the owner. The Section 8 provides the remedies to a person who is entitled to possession of a movable property as against the person who is in possession of such property but, not as the owner.
The Section 8 provides that the person in possession not as the owner of the property shall be liable to deliver the property to the person entitled to possession of the property, if: the property is held as agent or trustee; the property cannot be adequately compensated by the payment of money; the damage caused to such property or loss of it is not easily ascertained; or, the possession of such property is wrongfully transferred by the plaintiff. The rights under the Section 8, thus apply when there is a violation of the right to possession of the movable property by a person in possession not as the owner of such property.
The Section 8 is concerned with the rights of possession of the movable property. For example, a person might have bought the car but, a person driving car with the intention of buying the property wrongfully takes away the car. The law under the Section 8 provides that the person who wrongfully took the car is liable to deliver the car to the person entitled to possession.
IMPORTANT JUDICIAL DECISIONS
The law relating to possession and ownership is not entirely covered by the statutes. The relevant case laws, therefore, provide additional guidance on the law relating to Sections 5 and 6 of the Specific Relief Act, 1963. The Supreme Court of India has delivered a number of important judgments relating to Sections 5 and 6. For instance, the Nair Service Society Ltd. v. K.C. Alexander case law emphasizes the law relating to possession of the property. The East India Hotels Ltd. v. Syndicate Bank case law discusses the law relating to Section 6 and possession of the property.
The Rame Gowda v. M. Varadappa Naidu case law provides the important law relating to right of possession and right of ownership and the principle that a person cannot deprive another person of possession of property merely on the ground that such person has superior title to the property. The Sanjay Kumar Pandey v. Gulbahar Sheikh case law discusses the summary nature of the Section 6 and highlights the fact that the disputed title to the property under Sections 5 and 6 shall be determined by the Court that tries the title of the property. Lastly, the recent case of Sanjay Maruti Jadhav v. Amit Tatoba Sawant (2024) illustrates the law relating to possession of the property.
PRACTICAL IMPORTANCE OF SECTIONS 5–8
Sections 5–8 of the Specific Relief Act, 1963 protect a person’s right to possession of property. Sections 5 and 6 deal with immovable property, while Sections 7 and 8 deal with movable property. These provisions provide legal remedies against wrongful or forcible dispossession. They also ensure that a person cannot take possession by force or self-help and must follow the proper legal process.
CONCLUSION
Sections 5–8 of the Specific Relief Act, 1963 provide important remedies for recovery and protection of possession of movable and immovable property. These provisions protect persons from illegal or forcible dispossession and emphasise that possession must be recovered through legal process rather than self-help. The case law also establishes that even a person claiming title cannot ordinarily dispossess a person in settled possession by force.
Landmark Case Laws
Nair Service Society Ltd. V. K.C. Alexander, AIR 1968 SC 1165
East India Hotels Ltd. V. Syndicate Bank, 1992 Supp (2) SCC 29
Rame Gowda (D) by LRs v. M. Varadappa Naidu (D) by LRs., (2004) 1 SCC 769
Sanjay Kumar Pandey v. Gulbahar Sheikh, (2004) 4 SCC 664
Recent Case
Sanjay Maruti Jadhav & Anr. V. Amit Tatoba Sawant, 2024 INSC 345
Statute
The Specific Relief Act, 1963 — India Code
Sections 5–8
Sections 5–8 of the Specific Relief Act, 1963
