Recovery of property under the Specific Relief Act, 1963

Introduction

Specific Relief Act, 1963 acknowledges that in various scenarios, especially those involving immovable property or unique movable items, the payment of damages falls short of providing adequate redress to the aggrieved party or upholding their fundamental civil right. Recognizing the limitation of Indian Contract Act, 1872 which primarily focuses on compensatory relief for breach of contract, the Specific Relief Act, 1963 offers more direct and specific remedies aimed at restoring the rightful owner to their possession. Section 5 and 6 deals with the the recovery of immovable property while Section 7 and 8 delas with the recovery of movable property.

Recovery of Immovable Property

Section 5

Section 5: Recovery of specific immovable property.—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).

Who is entitled to relief under Section 5?

The entitlement to possession under this section is broadly construed. It encompasses not only individuals who hold ownership title to the property but also those who possess a legally recognized possessory title.

In the case of Somnath v. Raju, the Supreme Court held that mere possessory title is good enough to maintain an action under section 5 of Specific Relief Act.

How relief under Section 5 can be achieved?

The statute explicitly directs that recovery of possession under Section 5 shall be “in manner provided by the Code of Civil Procedure, 1908”.

Therefore following will be the procedure to seek relief under this section:

1. Institution of a regular suit in a competent civil court.
2. In the suit, the plaintiff must establish their superior right to possession, based on ownership or strong possessory title.
3. Upon successful adjudication of claim, the court will issue a decree for possession.
4. The decree will be executed in accordance with Order 21 of CPC particularly Rules 35 and 36, that govern the delivery of possession of immovable property.
   1. Rule 35 addresses scenarios where the property is in possession of a judgment-debtor or someone bound by the decree, outlining procedures for actual and joint possession.
   2. Rule 36 comes into play when the property is occupied by a tenant or another person with a right to occupancy who is not bound by a decree, specifying delivery through the symbolic act of affixing a copy of warrant on the property.

Section 6

6. Suit by person dispossessed of immovable property.—(1) If any 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. 

(2) 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. 

(3) 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. 

(4) Nothing in this section shall bar any person from suing to establish his title to such property and to recover possession thereof. 

Section 6(1) provides for a specific and expedited legal recourse for individuals who have been (a) dispossessed of their immovable property without their consent, (b) or otherwise than in due course of law.

In the case of Yeshwant v. Jagdish the court defined that “Due course of law it implies that right of the person affected thereby to be present before the tribunal which pronounces judgement upon the question of life, liberty or property in its most comprehensive sense, to be heard by testimony or otherwise and to have the right determination of the controversy by proof every material fact which bears on the question of fact or liability be conclusively proved or presumed against him.”

 For a suit to be maintainable under Section 6 of the Act, the plaintiff bears onus to prove following:

1. That they were in juridical possession of the immovable property
2. That they were dispossessed from it without their consent
3. That the dispossession did not occur through a legally established procedure or in due course of law
4. That the suit for recovery of possession was instituted within the limitation period of six months from the date of dispossession.

The suit under Section 6 is of summary nature where the primary focus of court’s inquiry is principally directed towards ascertaining the fact of plaintiff prior possession and the manner in which they were dispossessed. The question of plaintiff’s title is deemed irrelevant in these proceedings. However in the case of Anathula Sudhakar v. P. Buchi Reddy, the court opined that Where the title of the plaintiff is under a cloud and the possession is not with him, the remedy in such a case is suit for declaration and possession with or without injunction.

Limitation of Section 6

1. Section 6(2)(a) provides a stringent limitation period of six months from the date of dispossession for instituting a suit to avail this remedy.
2. Section 6(2)(b) provides that no suit for recovery of property under this section can be brought against the Government.
3. Section 6(3) provides that any order or decree passed in a suit instituted under Section 6 is not subject to appeal or review. This bar on appeal and review highlights the legislative intent for a swift and final resolution under this section. Nevertheless, the High Court retains its revisionary jurisdiction under Section 115 of CPC in certain exceptional cases involving jurisdictional errors.

Section 6(4) provides that an unsuccessful party in a suit under Section 6 is not precluded from instituting a separate suit to establish their title to the same property and recover its possession based on title.

Difference between Section 5 and 6

1. Under Section 5 the basis of claim is title(ownership or superior possession) while in Section 6 it is prior possession.
2. Under section 5 the plaintiff has to file a long-drawn regular suit for ejectment whereas section 6 gives a summary remedy.
3. Under section 5, claim is based on title while under section 6 the claim is based on possession and no proof of title is required and even a rightful owner may be precluded from showing his title to the land.
4. The period of limitation in section 5 is 12 years while in section 6 it is only six months from the date of dispossession.
5. Section 5 is available against the Government while Section 6 is not.
6. The order/decree under Section 5 is appealable/reviewable while no appeal/review lies from any order/decree under Section 6.

Recovery of Movable Property

Section 7

7. Recovery of specific movable property.—A person entitled to the possession of specific movable property may recover it in the manner provided by the Code of Civil Procedure, 1908 (5 of 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. 

Who is entitled to relief under this section?

Section 7 of the Specific Relief Act, 1963, establishes the right of a person who is legally entitled the right of a person who is legally entitled to possession of a specific movable property. The entitlement to possession under this section extends beyond absolute ownership to include individuals who have a special or temporary right to the present possession of movable property for example trustee holding property for beneficiaries, bailees entrusted with goods, pawnees holding pledged items as security, and finder of lost goods who have a right to possession against everyone except true owner.

How relief under section 7 can be achieved?

The relief under section 7 is achieved in the same manner as enumerated in Section 5. Once the plaintiff has decree in his favour from a civil court of competent jurisdiction, the decree will be executed as per Rule 31 of Order 21 of Code of Civil Procedure, 1908.

Rule 31 outlines the procedure for seizing the specific movable property and delivering it to the decree holder. It also provides alternative measures in cases where specific movable property cannot be recovered, such as by ordering the detention of judgment-debtors or by attaching and selling their other  property to realize the value of movable property.

In a suit for recovery of specific movable property under Section 7, the court also has discretion to grant a decree for an amount equal to the value of the property as an alternative to its specific delivery, particularly in situations where property has become irrecoverable or is no longer within control of the defendant.    

Article 91(b) of the Limitation Act, 1963 prescribes a period of three years limitation for the suit computable from the date when the property is wrongfully taken or injured or when the detainer’s possession becomes unlawful.

Section 8

8. Liability 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:— 

(a) 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) when 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.

Section 8 serves as a mechanism to ensure the specific delivery of movable property in situations where mere award of monetary compensation would be insufficient or highly impractical, particularly addressing cases involving unique, historically significant, or sentimental valuables. 

Essential of Section 8 are as follows:

1. The defendant should be in possession or control of a particular article,
2. Such article should be movable property
3. The defendant should not be the owner of such article, and
4. The plaintiff should be entitled to the immediate possession of such articles.

Difference between Section 7 and 8

1. Under section 8, no suit can be brought against the owner while under section 7 a person having a special or temporary right to present possession may bring the suit even against the owner of the property.
2. Under section 7, a decree is for the return of movable property, or for the money value thereof; in the alternative, white under section 8 the decree is only for the return of the specific article.
3. A suit under section 7 is maintainable against even the owner of the property if the immediate right to possession vests in the plaintiff and not in the owner while under section 8 the suit is not maintainable against the owner.

Conclusion

The Specific Relief Act, 1963 and Code of Civil Procedure, 1908 working in tandem strive to uphold the civil rights of individuals concerning their property and provide a structured legal pathway for restoration of possession.