RECOVERY OF POSSESSION OF IMMOVABLE PROPERTY UNDER SPECIFIC RELIEF ACT,1963

      

     

   The recovery of possession in the Specific Relief Act, 1963 is mentioned under chapter 1 from section 5 to 8. The recovery includes both the movable as well as the immovable property however, section 5 and 6 deals with the recovery of immovable property.

 Section 5 reads as follows:

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).

       If we were to minutely analyze this section then we are clear off at understanding that this section deals with the recovery of possession on the basis of title and in the manner guided by the Code of Civil Procedure ,1908 under Order 21 Rule 35 and 36. There are certain guidelines propounded by the Court of law which govern as to what encompasses “entitlement to possession”:

• ·        A person cannot be said to be entitled to possession if he were given to acquire the occupation of the possession gratuitously.
• ·        Care taker, servant, watchman or a friend who was allowed to the premises for sometime cannot acquire title to the property irrespective of their long possession and the Courts are not justified at protecting their right to title.
• ·        To entertain a suit for the recovery of specific immovable property on the basis of title it is imperative for the person to prove that he has a valid, subsisting rent agreement, lease or license agreement in his favor.

       For a valuable understanding of this section it becomes quintessential to glance at the provisions of section 110 of the Indian Evidence Act which states the burden of proof as to ownership. This section enunciates that when there emerges a question of ownership of possession the burden of proving that the person is not the owner lies on the person who affirms in converse. It is also important to note at this point that the possession holds good against the whole world except the true owner.

       Section 6 of the Specific Relief Act, 1963 deals with the suit instituted by persons dispossessed of immovable property and to attract this section the following conditions are essential and need to be fulfilled in toto:

·        The plaintiff must prove his juridical possession to the property prior to dispossession.
·        The plaintiff must have been unlawfully dispossessed from the property without his consent. Which clearly implies that it must not have been an action taken by the Government or the Public Authority in the rightful exercise of their duty.
·        The plaintiff must have instituted a suit within 6 months from the date of dispossession.

        Section 6 was introduced to provide expeditious relief to persons who are wrongfully and unlawfully dispossessed from the possession without any consent. It was also introduced with a purpose to deter people from taking law into their own hands. This section also holds well against owners who unlawfully and unauthorizedly dispossess the tenants exposing them to traumatizing and fragile conditions. This section caters to summary relief but to see its application at a full swing the plaintiff must suffice all the prerequisites as mentioned above before coming to the Court of Law.

         Since this section was introduced to expeditiously resolve matters hence, there shall lie no appeal against any order or decree in any suit instituted under this section, nor shall any review of such decree or order be allowed -Section 6(3). This clearly emphasizes that the order or decree passed under this section is a case decided and only Revision as under Section 115 of the Code of Civil Procedure, 1908 shall be allowed. However, institution of suit under this section does not bar the aggrieved party to seek relief under Section 5 for the recovery of property on the basis of title.

        In the similar context in the Code of Criminal Procedure, 1973 under Section 145 the Executive Magistrate on receiving a report from the police officer or upon information that a dispute is likely to cause breach of peace, can make an order in writing, stating the grounds to be satisfied and requiring the parties concerned in such dispute to attend his court in person or by his pleader on a specified date and time. If it appears to the Magistrate that any of the persons have been wrongfully dispossessed within two months next before the date on which the report of the police office or the information so received he shall treat as if the party so dispossessed had been in possession on the date of his order. This section also entitles to the person unlawfully and wrongfully dispossessed the right to seek quick justice and remedy.

         Hence, the major point of difference between Section 5 and Section 6 lies in the fact that under section 5 the suit is instituted to recover the possession on the basis of title and governed by the manner provided under the Code of Civil Procedure, 1908 and is usually a lengthier and time consuming procedure. However Section 6 deals with unlawful dispossession from property and title is immaterial. This section ensures a speedy recovery and summary procedure to help the aggrieved party.

Contributed by,

Maitreyi Raghuraman