HomeAILET PGRecovery of Possession Under Specific Relief Act 1963

Recovery of Possession Under Specific Relief Act 1963

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Section 5

Ownership is the dejure claim to certain property. Possession is the defacto exercise of a claim to a certain property. A person may be entitled to the possession of any immovable property​​ either as an owner or as possessor. When a person is in possession of anything, as per Section 110 of Indian Evidence Act, the burden of proof to prove that such person is not the owner is upon the person who affirms it. Simply, it can be said that possession is prima facie proof of ownership.​​ 

Section 5 requires that a person must be entitled to possess. Entitlement means having a legal right to possess. This legal right is through substantive law. ​​ For e.g. If a person is in possession of a house as a​​ lessee, he is entitled to enjoy the premises on the basis of his possessory title (lease). This right to enjoy is given by Transfer of Property Act and not Specific Relief Act.

The course of action under section 5 requires that a person should have a right to possess and this right is violated. The Burden of Proof lies upon the plaintiff in a suit filed under section 5. The matter in issue under Section 5 is either ownership or possessory title. When a suit is filed under Section 5, it can be filed ether read with Article 64 or Article 65 of the Limitation Act. Under​​ both these Articles, the period of filing a suit is 12 years.​​ 

A suit can be filed under Article 65 of the Limitation Act on the​​ basis​​ of title. The Cause of Action for filing a suit under Article 65 is a right to​​ possess​​ on the basis of title and the violation of this right. The law laid down in Article 64 and 65 is based on the decision in​​ Asher v​​ Whitcock (1865) (Queen’s bench)​​ which was accepted by House of Lords in​​ Perry v. Clissold (1907).​​ 

On the other hand, the suit under section 5 read with Article 64 of the Limitation Act is filed on the ground of dispossession. In this suit, the plaintiff does not file the suit based on title but on dispossession. The Course of Action for this suit is the right to continue the prior possession and the violation of this right by dispossession. The matter in issue is the settled possession.

In a suit under Article 64, though the plaintiff cannot raise title but​​ the​​ defendant in his​​ defense​​ can raise `his title. Upon this, the plaintiff also now gets a right to raise his title which eh could not have done initially.

Difference between Article 64 and Article 65 of the Limitation Act

The period of limitation for a suit under Article 64 begins from the date of dispossession. The period of limitation under Article 65 begins to run from the possession of the​​ defendant​​ becoming adverse​​ to​​ the plaintiff.​​ 

Perfecting​​ Ownership Title On The Basis Of Adverse Possession

Mere possession, howsoever long it​​ maybe,​​ does not​​ necessarily​​ mean that it is adverse to the owner. The requirement of acquisition of title by adverse possession is that such possession is in the denial of the true owner’s title. Upon the possession becoming hostile if the true owner fails to file a suit within 12 years, his right to such​​ property​​ is extinguished. The Limitation Act deals with the limitation period to sue and the extinguishment of this right. The Limitation Act as such does not define adverse possession but it only provides for period of Limitation. Section 27 of Limitation Act operates to extinguish right to property of a person, who does not sue for the possession within the time allowed by law​​ i.e.,​​ 12 years.

Adverse​​ Possession​​ requires the following requirements to coexist​​ at the same time:

  • nec- vi i..e. adequacy in conformity (peaceful)

  • nec- clam i..e adequacy in publicity (open)

  • nec precario i.e. the adverse to the title holder (Continuous)

Amicus Possidendi under hostile colour of title is required o prove perfection of title by adverse possession.

Section 6

Section 6 of the Specific Relief Act provides a speedy remedy and summary proceeding. The object of section 6 is to provide an immediate and speedy remedy to to restore possession to a person who has been unjustly and forcibly dispossessed. It is to prevent persons persons from taking law into their hands, howsoever good their title maybe.​​ 

Section 5 provides for a general relief but Section 6 provided for a specific relief. The cause of Action to file a suit under Section 6 is the right to continue the settled possession​​ as​​ lawful​​ dispossession. The matter in issue is settled possession. For the purposes of recovery of possession under section 6, the possession must be a juridical (the law recognizes it to​​ be a possession) possession. A servant does not​​ have juridical​​ possession, so if he is dispossessed, he cannot file a suit under section 6.

After termination of tenancy, a tenant does not have a right to continue the possession but if he does not vacate the​​ possession, it would be protected by Section 6 as his possession in a juridical possession.

Therefore, a tenant by holding over has a right to file under section 6 if he has been dispossessed.​​ Similarly,​​ a trespasser who has been in settled possession, also has a right file a suit under section 6 if he has been lawfully dispossessed.

This section overrides any title that may be claimed in suit. This means that in a suit under section 6 neither the plaintiff nor the defendant​​ claims​​ any other title in a suit under section 6, the court will strike out proceeding (Order VI, Rule 06).

Section 6 provides for a special period of limitation​​ i.e.,​​ 6 months. Any delay in filing a suit within 6 months cannot be condoned.​​ 

A suit under Section 6 against the Government is barred by Section 6(2) (b). However, government may bring a suit under Section 6 but that would be governed by Article 112 of the Limitation Act.​​ 

Section 6 is exhaustive in itself, therefore an appeal or review is not permissible. The logic behind this is, that unsuccessful party can file a suit under section 5.

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Golden Gate University - upGrad
Golden Gate University - upGrad
Lawctopus Law School
Lawctopus Law School

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