Recovery of Possession of Movable and Immovable Property

In India, the right to possess property—whether movable or immovable—is a crucial civil right protected by law. The Specific Relief Act, 1963, along with other procedural statutes, provides remedies not just for compensation, but for the actual recovery of possession itself. This article discusses how the law deals with recovering both movable and immovable property, the remedies available, the procedures to follow, and important judicial decisions.

What is Specific Relief?

• Specific relief is a legal remedy granted for enforcing individual civil rights.
• It is not intended to punish but to restore rights and positions.
• The Specific Relief Act, 1963 (SRA), mainly covers civil rights—not penal matters.
• The Act provides various remedies, including recovery of possession, cancellation of instruments, declaratory decrees, injunctions, and more.

Recovery of Possession of Immovable Property

General Principle

• The law does not permit anyone to take the law into their own hands, even if they are the true owner.
• A person who has been dispossessed of property must approach the court to recover possession.
• The remedies for recovering possession are detailed under Sections 5 and 6 of the Specific Relief Act, 1963.

Section 5: Recovery Based on Title

• Section 5 provides that a person entitled to possession of specific immovable property may recover it in the manner provided by the Code of Civil Procedure, 1908.
• The focus is on title—the person with a better title (ownership or possessory) can seek recovery.
• Both owners and persons with long-standing possession (even if not owners) can file suits for recovery.

Key Points:

• Plaintiff must prove better title than the defendant.
• Possessory title is recognised—if a person is in peaceful, long possession, they can protect it against anyone except the true owner.
• Owners must resort to due process, not force, to recover possession (as held by the Supreme Court in Prataprai N. Kothari v. John Braganza).

Section 6: Summary Remedy for Dispossession

Section 6 allows a person dispossessed of immovable property without their consent and not by due process to recover possession through a summary suit.

Essential Requirements:

• Plaintiff was in juridical (legal) possession.
• Dispossession happened without consent and not in accordance with law.
• Suit must be filed within six months of dispossession.
• No suit under this section can be brought against the government.
• No appeal or review is allowed against the order passed under Section 6.

Key Features:

• The plaintiff does not need to prove title, only prior possession.
• This remedy is quick and summary in nature, designed to discourage people from taking law into their own hands.
• Section 6 is an alternative to Section 5 and the two are mutually exclusive.

Important Case Law:

• K.K. Verma v. Union of India: Even after the tenancy ends, a tenant in possession cannot be dispossessed without a court decree.
• K. Krishna v. A.N. Paramkusha Bai: If a dispossessed tenant forcibly regains possession, he becomes a trespasser and cannot claim lawful possession.

Section 5 vs. Section 6

Gratuitous Possession

• Where possession is granted gratuitously (for free), the owner may reclaim possession even without notice to the person in possession.
• Courts may order restoration, but only under appropriate circumstances (see Anamika Mallick v. Ajoy Kumar Roy).

Recovery of Possession of Movable Property

The Specific Relief Act, 1963 provides remedies for recovery of movable property under Sections 7 and 8.

Section 7: Recovery of Specific Movable Property

• Allows a person entitled to possession of specific movable property to recover it as per the Code of Civil Procedure, 1908.
• Includes owners, bailees, pawnees, finders, and those with temporary or special rights.
• The movable property must be specific—that is, ascertained and identifiable.

Key Features:

• Both owners and those with a special right to possess (such as bailees or pawnees) can file a suit.
• A person not entitled to immediate possession cannot maintain a suit under this section.

Example:

If A pledges jewels to B as security, and B sells them to C before the loan is repaid, A cannot sue C for possession without first paying the loan amount.

Limitation:

Article 91(b) of the Limitation Act, 1963 provides a limitation of three years from the date the property was wrongfully taken or when possession became unlawful.

Section 8: Delivery by Non-Owner in Possession

• Applies when someone (not the owner) has possession or control of a particular article of movable property.
• The court may compel specific delivery to the person entitled to immediate possession.

When Does Section 8 Apply?

• When the defendant holds the thing as agent or trustee.
• When compensation in money would not be adequate relief.
• When it is extremely difficult to assess the loss in monetary terms.
• When possession has been wrongfully transferred from the plaintiff.

Presumptions under Section 8:

The court presumes that compensation would not afford adequate relief, or that actual damage is difficult to ascertain, unless the contrary is proved.

Example:

If a family idol is held by a retired priest, he must return it to the family, since monetary compensation cannot compensate for its loss.

Section 7 vs. Section 8

Important Case Law on Movable and Immovable Property

• Wood v. Rowcliffe: A person entrusted with another’s property (like furniture) must return it when demanded.
• Beharilal v. Bhuri Devi: Time spent in certain criminal proceedings can be excluded when calculating limitation period under Section 6.
• Muddasani Venkata Narsaiah v. Muddasani Sarojana: Suit for possession simpliciter (without declaration of title) is maintainable.

Conclusion

The Specific Relief Act, 1963, ensures that civil rights to possession are not just theoretical but can be practically enforced. Whether you have lost possession of immovable property or a valuable movable article, the law provides clear remedies. 

Sections 5 and 6 address immovable property, balancing the rights of true owners and possessors. Sections 7 and 8 handle movable property, recognising both ownership and special temporary rights. Importantly, the law demands respect for due process—no one can take the law into their own hands.