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Dr.

Ram Manohar Lohiya


National Law University, Lucknow
2014-15
Final project
On
DIFFICULTY IN PERFORMANCE OF
CONTRACT
DOES NOT RENDER THE
CONTRACT VOID
Subject: - LAW OF

CONTRACT

Under
supervision
Submitted by:
Ms.
Anubhav Jaiswal
Assistant professor
(Law
Roll no. 34

of

:-

Visalakshi
Of

IInd

semester
Contract)

Section - A

ACKNOWLEDGEMENTS :
I would like to take this opportunity to thank Ms. visalakshi whose valuable
support, guidance and advice has helped me to complete this project. I
would also like to thank the library staff for working long hours to facilitate

us with required material going a long way in quenching our thirst for
education. I would like to thank my seniors for guiding me through tough
times they themselves have been through, and lastly I would like to thank
my friends for keeping alive the spirit of competition in me.

Anubhav Jaiswal

INDEX

INTRODUCTION
FACTS
ISSUE
ANSWERING THE ISSUE
JUDGEMENT
CONCLUSION
BIBLIOGRAPHY

INTRODUCTION

Secction 5 to 8 deal with the recovery of proprety. Section 5 of the Specific


relief Act, 1963 provides that a person entitled to the possesion of specific
immovable property may recover it in the manner prescribed by the Code of
Civil Procedure, 1908. Section 6 provieds for a special remedy of possesion
by the way of a summary procedure for a person dispossesed of immovable
property without concent and otherwise in the due course of law.
Immovable Property:
The term "immovable property" is defined to include, unless there is
something in conflict with in the context, land, benefits arising out of land,
and things attached to the earth or permanently fastened to anything attached
to the earth. The tern immovable property in this section is to be described in
the General Clauses Act. There is a conflict of decesions as to whether the
expression "immovable property " in this section includes incorporeal rights
like the right to fish in a khal whose soil does not belong to the person
claiming the rights, some courts hold that it does, and others that it does not.
The recent view is that the section deals with the property which is
something of actual physical possession of its owner, and the appropriate
remedy to stop him from exercising them is by way of injunction. Thus, it
has been held that the term includes the right of the landlord to recover rent
from the tenant.
Possession:
Possession implies:
1: some actual power over the object possesed and apparent control over it;
and
2: some amount of will to avail onself of that power.
It is not merely occupation or actual user, the concept also involves the
physical possibility of the person dealing with the property as he likes and
exclusively. Thus, where a person has, in his own right and not merely a
representative of another, such control over the property as to exclude others
from it, and has the intention of excersing such power of exclusion, he has
the possesion of that property.
Possession is the prima facie proof of the ownership of the property; it is the
good title against all who cannot show a better title. Possession continues, by
itself a limited title to the property, a title which is good against all, except
the rightful owner. Thus, to recover possession, a plaintiff must show a
better title in himself to possession than is the defendant.

If the property belongs to one person, the title acquired by one person in
possession is good against the whole world, except the true owner. In such
cases owner's title is absolute and perfect, while that of person in possession
is relative and imperfect. Nevertheless , if the latter is dispossessed, he can
sue for possession on the basis of possessory title. This is because he has the
better title than the tresspasser, as he has come earlier in possession. where
the tenant of the defendant is cultivating a piece of land, the plaintiff does
not obtain possesssion merely by placing a plough and some manure upon
the land; for applying this provision, possession must be an enduring one.

Recovery or Posession of Immovable property:


Three types of actions can be brought in law for the recovery of specific
immovable
property.
These
are:
1: Suit based on the title of ownership :
2: Suit based on posessory title;
3:Suit based merely on the previous possession of the plaintiff, where he has
been dispossesed without his concent, otherwise than in the due course of
law.
The last remedy is provided in section 6 of the Specific Relief Act.

Section 5:
This section deals with the action for the recovery of possession of specific
immovable property based on title. The essence of the section is that
whoever proves a "better title" is a person entitled to possession. This title
may be on basis of possession or ownership. Thus suppose A enters into a
peaceful possession of land claiming it as his own although he might have
no title to it, still he can sue another who has forcebily outsted him from the
possession and who has no better title to it, because A although has no legal
title, but has a possessory title. The purpose behind section 6 is to restrain
people from taking law into their own hands and dispossess a person
withiout his consent otherwise in the due course of law.
A suit under section 5 is an ordinary suit under the general law and the
plaintiff has to prove that he has a better title. Further , Specific
performance can be decreed only againdt the executant of the contract
having the right to dispose of the property in question.
It is a principle in law that a person who has been in a long continuous
possession of immovable property, can protect the same by seeking an
injunction against any other person in the world except the true owner. It is
also a well settled principle that even the owner of the property can get back
his possession only by resorting to the due process of law.

Section 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 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 is applicable only if the plaintiff proves that1: he was in the judicial possession of the immovable property in dispute.
2: he had been dispossesssed without his consent and otherwise than in the
due course of law, and
3: the dispossession took place within six months from the date of the suit.

Object of the Provision:


Where a person is in settled possession of property, even on the assumption
that he had no right to remain on the property, he cannot be dispossessed by
the owner of th property, except the recourse of law.
The object of this section is to protect possession. It affirms an important
principle of substantive law. Disputed rights are to be decided by due
process of law and not otherwise, and existing peaceable possession will be
protected against disturbance without regard to the question of its orign.
1:The object of the section is also to discourage people from taking the law
in their own hands.
2: To provide a cheap, summary and useful remedy to the person
dispossessed of immovable property otherwise in the due course of law.

Remdies under Section 5 and 6

Section 5 and section 6 give alternative remedies and are mutually exclusive.
Under Section 5 a person dispossed can get the property on the basis of
tiltle, whereas under section 6 a person dispossessed may recover possession
merely by proving previous possession and subsequent wrongful
dispossession. Under Section 6, he need not to prove a better title against the
occupier. The occupier will not be allowed to show his title by ownership,
contract, prescription or inheritance.

Recovery of Possession where possession is gratitious:


When a grant of possession is purely gratitious, the owner had the right to
reclaim possession even without the knowledge of the person in poessession.
the party in possession in the case was using the car garage owned by her
sister. The owner dispossessed him. The trial court ordered restoration of
possession. The High Court confirmed this order. The Supreme Court
described this as an error.
It was evident that the respondant was using the garage of the appeallant on
the permission having been granted by the Sister to the brother. According to
the judgement of the High Court the respondent was claiming no legal
interest in the said garage as he was not claiming its ownership because he
was not claiming to be a tenant or even a licensee. His possession was
purely gratitious and even if without the knowledge of the respondent the
appeallant has reclaimed the possession, it was not a fit case for the High
Court to have interfered under Article 227 of the Constitution of India.
The person who was in the permissive possession and whose claim of
adverse possession proved to be false, was directed to handover possession
to the owner. Where possession was given for repairs but the premisis
happened to come down, it was held that there was no question of seeking
restoration of possession. The proper coure would have been to claim
damages.

Dispossession:
The word "dispossessed" will include any violation of the sybolical
possession duly delivered in the corse of law. It occures when the defendant
deprives the plaintiff of actual possession, is taken actual possession by
another person. There is no Dispossession by the act of God{head note}.
The question in issue, in a case, under this section, is not whether the
transaction under which possession has been taken by the defendant is valid,
but whether the plaintiff was dispossessed without his consent.

Where the developer had handed over two flats to a purchaser along with
keys and the purchaser had certain constructions, it was held that the corts
below had rightly held that the purchaser had the control over the flats, and
he was in possession. There was no evidence to show that he had executed
the aforesaid work on behalf of the developer. Thus, in the circumstances it
was held that the devolper had taken forciable possession of the said flats.
The provision of this section cannot be invoked unless the plaintiff has been
deprieved of actual possession; though it has been held to cover
dispossession of symbolic possession. A true owner who renters without
delay has, in law, never lost possession.
The mere cutting of bundles of grass does not necessarily amount to
dispossession within the meanig of this section, nor is there dispossession by
the mere act of tresspass, nor can A be said to be dispossessed by B, if B
prevails upon A's tenants not to pay rent to A, and receives the rent himself;
nor can a purchaser whose attempts to gain possession are resisted be said to
be dispossessed. There is no dispossession where the right of a leassee to
collect cow dung and grass from specific plots is interfered with unless the
lessee is actually thrown out of the land by Force.

Who can seek possession:


It is only the person who had judicial possession who may sue under this
section. Hence the person claiming to be in possession "as representing his
father and his uncle " cannot sue under this section, nor a servant or
appointee or deputee of another. Thus a mortgagee/ if dispossessed, may sue
his mortager under this section; as also a tenat, his own landlord. However,
the possession of the person seeking relief under this section must be legal.
Prior possession even without any apparent title in the plaintiff as against the
tresspasser is lawful, and suit can be filed not only under this provision, but
even after six months on the basis of title. A suit can be filed under this
provision by one in constructive possession; as also a person claiming
adverse possession.
A tresspasser i.e a person who has taken forciable possession, and who has
been disspossed is not entitled to sue under this section. However, where the
possession of such a person has been peaceful, long, anterior or
accomplished, and he has been in settled possession of the property although
with no right to remain in possession, he cannot be outsted or dispossessed
by the owner of property except in the due course of law. The provision
requires that the plaintiff has possession that is atleast excusable. Where a
plaitiff claims possession, mere allegation without proof of actual possession
is not enough.

Tenant And Landlord:

A suit under section 6 is maintainable between landlord and a tenant where


the question of title is not raised because the question of title is irrelevant,
and defendant cannot raise it. Though a tenant may hold after the expiry of
the tenancy, his possession is still judicial , and he is entitled to sue his
landlord under this section, if forcefully dispossessed by him, or even where
the landlord gets possession from the tenant by colluding with the tenat's
agent. If a tenant of a landlord is dispossessed, the landlord can bring a suit
under this possession.
A person who has been ejected from his property may sue the actual
dispossessor, or the person under whose order or by whose authority the
actual ejector had acted, or may sue both. This section does not applies
where the defendant has dispossessed other peacefully. Taking possession of
the property of a limited company with the concent of the directors, and not
of the company in its general meeting did not make the possession as one
"without his consent" and therfore did not fall under this section. Thus,
where the tenant had given the premisis to the landlord for the marriage of
Landlord's son Section 6 did not apply for recovery of premises from the
landlord.

Time limit for filing a Suit:


A Suit under this section be brought within six months from the date of
dispossession occurs. Since this section does not makes a distinction
between government and private individuals, a suit by the government
instituted under this section would not be maintainable if brought after six
months after the date of dispossession. It is for the plaintiff to prove his
dispossession within six months fron the date of filing the suit.
If a suit is brought under this section within six months from the date of
dispossession, all that the plaintiff has to prove to entitle him to a decree is
previous possession; he has nither to allege , nor prove title. If the suit is not
brought untill after six months from the date of dispossession, the plaintiff
cannot recover on the strength merely of his previous possesssion ; he can
recover only if he proves title to his land. A suit barred under this section
does not neceesarily affect plaintiff's title and he may still bring a paper suit
for the establishment of his title.

No Suit against the Government:


A Suit under this section cannot be filed against the Government, but
remedy under art. 226 of the Constitution of India may lie for the purpose.
This section does not entitle the government to dispossess a person from his
possession, except under the due process of law. But a suit under this section
against a statutory corporation is not barred.

The principle of this section was applied for issuing a writ of Mandamus
where the plaintiff was dispossed by the government. Thus, in MRS
Ramkrishnan Vs Ass Director of Ex- Servicmen Welfare, a tenant in
possession of the leasehold property after the termination by the
government, it was held that he could not be dispossessed under due
authority of law even though it is a tenancy under the government, and was
entitled to get back possession of the property under this section.