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CHANAKYA NATIONAL LAW UNIVERSITY

Project work of Contracts


On
“Recovering the possession of the property under SRA”

Submitted to: Mrs. Sushmita Singh Submitted By: Vibhuti Sharma

(Faculty of Law of Contracts) Roll No: 1772

1st Year B.A. L.L.B. (Hons.)

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ACKNOWLEDGEMENT

Any project completed or done in isolation is unthinkable. This project, although prepared by
me, is a culmination of efforts of a lot of people. Firstly, I would like to thank our Professor Mrs.
Sushmita Singh for her valuable suggestions towards the making of this project.

Further to that, I would also like to express my gratitude towards our seniors who were a lot of
help for the completion of this project. The contributions made by my classmates and friends
are, definitely, worth mentioning.

I would like to express my gratitude towards the library staff for their help also. I would also like
to thank the persons interviewed by me without whose support this project would not have
been completed.

Last, but far from the least, I would express my gratitude towards the Almighty for obvious
reasons.

VIBHUTI SHARMA

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Table of Contents

ACKNOWLEDGEMENT ............................................................................................................................... 2
RESEARCH METHOD .................................................................................................................................. 4
Research Methodology ............................................................................................................................. 4
CHAPTER 1 : INTRODUCTION .................................................................................................................... 6
CHAPTER 2 : RECOVERY OF SPECIFIC IMMOVABLE PROPERTY {SECTION 5} ............................................ 8
CHAPTER 3: SUIT BY A PERSON DISPOSSESSED OF IMMOVABLE PROPERTY {SECTION 6} ....................... 9
CHAPTER 4: RECOVERY OF SPECIFIC MOVABLE PROPERTY {SECTION 7}................................................ 12
CHAPTER 5: Liability of person in possession, not as owner, to deliver to persons en titled to
immediate possession {Section 8} ....................................................................................................... 13
CONCLUSION........................................................................................................................................... 15
BIBLIOGRAPHY ........................................................................................................................................ 16

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RESEARCH METHOD

AIMS AND OBJECTIVES

1. To study about Specific Relief Act.


2. To study about the provisions for the recovery of possessions under SRA.

RESEARCH QUESTIONS

The researcher will seek answers to the following questions :-

1. What is specific relief act?


2. What are the benefits of this act?
3. What are the provisions relating to the recovery of a possession under SRA?
4. What is specific performance under a contract?

HYPOTHESIS

The researcher is of the view that if someone unlawfully dispossesses a person of their propert,
the general relief maybe requiring the defendant to provide that person compensation
equivalent to the loss suffered by that person due to dispossession. SRA may enable the
sufferer the possession of same property over again by requiring the defendant to restore the
possession of sufferers’ property.

RESEARCH METHODOLOGY

The researcher has primarily relied on the doctrinal method. The research is based on
comprehensive study of resources like Books, Journals, articles, web sources etc.

Review of Literature

Sources: Constitution, legislative provisions

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Secondary Primary Sources: Articles, Journals, Websites and commentary on constitution.

CHAPTERISATION

1. Intoduction.
2. Recovery of specific immovable property.
3. Suit by a person dispossessed of immovable property.
4. Recovery of specific movable property.
5. Liability of person in possession, not as owner, to deliver to persons entitled to
immediate possession.
6. Conclusion.

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CHAPTER 1 : INTRODUCTION

The Specific Relief Act, 1963 was came into force on 1st March 1964. The Parliament enacted
the Act by repealing the Specific Relief Act, 1877. The Act is based on the principle of equity and
is used for granting specific relief for enforcing civil rights.

The Act is a procedural law and provides a network of reliefs. The plaintiff, under the Act gets
his relief in specific. The reliefs contained in the Act include,

1. Recovery of Possession of Property,

2. Specific Performance of Contracts,

3. Rectification of Instruments,

4. Rescission of Contracts,

5. Cancellation of Instruments,

6. Declarative Relief, and

7. Preventive Reliefs ( Injunctions).

1.1 What does the Specific Relief Act do?

Specific Relief is legalese for performing a contract when monetary compensation for failing to
complete contractual obligations is not enough. The law prescribes that in an event where the
actual damage for not performing the contract cannot be measured or monetary compensation
is not adequate, one party can ask the court to direct the other party to fulfil the requirements
of the contract. This is called specific performance of a contract. 1

1.2 Recovering of possession of property under SRA

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https://www.livemint.com/Politics/uNG9gJVysAolCNjYNW9XlI/What-is-the-Specific-Relief-Act-and-why-does-
the-govt-want- (last retrieved April, 13)

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{Section 5 to section 8 }

Under the law, three distinct actions could be brought for the recovery of specific immovable
property, namely –

1. A Suit based title by Ownership;

2. A Suit based on possessory title;

3. A Suit based on the strength merely of previous possession, in the case of a wrongful
ouster, i.e. without following the due process of law, of a person without his consent.

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CHAPTER 2 : RECOVERY OF SPECIFIC IMMOVABLE PROPERTY {SECTION 5}

 When a cloud is raised over a person’s title and he does not have a possession, a Suit for
declaration and possession, with or without a consequential injunction is the remedy;
 Where a person’s title is not in dispute but he is out of possession, he has to sue for
possession and consequential injunction;
 Where there is merely an interference with a person’s lawful possession or where there
is a threat of dispossession, it is sufficient to sue for an injunction simpliciter.2

In a Suit under this Section, the title of both the parties can be gone into and considered by the
court; but the possession claimed by the party should be juridical, which is recognized by law as
such. For example, a Servant or an agent may have possession of property against strangers,
but not against his mater or principal, for he holds on behalf of the latter. 3

Previous possession where it is juridical affords evidence of title and where the defendant is a
trespasser and the Plaintiff is in continuous and peaceful possession, he is entitled to retain
such possession. Where there is prima facie and clear proof of dispossession the Court can
order restoration at interlocutory stage of the Suit but it should be done on rarest case.

Possession means the physical possibility of a person dealing with a property as he likes and not
mere physical possession. In other words, not merely physical contact, but also a possibility of
the person dealing with a thing exclusively constitutes possession.4where a person has, in his
own right and merely as representative of another such control over property as to be able to
exclude others from it and has the intention of exercising such power of exclusion, he can be
said to be in possession of it. 5

2
Anathula Sudhakar versus P Buchy Reddy – AIR 2008 SC 2033 (2039).

3
Sobha versus Ram Phal – AIR 1957 All 394.

4
Emperor versus Lallu Waghju – ILR 43 Bom 550;
5
Ramchandra versus State of Orissa – AIR 1957 Orissa 80

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CHAPTER 3: SUIT BY A PERSON DISPOSSESSED OF IMMOVABLE PROPERTY
{SECTION 6}

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—

 After the expiry of six months from the date of dispossession; or

 Against the Government.

 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.
 Nothing in this section shall bar any person from suing to establish his title to
such property and to recover possession thereof.
 This section was incorporated in the Act with a view to provide a summary,
cheap and useful remedy to a person dispossessed of immovable property,
without following the due process of law.
 In a Suit under Section 6, the Plaintiff can aver only previous possession and
dispossession by the defendant without following the due process of law, within
six month from the date of dispossession the Suit being brought and claim
recovery of possession. Any other averment or claim made by the Plaintiff will
not be relevant for decision of the Suit under Section 6 and the Court in such
case should ignore such irrelevant averments and claims and confines itself to
the averment of possession and claim for the recovery of possession only. Under
this Section the court can neither go into the question of title nor adjudicate
upon the issue of title.
 If the Court finds that ingredients of Section 6 are present and are in favour of
the Plaintiff, the Court would decree his claim for ejectment of the defendant

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even though it be patent to the court that the defendant is the owner of the
immovable property. Thus a Landlord commits a trespass when he forcibly
enters upon the land in the possession of the tenant whose tenancy has expired.

Where a person holds possession under a grant resumable at will or in condition in favour of
the grantor and the latter exercises his right to resume and ousts the grantee, the grantee
cannot claim to proceed under this Section and recover his previous possession. As against
third parties, grantee’s possession is good, but as against the grantor it is precarious and does
not give a legal right so long as the exercise of the right of resumption remains a valid right.

But a wrong doer by committing an act of trespass cannot maintain a possessory action, if he is
in the meantime turned out. The reason is that the wrong doer never acquires juridical or
juristic possession.

Where Suit is brought by dispossessed Plaintiff not against the person who dispossessed him
but against who was made to occupy the property, the Suit is maintainable..Where previous
possession of person claiming relief is in dispute, the injunction should not be granted and
court should attribute possession to person with better title.

3.1 REQUISITES OF SECTION 6:

Judicial possession of the plaintiff at the time of dispossession: The plaintiff must establish his
judicial possession at the time of dispossession. Judicial possession is not equal to lawful
possession. If a person has the possession of property as a fact and once he becomes settled as
such, it is enough for the purpose of relief under Section 6, irrespective of him without being
without any right to the same or a mere trespasser.6 In MC Batra V. Lakshmi Insurance Ltd. 7

Mootham, CJ observed : “This section says nothing about the nature of the possession enjoyed
by the person dispossessed but it has been held in some cases, that such possessions must be
what is called judicial possession, that is to say possession founded on some right.”

6
Yashwant Singh v. Jagdish Singh (AIR 1968 SC 620)
7
AIR 1956 All 709

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The possession must have been “juridical” i.e. possession recognized by law. It should be
neither by force nor by fraud. In Nayar Service Society v KC Alexander8, the Supreme court has
also expressed the same view and said that trespasser has no right to disturb the peaceful
possession of long time of any person and cannot reap benefit of his illegal act.

2. Dispossession of the plaintiff without his consent otherwise than in due course of law : :-
For the applicaon of this section the dispossession must be without the consent of plaintiff 9 [8]
or against the process of and operaon of law invoked by the ordinary method of Civil Court. In
In Rudrappa v. Narsin10 The Court observed: “To read the words ‘due course of law’ as merely
equivalent to the word ‘legally’ is, we think to deprive them of a force and significance which
they carry on their face. For a thing which is practically legal may still by no means mean a thing
done in due course of law.”

3. The suit must be instituted within 6 months from the date of dispossession: - The Section 6
prescribes its own period of limitation for suits to be filed there under. In T.T. Devasthanams v.
K.M. 11That where the suit for possession under Section 6 was filed by plaintiff with allegation
of being dispossessed from property, beyond six months of dispossession. Such suit was held to
be not maintainable, moreover when title of defendant was subsisting and not extinguished.

4. Dispossession must be of ‘immovable property’: - The expression ‘immovable property’


means only such properties of which physical possession can be given under the Act and it does
not cover incorporeal rights are not rights of which possession can be taken and delivered to
the claimant.

5. Dispossession has not been made by the Government, but by any other person.

6. Under this Section, an order or decree is final in the sense that it is not open to review or
appeal, although it is subject to revision by High Court.

8
AIR 1968 SC 1165
9
8] Shree Onama Glass Works Ltd. v. Shri Ram Harak Pandey AIR 1966 MP 282; Sukhjeet Singh v. Sirajunnisa AIR
2001 MP 5
10
] (1905) 29 Bombay 21
11
AIR 1998 SC 1132; Smt. Amar Kaur v. Hardev Singh 1991 (2) P.L.R. 55

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In Vanita M.Khanslkar V. Pragna M Pai12 the queson which had arisen before the Supreme
Court was whether bar to an appeal from an order passed under Section 6(3) of the Specific
Relief Act, 1963 was applicable to the a Leers Patent Appeal from an order passed by a single
judge to the division Bench of the high Court. It was held that bar to appeal and revision under
Section 6(3) does not apply to leer Patent Appeal. While observing held that “Now it is well
selected that any statutory provision barring an appeal or revision cannot cut across the
constitutional power of a High Court. Even the power flowing from the paramount charter
under which the High Court functions could not get excluded unless the statutory enactment
concerned expressly excludes appeals under leer patent. No such bar is discernible from
Section 6 (3) of the Specific Relief Act.”

Revision against the decree restoring possession was maintainable but only by way of excepon
and only if grounds within parameters of section115 of C.P.C. were clearly available. Where
High Court had reversed decree of trail Court on basis of oral statement of two plaintiff’s
witness, one sentence each from two despositions was extracted and set out by High Court for
reversing such decree. Revision was not satisfactory disposed of as High Court had not looked
into all material available on record and had also not indicated availability of grounds under
Section 115 of C.P.C. As such order of High Court was set aside and revision was directed to be
decided afresh. 13

CHAPTER 4: RECOVERY OF SPECIFIC MOVABLE PROPERTY {SECTION 7}

12
AIR 1998 SC 424
13
Sanjay kumar pandey V. Gulbahar sheikh, AIR 2004 SC 3354

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A person is entitled to the possession of the 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.

Section 7 provides for the recovery of movable property in specie i.e. the things itself. The
things to be recovered must be specific in the sense they are ascertained and capable of
identification. The nature of things must continue without alteration. This section entitles a
person to bring a regular suit for the recovery of possession of movable property if he has right
to the same at the time of action for detenue. Suit can be filed under Order 20, Rule 10 of CPC
and the form of the plaints are laid down in Schedule I and Appendix A of CPC. Where the Court
decrees delivery of such property, the decree shall also state the amount of money to be paid
in alternate, if delivery cannot be had.

In the case of State of Gujrat V. Biharilal14There was agreement between Biharilal and
occupants of land, in 1964 authorizing Biharilal to cut and remove trees standing on certain
land, for period of two years. The forest authorities did not grant permission to cut and remove
trees a period expired. There was no fresh agreement between the pares, nor was the period of
authority in favor of Biharilal extended. Biharilal filed a suit for declaration of his right to cut
and remove the trees and also for the necessary permission to do the needful. It was held that
since the right in respect of the trees had already expired the suit filed by Biharilal could not be
decreed.

CHAPTER 5: Liability of person in possession, not as owner, to deliver to


persons entitled to immediate possession {Section 8}

14
AIR 1999 SC 199

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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 of the Specific Relief Act which is analogous to the equitable relief of English law in an
acon of detenue entitles a person to recover the specific movable property itself from the
defendant who is not the owner thereof in cases where the property has a peculiar be
adequately compensated in terms of money. The relief under this section can only be granted
against a person having the possession control of the particular article claimed by the plaintiff.
The object of this section is to provide special remedy so that persons having the possession or
control of particular articles of movable property, although not their owners, may be compelled
specifically to deliver them to the persons entitled to their immediate possession. Possession is
foundation of that suit though a suit is not competent under this section against one who is the
owner of the movable property. Possession and control of the defendant must therefore be
clearly alleged in the plaint and proved.15

5.1 Requisites of Section 8: -

In order that Section 8 may come into operation the following ingredient must exist:

1) The defendant has possession or control of the particular article claimed;

2) Such article is movable property;

15
Jaldu Venkata Subba Rao v. Asiac S.N. Co. ILR Mad 1 (F)

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3) The defendant is not the owner of the article;

4) The plaintiff is entitled to immediate possession;

5) Anyone of the condition laid down under clauses (a) to (d) of Section 8 must exist.

Provisions of Section 8 are applicable in the following situations only:

I. When such property is held as agent or trustee of the property.

II. When compensation is not an adequate relief for the loss to the plaintiff.

III. When ascertainment of actual damage is not possible.

IV. When possession of the property is wrongfully transferred from the plaintiff.

In case of situations under I and II burden of proof is on the plaintiff and under III and IV,
burden is on the defendant.

In the case of Kizhakkumpurah v. Thanikkuzhiyil 16 There was oral and documentary evidence
that the plaintiff was the owner of certain scheduled items and the defendants had trespassed
into those items. The plaintiff was held entitled to recover those items from the defendants,
and also mesne profits or compensations as well.

CONCLUSION

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AIR 1998 ker 2

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From the above discussion it can be concluded that the Specific Relief Act, 1963 provides for
specific reliefs. Specific relief means relief of certain species, i.e. an exact or particular, a
named, fixed or determined relief. The term is generally understood and providing relief of a
specific kind rather than a general relief or damages or compensation. It is a remedy which aims
at the exact fulfillment of an obligation or specific performance of the contract. Specific Relief,
as a form of judicial redress, belongs to the law of procedure, and in a body of written law
arranged according to natural affinities of the subject matter would find its place as a distinct
part or other division of Civil Procedure Code. It is in essence is adjective law and the
substantial law. The expression Specific relief is used in contract to compensatory relief. In
executor contracts, as suit may be brought to compel the performance of the contract by the
person in default. Such relief may be positive or negative. Specific Relief Act explains and
enunciates the various reliefs which can be granted under this provisions, provides the law with
respect to them.

BIBLIOGRAPHY

1. The Specific Relief Act, 1963 ………………..…..Shailender Malik

2. The Specific Relief Act, 1963 ……..…………………....Aqil Ahmed

3. The Equity, Trust and Specific relief ……….……… M.P.Tandon

4. Specific Relief Act…………..…………………….…………R.K. Bangia

5. Laws relating to specific relief……………………………K Mani

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