Monday, 20 June 2022

Possessory Remedies under Specific Relief Act

Possessory Remedies under the Specific Relief Act

By Shweta Nair


Under possessory remedies, what is protected is the possession of a person of movable and immovable property. Here, the remedy is for a person who has been unlawfully dispossessed of property. As the legal proverb goes, ‘Possession is Nine-Tenths of the Law’. The logic being that a person who is in possession of property, more often than not, will have had some grounds at least due to which he came into such possession. 

Failing an effective remedy, under law, for a person to gain back his possession, there would be a tendency on behalf of aggrieved person to resort to violent self-help i.e., the law of the jungle’s ‘Might is Right’

The Specific Relief Act therefore in Sections 5 to 8 provides an easier remedy to people who have been dispossessed of movable or immovable property. 

Recovery of Possession of Immovable Property: (Sections 5 and 6) 

Section 5 is a clarificatory section. It merely states that any person who is seeking restoration of possession of immovable property must do so as per the procedure prescribed under the Civil Procedure Code 1908. 

Section 6 then goes to lay down the requirements for taking action under the Specific Relief Act. 

It is to be noted that under the specific relief act, the courts shall not address the matter of ownership or title at all. The only thing that shall be looked into is possession. 

Under Section 6, a person seeking relief has to prove only the following six things: 

  1. That he was in possession. 

  2. That he was subsequently dispossessed. 

  3. That the dispossession was without his consent. 

  4. That the dispossession was without the due process of law. 

  5. That the suit is filed within six months of the date of dispossession. 

  6. That the party dispossessing is not the government. 


To file a case under Section 6, the possession which is sought to be restored, has to be juridical possession. 


In Bawa Chattagir v. Montonomal, it was held that a servant cannot claim under this section. 

Similarly, in Mustapha Sahib v. Sentha Pillai, it was held that a trespasser who is ejected by the owner has no action under this section. 

Whereas, in Rudrappa v. Narsingrao, the court held that a tenant forcibly dispossessed by the landlord can claim relief under this section. 


It is also to be noted that the only relief which is available under Section 6 is restoration of possession. No other claims can be entertained in such suit. In Sona Mia v. Prakash where the tenant was still in possession but had filed a case because his right of recovery of tolls was taken away by the owner. It was held that action under this section was not available. 


Another point to be noted is that the dispossession in question has to be ‘without the due process of law’. The plaintiff’s action against the defendant will not hold water if the dispossession came to B due to any other circumstances. 


In East India Hotels v. Syndicate Bank, where the bank was a tenant in the premises of the hotel, which had to be totally evacuated due to fire and was shut down for months together for repairs on not being able allowed to take back possession. The bank filed a case against Hotel under Section 6. It was held that there was no remedy under the section because the dispossession was not without the due process of law. 


Recovery of Possession of Movable Property


Section 7 and 8 deal with this relief. 

Section 7 is a clarificatory section. It merely states that a person seeking restoration of possession of movable property must do so as per the procedure prescribed by the Civil Procedure Code 1908. 


Section 8 states that, 

Any person having the possession or control of a particular activity 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 four cases: 


  1. When the thing claimed is held by the defendant as the agent or trustee of the plaintiff. 

  2. When compensation in terms of money would not afford the plaintiff adequate relief for the loss of the thing claimed. 

  3. When it would be extremely difficult to ascertain the actual damage caused by its loss. 

  4. When the possession of the thing claimed has been wrongfully transferred from the plaintiff. 


It is to be noted that in case of sub-clause 2 and 3 above, if the plaintiff claims that compensation in terms of money is not an adequate relief or that it is extremely difficult to ascertain the actual damage then the court shall also so presume. 


The following things are established by the first lines of Section 8


  • To file a case under this section, one need not be the owner but merely someone who is entitled to the immediate possession. 

  • However, a case under this section cannot be filed against the true owner. 

  • The property claimed has to be a property in specie i.e., a particular item of property and not merely some general property in exchange. 



 

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