RECOVERY OF POSSESSION OF MOVEABLE PROPERTY

Subject: Contract Law - 1

Name: Meet Nayan Doshi
Roll No. & Division: D 191
College: Jitendra Chauhan College Of Law
Faculty Name: Prof. S.V. Rajadhayax

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 ACKNOWLEDGEMENT
I would like to take this opportunity to express my gratitude to several people without whom it
would not be possible to complete this project.
Firstly, I would like to thank my Principal, Dr. Priya J. Shah for providing me with this golden
opportunity. Secondly, I would like to thank Professor S.V. Rajadhayax for assigning me the
project. I would also like to express my gratitude to all the other members of the faculty. They
provided me with their support and guidance whenever needed because of which I could make
this project with ease.
I would also like to thank my seniors and batch mates for their help. This project helped me in
understanding a certain aspect of Indian Law. It also helped in finding my capabilities and also
enhanced my research skills.
I would also like to express my gratitude to my family; it would not have been possible to finish
this project without their support.

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 TABLE OF CONTENTS

Sr. No. Topic Page No.

1. Introduction 4-5
• Specific Relief Act,1962
2. Recovery of Possession of Property 6
3. Moveable Property 7
Recovery of Possession of Specific Moveable Property
4. • Suit for Possession 8-10
• Decree of Civil Court
• Eligibility to Sue
Liability of a person who is not the owner of movable
5. property, but is in possession thereof 11-12
• Suit for Possession
• Limitation Period
6. Bibliography 13

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 INTRODUCTION
SPECIFIC RELIEF ACT, 1963
In 1963 the Specific Relief Act was passed by the Parliament of India following the
recommendation of the Law Commission of India in its ninth report on the act, the specific
relief bill 1962 was introduced in Lok Sabha in June 1962 and repealing the earlier Specific
Relief Act of 1877.
Features of Specific Relief Act, 1962 are:

• Developed in England by Equity Courts

• In England, before the invent of Specific Relief, the only remedy was that of damages
under which the party in breach need not to perform the promise
• Sometimes, the damages would prove to be insufficient. So, in order to obviate such
hardships, the Equity Court developed certain reliefs called Specific Relief.
• Originally drafted upon the lines of the draft New York Civil Code, 1862
• Passed in 1877
• Amended by Acts of 1882, 1891, 1899, 1929, 1940, 1951, and was repealed in 1963
• Embodies the doctrines evolved by the English Equity Courts
• Principles of Equity, Justice & Good Conscience
• Required to be pleaded specifically to be enforced
• In the event of situation not covered under the 1963 Act, the Indian Courts can exercise
their inherent powers in term of Sec. 151 of C.P.C.
The Law of Specific Relief deals with Remedies.
The expression Specific Relief means a relief in specie. It is a remedy which aims at exact
fulfilment of an obligation. The suit under Specific Relief Act may be brought to compel the
performance of the contract by the person in default. Such relief may be either positive or
negative. It is positive when a claim to the performance of it and negative when it is desired to
prevent the doing of thing enjoined or undertaken as not to be done.
The Specific Relief Act explains and enunciates the various reliefs which can be granted under
its provisions, provides the law with respect to them. It provides for the exact fulfilment of the
obligation or the specific performance of contract. It is directed to the obtaining of the very
thing which a person is deprived of and ought to be entitled to ask for. It is a remedy by which
party to a contract is compelled to do or omits the very acts which he has undertaken to do or
omit. The remedies which have been administered by Civil Courts of Justice against any wrong
or injury fall broadly into two classes:
1. Those by which the suitor obtains the very thing to which he is entitled, and
2. Those by which he obtains not that very thing, but compensation for the loss of it.

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The Specific Relief Act, 1963 extends to the whole of India. The Specific Relief Act deals only
with certain kinds of equitable reliefs and these are now:

• Recovery of Possession of Property – Movable & Immovable.

• Specific Performance of Contract.
• Rectification of Instrument.
• Rescission of Contracts.
• Cancellation of instruments.
• Declaratory Decrees.
• Injunctions.

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 RECOVERY OF POSSESSION OF PROPERTY [Ss. 5-8]
The Specific Relief Act 1963 provides for, recovery of possession of the property is one of the
very important remedies for the litigant. Getting an entire property back in place of the usual
money and damages is something which is the gift of equity to the common law.
After the incorporation of the demands made by the Law Commission of India to amend the
earlier law existing since 1877, the new law came in its current shape. This special remedy has
been covered under Sections 5 to 8 of the Act. It constitutes to be the Chapter I of the Part II
i.e., “Specific Relief”, of the Act.
Possession-
Salmond says, “the continuing exercise of a claim, to the exclusive use of a thing constitutes
the possession of it”.
Maine defines possession as “physical detention coupled with the intention to hold the thing
detained as one’s own”.
Pollock on the other hand has given a new meaning to the word possession. He says that “in
common speech a man is said to possess or be in possession of anything which he has the
apparent control, or from the use of which he has the apparent power of excluding others”.
The Supreme Court has opined in the case of Superintendent v Remembrance R that,
“possession is a polymorphous term which may have different meaning in different contexts.
It is impossible to work out a completely logical definition of possession uniformly applicable
to all situations in context of all statutes.”
Hence there is a physical possibility of the person dealing with the property as he likes and
exclusively. There are two types of property- Moveable & Immovable property.

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 MOVABLE PROPERTY
The definition of movable property is given differently in many acts. Some of the definitions
are as follows:
Section 3 (36) of the General Clauses Act defines movable property as:
'Movable property shall mean property of every description, except immovable property."
Section 2 (9) of the Registration Act, 1908 defines property as:
'Moveable property' includes standing timber, growing crops and grass, fruit upon and juice in
trees, and property of every other description, except immovable property."
Section 22 of IPC defines property as:
The words “moveable property” is intended to include corporeal property of every description,
except land and things attached to the earth or permanently fastened to anything, which is
attached to the earth.
Things attached to the land may become moveable property by severance from the earth. For
example, cart–loaded of earth, or stones quarried and carried away from the land become
movable property.

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 RECOVERY OF POSSESSION OF SPECIFIC MOVABLE PROPERTY [S.7 & 8 of
Specific Relief Act,1962]
Section 7 and 8 of the Specific Relief Act, 1963 contains two provisions with respect to
movable property:
1. Recovery of specific movable property [S.7]
2. Liability of a person who is not the owner of movable property, but is in possession
thereof [S.8]
Whenever any person is dispossessed of movable property without his consent or otherwise
than by due process of law, cause shall arise for filing a suit for possession. Since, this is with
respect to a specific property so sections 7 & 8 of The Specific Relief Act, 1963, (SRA); shall
be invoked to gain back possession.
Under any of the above-mentioned circumstances a suit for possession of the specific property
shall lie under SRA, and the procedure to initiate such action shall be as per CPC.
Section 7 deals with the recovery aspects of the property. The property should be ascertainable
and ascertained to be specific. This resonates with the English principle of detinue and would
lie only against those articles that are capable of being seized and delivered up to the party
entitled.
The Code of Civil Procedure would take care of the manner of recovery. This section gives the
right to the person to recover his or her personal belongings.1 But, if the property no more
remains recoverable, the remedy lies in compensation.2

1
Kamini Sahuani v. Purrav Chandra Sahoo, AIR 1987 Ori 134.
2
Jaldu Venkatasubba Rao v. Asiatic Steam Navigation Co., AIR 1916 Mad 314.

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 Recovery of Specific Movable Property [S.7]
Section 7 of Act with the head ‘Recovery of specific movable property’ provides that, “a
person entitled to the possession of the specific movable property may recover it in the manner
provided by the Code of Criminal Procedure, 1908 (5 of 1908).
Explanation 1 – A trustee may sue under this section for the possession of 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 property is sufficient
to support a suit under this section.
The main ingredients of section 7 are as follows.
First, the plaintiff must be entitled to the possession of the movable property. A person may be
entitled to the possession of a thing either by ownership or by virtue of a temporary or a special
right as provided under explanation 2 of section 7. A special or temporary right to an individual
may arise by either act of the owner of goods i.e. bailment, pawn etc. or not by the act of the
owner of goods i.e. a person may be the finder of goods and finder of goods enjoys special
right to possession except against true owner.
Only those persons can maintain a suit under section 7, who has the present possession of the
movable property. A person who does not have present possession of the movable property
cannot maintain a suit under this section.
Illustration: ‘A’ pledges some jewels to ‘B’ to secure for the loan he had taken. ‘B’ disposes
those jewels to ‘C’ before he is entitled to do so. ‘A’ without having paid the amount of loan
sues ‘C’ for possession of jewels. The suit shall be dismissed as he is not entitled to immediate
possession of jewels.
Further, the property in question must be specific movable property means that property should
be ascertained or ascertainable. Specific property means the very property not any property
equivalent to it. The disputed specific movable property must be capable of being delivered
and seized. Where the goods have been ceased to be recoverable or are not in control of the
defendant, the plaintiff is not entitled to a decree for recovery.
In the case of State of Gujarat vs. Biharilal3, it has been held that the property which is being
capable of identified by the occupant of that property is equipped with sometime of contract
and that which possessed the characteristic of movable property, will be covered under section
7 of Specific Relief Act, 1963.
Suit for Possession
Under Section 7 of The Specific Relief Act, 1963, (SRA) a suit for possession can be filed
under any the following conditions.
1. The property in question must be a specific movable property and not any property.

3
AIR 1999 SC 1999

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2. Person entitled to possess should have a special or temporary right over the said
property.
3. Procedure to be followed shall be as per Civil Procedure Code, 1908.
Under section 7 person enjoying temporary or special possession can sue the owner. Secondly,
recovery sought is for the specific movable property or equal monetary value of the property.

Decree of the Civil Court

Since the person is being asked to follow the civil procedure, whenever the court has decreed
the delivery of such property, the decree is also supposed to state the amount of money to be
paid as an alternative, if the delivery cannot be made in any circumstances in future. 4 The
person, as in the case of immovable property, is not precluded from suing for value in spite of
being entitled to the delivery of property.5 Under this section, the court is fully empowered to
order only for the value of the property and not for the delivery of the concerned property.

Eligibility to Sue
The locus standi is quite easy to prove since the law treats it sufficient to for the plaintiff to
have a right to present or immediate possession only.6 For the aspect of present possession, any
special or temporary right would work, like bailee, pawnee, holder, finder of goods.
This right would also extend to the trustee so that he or she can sufficiently sue the defendant
so as to secure the beneficial interest of the beneficiary. It is also left necessary for the trustee
to make the beneficiaries as a party to the suit.

4
Code of Civil Procedure, 1908, O. 20, R. 10, No. 5, Acts of Imperial Legislature, 1908 (India)
5
Bhonajee v. Saraswati, AIR 1924 Nag 176.
6
Patta Kumnari Bibi v. Nirmal Kumar Sinha, AIR 1948 Cal 97.

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 LIABILITY OF A PERSON WHO IS NOT THE OWNER OF MOVABLE
PROPERTY, BUT IS IN POSSESSION THEREOF [S.8]

Section 8 of the Specific Relief Act, constitutes the provision related to ‘Liability of a person
in possession not as owner, to deliver to a person entitled to immediate possession.’
It reads as;

“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
the immediate possession of, in any of the following cases:

(a) When the thing claimed is held by the defendant as the agent or trustee of the plaintiff.7

(b) When compensation in money would not afford the 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.8

Explanation- Unless 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 adequate relief for the loss;

(b) that it would be extremely difficult to ascertain the actual damage caused by its loss.”

The following ingredients must coexist in order to bring section 8 into operation:

• The defendant has full control or possession of the article claimed.

• Such an article is movable property.
• The person claiming the possession must be entitled to immediate possession;
• The defendant is not the owner of the article.
• The thing claimed is held by the defendant as an agent or when compensation in
money would not afford adequate relief for the loss or when it is extremely difficult
to ascertain the actual damage of the thing claimed.

7
GJ Subbarayalu v. ARMAN Annamalai Chettiar, AIR 1945 Mad 281.
8
Shankar Murlidhar v. Mohan Lal Jaduram, (1887) ILR 11 Bom 704.

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Under clause (a) the burden is on the plaintiff to prove the fiduciary relationship, and under
clause (d) also it is the burden on part of the plaintiff to prove wrongful transfer.

Illustrations: In case, where the idol of the family temple is in custody of a retired priest as he
is bound to return it to the family because the actual damage is unascertainable.

Suit for Possession

Under section 8 of SRA, case for possession shall arise, when the person in possession or
control is not the owner of the property.
1. But is holding the property as an agent or trustee of the owner.
2. When it is not possible to ascertain the monetary value of the property in possession.
3. Similarly, when it is not possible to calculate the damage to be awarded upon loss of
such specific property.
4. Property is being wrongfully held.
Under section 8 no suit can be brought about against the owner of the property, and the suit is
confined only to the return of the specific property.

Limitation Period
Article 91(b) of the Limitation Act, 1963 provides a period of three years for the filing of suit
computable from the date when the property is wrongfully taken or when the possession
becomes unlawful. It shall commence as per narration is given in the extract taken from Apex
Court Judgment in Sankar Dastidar vs Shrimati Banjula Dastidar & Anr dated 5 December
20069.
“Articles 68 and Article 69 of the Limitation Act govern suits in respect of the movable
property. For specific movable property lost or acquired by theft, or dishonest misappropriation
or conversion; knowledge as regards possession of the party shall be the starting point of
limitation in terms of Article 68. For any other specific movable property, the time from which
the period begins to run would be when the property is wrongfully taken, in terms of Article
69.”
Similarly, limitation period to recover movable property deposited or pawned with depositary
or pawnee shall be three years, under article 70, from the date of refusal after demand. And if
such movable property is sold then 3 years from the date the sale is known to the owner of the
movable property, under article 71.

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AIR 2005 Cal 121

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 BIBLIOGRAPHY
Websites:
http://www.legalservicesindia.com/article/502/Definition-&-concept-of-property.html
https://www.legalbites.in/recovery-of-possession-of-property/#_ftn56
https://blog.ipleaders.in/recover-possession-movable-property/amp/
https://blog.ipleaders.in/possession-recovery-movable-
immovable/#:~:text=Recovery%20of%20possession%20of%20Movable%20property&text=
Section%207%20of%20Act%20with,1908%20(5%20of%201908).
https://legalsarcasm.com/legal-notes/recovery-of-possession-of-property-under-specific-
relief-act-1963/

Case Laws:
Kamini Sahuani v. Purrav Chandra Sahoo, AIR 1987 Ori 134.
Jaldu Venkatasubba Rao v. Asiatic Steam Navigation Co., AIR 1916 Mad 314.
State of Gujarat vs. Biharilal , AIR 1999 SC 1999.
Bhonajee v. Saraswati, AIR 1924 Nag 176.
Patta Kumnari Bibi v. Nirmal Kumar Sinha, AIR 1948 Cal 97.
GJ Subbarayalu v. ARMAN Annamalai Chettiar, AIR 1945 Mad 281.
Shankar Murlidhar v. Mohan Lal Jaduram, (1887) ILR 11 Bom 704.
Sankar Dastidar vs Shrimati Banjula Dastidar & Anr, AIR 2005 Cal 121

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