Sanskar Sarjan Education Society's

DHIRAJLAL TALAKCHAND SANKALCHAND SHAH COLLEGE OF LAW

KURAR, MALAD (EAST).MUMBAI - 400 097

ACADEMIC YEAR 2023-2024

L.L.B. SEM. I

NAME: SUMIT MANOJ VISHWAKARMA

ROLL NO: 113
SUBJECT: CONTRACT LAW
TOPIC: (ASSIGNMENT): Recovering possession of property
PROFESSOR IN-CHARGE – PROF.

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 ACKNOWLEDGEMENT

It is a great pleasure for me to undertake this project. My topic for the

Assignment is Recovering possession of property and I am happy that I have
been given this opportunity to express my views on the topic. I am especially
thankful to our subject Professor for allotting this topic to me.
I am grateful to our Professor for explaining the topic so well during
the lectures which helped me a lot in preparing for my assignment. This
project has increased my knowledge on this topic which is helping in present
and will also help me in future.
I also thank my DHIRAJLAL TALAKCHAND SANKALCHAND SHAH COLLEGE OF
LAW family for making me a part of this esteemed University.

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 INDEX

SR.NO TOPIC OF CONTENT

1. COVER PAGE
2. ACKNOWLEDGEMENT
3. INDEX

4. INTRODUCTION
5. TYPE OF PROPERTY

6. Recovery of possession of Immovable property

7. Recovery of possession of movable property
8 CONCLUSION & RECOMMENDATION

9. BIBLIOGRAPHY

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INTRODUCTION
Recovering possession of property typically involves legal processes aimed at regaining
control or ownership of a property that may be in the possession of another party. The
specific procedures and laws governing the recovery of possession can vary based on
jurisdiction and the nature of the property (e.g., residential, commercial, or agricultural).
In legal terms, the concept of "property" refers to a bundle of rights that an individual or
entity has with respect to a thing. Property rights can include the right to possess, use, enjoy,
and dispose of a particular object or piece of real estate. Property law encompasses various
types of property, including real property (land and buildings) and personal property
(movable objects).

The bundle of rights associated with property typically includes:

1. Right to Possession: The right to physically occupy and control the property.
2. Right to Use: The right to use the property in a manner consistent with local laws and
any applicable agreements or restrictions.
3. Right to Enjoyment: The right to derive benefits and enjoyment from the property,
such as collecting rent or harvesting crops.
4. Right to Exclude: The right to exclude others from entering or using the property
without permission.
5. Right to Transfer: The right to sell, lease, or otherwise transfer ownership or certain
rights associated with the property to another party.
6. Property law also recognizes distinctions between real property and personal property:
7. Real Property: Refers to land, including the soil beneath it, and anything permanently
attached to it, such as buildings and fixtures. Real property is also often referred to as
"real estate."
Personal Property: Encompasses movable objects, such as furniture, vehicles, and personal
belongings. Personal property is also known as "chattels."

Property rights are a fundamental aspect of legal systems and are often protected by laws and
regulations. Disputes over property may arise in various contexts, including landlord-tenant
relationships, real estate transactions, and inheritance matters. Legal mechanisms exist to
establish, transfer, and protect property rights, ensuring that individuals and entities can use
and enjoy their property within the bounds of the law.

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THERE ARE TWO TYPE OF PROPERTY MOVABLE AND IMMOVABLE
PROPERTY
 Recovery of possession of Movable property
 Recovery of possession of Immovable property

Recovery of possession of Immovable property:-

Section 5 and 6 of the Specific Relief Act, 1963 provide methods for recovery of
possession of the certain specific immovable property. Section 5 of Specific Relief Act,
1963 provides that a person entitled to the possession of any specific immovable property
can recover it in the manner prescribed by the Code of Civil Procedure, 1908 (5 of 1908).

Section 5 provides the manner for recovery of specific immovable property. It reads as, “A
person entitled to the possession of the specific immovable property can recover it in the
manner provided by the Code of Civil Procedure, 1908”.

The essence of this section is ‘title,’ i.e. the person who has better title is a person entitled to
the possession. The title may be of ownership or possession. Thus, if ‘A’ enters into peaceful
possession of land claiming his own although he might have no title, still he has the right to
sue another who has ousted him forcibly from possession because he might have no legal title
but at least has a possessory title.

It is a principle of law that a person, who has been in a long continuous possession of the
immovable property, can protect the same by seeking an injunction against any person in the
world other than the true owner. It is also a settled principle of law that owner of the property
can get back his possession only by resorting to due process of law. It states that a suit for
possession must be filed having regard to the provision of the Code of Civil Procedure.

Section 6 of the Specific Relief Act deals with the provision related to suit by person
dispossessed of immovable property. It reads as,

(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.
(2) No suit under this section shall be brought-
After the expiry of six months from the date of dispossession.
Against the Government.

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(3) No appeal shall lie from any order or decree passed in any suit instituted under this
section, nor shall any review of the decree under this section is allowed.

(4) Nothing in this section shall bar any person from suit to establish his title to such property
and to recover possession thereof.”

Section 6 is only applicable if the plaintiff proves:

That he is in juridical possession of the immovable property in dispute.

That he had been dispossessed of without his consent and without due process of law.
That dispossession took place within six months from the date of suit.
Section 5 and 6 both give alternative remedies and are mutually exclusive. Under section 5, a
person dispossessed can get possession on the basis of title, whereas in section 6, a person
dispossessed may recover possession by proving previous possession and further wrongful
dispossession.

Possession in the context of section 6 means legal possession which may exist with or
without actual possession and with or without rightful origin. The plaintiff in a suit under
section 6 need not establish title.

Long-standing peaceful possession of is enough to prove actual possession. In K.K. Verma v

Union of India(1) it was held that after the expiry of the tenancy agreement, the tenant
continues to hold juridical possession and cannot be dispossessed unless the owner gets a
decree of eviction against him.
The objects of section 6 are as follows.

To discourage people from taking the law into their hands (however good their title may be).
To provide a cheap and useful remedy to a person dispossessed of immovable property in due
course of law.
Further, it should be noted that where the grant of possession is purely gratuitous, the owner
has the right to reclaim possession even without the knowledge of a person in possession. The
only prayer in a suit under section 6 can be a prayer for recovery of possession.
Consequently, a claim for damages cannot be combined with that for possession. Section 14
of the Limitation Act, 1963 applies to the proceedings against dispossession.

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Case Law

K. Krishna v A.N Paramkusha Bai(2) In this case, a tenant was dispossessed forcibly by the
owner but he himself get forcible repossession. The Court, in this case, held that “tenant
could institute suit for repossession immediately when he was forcibly ousted, but as soon as
he takes forcible repossession he became trespasser and therefore could not be regarded to be
in lawful possession.

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Recovery of possession of Movable property
Section 7 and 8 of the Specific Relief Act, 1963 contains provisions for recovery of
possession of some specific movable property. 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 possession of the movable property to
the beneficial interest he is entitled.
Explanation 2: A temporary or special right to the present possession 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.
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.

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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.

(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.

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.
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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.

Difference between Section 7 and 8

Under section 8 no suit can be brought against the owner, while under section 7 a person
enjoying special or temporary right to present possession can bring suit even against the
owner and under section 7 a decree is for the return of movable property or for the money
value in alternative while under section 8 decree is only for return of specific article.

Case Law

Wood v Rowcliffe(3): In this case, a person leaving abroad leaves his furniture under the care
of his friend. The friend is the trustee of the articles and is bound to return them in the same
condition when demanded.
Relief under Specific Relief Act, 1963
Relief to Tenants
The statutory recognition of the rule can be read under Section 6 of the Specific Relief Act,
1963 which provides remedy to a person who is dispossessed by use of force or intimidation
from an immovable property, otherwise than in due course of law, can bring a suit for seeking
recovery of possession irrespective of any other title that may be set up in such suit.
Therefore, a landlord is not permitted to take a forcible possession and they must obtain such
relief by following due process of law.

Relief to Landlord
The Section 6 of the Specific Relief Act, 1963 visibly (under sub-Section 4) protects the right
of a rightful owner of the immovable property and states that nothing in the Section shall
forbid any person from suing to establish his title to such property and to recover possession
thereof. It means that the restoration of possession in such a suit is always subject to a regular
suit title and the person who has a real title or even the better title cannot be prejudiced in any
way by a decree in such a suit.
. If any person is dispossessed without his consent of immovable property otherwise than in
due course of law, he or any person he has been in possession or any person] claiming

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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.

The Division Bench comprising of three learned Judges held that a true owner has every right
to dispossess or throw out a trespasser while he is in the act or process of trespassing but this
right is not available to the true owner if the trespasser has been successful in accomplishing
his possession to the knowledge of the true owner. In such circumstances, the law requires
that the true owner should dispossess the trespasser by taking recourse to the remedies under
the law (Ram Rattan v. State of Uttar Pradesh).

Procedure under Civil Procedure Code 1908 for Recovering of possession of immovable
property
An application under Order XXI deals with the execution of decrees and orders. Here, we
will deals with the aftermath of the Court proceedings against the judgment debtor.

1. Application for execution under Rule 10 and 11

A decree holder desire to execute decree may apply for the application under Rule 10 which
state as under:

“10. Application for execution– Where the holder of a decree desires to execute it, he shall
apply to the court which passed the decree or to the officer( if any) appointed in this behalf,

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or if the decree has been sent under the provisions hereinbefore contained to another court
then to such court or to the proper officer thereof ”.

The execution application for the decree either be oral under Rule 11
(1) or in writing under sub-Rule
2. However, in the above scenario written application will be given since, oral application is
applicable only when the issue is of payment of money and the written application shall
contain the following details which are given below:

1. Number of Suit
2. Name of parties
3. Date of the decree
4. Any appeal has been preferred from Decree
5. Any matter of payment or adjustment in controversy
6. Any previous application has been made for execution
7. Amount of cost awarded
8. Cost Amount
9. Name of the person against whom the execution decree is sought; and
10. Mode in which the assistant of the court is required whether
11. By the delivery of any property specifically decreed;
12. By the attachment, or by the attachment and sale, or by the sale without attachment, of
any property
13. By the arrest and detention in prison of any person;
14. By the appointment of a receiver;
Otherwise, as the nature of the relief granted may require.
(3) The Court to which an application is made under sub-rule(2) may require the applicant to
produce a certified copy of the decree.

Rule 11 is read as follows:

“11. Oral Application– 1) Where a decree is for the payment of money the Court may, on the
oral application of the decree holder at the time of the passing of the decree, order immediate
execution thereof by the arrest of the judgment debtor, prior to the preparation of a warrant if
he is within the precincts of the Court.

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Written Application– 2) by sub rule(1), every application for the execution of a decree shall
be in writing, signed and verified by the applicant or by some other person proved to the
satisfaction of the Court to be acquainted with the facts of the case, and shall contain in a
tabular form the following particulars namely:-

1. Number of Suit
2. Name of parties
3. Date of the decree
4. Any appeal has been preferred from Decree
5. Any matter of payment or adjustment in controversy
6. Any previous application has been made for execution
7. Amount of cost awarded
8. Cost Amount
9. Name of the person against whom the execution decree is sought; and
10. Mode in which the assistant of the court is required whether
11. By the delivery of any property specifically decreed;
12. By the attachment, or by the attachment and sale, or by the sale without attachment, of
any property;]
13. By the arrest and detention in prison of any person;
14. By the appointment of a receiver;
Otherwise, as the nature of the relief granted may require.
(3) The Court to which an application is made under sub-rule
(2) may require the applicant to produce a certified copy of the decree”.

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Conclusion
The remedies provided by the Specific Relief Act become essential because the Indian
Contract Act, 1872 provide relief only in the form of compensation in case of breach of
contract. In the case where the damage is not ascertainable and where compensation in the
form of relief is not adequate to the loss, the plaintiff had no remedy for specific
performance. The section 5 of Specific Relief Act, 1963 recommends landlord who is seeking
to recover the possession of immovable property must follow the due procedure of law as
mentioned under the Civil Procedure Code 1908 and must avail the remedy on time, failure to
avail the remedy on time means the landlord relinquished his proprietary rights over his
immovable property, whereas, Section 6 of specific relief Act, 1963 preserves the right of the
tenant by standing as a shield to constrained the landlord from forcibly removing the tenant
from immovable property.

Through the provisions of section 5 and 6, a person entitled to the possession of immovable
property or having a special right to the possession may recover it through the due process of
law. Similarly, section 7 and 8 empowers the person to recover possession of the movable
property.

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 BIBLIOGRAPHY

BOOK OF CONTRACT LAW AUTHOR JAMNADAS

https://blog.ipleaders.in/possession-recovery-movable-immovable/
https://www.legalserviceindia.com/legal/article-6091-recovery-of-possession-of-immovable-
property.html
https://www.scribd.com/document/459948210/Recovering-Possession-of-Property

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