Specific Relief Act

Part
Introduction
The act came into force on 1st March 1964. Section 2(b) settlement- “settlement” means
The act is not exhaustive enough to contain the an instrument (other than a will or codicil as
whole law on the subject. Specific Relief Act is defined by the Indian Succession Act, 1925 (39
primarily based on the principle of the equity has of 1925), whereby the destination or devolution
of successive interests in movable or immovable
been borrow from the courts of equity in England.
property is disposed of or is agreed to be disposed
However, in India there is no separate court for
of; -
administering equity. The major part with respect
to the equity has been codified and wherever any The expression has been used in Section 15(c)
and 25.
space remains the principle of equity justice and
good conscience comes into. Section 2(c) “trust” has the same meaning as
in section 3 of the Indian Trusts Act, 1882 (2 of
Equity has come not to destroy the law, but to
1882), and includes an obligation in the nature
fulfil it. The defects and rigidity in the common
of a trust within the meaning of Chapter IX of
law led to the evolution of equity i.e inadequacy
that Act;---
of remedy and absence of relief under certain
Section 2(d) “trustee” includes every person
circumstances led to fill that vacuum. Equity does
holding property in trust;
not destroy the law nor create it, but assist it.
Equity is rather collection of additional rules and A is the legal, medical or spiritual advisor of B,
By availing himself of his situation as such advisor,
not a separate system. The equitable remedies like
a gains some pecuniary advantage which might
specific performance or injunction do not destroy
otherwise have accrued to B. A is a trustee, for B,
the common remedy of damages, but were either
within the meaning of this Act, of such advantage.
additional or alternative.
A, being B’s banker, disclosed of his own
Definition
purpose the state of B’s account. A is a trustee,
Section 2(a)- “obligation” includes every duty within the meaning of this Act, for B, of the benefit
enforceable by law;- gained by him means of such disclosure.
An obligation is a bond or tie which constrains Section 2(e)
a person to do or suffer something it implies a right
all other words and expressions used herein
in another person to which it is corelated, an it
but not defined, and defined in the Indian
restricts the freedom of the oblige with reference Contract Act, 1872 (9 of 1872), have the meanings
to definite acts and for bearness; but in order to be respectively assigned to them in that Act. –
enforceable it must be an obligation recognised
Words like agent, agreement, consideration,
by law and not merely a moral social or religious
contract, fraud, misrepresentation, mistake, void,
one. The term has ben used in Section 38 and 39
voidable used in specific relief act would have the
respectively. same meaning as defined under the contract act.
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Section 3 Savings The object of clause (b) of this Section 4
Except as otherwise provided herein, nothing is to prevent any relief being given in a case of
in this Act shall be deemed—
specific performance which will have the effect of
(a) to deprive any person of any right to relief,
nullifying the effect of Sections 17 and 49 of the
other than specific performance, which he
may have under any contract; or Registration Act, 1908. However, under proviso
(b) to affect the operation of the Indian to Section 49 of that Act such an unregistered
Registration Act, 1908 (16 of 1908), on document may still be received as evidence of a
documents” -
contract in a suit for specific performance, or as
Clause (a) reinforces the principle that equity is
to assist the law, as such the remedies for breach of evidence of part performance of contract, or to
contract as provided under section 73 of the Indian prove a collateral transaction that is not required
contract act 1872 will not be affected by the remedy to be effected by registered instrument. Thus, an
of specific performance provided under the Specific
Relief Act which shall be in additional remedy over unregistered sale deed can be admitted in evidence
and above the remedy of damages provided under in a suit of specific performance as evidence of
the Contract Act. contract.
However, a plaintiff may came damages in
Section 4
substitution of or in addition to the relief of specific
performance, but he is precluded from suing again Specific relief to be granted only for enforcing
for damages for the same breach if his suit for
individual civil rights and not for enforcing
specific performance is dismissed.
penal laws.—
This saving clause is only confine to suit
for specific performance to contract but not to “Specific relief can be granted only for the
recession, termination, forfeiture etc. purpose of enforcing individual civil rights and
Clause (b)- The Transfer of Property Act, 1882,
not for the mere purpose of enforcing a penal
requires that conveyances by way of sale, mortgage,
exchange, lease and gift of immovable property law”.
shall be effected by a registered instrument, and Section 4 brings out the principle that specific
unless such a document is executed, there is no
relief will be a civil remedy, the plaintiff must show
valid transfer of that property. The Registration
Act, 1908 also set out that the registration of certain some individual right to it in every case.
documents is compulsory, and also provides that an
The word ”mere” signifies that the
unregistered document that is required by Section
17 of that Act, or any provision of the Transfer enforcement of a penal law must not be the sole
of Property Act, 1882 to be registered will not object of the relief sought. Though specific relief
affect any immovable property comprised therein,
can be granted even if it includes enforcement of
or confer any power to adopt, or be received as
evidence of any transaction affecting such property penal law, if such a relief is merely incidental or
or conferring such power. ancillary.
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 Recovery of possession of property- Section 5 uses the term entitled. A plaintiff can
Section 5 be said to be entitled to possession of immovable
property only then he can file a suit for recovery of
Recovery of specific immovable property.—
possession on the basis of title.
“A person entitled to the possession of specific
Title on the basis of ownership: The owner of
immovable property may recover it in the manner
immovable property always has a bundle of rights
provided by the Code of Civil Procedure, 1908 (5
including the right of possession. Therefore, if
of 1908)”. –
someone forcibly ousts him from that immovable
A person entitled to the possession of specific
property he can sue under this section.
immovable property may recover it in a manner
provided by the code of civil procedure, 1908. The Example: A, owner of a house is ousted by B
term possession implies: (neighbour). A can file a suit under this Section as he
is entitled to possession on the basis of ownership.
1. Corpus – some actual power over the object
possessed and apparent control over it, and In Parataprai N. Kothari v John Baganza the
Apex Court of India held that even the owner of
2. Animus – some amount of will to avail oneself
property cannot use force to recover the possession
of that power thus, where person has in his own
of the immovable property but can get it back by
right and not merely a representative of another
following due procedure of law.
such control over property as to be able to excluded
others from it, and has the intention of exercising Title on the basis of possession: Where a
such power of exclusion, he has possession of that person has peaceful possession of land claiming it
property. to be his own then even if he has no title he can sue
another person who ousted him from possession
Possession is prima facie proof of ownership. It
who has no better title to it.
is a good title against all those who cannot show a
better title. Example: A, washer man, peacefully residing
in a plot of land is ousted by B (neighbour) who is
The property must be specific immovable
not owner of that plot. A can file a suit under this
property that is clearly separatable form the rest.
Every immovable property is generally definite and section as he has possessory title.
separate from the rest. Significantly, main objective of section 5 is that
Three types of action can be brought in law for nobody shall take law in his own hand s and should
the recovery of specific immovable property not use force to recovery possession whether he is
owner or have possessory title. Therefore, where
1. A suit based on title by ownership
he is forcibly ousted by somebody then he must file
2. A suit based on possessory title a suit.
3. A suit based merely on the previous Under section 5 the plaintiff can file a suit within
possession of the plaintiff, where he has been 12 years from the date of possession.
dispossessed without his consent, otherwise then in
Section 6—Suit by person dispossessed of
due course of law, the issue of title being irrelevant
immovable property--
to the proceeding
1. If any person is dispossessed without his
Point 1 and 2 pertains to Section 5 whereas
consent of immovable property otherwise
point no. 6 the three pertains to Section 6.
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 than in due course of law, then he or any Possession voluntarily transferred by the
person [through whom he has been in plaintiff, not covered under Section 6
possession or any person] claiming through It may be noted that Section 6 covers only that
him may, by suit, recover possession thereof,case where the plaintiff is unlawfully dispossessed
notwithstanding any other title that may be of immovable property. However, where the
set up in such suit. plaintiff has either given the consent to the
2. No suit under this section shall be brought. defendant for taking possession or the plaintiff has
a. after the expiry of six months from the date voluntarily given possession to the defendant then
of dispossession; or Section 6 is not applicable and he cannot file a suit
under Section 6.
b. against the government.
In Sukhjeet Singh V. Sirajunnisa, the
3. No appeal shall lie from any order or decree
tenant handed over possession of premises to the
passed in any suit instituted under this
landlord for marriage of his son. The landlord failed
Section, nor shall any review of any such
to hand over the possession again to the tenant after
order or decree be allowed.
his son’s marriage. It was held that even though the
4. Nothing in this section shall bar any person tenant may have been deceived later on but since he
from suing to establish his title to such handed over the possession of his own volition, he
property and to recover possession thereof. could not claim the possession again under Section
Under Section 6 when a person is dispossessed 6, as the Section was not attracted in this situation.
without his consent of immovable property without ii. He must be dispossessed otherwise than
following the due course of law then either be or in due course of law-
any person claiming through him, by suit, recover Another essential of Section 6 is that the
possession by filing a suit. plaintiff must be dispossessed without following
Essential of Section 6 procedure under law. Therefore, where the plaintiff
Important essentials are: is dispossessed without following law he can file
a suit under this section. In K.K. Verma V. Union
i. Any person must be dispossessed of
of India in was held by the Bombay High Court
immovable property without his consent;
that the possession of tenant even after the expiry
ii. He must be dispossessed otherwise than in of tenancy period is juridical possession and hence
due course of law; the owner cannot throw him out without following
Where above essentials are fulfilled then either the procedure of law.
he or any person claiming through him may file a In case of Babu Khan v. Nazim Khan, a
suit to recover the possession. perusal of Section 91 of the MP Tenancy Act shows
1. any person is dispossessed without his that if a pakka tenant has been dispossessed from
consent of immovable property- the land, otherwise than in accordance with the
First thing which the plaintiff has to prove is law and if he wants restoration of possession he is
that he has judicial possession of the Immovable required to file an application before the Tehsildar
Property and defendant has taken possession of within 3 years from the date of dispossession. The
that immovable property without his consent. remedy for restoration of possession is not available
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to anyone else except to a pakka tenant who has Plaintiff must come with clean hands-
been dispossessed otherwise than in accordance It has been held by the Supreme Court in
with law. When such an application is moved by Mahabir Prasad Jain v. Ganga Singh that a
an applicant for restoration of his possession, the person seeking equitable relief under the Specific
first thing what the Court is required to enquire Relief Act, should come to the court with clean
hand. In this case the respondent tenant, who was
into and find out is whether the applicant is a pakka
sued for possession instead of giving evidence of his
tenant or not. The applicant under Section 91 of
tenancy, instituted different proceedings in different
the Act has to prove and establish that he is a pakka cases within a short time making inconsistent
tenant and he has been dispossessed otherwise allegations against the landlord. It was held that
than in due course of law. Thus, Section 91 of he was abusing the process of the court and he did
the Act requires the Court to go into the title of not come to the court within clean hands. He was,
the applicant who has applied for restoration of therefore, held not entitled to any equitable relief
possession. In view of nature of enquiry which is under the Specific Relief Act.
required to be made by the Court, the proceedings Limitation period for suit-
under Section 6 of the Specific Relief Act. Under Significantly, the limitation period for filing a
Section 6 of the Specific Relief Act, a person who suit under Section 6 is 6 months. However, where
has been dispossessed otherwise than in due course suit is filed after 6 months generally no relief
of law can claim restoration of possession without is granted unless there is a reasonable ground to
condon and the court is satisfied by that ground.
proving his title to the land. He can succeed merely
No Suit against the Government-
by establishing that he was in possession over the
land and has been dispossessed otherwise than It is important to mention that under Section 6(2)
no suit can be filed against the State or Government.
in accordance with law. The proceedings under
Therefore, when a person has been dispossessed
Section 91 of the Act are not akin to Section 6 of
of the immovable property by the State he cannot
the Specific Relief Act. bring an action under the Specific Relief Act.
Who can file a suit: Under Section 6 of the Act, No appeal/review from order/decree passed
prior to the Amendment Act 2018, a person who under Section 6-
was removed from actual possession or a person According to Section 6 (3) no appeal shall
claiming through him, could file a suit in relation lay from any order or decree passed in any suit
to such dispossession. However, the owner or its instituted under Section 6, nor shall any review of
agent or other appointee could not file a suit for any such order or decree be allowed. In Vanita M.
recovery of such property once the tenant or lessee Khansalkar v Pranga M Pai, the question which had
arisen before the Supreme Court was whether bar
etc. in possession of the property was dispossessed.
to an appeal from an order passed under Section
By the Specific Relief (Amendment) Act 2018,
6(3) of the Specific Relief Act, 1963 was applicable
a title holder of immovable property or agent or to a Letters Patent Appeal from an order passed by
appointee will have a right to sue for recovery of a single judge to the Division Bench of the High
possession of immovable property as is available to Court. It was held that bar to appeal and revision
a person who was deriving possession though him, under Section 6(3) does not apply to Letters Patent
e.g. tenant, mortgagee etc. Appeal.
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No bar on a person from instituting a suit to establish his title to immovable property and to
recover the possession of the same-
It is heartening to note that Section 6 does not bar any person to bring a regular suit founded upon his
title in respect of the immovable property and to recover possession thereof even though a suit instituted
under Section 6(1) of this Act has been decreed against him.
Difference between Section 5 and 6; Suit under Section 6 is an alternative, additional remedy

SECTION 5 SECTION 6

1. The plaintiff has to file a long- It gives a summary remedy.

drawn regular suit for ejectment
and regular procedure is to be fol-
lowed.
2. The claim is based on title. The claim is based on possession and no proof of title is
required and even rightful owner may be precluded from
showing his title to the land.
3. For limitation period, the Indian For limitation period, the Indian Limitation Act, 1963 is
Limitation Act, 1963 is applicable not applicable as the period of limitation is provided in
and the period of limitation is 12 Section 6 itself i.e. 6 months from the date of disposses-
years. sion.

Recovery of possession of movable property Essentials of Section 7

(Section 7 &8):- Essentials of Section 7 are:-
Section 7- The possession of immovable i. A person entitled to the possession of
property can be recovered under two section i.e… movable property
Sections 7 & 8. ii. It must be specific movable property
Recovery of specific movable property (Section If above conditions are fulfilled then he may
7)- recover it in the manner provided by the Code of
A person entitled to the possession of specific Civil Procedure, 1908.
movable property may recover it in the manner (i) A person entitled to the possession of
provided by the Code of Civil Procedure, 1908. movable property- For filing a suit under
this Section, the plaintiff must be entitled
Explanation 1- A trustee may sue under this
to the possession of movable property.
Section for the possession of movable property to
Significantly, entitled to possession means a
the beneficial interest in which the person for whom
right to possession. However this right must
he is trustee is entitled. be a right to immediate possession like a
Explanation 2- A special or temporary right buyer who has paid price of goods but has
to the present possession of movable property is not received goods has right to immediate
sufficient to support a suit under this section. possession. However, an important question
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 is who is entitled to possession of movable a suit under this Section in the manner provided
property? Significantly, under this Section by the Code of Civil Procedure, 1908. Here B has
the following three persons are entitled to special and temporary right to the clothes.
the possession of movable property: Special or temporary right to the present
(a) Owner of movable property- An owner of possession of movable property without the
movable property has bundle of rights which consent of the owner:
includes right of possession. Therefore, A person has special or temporary right to have
where owner is wrongfully dispossessed of possession of goods without the consent of the
his movable property he cannot use force to owner in involuntary bailment.
recover possession but must file a suit under
Involuntary Bailment- When bailment is not
this Section in the manner provided by the
with the consent of bailee but he gets possession of
Code of Civil Procedure, 1908.
the goods accidently, or by mistake it is known as
Example:- A, an owner of a car is wrongfully involuntary bailment.
dispossessed by B. A cannot use force to recover
Example 1- A forgot his coat in B’s shop. B kept
possession of his car but can file a suit under
in safe custody to return it to B. B is involuntary
Section 7.
Bailee.
(b) A person having a special or temporary
Finder of goods is involuntary bailee-
right to the present possession of movable
property; - A person may not be an owner Another example of involuntary bailment is
but may have special or temporary right to finder of the goods. Where a person finds goods
the present possession of movable property belonging to another person and taken them in his
such as agent, bailee and pledgee. If such possession then he is a bailee of those goods. Here
person is wrongfully dispossessed of that finder of the goods has special or temporary right to
movable property then he cannot use force the present possession of movable property without
to recover possession but must file a suit the consent of the owner.
under this Section in the manner provided Example: A finds a diamond ring and takes it
by the Code of Civil Procedure, 1908. into his custody. B wrongfully dispossesses A of
Where a person has a special or temporary that ring. A having special right to that ring may
right with the consent of the owner: In case of sue b.
Bailment and Pledge a bailee and a pledge has a (c) Trustee- A trustee can also file a suit under
special or temporary right to the present possession this section for the possession of movable
of movable property with the consent of the owner. property to the beneficial interest in which
Example 1: A pledges certain jewels to B to the person for whom he is trustee is entitled.
secure a loan. B is wrongfully dispossessed by C. Example- A (creator or settlor of the trust)
B has special and temporary right to those jewels enters into a trust contract with B (trustee), where B
hence can file a suit against C to recover possession. has been given some moveable property to be used
Example 2: A gave his clothes to B, a drycleaner. for the benefit of C (beneficiary). The property of
C wrongfully dispossess B of those clothes then B B but X wrongfully disposed him. Here B, being
cannot use force to recover possession but must filed trustee can sue X for recovery.
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It must be specific movable property- Example 1- A has given his clothes for dry-
Another condition under Section 7 is that cleaning to B. Subsequently A without making
property must be specific movable property. i.e., the payment wrongfully takes possession of clothes.
plaintiff can claim possession of specific movable B, bailee can file a suit against A bailor to recover
property. Here specific means determinable or possession.
ascertained goods which can be separated, seized or No Suit if plaintiff has no right of immediate
identified from rest of the goods. Significantly this possession-
provision does not cover right to recover ‘money’ Under Section 7 suit can be filed by the plaintiff
or crop because these are not specific goods. if he is entitled to immediate possession. Therefore,
However, ‘specific rear coins’, foreign currency where he is owner but not entitled to immediate
and bags of grain are covered under this Section. possession then no suit shall lie under this Section.
Example 1- If A is wrongfully dispossessed of Example- A has pledged his jewellery to B.
money he cannot file suit under this Act but if he is Subsequently, B sells that jewellery to C before he
dispossessed of ancient coins not in use he can file is entitled to do so. A, without making payment,
a suit under this section. files a suit against C to recover possession. He will
not succeed and his suit will be dismissed as he is
Example 2- A is wrongfully dispossessed of
not entitled to possession.
crop lying in the ground he cannot file suit under
Section
this Act but if he is dispossessed of bags of grain
which were identifiable he can file a suit under this Liability of person in possession, not as owner,
Section. to deliver to persons entitled to immediate
possession (Section 8)-
Recovery in a manner prescribed by the Code of
Any person having the possession or control of
Civil Procedure-
a particular article of movable property, of which
The possession of the property can be recovered
he is not the owner, may be compelled specifically
by filing a suit as prescribed by the Code of to deliver it to the person entitled to its immediate
Civil Procedure, 1908. The plaint should contain possession, in any of the following cases:
particulars in Form 32, Schedule I, Appendix A of
(a) When the thing claimed is held by the
the C.P.C. The decree for delivery of possession
defendant as the agent or trustee of the
of specific movable property shall be passed in
plaintiff;
accordance with Order XX, Rule 10 of the CPC.
(b) When compensation in money would not
The decree for delivery of specific movable
afford the plaintiff adequate relief for the
property shall state the amount of money to pay as
loss of the thing claimed;
an alternative, if the delivery cannot be made.
(c) When it would be extremely difficult to
Suit can be filed against the owner-
ascertain the actual damage caused by its
It is important to mention that under Section 7, loss;
suit can be filed by a person having a special and (d) When the possession of the thing claimed
temporary right of possession against the owner if has been wrongfully transferred from the
he (owner) wrongfully dispossesses him. plaintiff.
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 Explanation- Unless and until the contrary is (i) When the thing claimed is held by the
proved, the court shall, in respect of any article defendant as the agent or trustee of the claimant-
of movable property claimed under Clause (b) or Where the defendant is holding a specific
Clause (c) of this Section, presume movable property belonging to the plaintiff as an
(a) that compensation in money would not agent or trustee then the court may direct him to
afford the plaintiff adequate relief for the deliver that movable property to the plaintiff. That
means there is fiduciary relationship between the
loss of the thing claimed, or, as the case may
plaintiff and defendant and due to this relationship
be
the defendant is holding some moveable property
(b) That it would be extremely difficult to to the plaintiff. Subsequently, the defendant fails to
ascertain the actual damage caused by its return that property. Here the plaintiff will succeed
loss. if he files a suit to recover possession. However, he
Significantly, when a person is in possession or has to prove that there was fiduciary relationship
control of certain movable property but he is not the between the parties.
owner thereof, he may be compelled to specifically Example- A, proceedings to Europe, leaves
deliver the same to a person, who is entitled to his furniture in charge of B as his agent during
the immediate possession of such property, in the his absence. B without A’s authority, pledges the
circumstances mentioned in Section 8. furniture to C, and C, knowing that B has no right
to pledge the furniture, advertise it for sale. C may
Essentials of Section 8-
be compelled to deliver the furniture to A, as B
(i) The defendant must be in possession or holds it as A’s trustee.
control of a particular article.
(ii) When compensation in money would not
(ii) Article must be of movable property afford the plaintiff adequate relief for the loss of
(iii) Defendant must not be the owner of that the thing claimed-
article Where the defendant is holding specific movable
(iv) the plaintiff must be entitled to immediate property of plaintiff and the plaintiff proves that
possession of that article. money compensation would not afford the plaintiff
adequate relief for the loss of the thing claimed
If all these conditions are fulfilled then the
then the court may direct the defendant to deliver
plaintiff may file a suit for recovery of possession.
that property to the plaintiff.
Example:- A while going abroad leaves his Example- B has got possession of an idol
jewellery or furniture with his neighbour, B to belonging to A’s family , and of which A is the
take care. Here B is trustee and is bound to return proper custodian. B may be compelled to deliver
when A comes back. If B fails to return jewellery the idol to A.
or furniture then A can file a suit to recover the Further, unless contrary is proved it is always
possession. presumed by the court that compensation in money
However, the court may compel the defendant would not afford the plaintiff adequate relief for the
to deliver the article to the plaintiff in following loss of the thing claimed, or, as the case may be. In
cases; above example the court shall presume that money
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compensation would not afford adequate relief damage caused to A by the loss of a picture by
to A for the loss of family idol. Hence, it is to be a dead painter and a pair of rare China vases is
proved by B that idol is ordinary article and money ordinary articles and it is not difficult to ascertain
compensation can provide adequate relief to A. the actual damage caused by its loss.
(iii) When it would be extremely difficult to (iv) When the possession of the thing claimed has
ascertain the actual damage caused by its loss- been wrongfully transferred from the plaintiff-
Where the defendant is holding specific movable It is important to mention that where the
property of plaintiff and the plaintiff proves that itpossession of the thing claimed has been wrongfully
would be extremely difficult to ascertain the actual transferred from the plaintiff to defendant even
damage caused by its loss then the court may direct then he can file a suit under this Section to recover
the defendant to deliver that property to the plaintiff.
possession. However, the plaintiff must prove in
Example- A is entitled to a picture painted by a the court that the item claimed was wrongfully
dead painter and a pair of rare China vases. B has transferred from the plaintiff.
possession of them. The articles are of too special a Example 1- B obtained computer of A by fraud
character to bear an ascertainable market value. B then A can file a suit under this Section. B can be
may be compelled to deliver them to A. compelled by the Court to deliver it to A.
Further, unless contrary is proved it is always Example 2- Diamond ring of A has been
presumed by the court that it is extremely difficult pledged by his agent without his permission to B.
to ascertain the actual damage caused by its loss If suit is filed by A then B can be compelled by the
to plaintiff. In above example court shall presume Court to deliver it to A.
that it is extremely difficult to ascertain the actual
Difference between Section 7 and 8
Significantly, both the sections provide method for recovery of possession of movable property .
However, main differences are-
Sr. No. Section 7 Section 8
1. Suit can be filed against the owner by a person No suit can be filed against the own-
having a special or temporary right of possession. er.
Example- Bailee can sue bailor if he wrongfully dis-
possesses him (bailee)
2. Decree is for specific performance (Delivery of Decree is only for specific perfor-
goods) or secondary performance (to give com- mance (Delivery of goods).
pensation)

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