Suit For Recovery of Possession

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RECOVERY OF POSSESSION OF PROPERTY
Relevant sections for this relief are sections 5 to -8.
Recovery of Specific Immovable Property:

Section 5 and -6 of SRA provides for the relief of recovery of possession of a specific
immovable property. The term ‘immovable property’ has not been defined in the Specific
Relief Act. According to section 3(26) of General Clauses Act-
“immovable property” shall include land, benefits to arise out of land, and things attached
to the earth, or permanently fastened to anything attached to the earth.
Recovery of specific immovable property under section 5:

"A person entitled to the possession of specific immovable property may recover it in the
manner provided by the Code of Civil Procedure, 1908 (5 of1908)”. -
A person entitled to the possession of specific immovable property may recover it in a
manner provided by the Code of Civil Procedure, 1908.
The term possession implies:
1. Corpus - some actual power over the object possessed and apparent control over it,
and
2. Animus - some amount of will to avail oneself of that power thus, where person has
in his own right and not merely a representative of another such control over property as to be
able to excluded others from it, and has the intention of exercising such power of exclusion,
he has possession of that property.
‘Possession’ implies juridical possession which means a legal possession or possession
recognized under the law which is founded on some right.
Possession is prima facie proof of ownership. It is a good title against all those who cannot
show a better title.
The property must be ‘specific immovable property’ that means it is clearly separable form
the rest.
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Three types of action can be brought in law for the recovery of specific immovable property
1. A suit based on title by ownership
2. A suit based on possessory title
3. A suit based merely on the previous possession of the plaintiff, where he has been
dispossessed without his consent, otherwise then in due course of law, the issue of title being
irrelevant to the proceeding
Point 1 and 2 pertains to Section 5 whereas point three pertains to Section 6.
Section 5 uses the term entitled. A plaintiff can be said to be entitled to possession of
immovable property if he has title in that property, either proprietary or possessory. Suit for
recovery may only be filed under section 5 on the basis of title only.
 Title on the basis of ownership (Proprietary title): The owner of immovable
property always has a bundle of rights including the right of possession. Therefore, if
someone forcibly ousts him from that immovable property he can sue under this
section.
Example: A, owner of a house is ousted by B (neighbor). A can file a suit under this
Section as he is entitled to possession on the basis of ownership.
Article 65 of the Indian Limitation Act,1963, provides for a suit for possession on the
basis of title. It can be filed within 12 years from the time when the possession of the
defendant becomes adverse to the plaintiff.
An owner can seek possession under section 5 as a matter of right and the court have
no discretion to deny him this relief.
 Title on the basis of possession: Where a person has peaceful possession of land
claiming it to be his own, then even if he has no title, he can sue another person who
ousted him from possession who has no better title to it.
Example: A, washer man, peacefully residing in a plot of land is ousted by B
(neighbor) who is not owner of that plot. A can file a suit under this section as he has
possessory title.
He can do so by taking recourse to Article 64 of the Limitation Act, 1963, and file the
suit on the basis of previous possession, within 12 years from the day of
dispossession. However, such person can not get the relief against any person having
a better title than him. i.e. such person can not get a relief against the true owner.
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The person must be in the settled possession of the property. Settled possession means that
the possession must be effective, undisputed and to the knowledge of the owner or without
any attempt or concealment by the trespasser.
However, the occupation of the property by the Agent or the Servant acting at the instance of
the owner will not amount to legal possession, as they lack the element of animus possidendi.
In Rame Gowda (D)by LR.s vs M. Varadappa Naidu (D) by LR.s and another, 2004 SC,
the supreme court laid down the following. It is a test for determining the attributes of ‘settled
possession’.
1. The trespasser must be in actual physical possession of the property over sufficiently
long period.
2. The possession must be to the knowledge of the owner or without any attempt to
concealment by the trespasser. It must have the element of animus possidendi.
3. The process of dispossession of the true owner must be complete and acquiesced by
the true owner.
4. In case of cultivable land the test is to see whether after taking the possession the
trespasser had grown any crop, if so then he will be said to be in the possession of the
land.
Significantly, main objective of section 5 is that nobody shall take law in his own hands and
should not use force to recover possession whether he is owner or have possessory title.
Therefore, where he is forcibly ousted by somebody then he must file a suit.
Under section 5 the plaintiff can file a suit within 12 years from the date of possession.
Plea of Jus Tertii i.e. third party rights cannot be taken against the plaintiff claiming
possession on the basis of possessory title.
Recovery of specific immovable property under section 6:

Section 6- Suit by person dispossessed of immovable property-
1. If any person is dispossessed without his consent of immovable property otherwise
than in due course of law, then he or any person [through whom he has been in
possession or any person] claiming through him may, by suit, recover possession
thereof, notwithstanding any other title that may be set up in such suit.
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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.
Under Section 6 when a person is dispossessed without his consent from any immovable
property without following the due course of law then either he or any person claiming
through him, recover possession by filing a suit under section 6.

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1

RECOVERY OF POSSESSION OF PROPERTY

Relevant sections for this relief are sections 5 to -8.

Recovery of Specific Immovable Property:

Recovery of specific immovable property under section 5:

Recovery of specific immovable property under section 6:

2. No suit under this section shall be brought.

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