Recovery of Possession of Immoveable Property

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8 Recovery of specific Immovable property:

Section 8 provides that, “A person entitled to the possession of specific immovable property may recover it in the manner prescribed by the Code of Civil Procedure”

Scope:

Section 8 provides a remedy to a person who is entitled to possession of immovable property. If a person is dispossessed illegally and without due process of law and such person is interested to claim damages and mesne profits together with possession, such result can be achieved by bringing a suit u/s 8. Section 8 mandates the person seeking recovery of possession of immovable property on the basis of title can file a suit for ejectment in the manner prescribed by CPC.

Procedure prescribed in CPC:

Recovery by person entitled to possession of specific immovable property is governed by O.XXI, R.35 36 CPC where under decree holder in a suit for ejectment can seek recovery of possession.

Title to property necessary:

Plaintiff who could not have proved title of property would not be entitled to decree for possession u/s. 8. Therefore, where the claim was based on ownership of suit property having title, suit could proceed u/s. 8.

Possession:

Court is bound to see that unless some insurmountable hurdle is there, holder of lawful title in property must gets its possession from person occupying the same without any title. Where plaintiff had proved his title in respect of suit land, he was always entitle to fall back upon his title and there was no bar under any law against grant of a decree for possession in favour of plaintiff who had proved his title against a person who had no title to the suit land.

Who can initiate proceedings:

Words entitle to possession in section 8 means all such person, as were entitled to possession of specific immovable property. They can file proceedings u;/s 8 for recovery of possession. Suit u/s. 8 for possession could be filed not only by a person who was a holder of title to property such as an owner, a mortgagor, a mortgagee, a trustee or a beneficiary in a trust but even by a person who was merely entitled to possession and in such a class would fall tenants or lessees.

Co-Sharers:

No claim for possession simpliciter should be filed by co-sharers of suit land who must have asked for partition of land if they were aggrieved by the action of other co-sharers.

Peri-delicto:

Pari delicto means “in equal fault” where both the parties are equally at fault, law will helps that party who is in physical possession.

Appeal, Review and Revision:

All revision, review and appeal are available to the party against whom the order made u/s. 8 of S.R.A 1877.

Limitation for suit:

There is no time limit u/s. 8 within which suit can be filed. However, where plaintiff sought recovery of possession after 30 years dispossession of immovable property, it was held that relief of possession after thirty years was barred within the meaning of Article 142 of Limitation Act as the same provided a period of twelve years from the period of discontinuance of possession.

Section 9: Suit by a person forcibly dispossessed:

Section 9 states that if any person is dispossessed without his consent of immoveable property otherwise than in due course of law, he or any other person claiming through him may by suit recover possession thereof, notwithstanding any other title that be set up in such suit.

Scope and Object:

The object of this provision is clearly to discourage forcible dispossession and to provide a quicker remedy for recovery of possession where a person is dispossessed from immoveable property otherwise than in due course of law. It gives special privilege to a person in possession who takes action promptly on his dispossession of immoveable property.

Essential ingredients:

The provision has four ingredients.

  1. Person suing must have been dispossessed.
  2. Such dispossession must be from immovable property.
  3. Dispossession should be without consent.
  4. Dispossession should be otherwise than in due course of law.

Summary Remedy:

This provision of law has been enacted to afford summary remedy against person who has taken the law into his own hands provided suit is brought within prescribed period and other conditions laid down therein fulfilled. In other words section 9 provides summary remedy for the restoration of possession to person who was illegally dispossessed from immovable property during the period of six months before institution of suit.

Possession and title:

Section 9 of Specific Relief Act 1877, provides a procedure to persons who are dispossessed from immovable property without consent or without lawful authority and except in due course of law. Under this provision the court is not competent to decide the title of the property. It only relates to possession of immovable property, if the person had been illegally dispossessed then section 9 could be invoked. The plaintiff should establish that he was actually in possession of the immovable property from which he had been illegally dispossessed without his consent.

Co owners:

Suit for possession against a co-sharer is not maintainable. But every co-sharer has a right to seek partition in accordance with law. If a co-sharer has been in exclusive possession of a certain portion of the joint property for a long period, he cannot be disposed there from by another co-sharer except by bringing a suit for partition of joint property or for possession u/s. 9.

Appeal:

The last para of s.9 expressing prohibits an appeal from an order of decree passed in any suit instituted under this section. Order on such incompetent appeal would be without jurisdiction and thus non-binding.

Review:

A decision passed “forthwith” in a suit under this section is not open to review.

Revision:

A revision lies to the High Court u/s 115 of CPC 1908, in respect of an order or decree made in a suit u/s. 9 of S.R.A 1877.

Limitation:

For a suit u/s. 9 of S.R.A 1877, law provides a limitation of six months from the date of dispossession.

Distinction between Ss.8 and 9.

Suits under sections 8 and 9 of the specific Relief Act are mutually exclusive. So far as concepts of possession and dispossession, respectively under s. 8 and 9 of S.R.A. 1877 are concerned, merely because section expressly deals with persons who are dispossessed, that circumstances in itself would not preclude dispossessed persons, otherwise entitled to seek relief u/s. 8 from doing so, because recovery of possession could be sought not only be those who had never been inducted into possession, but also by those who had been dispossessed, the only criteria in s.8 being that person claiming should be entitled to possession. Possession under section 9 only envisages a speedy remedy for those who on being dispossessed, otherwise than in due course of law, seek prompt relief, within six month of dispossession and in such context superior title is no defence. While u/s 8 being entitled to possession is a necessary qualification for seeking possession.

According to section 8, if a person desires to obtain possession of an immovable property on the basis of his title, he can bring a suit for ejectment in accordance with the relevant provision of CPC. Normally, such a suit can be filed within 12 years of the occupation of immovable property by a person without title. The person seeking relief u/s 8 cannot succeed unless he demonstrates that he has title to the property claimed by him but the defendant had no such title thereto, or if he (defendant) too has any title, the same is not better than the plaintiff. As against this, if he seeks restoration of possession u/s. 9 of the S.R.A 1877, he need not worry about his own title or that of the defendant, but simply show that he was in actual possession of the property within six months of the filing of the suit and has been wrongly and forcibly dispossessed there from without his consent.

 

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