Tag: #Possession

NO RIGHT FOR POSSESSION CAN BE GRANTED IF PARTY FAILS TO RAISE SUFFICIENT PLEADINGS: SC

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-Report by Karan Gautam


The defendant Nos. 1 and 2 in O.S. No.6456 of 1993 filed an appeal under Article 136 of the Constitution of India, calling in question the judgment and decree dated 09.09.2010 passed by the Hon’ble High Court of Karnataka at Bengaluru in RFA No.1966 of 2007. During the pendency of the captioned appeal, the second appellant died and his legal heirs were impleaded as additional appellants 2.1 to 2.4. The original first appellant and the impleaded legal heirs of the deceased second appellant are collectively described as ‘appellants’. The plaintiff prayed for a judgment for decree of permanent injunction restraining the first and second defendants from interfering in the plaintiffs right, title and interest over and in the suit schedule property.


FACTS:


The appellants filed a written statement contending that the suit is not maintainable, that there is no prayer for possession, that the suit was not valued correctly, and that the real owners of the suit property were not arraigned as parties. Subsequently, they amended the plaint by adding schedules A, B and ‘C’ and prayers qua them. The prayers in the amended plaint read as under: a judgment and decree of perpetual injunction directing the defendants to restore the possession of the schedule premises to the plaintiff and not to interfere in the plaintiffs’ lawful possession and enjoyment of the schedule property.


PETITIONER’S CONTENTIONS:


The plaintiff/respondent adduced oral and documentary evidence in support of his claims, but the defendant did not lead any evidence. The Trial Court partially decreed the suit as per judgment dated 04.07.2007, holding that the plaintiff was entitled to recover possession of suit ‘B’ schedule property from the defendants and directed the defendants
to vacate and deliver it to the plaintiff within two months. The surviving defendants challenged the judgment and decree before the High Court in RFA No.1966 of 2007. They did not adduce any evidence before the trial court. The plaintiff objected to the maintainability of the appeal as the original suit was filed under Section 6 of the Specific Relief Act, 1963. The High Court dispelled the objection and remanded the matter to the Trial Court for fresh disposal. Leave was granted and the Civil Appeal was disposed of as per judgment dated 03.09.2009. The trial Court was directed to record the evidence and submit a report to the High Court to dispose of the appeal within the time stipulated. The

Court to which the case is remanded has to comply with the order of remand and acting contrary to it is contrary to law. In this case, the High Court remanded the matter to the trial Court for fresh disposal and directed the trial Court to record the evidence as directed by the High Court and forward it along with report to enable the High Court to dispose of the appeal taking into account the additionally recorded evidence of the defendants.


RESPONDANT’S CONTENTIONS:

The High Court dismissed the appeal of the appellants and confirmed the judgement and decree of the Trial Court. The appellants had raised multiple grounds to assail the judgment, including that the plaintiff/the respondent had failed to establish his possession over plaint ‘B’ schedule property. The High Court failed to consider the contention that the subject suit was abated due to the failure of the respondent to bring on record the legal representatives of Sri Hanumaiah, the third respondent, and Sri Rama @ Ramamurthy, the deceased second defendant, who had purchased the suit property from Sriman Madhwa Sangha and Sri Vittal Rao as per sale deed executed on 05.10.2000.


JUDGEMENT:


The High Court held that the defendants did not disclose their defence in their written statement and did not even contend that they are in possession of the suit property, which is based on the maxim ‘Possessio contra omnes valet praeter eur cui ius sit possessionis‘. The High Court is also correct in holding the question of maintainability of the suit in the affirmative and in favour of the respondent. The appellants argued that the suit ought to have been held as abated against all the defendants due to non-substitution of the legal representatives of the deceased defendant No. 3 upon his death, but the courts below have held that the original defendants failed to raise sufficient and appropriate pleadings in the written statement that they have better right for possession. The appeal is dismissed and there will be no order as to costs.

READ FULL JUDGEMENT: https://bit.ly/40u8WAU

Recovery of Possession of Immovable Property under Specific Relief Act

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Introduction

There are two different concept of term ā€˜Possessionā€™ 

ļ‚·  Corpus ā€“ Actual power and apparent control over the object

ļ‚·  Animus ā€“ Will to avail oneself of the Corpus

The Specific Relief Act of 1963 addressed a vast number of legal issues that needed to be addressed. In most cases, substantive law, which outlines rights and responsibilities, provides remedies. The law of contract, for example, provides a remedy for the violation of contract in the form of damages. Although the Specific Relief Act is focused on civil rights rather than criminal laws, even civil law must protect some rights, including those related to property holding. There are two types of property: mobile and immovable.

Let us now understand this with the help of an example .

A is an owner of a house and he gives permission to B for living there for some days, after two years when A asked B to leave the house he disagreed with the same. And also after repeated warning by A, B didnā€™t leave the houseĀ 

Now in this situation under section 5 of specific relief A can recover his house from B, he can file a suit under ownership.Ā 

Possession of transportable property is reclaimed:-

The Specific Relief Act of 1963, Sections 5 and 6, establish methods for regaining custody of certain specific immovable property. A person entitled to ownership of any specific immovable property can recover it in the way stipulated by the Code of Civil Procedure, 1908, under Section 5 of the Specific Relief Act, 1963. (5 of 1908). Section 5 explains how to get the specific immovable property back. ā€œA person entitled to possession of the specified immovable property may reclaim it in the manner prescribed by the Code of Civil Procedure, 1908,ā€ it states.

The keyword in this section is ā€˜title,ā€™ which means that whoever has a better title is entitled to ownership. Itā€™s possible that the title is one of ownership or possession. Thus, even if ā€˜Aā€™ takes peaceful possession of land claiming it as his own despite having no legal title, he has the right to sue another who has forcibly removed him from possession since, though he may not have a legal title, he does have a possessory title. It is a legal notion that a person who has had long-term continuous possession of immovable property can defend it by requesting an injunction against anyone other than the real owner wherever in the world.

Both Sections 5 and 6 provide alternative remedies, but they are mutually exclusive. A person who has been displaced can reclaim possession under section 5 on the basis of title, whereas a person who has been displaced can reclaim possession under section 6 by demonstrating previous possession and further unjust dispossession. In the meaning of section 6, possession refers to legal possession that can exist with or without physical possession and can be of any rightful origin. In a section 6 lawsuit, the plaintiff is not required to establish title.

Possession of movable goods is reclaimed:-

The Certain Relief Act of 1963, Sections 7 and 8, contains measures for regaining control of specific moveable goods. ā€œA person entitled to the custody of the designated movable property may recover it in the manner authorized by the Code of Criminal Procedure, 1908,ā€ says Section 7 of the Act (5 of 1908).

Explanation 1: Under this clause, a trustee may claim for possession of the movable property to which he is entitled.

Explanation 2: A temporary or special right to current possession is enough to sustain a claim under this section.ā€

Section 7 vs. Section 8: Whatā€™s the Difference?

A person with a special or temporary right to present possession can bring suit even against the owner under section 7, whereas a decree under section 7 is for the return of movable property or the money value in the alternative, whereas a decree under section 8 is only for the return of a specific article.

Limitation Period:-Ā 

Under Article 65 of the Limitation Act, a suit for possession of immovable property, based on title, can be filed by a person for claiming the title. The statutory limitation period for immovable property is within 12 years. According to Article 65, The limitation commences from the date when the possession of the defendant becomes adverse to the plaintiff. In these circumstances, it is apparent that to contest a suit for possession, filed by a person on the basis of his title, a plea of adverse possession can be taken by a defendant who is in hostile and open possession if a person has remained in possession for a period of 12 years.

Conclusion:-

Because the Indian Contract Act of 1872 only provides relief in the form of compensation in cases of contract breach, the remedies offered by the Specific Relief Act become required. The plaintiff had no remedy for specific performance where the loss was not quantifiable and compensation in the form of relief was insufficient to compensate for the loss. A person entitled to the possession of immovable property or having a particular right to the possession may recover it through the legal process under the requirements of sections 5 and 6. Similarly, sections 7 and 8 give the person the power to reclaim custody of transportable goods.

The article is written by Kiran Israni, 3rd Year Law Student of Baba Saheb Ambedkar College of Law, Nagpur.

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