The stories of people being thrown out of their property are not uncommon, also a lot of time criminal force is used to evict them and take over their properties. Indian laws discourage this forcible dispossession. It is deemed that if someone is a lawful owner of the property, his dispossession can only be carried out in due course of law. To understand this forceful dispossession we much understand how Indian courts interpret possession.
Possession means ownership of a person upon a thing, property, asset or occupancy. Honourable Supreme court in the case Abdul Rahim v. S.K. Abdul Zabar quoted “A person is said to be in possession of a thing or of immovable property, when he is so placed with reference to it that he can exercise exclusive control over it, to derive from it such benefit as it is capable of rendering or as is usually derived from it.” Indian laws efficiently enumerate possessory remedies to protect the victim from unnecessary exploitation. Possessory rights are exercised either to ask for something which victim was deprived of or to deny acceptance of any less title. In today’s time, a growing trend of cases is being observed for recovery of the property under The Specific Relief Act of 1963 concerning possession.
Specific Relief Act is a remedial law and was made to deliver specific damages where mere compensation cannot undo the damages, like dispossession from a property. And to recover property under the Specific Relief Act, it is crucial to establish the victim’s legal possession. The honourable Supreme Court in the case Dilip Kaushal v. State of M.P. concluded that persons with possessory rights are the ones who have a personal interest in the disputed property and hence are eligible to file a recovery suit of immovable property under section 4 of the Specific Relief act. Further, section 5 and 6 of the act exhaustively discusses possessory remedies of immovable property based on two things,
- BASED ON TITLE (Section – 5)
Section 5 of the Specific Relief Act suggests, as guided by the code of civil procedure, an aggrieved person can file a suit for recovery of possession of the immovable property in a competent court of law.
According to the Act, an aggrieved person is someone who has legal possessory rights or who was entitled to the property in the first place. And an immovable property, although well defined in the General Clauses Act, 1897 unless there is any vile in the context an immovable property cannot be shifted from place to place. It is fixed to the ground. The section stresses upon who can prove a better title, whosoever can, has rights to possession. In the case, Dadu dayalu Mahasabha v. Mahant Ram Niwas Hon’ble Supreme Court was asked to decide upon who has the better title to the gaddi of Math, where neither of the parties could produce solid evidence and hence, no one proved to be a better title.
Section 5 also accords a right for 12 years to recover the land. In case of uninterrupted enjoyment of land for 12 years, the right to file suit against possession will extinguish and the property will be transferred to the defendant under Article 65 of the Limitation Act, 1963. This was interpreted by the Privy Council in 1867 in a case titled Gunga Govind Mundal v. The collector of the Twenty-Four Pergunnahs.
- BASED ON POSSESSION (Section – 6)
Section 6 states that if any person is dispossessed without his consent of immovable property otherwise than in due course of law, 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.
This section was mainly presented to safeguard the rights of tenants. There have been cases reported where tenants have been evicted from the house illegally and without prior notice. To prevent this it is suggested to sign a rent agreement that enumerates the period of tenancy, details of the landlord, tenant, and terms and conditions of landlord and the property rented. Rent agreement also acts as solid proof while initiating legal action against the landlord if needed. For illustration, Mr A rents an apartment to Y, and according to the rent, agreement tenancy will continue for 11 months. At the 4-month Mr X decides to dispossess Y without any prior notice. This gives rights to Y under section 6 to file a suit against X as at the moment Y has legal possessory rights for 11 months.
As much as forcible dispossession is illegal, so is forcible repossession. A tenant if by force or threatening claims back the property in dispute he/she loses his possessory rights and /becomes a trespasser. This was concluded by the courts in A.N. Paramkusha Bai v. K. Krishna. While filling a suit under section 6 one should remember that section grants 6 months in hands of the aggrieved party to file a suit to recover his title, A suit cannot be initiated against the government. This means If the government takes away your title or dispossess from the property one cannot hold the government accountable. Although this clause has been challenged many times due to its unfairness and lack of accountability from the government. Also, the act does not accord for reviewing any order once passed. An appeal cannot be made against the order passed in another case of the same section which raises the question of a fair trial. Often plaintiff is blackmailed and threatened to not speak against the defendant. hence single-trial reduces the opportunity of justice.
Lawmakers believed that no person should live in loss, older Indian laws provided a very restrictive window in terms of reliefs. While the Indian Contract Act provides remedies only in case of breach of contract and, Tort law provided compensation for tortious wrongs, the introduction of the Specific Relief act proved to be a success in redressing demands that were unmet in the Indian contract act. Section 6 of this act goes one step further and allocate rights to tenants against unjust dispossession.
It can be safely concluded that possession is the most fundamental relationship between a man and a thing, but one of the most laborious concepts of the field of law. Yet Possession in sections 5 and 6 has been carefully interpreted by the court’s to deliver justice and resolves conflicts. It can also be seen that courts have clearly defined the ambit of possession u/s 6 to prevent its misuse as seen in the case of A.N. Paramkusha Bai (supra). Although there lies some ambiguity in the features of Section 6 like single trial and no review appeal which can alter justice. Nonetheless, the Act serves the purpose satisfactorily.
Author(s) Name: Shivangi Srivastava (Amity University, Noida)
 Avtar Singh, Contract and specific relief (11th edition Eastern Book Company) p. 655.
 Ibid, p. 656.
 Ibid, p. 658.