Recovery of possession of immoveable property
Q explain the salient features of a suit for recovery of possession of an immoveable property on the basis of title.
Q explain the concept regarding recovery of specific immoveable property on the basis of title
Q discuss the scope of a suit for recovery of specific immoveable property under section8 and 9 of the specific relief act.
Q discuss the scope and salient features of a summery suit for possession and regular suit for recovery of an immovable property
Q elucidate the scope of suite of recovery of possession of an immovable property on the basis of title.
Q discuss with illustration the law relating to recovery of possession of moveable properties by and on behalf of the owner
Q discuss the law relating to the recovery of possession of immovable property.
Possession means the state of having or controlling something and sometimes owning something it means a subsisting right in law. When a person in quiet and undisturbed possession of property is forcible dispossessed, the specific relief act provides the following remedies for recovery of possession, specifically for immovable property:
Section 8: recovery of specific immovable property
Section 9: suit by person dispossessed by immovable property
Recovery of specific immovable property: According to section 8, a person entitled to the possession of specific immovable property may recover it in the manner prescribed by the code of civil procedure, 1908. This section provides the remedy by way of civil suit for possession on the basis of the title in the manner provided CPC. It confers a right to sue on a person which not only includes the natural born person but also a juristic person or corporate bodies whether it cooperated or not. A suit under this section is a regular suit so a plaintiff may, within 12 years of his dispossession bring a regular suit for dispossession. Following are the basic ingredients:
The plaintiff must be a person entitled to the possession or a person dispossessed: it means a right to possession on the basis of ownership or possession of which the person claiming has been dispossessed such as tenant and licensee etc. The title under this section can arise out or is created by way of contract, inheritance, prescription or even by possessory title. It is a well-established principle of law that possessory title is good against all person except the true owner. The plaintiff has to succeed on the strength of his title documents in order to restore his possession.
The possession must be of specific immovable property: the possession must be due course of law means apply through the system of court so its legal. Movable and immovable property is identify by fixture or fitting. If a person is dispossessed illegally without due process of law he can claim recovery of his possession of such immovable property, by claiming damages and profit together with the possession.
The plaintiff must recover it in the manner prescribed by code of civil procedure: The manner prescribe by the code of civil procedure, 1908 is one by way of a suit for ejectment on the basis of title and consequential restoration of possession to the plaintiff.
Salient features of section 8
1-7 notes 1
Suit by person dispossessed by immovable property: Section 9 says, if any person is dispossessed without his consent of immovable property otherwise than in due course of law, he 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 provides a summary procedure for grant of relief to persons dispossessed from immovable properties without their consent. The purpose of this section is to discourage forcible dispossession and to provide a quicker remedy for the recovery of possession. The cases in which this section comes into operation are those where the plaintiffs are deprived of the actual physical possession of the immovable properties. It is based on the theory that law respects possession even if there is no title. The nature of the decree that is to be passed in a suit filed under section 9 should be simply to award possession. The object of this section was to prevent people from taking law in their hands. This section provides a quick remedy for recovery of possession. No appeal or review lies as against a decree in such cases.
Summary remedy: summary remedy was provided in section 9, to persons dispossessed illegally without their consent and without establishing their title over such property. This section provides for summary removal of any one who dispossesses another, whether peaceably or otherwise than by due course of law.
Ingredients:
Person suing must have been dispossessed: this means that the person has to show that he had actually physical possession or judicial possession of the immovable property from which he was dispossessed without his consent by the defendant within six months prior to the institution of the suit. In a suit for such a relief the court does not decide the question of title and all that it is concerned with is as to whether possession has been disturbed without any authority of law and in disregard of it.
Such dispossession must be of immovable property: it includes lands benefits to arise out of land and things attached to the earth or permanently fastened to anything attached to the earth.
Dispossession should be without consent: the plaintiff should establish that he was actually in physical possession of the immovable property from which he had been illegally dispossessed without his consent
Dispossession should be otherwise than in due course of law: a decree under section 9 can be passed when it is provided that the plaintiff was dispossessed from the property in dispute by the defendant otherwise than in due douse of law , within six months of the institution of the suit.
Exceptions: section 9 also provides exception to such rule that,
No suit under this section shall be brought against the federal government or any provincial government. 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.
Difference in section 8 and 9
Notes 3 pg.no 9
