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Law Relating To Recovery Of Possession Of Property Under Specific Relief Act, 1963

For when the contractual rights of a person is hampered and damages canít be measured in monetary value or that if such is even though measurable in term of money but fail to provide any adequate relief, such remedies are then covered under the provisions of Special Relief Act , 1963.

The party such suffered loss due to non-performance of contract lies with the power to file for a suit under this act. Section 5, of the act provides for the manner under Code of Civil Procedure 1980, for the recovery of immovable possession. The objective of this act is to compel the party for the performance of the contract rather than to provide damages.

The discretion shall lie upon the court of law to pass an order under this act, where it is deemed that damages are inadequate. This act is considered under the civil suits rather than criminal. The paper provides the in-depth knowledge about the applicability, essentials and the power to file the suit under this provision.

Introduction
The Special Relief Act was passed by the parliament of India in the year 1963, which initially followed the law of common doctrine pre-independence. It was first recommended in 9th report of Law Commission on the act. The act passed in both the house in year 1962 repealing Specific Relief Act, 1877.

The contractual obligations and compensation was only available initially for the breach of the contract , whereby the situation demands more stringent and much more then the compensation , the Special Relief Act, 1963 is invoked for special performance of the contract , rendering justice and adequate relief. This act is applicable to the whole of India except in the state of Jammu & Kashmir.

Under this act , court issues order of special performance of the contract under the agreed terms and condition initially made between the party. Rather than the payment of merely a compensation.

The courtís discretion may follow-up the relief under this act when:
There stands no standards or essentials to ascertain the damages caused by non-performance of the contractual obligation agreed to be done. Or, when the monetary compensation would not make the good or provide adequate relief. Where the category of law is divided into three division, namely Rights, Remedies and Procedure, the law of Specific Relief is placed in second category.

Breach of Contract has two course of action , first is of seeking compensation provided under Indian Contract Act 1872, and second is Specific Performance which calls for fulfillment of contractual relation terms agreed initially governed under Specific Relief Act.

Specific Relief Act, 1963

Under the specific relief act, Section 5 states that a suit for recovery Position can be filed by a person who is Entitled to the possession of the specific immoveable property in the Manner provided by the code of Civil Procedure,1908.

The section 6 of this Specific relief act,1963 Provides a remedy to a person who is disposed without his consent from immovable property otherwise than in due course of law. He can also bring a suit for seeking recovery of the possession notwithstanding any other title that may be set up in such a suit. Therefore any person cannot be permitted to take a Forcible possession. They must obtain such possessions which they are entitled by the court.

Under the Section 4 of this act, the rights of a rightful owner are protected. Nothing in this section shall bar any person from suing to establish title such a kind of property which belongs to him to recover from the possession thereof. The restoration of such kind of possessions in such a suit is always subject to a regular title suit and the person who has the real title On the possession cannot be prejudiced in anyway in such a suit by a decree.

Objective of this Act
Under the Act, carrying out could be a restricted right, which can tend by the court at its discretion, within the following circumstances:
  1. once financial compensation is inadequate; or
  2. once financial compensation cannot be simply observed.

The Bill seeks to get rid of these conditions and allow carrying out by courts as a general rule.
The Act contains an inventory of persons:
  1. United Nations agency might request carrying out and
  2. against whom carrying out is also wanted.

This list includes:
  1. a celebration to the contract; or
  2. an organization ensuing from the uniting of 2 existing firms.

The Bill adds a replacement entity to the list of parties. It currently includes a liability partnership (LLP) shaped from the uniting of 2 existing LLPs, one in all which can have entered into a contract before the uniting.

Case study:
In the case Ravindra Kaur Grewal v. Manjit Kaur, 2019 The court with a 3 judge bench of Arun Mishra, SA Naseer, and MR Shah ,JJ Held that the article 65 of limitation act, 1963 not only just enables people to file suit of adverse possession as a shield as a defendant but the plaintiff can also use it as a sword to protect the possession of his immovable property but can also recover his property in case of dispossession.

The court held that the other person cannot outsted the other person in possession except by due procedure of law. once the period of 12 years of adverse possession is over , the owners right to eject him is lost. The possession order requires right, title and interest possessed by the outgoing person or the owner as the case may be against whom he has prescribed the property.

If there is the acquisition of the title in favor of the plaintiff although it is negative conferral of right on extinguishment of the right of an owner of the property. if The right is absolute and on dispossession, he can sue based on title that was anticipated in the opening part of the article 65 of the act.

Hence the court held that The plaintiff can take the adverse possession by the plea of acquisition of the title Under article 65 of the limitation act and there is no bar under the limitation act, 1963 to Sue on aforesaid bases in case of infringement of the rights of a plaintiff.

Provision Of Recovery Of Possession

Recovery of possession: The Act permits the subsequent persons to file a suit for recovery of possession of unmovable property:
  1. an individual place out of possession (dispossessed person); and
  2. someone claiming through such unfortunate person.
The Bill to boot permits an individual through whom the unfortunate got possession of the unmovable property, to file a suit for recovery.

Grammar Check
Before addressing the issue it will be more significant to first understand the concept of ďpossessory titleĒ in Indian law. The hon'ble Supreme Court in a case title poona ram v. Moti ram and others, defined the term possessory title over a particular property as such where the person is under settled or established possession of the property. In our country India, persons are not permitted to take forcible possession of any property, even the owner of the property has no right to re-enter by intimidation. If he take the forcible possession of the property then that is an illegal act, he must have to proceed under the law.

In case of K. Krishna v A.N Paramkusha Bai 1995, The tenant was forcefully evicted from the property of the owner, tenant applied for the injunction under section 6 of the Special Relief Act 1963. While the suit was pending in the court. The tenant repossessed the property from the real owners forcefully. The court was of the view that when the suit of injunction was filed after eviction of tenant ,then the act of him to repossess the property unlawfully is an act of trespass, and that now he shall lie with no course of remedy under this act.

Immovable property

Section 5, of the act provides condition for bringing the suit to court of law for special performance specified below:
  1. Shall be based on title by ownership:
  2. Or Possessory title:
  3. Such suit on previous possession of the plaintiff , whereby he was dispossessed without his consent otherwise, in due course of law.

This section provides the lawful owner of the immovable property with a chance to recover his property by the means of procedure established by law. The provision order XXI, Rule 35, 36 of CPC provide entitled person to apply for recovery of possession and decree of ejectment against the defendant. Nothing-withstanding in this section empowers for filing of suit after 12 years, such shall fall under Adverse Possession under Limitation Act, having no course of action against the defendant.

Section 6 of the act object and discourages the forcible dispossession under the principle that , any dispute in the matter of rights shall be decided by the due process of law and no party shall have an unlawfully take law into his hand. This section shall be read with Indian Limitation Act and its object to put an additional restraint upon illegal dispossession to prevent such applicant from getting rid of so unlawful and illegal dispossession.

Movable Property

This provision deals with conversion or the dispossession of the movable property . The property which can be taken out of the custody , authority or such of which the owner or possessor can be denied the excess , shall be the movable property. Or any property which is not immovable property , be it anything, is a movable property.

Section 7, Recovery of Specific movable property provides entitled person , possession of specific movable property by means of procedure established under Code Of Civil Procedure, 1908.

The section further recognize not only the owner , meanwhile person who is:
  1. Trustee, for the beneficial interest in which the person for whom he is entitled.
  2. Has special or temporary right to the present possession


With Right to file a suit under this section

This section provides for recovery of property in specie, means the thing itself. Such shall not be altered, replaced and must be capable of identification to be specific in sense.

Any person so in lawful possession of the property , not necessarily the owner has right of an action against the defendant for dispossession of such movable property including bailee, pawnee or the finder of lost goods.

Exception:
Nothing in any of the above section under immovable and movable property empowers for a suit against the government of India. That no case of dispossession in maintainable under this act.

No person is entitled for a suit under this act whereby, he forcefully or unlawfully has occupied the possession.

The two eminent parts of Possession are:
  1. Corpus - Actual ownership / power control over the object.
  2. Animus- Will to avail oneself for the purpose of corpus.

Liability of person in possession, else than owner

Section 8 of the Special Relief Act,1963 states that ďAnyone exercising control or having possession of a specific article of movable property of which heís not the owner, such person may be compelled by the way of law specially to deliver it to the person entitled to its immediate possession, in following described situations:
  • When the person so in possession of goods is by the virtue of agent or trustee of the plaintiff
  • When the monetary compensation is not enough to do the good, or provide adequate relief for the loss claimed.
  • When it is difficult to accumulate the particular damage caused by it damages.
  • Where in any circumstances the possession claimed has been wrongfully transferred to plaintiff.

New Amendments
Specific Relief (Amendment) Act, 2018
Under Section 10 of the initial act, carrying into action of a contract was a discretionary remedy that can be granted once|only|only if} the financial compensation wasn't adequate as a way of relief for the non-performance of a contract and when the damages thanks to non-performance cannot be discovered.

By means that of the modification act, carrying into action of a contract isn't supported the discretion of the courts however it's a sound remedy accessible to Associate in Nursing aggrieved party if his contract has been broken with a couple of exceptions mentioned underneath Sections 11(2), fourteen and sixteen of the Act. The modification Act additionally permits the aggrieved party to hunt compensation for the breach of accept addition to seeking carrying into action of such contract whereas before modification, a claim for compensation was either additionally to or in substitution of seeking carrying into action.

The change inserts a new section within the Act specifically section 14A for granting permission to technical specialists in suits wherever the court considers it necessary to induce associate knowledgeable opinion to help the court on any specific issue concerned within the suit. it'll even be left up to the courts to work out the terms of payment of such specialists and therefore the payment are borne by the parties to the suit in no matter proportion and time as set by the court Overall, the change Act has helped in filling out the gaps gift within the original legislation and has provided for a system though' that the cases filed beneath the Act are often settled efficiently.

However, the change Act intends to stop acquiring parties from avoiding performance of their contracts since it continues to take care of its original position that contracts whose nature are often determined clear can not be specifically enforced . Over the years, Indian courts have understood that the mere presence of a termination clause in an exceedingly contract will imply that such a contract is one whose nature are often determined and thence doesn't return beneath the reach of performance.

Conclusion:
The study has provided the clear distinction between the remedies available under the Indian Contract act , 1872 and Specific Relief Act, 1963. The lawful possession of property in key element to make him the eligible to file a suit for dispossession, else then the owner. The party such suffered loss due to non-performance of contract lies with the power to file for a suit under this act. This law provides the relief where the common compensation cannot be computed, or if available to be computed, doesnít makes the damage good. It sets aside the provision which focuses on the fulfillment of contractual obligations rather than alternate remedies.

Also, the act provides an exception to file the suit, under the limitation act. Also, where the plaintiff has an unlawful possession or where he has occupied any property forcefully of by illegal means , such suit will not stand in court of law. Moreover, Government cannot be made a party to a suit under this act withstanding any circumstances. The objective of this act is to compel the party for the performance of the contract rather than to provide damages.

In our country India, persons are not permitted to take forcible possession of any property, even the owner of the property has no right to re-enter by intimidation. The provision order XXI, Rule 35, 36 of CPC provide entitled person to apply for recovery of possession and decree of ejectment against the defendant . Nothing-withstanding in this section empowers for filing of suit after 12 years, such shall fall under Adverse Possession under Limitation Act.

The property which can be taken out of the custody , authority or such of which the owner or possessor can be denied the excess , shall be the movable property. Any person so in lawful possession of the property , not necessarily the owner has right of an action against the defendant for dispossession of such movable property including bailee , pawnee or the finder of lost goods

References
  1. https://www.insightsonindia.com/2018/03/30/6-what-are-the-objectives-of-introducing-the-specific-relief-amendment-bill-of-2017-also-discuss-its-significance/
  2. The Special Relief Act,1963 bare act, Govt Of India.
Written By: Siddharth Gupta (BBA.LL.B (Hons) ), Amity Law School, Noida

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