INTRODUCTION
Recovery of Possession is a universal right of every man. No person can dispossess him without his consent and without adopting the proper procedure provided by the law of the land. The law discourages the people from taking the law into their hands. Sections 8 and 9 provide a speedy and summary remedy through a medium of civil court for restoration of possession to the dispossessed person.
RELEVANT PROVISIONS
Sections 8 and 9 of the Specific Relief Act, of 1887 deal with the recovery of possession of immovable property.
OBJECTIVE
The main object of sections 8 and 9 is to discourage people from taking the law into their own hands. Both sections provide a speedy and summary remedy. So, a wrongfully dispossessed person can get possession of his immovable property.
However, it must be noted that Section 8 provides for a suit for ejectment based on title, and Section 9 gives a remedy without establishing title.
It is further provided that the suit must be filed within six months of dispossession.
RECOVERY OF POSSESSION OF IMMOVABLE PROPERTY U/s 8
The Code of Civil Procedure, 1908 also enables a person who has been dispossessed from his property, to recover his property by adopting a specific procedure.
Who can Avail the Remedy?
A person who has legal possession may sue in the Civil Court for the recovery of the immovable property from whom he was dispossessed. So, the owner of the immovable property can file a suit under section 8 for the recovery of possession of that property.
Dispossession from Tenancy
An action for recovery of possession against a stranger can also be maintained by a tenant. So, the tenants can file a suit for a declaration that he was a lessee.
Similarly, the landlord can also maintain an action if the dispossessor has not acknowledged the status of a tenant. The landlord may sue him even though the dispossessor acknowledges him as a landlord if the former is not willing to accept him as a tenant.
Possessory Title
A person remaining in peaceful possession can retain such possession against anyone except the lawful owner. It means that he can recover possession from anyone except a lawful owner under this section. An invalid possession is even good as against a trespasser. A possessory title is transferable and heritable.
Purpose of Section 8
A person a peaceful possession on a claim of ownership can maintain an action for recovery of possession against another having no title. Although the former also has no title to the property. He will succeed based on his possessor title.
Three Actions
Section 8 of the Specific Relief Act, 1877 provides three distinct actions. These are as follows;
- A suit based on the title of ownership
- A suit based on the possessory title
- A suit based on the previous possession
Limitation Period
A suit under section 8 of the Specific Relief Act. 1877 can be filed within 12 years.
RECOVERY OF POSSESSION OF IMMOVABLE PROPERTY U/s 9 (SUMMARY PROCEEDINGS)
It is the method to provide a summary remedy to the plaintiff to seek the restoration of possession from the defendant within six to 6 months of illegal recovery of possession by the defendant. In this suit, there is no need to refer to the title of the plaintiff and defendant. It is purely a possessory suit in which the status of the party is irrelevant.
Who Can Avail the Remedy?
Any person who was in legal possession before dispossession may sue. In other words, the possession must have been such as the law recognizes. The question of title is irrelevant under this section & the Specific Relief Act, of 1877.
Lawful Possession
The possession of the plaintiff must be legal and he must establish it. Juridical possession means legal possession in a more impressive form. It is a possession that is based on some right and not a possession obtained by mere force or fraud.
Immovable Property
There must be some immovable property for which the suit is being filed. The term immovable property has been defined in the General Clauses Act. According to section 3/26) of the General Clauses Act, immovable property means;
- Any land
- Any profit
- Things arising out of the land
- Things attached to the earth
Without Consent
It is also an important element of section 9 that the plaintiff must be dispossessed without consent. The plaintiff must be dispossessed against his will land without due course of law The plaintiff in such cases, has to prove his previous possession over the suit property.
Without due Process of Law
It is also a vital element of section 9 of the Specific Relief Act 1877 that the plaintiff must be dispossessed without adopting the due process of law. The due process of law means that he must be dispossessed without the regular proceedings, civil or criminal by the Civil or Criminal Court.
Recovery of Possession
The possession contemplates exclusive acts of dominion The Court will see whether the plaintiff had the suit property six months before the date of the suit. Section 9 says nothing about the nature of the possession enjoyed by the person dispossessed tenant wrongfully dispossessed can recover possession under section 9.
No Bar as to the Title
Section 9 provides the favour to the plaintiff that he does not have to prove his title of the property in Court. The plaintiff will recover possession if he sues within six months from the date of dispossession.
LIMITATION PERIOD
The limitation period for filing the suit under section 9 of the Specific Relief Act 1877 is 6 months.
EXCEPTION
Section 9 is also subject to certain exceptions. These are as follows;
- Only a true person can file the suit for possession
- No suit can be brought against the decree of the court
- No suit can be brought against the action of the central or provincial government
PRE-REQUISITES OF SUIT FOR POSSESSION
Suit to immovable Property: In a possessory suit, the suit must relate to immovable property.
Person to file suit: The suit must be filed by a person who is illegally dispossessed.
Limitation Period: The suit must be filed within the limitation period. It must not be time-barred.
Illegal Dispossession: The dispossession must be otherwise than the due course of law.
Not against Central or Provincial Government: The suit must not be against the federal or provincial government
Entitlement to Restoration of Possession: The plaintiff is entitled to restore the possession.
DIFFERENCE BETWEEN BOTH SECTIONS
The following are the differences between section 8 and section 9 of the Specific Relief Act 1877.
As to the Period of Limitation
The period of limitation under section 8 is 12 years and the period of limitation under section 9 is six 6 months.
As to Title
A title to a third party is a defence under section 8. On the other hand, the title under section 9 can be invoked against the Government.
As to Decree
The judgment-debtor can file an appeal against the order passed in the suit filed under section 8. However, no appeal ties against the decree passed in a suit filed under section 9.
As to Remedy
The remedy under section 8 is regular in nature and the remedy which is granted under section 9 is summary in nature.
As to Dispossession
Dispossession is not an essential of section 8 but dispossession is a key element of section 9 of the Specific Relief Act, 1877.
REMEDY BY MUNICIPAL CORPORATION
In a suit for recovery of possession by a licensee forcibly dispossessed by the Municipal Corporation. It was held that in such a case the licensee forcibly dispossessed has two remedies with him. These are as under;
- He can file a suit against Municipal Corporation Authorities under section 64 of the Easement Act
- He can file a suit under section 9 of the Specific Relief Act
CONCLUSION
The proceedings under section 8 are regular. On the other hand, the proceedings under section 9 are summary in nature. No appeal lies against a decree passed under section 9. However, an appeal lies against a decree under section 8.
FAQs
Discuss the procedure for recovering immovable property under the Specific Relief Act.
(2019-A, 2015-A, 2013-S)
Explain the procedure for recovery of possession of immovable property where a person is dispossessed from his possession.
(2018-A, 2017-A, 2016-A, 2012-A)
