RECOVERY OF SPECIFIC IMMOVABLE AND MOVABLE PROPERTY

PRELIMINARY NOTE:

Every citizen in a civilized society has a right to own and possess the property. However, where the person is entitled to possession and dispossessed against his consent from immovable and movable property; may recover by filing a suit under the Specific Relief Act.
Part II and Chapter I of the Specific Relief Act 1877, Sec 8 and 9 deals with the recovery of possession of immovable property and Sec 10 and 11 deals with the recovery of possession of movable property.

 

RECOVERY OF SPECIFIC IMMOVABLE PROPERTY:

There are three types of actions which can be brought in law for the recovery of specific immovable property:

• i. A suit based on title by ownership;
• ii. A suit based on possessory title; and
• iii. A suit based merely on the previous possession of the plaintiff, where he has been dispossessed without his consent, otherwise than in due course of law.

These remedies can be obtained by the regular procedure provided by the provisions of C.P.C 1908 and by the summary procedure provided by Section 9 of the Specific Relief Act 1877.

 

1. REGULAR PROCEDURE: (SEC: 8)

“A person entitled to the possession of specific immovable property may recover it in the manner prescribed by the Code of Civil Procedure.”

Case Law Held:

The word ‘entitled to possession’ means having a legal right to title to possession on the basis of ownership of which the claimant has been dispossessed.

The section in simple words provides that any person who is lawful owner of immovable property can get the possession of such property by due course of law. It means that when a person is entitled to the possession of specific immovable property he can recover the same by filing the suit as per provisions of CPC.
Section 8 of the Act declares that in a suit for the recovery of immovable property by person ‘entitled to’; provisions of Order XXI, Rules 35 and 36 of CPC would apply.

 

2. SUMMARY PROCEDURE: (SEC: 9)

Section 9 of the Specific Relief Act provides the summary procedure for the recovery of possession of immovable property and enables a person to regain the possession of immovable property of which he has been dispossessed without his consent or otherwise than in due course of law.

“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.

Nothing in this section shall bar any person from suing to establish his title to such property and to recover possession thereof.

No suit under this section shall be brought against the 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.”

 

I. OBJECT:

The main object of Section 9 is to discourage forcible dispossession on the principle that disputed rights are to be decided by due process of law and no one should be allowed to take law into his own hands, however good his title may be.

 

II. REQUISITES OF SUMMARY PROCEDURE:

• a) Judicial possession of the plaintiff at the time of dispossession:

The plaintiff must establish his judicial possession at the time of dispossession.

“Possession means legal possession which may exist with or without actual possession and with or without a rightful origin.”
Judicial possession is not equivalent to lawful possession. If a person has the possession of property as a fact and once he becomes settled as such, it is enough for the purpose of relief under Section 8, irrespective of his being without any right to the same or mere trespasser.
Possession may be actual i.e. physical or constructive.

• b) Dispossession of the plaintiff without his consent otherwise than in due course of law:

For the application of this section, the dispossession must be without the consent of plaintiff or against the process of and operation of law invoked by the ordinary method of Civil Court.

• c) Dispossession must be of ‘immovable property’:
• d) Dispossession has not been made by the Government, but by any other person
• e) Under this Section, an order or decree is final in the sense that it is not open to review or appeal, although it is subject to revision by High Court.

 

DIFFERENCE BETWEEN REGULAR AND SUMMARY PROCEDURE:

Point	Section 8	Section 9
Nature of relief	Sec.8 provides the regular procedure for the recovery of possession of immovable property under the provisions of C.P.C 1908; it is not a summary proceeding.	Sec. 9 provides the summary procedure which is speedy in nature.
Basis of claim	In regular procedure, claim is based on title of immovable property.	In summary procedure, claim is based on possession. No proof of title is required, and even rightful owner may be precluded from showing his title to the land.
Period of limitation	Limitation for filing of suit u/s 8 is 12 years.	Limitation for filing a suit u/s 9 is 6 months within the time of dispossession.
Importance of Relief	Regular procedure provides the general remedy which can be subject of delay.	Summary procedure provides the speedy relief.

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RECOVERY OF POSSESSION OF MOVABLE PROPERTY:

 

1. REGULAR PROCEDURE:

Regular procedure entitles a person to bring a regular suit for the recovery of possession of movable property if he has right to the same at the time of action for detenue.
Suit can be filed under Order 20, Rule 10 of CPC and the form of the plaints are laid down in Schedule I and Appendix A of CPC.
Where the Court decrees delivery of such property, the decree shall also state the amount of money to be paid in alternative, if delivery cannot be had.

According to Section 10 of Specific Relief Act 1877:

“A person entitled to the possession of specific movable property may recover it in the manner provided by the Code of Civil Procedure, 1908.”

Explanation 1: A trustee may sue under this section for the possession of movable property to the beneficial interest in which the person for whom he is trustee is entitled.
Explanation 2: A special or temporary right to the present possession of movable property is sufficient to support a suit under this section.

 

2. SUMMARY PROCEDURE:

Summary procedure provides equitable relief which entitles a person to recover the specific movable property itself from the defendant who is not the owner thereof in cases where the property has a peculiar value or association and cannot be adequately compensated in terms of money.
The relief under this section can only be granted against a person having the possession/control of the particular article claimed by the plaintiff.

According to Section 11 of Specific Relief Act 1877:

“Any person having the possession or control of a particular article of movable property, of which he is not the owner, may be compelled specifically to deliver it to the person entitled to its immediate possession, in any of the following cases:-

(a) When the thing claimed is held by the defendant as the agent or trustee of the claimant;
(b) When compensation in money would not afford the claimant adequate relief for the loss of the thing claimed;
(c) When it would be extremely difficult to ascertain the actual damage caused by its loss;
(d) When the possession of the thing claimed has been wrongfully transferred from the claimant.

 

1. OBJECT:

The object of this section is to provide special remedy so that persons having the possession or control of particular articles of movable property, although not their owners, may be compelled specifically to deliver them to the persons entitled to their immediate possession.

Possession is the foundation of that suit, though a suit is not competent under this section against one who is the owner of the movable property. Possession and control of the defendant must therefore be clearly alleged in the plaint and proved.

 

2. REQUISITES TO RECOVER POSSESSION OF MOVABLE PROPERTY THROUGH SUMMARY PROCEDURE:

In order that Section 11 may come into operation, the following ingredients must exist:

1. The defendant has possession or control of the particular article claimed;

2. Such article is movable property;

3. The defendant is not the owner of the article;

4. The plaintiff is entitled to immediate possession; and

5. Any one of the conditions laid down under clauses (a) to (d) of Section 11 must exist.

 

Provisions of Section 11 are applicable in the following situations only:

• a) When such property is held as agent or trustee of the property.
• b) When compensation is not an adequate relief for the loss to the plaintiff.
• c) When ascertainment of actual damage is not possible.
• d) When possession of the property is wrongfully transferred from the plaintiff.

➤ In case of situations under (a) and (b), burden of proof is on the plaintiff and under (c) and (d), burden is on the defendant.

 

3. DIFFERENCE BETWEEN REGULAR AND SUMMARY PROCEDURE FOR THE RECOVERY OF MOVABLE PROPERTY:

Section 10 and Section 11 both speak of the recovery of movable property. However, the point of difference between the two are:

Basis	Section 10 (Regular)	Section 11 (Summary)
Nature of Relief	Regular procedure is of general nature in which nature of property and relationship between the parties is independent.	Summary procedure is of special character which depends upon the nature of the property.
Basis of claim	In regular procedure, relief claimed under Section 10 is for the possession of movable property and in alternative for compensation equal to the value of property.	In summary procedure, relief under Section 11 is for delivery of movable property (specific movable property).
Liability	In regular procedure, a suit to recover possession can be maintained against the owner of property.	In summary procedure, Section 11 does not contemplate a suit against the owner.

 

CONCLUSION:

The provisions of the Specific Relief Act, 1877 provide a robust legal framework for protecting possession rights — both of immovable and movable property.
Sections 8 and 10 deal with regular procedures that uphold legal ownership and offer remedies through standard civil suits.
Sections 9 and 11, on the other hand, provide summary and equitable remedies to protect mere possession in specific circumstances.

The aim is to ensure that possession, whether rightful or settled, is not disturbed unlawfully or forcibly, and that disputes are resolved through legal process, not self-help.