Possession versus Injunction

A suit for possession and a suit for an injunction answer opposite situations. A suit for possession is for a plaintiff who has lost possession and wants it back. A suit for an injunction is for a plaintiff who still holds possession and wants to keep it. Choosing the wrong one is fatal, because a person out of possession cannot get a bare injunction to put himself back. This note explains each in its own right, compares them, and works through an example, drawing out the dividing line.

Figure: A suit for possession and a suit for an injunction compared, and the dividing line of who holds possession

1. A Suit for Possession in Its Own Right

A suit for possession is brought by a plaintiff who is out of possession and seeks its delivery. It rests on title, under Section 5, or on prior possession, under Section 6, and it yields a positive, executable decree directing the property to be handed over. A title suit is governed by Article 65 of the Limitation Act, twelve years, while a summary possessory suit under Section 6 must be brought within six months. What the plaintiff must show is a right to possess that is better than the defendant's, or, under Section 6, prior possession and dispossession otherwise than by due process.

2. A Suit for Injunction in Its Own Right

A suit for an injunction is brought by a plaintiff who is in possession and seeks to protect it. It asks the court to restrain the defendant from interfering with, or dispossessing him from, the property. It is a preventive relief, not a means of recovering what has been lost. Its foundation is the plaintiff's existing possession, coupled with a clear title or a title that has been, or will be, declared; and it is governed by the law of injunctions in Sections 36 to 42. An injunction protects an existing possession; it does not restore a lost one.

3. The Two Suits Compared

4. The Dividing Line: Who Holds Possession

5. A Worked Example

Suppose A is in possession of a shop and B threatens to break the lock and take over. A still holds possession, so his remedy is an injunction restraining B from interfering with or dispossessing him. But suppose B has already succeeded in ousting A and is now in possession. A can no longer ask for an injunction to keep possession, because he has none; a bare injunction will not put him back. A must now sue for possession, on the strength of his title under Section 5, or, if he was dispossessed otherwise than by due process and acts within six months, under Section 6. The single fact of who holds the shop decides which suit A can bring.

6. Frequently Asked Questions

Q. When should a plaintiff sue for possession rather than an injunction?
A. When he is out of possession and wants it back. A person already dispossessed must sue for possession, on title or prior possession; he cannot get a bare injunction to regain it.

Q. When is an injunction the right suit?
A. When the plaintiff is in possession and wants to keep it; the injunction restrains the defendant from interfering with or dispossessing him.

Q. Can a person out of possession get an injunction to recover it?
A. No. An injunction protects an existing possession; it is not a substitute for a possession suit by one who has already been dispossessed.

Q. What is the limitation for a possession suit?
A. Twelve years on title under Article 65, or six months under Section 6 for the summary possessory remedy where the dispossession was otherwise than by due process.