Specific Relief Act (SRA)
Recovery of Specific Immovable Property: Section 5
The first of the reliefs is the recovery of immovable property. A person entitled to possession of a specific piece of land or building may recover it. Section 5 gives this remedy in one line: he may recover it in the manner provided by the Code of Civil Procedure. Behind that simple sentence lies a proprietary suit resting on title: the plaintiff must show that he is entitled to possession, on the strength of his own right, not merely on the weakness of the defendant's. This note explains Section 5 and how it differs from the summary remedy in Section 6.
Figure: Section 5: what the plaintiff must show, the relation between possession and title, what comes with the decree, and the comparison with Section 6
1. The Provision
Section 5 ▪ A person entitled to the possession of specific immovable property may recover it in the manner provided by the Code of Civil Procedure, 1908. ▪ 'Entitled to the possession'. The plaintiff must have a right to possess, whether as owner or under a limited interest such as a lease or a mortgage. ▪ 'In the manner provided by the Code'. The suit is an ordinary civil suit for possession, tried under the Code of Civil Procedure. |
2. A Suit Based on Title
What the plaintiff must establish ▪ Title or a better right. The plaintiff succeeds on the strength of his own title, not on the weakness of the defendant's. He must prove that he is entitled to possession. ▪ Ownership or a limited interest. Title may rest on ownership, or on a limited interest such as a tenancy or a mortgage that carries a right to possess. ▪ The nature of the suit. It is a proprietary suit: the question is who has the better right to the land. ▪ Limitation. A suit for possession based on title is governed by Article 65 of the Limitation Act, which gives twelve years, running from when the defendant's possession becomes adverse to the plaintiff. |
3. Possession and Title
Nair Service Society Ltd v K. C. Alexander AIR 1968 SC 1165 A person in settled possession of land can maintain a suit to recover it, and can resist eviction, against everyone except the true owner. Prior possession is itself a good title against a mere trespasser or wrongdoer. The true owner alone can displace the possessor, and even he must do so in due course of law, not by force. |
- Possessory title. Against a trespasser, prior possession is enough; the plaintiff need not prove ownership.
- Against the true owner. To recover from the person with the real title, the plaintiff must prove a better title.
- Settled possession protected. A person in settled possession, even without title, cannot be evicted except by process of law.
4. Who May Sue under Section 5
Plaintiff | Basis of the claim |
|---|---|
An owner | His ownership and consequent right to possession |
A landlord | His title and reversion, on determination of the tenancy |
A mortgagee | His interest under the mortgage, where it carries possession |
A co-owner | His right to joint possession, or to exclusive possession where he has it |
A prior possessor | His possessory title, good against a trespasser |
5. What May Be Claimed with Possession
i. Mesne profits. The profits the wrongful occupant received, or might with ordinary diligence have received, during the period of wrongful possession.
ii. A declaration of title. A declaration of the plaintiff's title may be sought along with the relief of possession.
iii. A permanent injunction. An injunction to restrain future interference with possession may be joined with the claim.
iv. One suit. Possession, mesne profits, declaration and injunction are often claimed together in a single proprietary suit.
6. Section 5 and Section 6 Compared
Basis | Section 5 | Section 6 |
|---|---|---|
Foundation | Title, a proprietary suit | Prior possession, a possessory suit |
What is proved | A better right to possess | Prior possession and dispossession |
Limitation | Twelve years, Article 65 | Six months from dispossession |
Against the Government | Available | Not available |
Appeal and review | The decree is appealable | No appeal, no review |
7. Frequently Asked Questions
Q. On what basis does a suit under Section 5 succeed?
A. On the strength of the plaintiff's own title or better right to possession, not on the weakness of the defendant's; it is a proprietary suit.
Q. What is the limitation period for a Section 5 suit?
A. Twelve years under Article 65 of the Limitation Act, running from when the defendant's possession becomes adverse to the plaintiff.
Q. Can a person without title recover possession under Section 5?
A. Yes, against a mere trespasser, on the strength of prior possession; but against the true owner he must prove a better title.
Q. Can the true owner forcibly evict a person in settled possession?
A. No. Even the true owner must recover possession in due course of law; a person in settled possession cannot be thrown out by force.
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