Section 5 versus Section 6: Recovering Immovable Property

The Act gives two routes to recover possession of land, and telling them apart is a staple of the subject. Section 5 is the proprietary suit: the plaintiff recovers on the strength of his title. Section 6 is the summary possessory remedy: a person dispossessed without his consent and otherwise than by due process may recover possession quickly, without proving title at all. This note explains each in its own right, compares them, works through an example, and shows how they fit together.

Figure: Section 5 and Section 6 compared, from the basis of the claim to the effect of the decree, and how they fit together

1. Section 5 in Its Own Right

Section 5 says, in a single line, that a person entitled to possession of specific immovable property may recover it in the manner provided by the Code of Civil Procedure. Behind that plain sentence lies a proprietary suit resting on title. The plaintiff succeeds on the strength of his own right to possess, not on the weakness of the defendant's; he must prove that he is entitled to possession, whether as owner or under a limited interest such as a lease or a mortgage. It is an ordinary civil suit, tried under the Code, and 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.

2. Section 6 in Its Own Right

Section 6 is a very different animal. It protects possession as a fact, quite apart from title. 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 recover possession by a suit, notwithstanding any other title that may be set up. The object is to forbid self-help: a person may not be thrown out by force, and if he is, the law will restore him and leave the ouster to establish his title by regular suit. The remedy is hedged with limits: the suit must be brought within six months of dispossession; it does not lie against the Government; and no appeal or review lies from an order under the section, though the High Court's supervisory power remains.

3. The Two Sections Compared

4. How the Two Fit Together

5. A Worked Example

Suppose B is in possession of a plot, and A, claiming to be the true owner, evicts B by force one night without going to court. B may sue under Section 6 within six months; the court will restore B to possession on proof that he was in possession and was dispossessed otherwise than by due process, and will not even inquire into whether A is the true owner. A, if he really is the owner, is not left without a remedy: he must now bring a regular suit under Section 5, on the strength of his title, within twelve years, and recover the plot through the process of law. The short-term wrong of forcible eviction is undone at once; the long-term question of ownership is decided in its proper forum.

6. Frequently Asked Questions

Q. What is the difference between a Section 5 and a Section 6 suit?
A. A Section 5 suit recovers possession on the strength of title; a Section 6 suit recovers possession on prior possession alone, without proving title, where the plaintiff was dispossessed otherwise than by due process.

Q. Can a person without title sue under Section 6?
A. Yes. Section 6 protects possession as such, so even a tenant or a person without title who was dispossessed otherwise than by due process may recover possession.

Q. What is the limitation for each?
A. Section 5, twelve years under Article 65; Section 6, six months from the date of dispossession.

Q. Does a Section 6 decree decide ownership?
A. No. It only restores possession. The true owner, or a person who lost, may still sue on title under Section 5, which Section 6(4) preserves.