Recovery of possession of immovable property

In the matter of immovable property. possession is an important concern as the use of such property depends on the control over the possession, therefore it is important to the recovery of possession of immovable property where someone is dispossessed from his property or when someone is out of his rightful possession in any other reason.

This article will discuss regarding laws and procedures of recovery of possession of the immovable property.

Possession and immovable property

In the matter of any immovable property, i.e land, flat, factory or office space etc its status of ownership is very important. and one of the prima facie of ownership is possession of the property. In our law possession means the physical or actual control over the property and the will to control all aspects of such property.

Now, possession of immoveable property can be legally held other than the titleholder. i.e. Lease, tenant etc. in that case, if they follow the law properly they are the proper possession holder (possessor) thought they are not the owner of such property, moreover, law protects their right to hold and use that property as far as they comply with the law as well as the specific contract via which they become entitled to hold that possession. In cases where the titleholder wants to recover his possession without proper legal procedure, they are entitled to protect their possession.

On the other hand, if any person illegally took possession of any immovable property or any person legally took possession but continuing his possession in illegal means whether in contradiction with law or violating the contract than the titleholder has the right to evict the possessor and regain his control over the property via recovery of possession. But this must be done with the proper application of the law, otherwise, it could cause unnecessary chaos and multitudes of problem may arise from such illegal action.

Recovery of possession of immovable property

Law of Recovery of immovable property.

From the above discussion, we can see to recover the possession of an immovable property certain laws to be followed. Section 8 and section 9 of The Specific Relief Act, 1887 deals with the recovery of immovable property.

Recovery of specific immovable property

Section 8 of SR Act 1887 [and Section 5 of SR Act 1963 of India]

This section articulated,

a person entitled to the possession of specific immoveable property may recover it in the manner prescribed by the Code of Civil Procedure.

If we analyze this section, we can find.

When any person is entitled to possess a certain immoveable property and where he is not in possession due to some illegal action he may proceed to recover such possession following the provisions of the Code of Civil Procedure, 1908.

For example,

Rahim the owner and titleholder of a Flat 2B and he rented the flat to Karim for six months, now Karim is not leaving in the flat even after 10 months. Here Karim violates the contract thus he no longer holds the right to possess this immovable property therefore, Rahim can sue him to recover his possession of the property.

Conditions

The following conditions should be fulfilled in order to succeed the case instituted under this section:

  1. The plaintiff must prove that he is entitled to possess that specific immovable property.
  2. That the plaintiff is not in the possession of the property and currently the property is held by any other person.
  3. That the current possession of the property has been held without the consent of the entitled person.

Manner of recovery of possession

In this section, it only directed us towards code of civil procedure, with this lead we can find that Order 21, Rule 35 & 36 of Code of Civil Procedure, 1908 would be applicable to such recovery of possession of immoveable property.

Period of Limitation

According to Article 142 of the Limitation Act, 1908 plaintiff has to file a suit under section 8 of the SR Act, 1877 in the court within 12 years from the date of dispossessions or discontinuation of the possession of immovable property.

Court fee

In a suit under section 8 of the SR Act, 1877 ad-valorem court fee to be paid.

Further Remedies

Section 8 provides no restriction to prefer an appeal or any review.

Suit by person dispossessed of immovable property

Section 9 of SR Act 1877 [and Section 6 of SR Act 1963 of India]

In the previous section, it dealt with the recovery of property where an entitled person is not in possession but in Section 9 of the Specific Relief Act, 1877 it dealt with the recovery of possession where a person is illegally dispossessed, here the question of entitlement is not relevant.

Let’s have to look to the section, it articulated:

If any person is dispossessed without his consent of immoveable 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.

So, as we can see there are four parts of this section.

  • In the first part, it said, if any person who was in peaceful possession of an immovable property illegally dispossessed without his consent by any other person than that person who is dispossessed or any other person on behalf of him may file a suit for recovery of possession of that immovable property.
  • In the second part, it cleared that any person can sue for recovery of possession, in addition, he can also seek his title in the same suit.
  • In the third part, the section provided this section cannot be applied against the government. And
  • In the last part, it discussed what action can be taken if any party becomes aggrieved after the judgment of this section. No appeal, nor any review shall be applied against the decree or order of this section. therefore only revision at the same court shall be applicable.

This section is not exhaustive one, from other laws and judgment we can bring some more information which must be followed while following this section for remedy.

One of such cases is, Gangadin Vs. Bakul AIR (1950) All 407. In this case, it is held that the effect of this section, therefore, is that if a summary suit is brought within six months, the plaintiff therein who was dispossessed otherwise than in due course of law, will be entitled to be reinstated even if the defendant, who dispossessed him, be the true owner, or a person claiming under him.

Period of Limitation

According to Article 3 of the Limitation Act, 1908 plaintiff has to file a suit under section 9 of the SR Act, 1877 in the court within 6 months of dispossession of the land.

Court fee

In a suit under section 9 of the SR Act, 1877 half of the ad-valorem court fee to be paid.

Remedies

Section 9 provides no appeal, nor any review shall be applied against the decree or order of this section only review is applicable.

Conditions

The following conditions should be fulfilled in order to succeed in a suit instituted under this section for recovery of the possession of immovable property:

  1. The plaintiff was in actual/physical possession of the property.
  2. That the plaintiff has been dispossessed other than the due course of law.
  3. That the plaintiff has been dispossessed without his consent.
  4. That the plaintiff filed the suit within six months of the dispossession.

Advantages of section 9

So if a person is dispossessed he may apply both section 8 & 9 of the specific relief Act but there are some advantages of section 9 over section 8, and they are;

  1. The question of ownership or title is immaterial therefore the entitlement of the property need not be proved.
  2. The trial is in summary in nature.
  3. The burden of proof that lies upon the plaintiff is not so onerous or heavy.
  4. Half of ad valorem court fees to be paid.

Difference

Difference between section 8 and section 9 of the Specific Relief Act, 1877

  Section 8 Section 9
Title Recovery of specific immovable property Suit by person dispossessed of immovable property
Deals with Recovery of possession of the immovable property Recovery of possession of immovable property where dispossessed without in due course of law.
Impact of entitlement Plaintiff must be entitled to possess the immovable property. Entitlement of the property is immaterial.
Procedure Under Order 21, Rule 35 & 36 of Code of Civil Procedure, 1908 Summary trial under the Specific Relief Act, 1877.
Limitation The suit must be filed within 12 years The suit must be filed within 6 months from the dispossession.
Court Fees ad-valorem court fee shall be provided Half of the ad-valorem court fee shall be provided

In the use of section 8 and section 9 of the Specific Relief Act, both are very close in nature though not the same. It’s important to understand their differences and similarities. Moreover, their careful use is required to get the best outcome for a dispossessed person.

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Rayhanul Islam

Rayhanul Islam

Rayhanul Islam is a lawyer by profession, he is also a researcher. Critical thinking is his main focus. He is the founder and Editor in Chief of Law Help BD. He is on a quest to bring positive change to the legal sector of Bangladesh. He promotes legal knowledge and human right concept to the root level. e-mail: rayhan@lawhelpbd.com

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